The opinion of the court was delivered by: Hayser
HAYSER, J.T.C., temporarily assigned
In this, the third and final phase of this consolidated litigation, the issue presented is whether defendant Board of Adjustment wrongfully denied site plan approval to defendant/crossclaimant, Revlon, Inc. *fn1 Essential facts as to the approval denial are not in dispute.
On or about March 23, 1992, defendant/crossclaimant filed an application for a use variance, certain bulk variances and site plan approval. Hearings as to the use variance request commenced on June 10, 1992 and continued until November 11, 1992, when the applicant requested and was granted bifurcation of its application. *fn2
On December 2, 1992, a resolution was adopted by defendant Board by a vote of 6-0, wherein it was acknowledged that "the applicant has also bifurcated its application pursuant to R.S. 40:55D-76 requesting only a use variance," and was granted the use variance requested, but, as acknowledged by defendant/crossclaimant at the November hearing, the approval was conditioned upon further site plan review by the Board.
Thereafter, without any new public notification, the hearings as to the site plan commenced on January 13, 1993, and continued until April 13, 1994. *fn3 Certain events occurred during the pendency of the site plan review that eventually impacted upon defendant Board's decision. On April 13, 1993, the Township's Planning Board adopted a Master Plan update which culminated in the adoption of Township Ordinance No. 94-5 on March 8, 1994. This affected defendant/crossclaimant's desired use of its property following the granting of the use variance.
On May 11, 1994, the Board adopted by a 6-0-1 vote a resolution denying site plan approval. Thereafter, defendant/crossclaimant filed an amended answer in plaintiffs' then pending actions to assert a crossclaim challenging defendant Board's denial of the site plan approval.
Defendant/crossclaimant takes issue with the following findings and Conclusions set forth in defendant Board's resolution of denial:
1. At paragraphs 1 and a and c, on pages 5 and 6 of its resolution, the defendant Board reached certain Conclusions as to on-site traffic circulation and its negative impact upon off-site traffic conditions concerning Centerville Road, Union Avenue and Route 35, both as to the short and long-term impacts of defendant/crossclaimant's project upon those roadways in the Township.
2. At paragraph b, on page 5 of its resolution, the defendant Board concluded that a parking waiver could not be granted due to the failure to identify tenants and their parking needs for the project.
3. Finally, and in summary, at paragraph 2, on page 6 of its resolution, the defendant Board concluded that the application could not be granted due to the failure of the defendant/crossclaimant to satisfy the negative criteria as it related to "the substantial delays, traffic congestion and safety deficiencies which will occur on Centerville Road and the Applicant's proposed internal roadway," with also the adoption of the Master Plan update and Township Ordinance No. 94-5. *fn4
Defendant/crossclaimant essentially argues that the granting of a use variance "protects" it both from a subsequent ordinance amendment eliminating a desired developmental use, and negation by the Board considering the impact of such an ordinance upon a subsequent site plan approval request.
Defendant/crossclaimant, in support of its argument, cites, among other reported decisions, Farrell v. Estell Manor Zoning Bd. Of Adj., 193 N.J. Super. 554, 475 A.2d 94 (Law Div. 1984), wherein the court concluded, in discussing the nature of a use variance, that its result, in essence, is to create a conforming use and the duration can be unlimited, running with the land. But see, ...