On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket Nos. L-417-03, L-307-07 and L-399-07.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Gilroy and Simonelli.
The primary issue presented by this appeal is whether a planning board has authority to grant an application for site plan approval for a development that is prohibited in the zoning district, by conditioning the approval upon the applicant obtaining a use variance from the board of adjustment or a change in the zoning of the development site. We conclude that a planning board only has jurisdiction to grant site plan approval for a development that is a permitted use in the zoning district.
Defendant Owen Properties is the owner of a nine-acre tract in Independence Township. Owen has contracted to sell this property to defendant Liberty Square.
In 1989, Owen's predecessor in title obtained preliminary site plan approval from the defendant Independence Township Planning Board for construction of a shopping center on the property. At that time, the property was located partly in a residential zone in which commercial uses were prohibited. The Planning Board addressed this prohibition by conditioning the site plan approval upon Owen's predecessor obtaining either a use variance or a change in the zoning of the part of the property located in the residential zone. Owen's predecessor did not apply for a use variance or take any other action to develop the property in accordance with the 1989 site plan approval.
In 2001, after it acquired the property, Owen submitted its own application to the Planning Board for site plan approval for a shopping center. The Board dismissed this application on the ground that part of the property was still "zoned [solely] for residential use, thereby preventing the Planning Board from proceeding with the application on jurisdictional grounds."
In 2003, the Independence governing body changed the zoning of the part of Owen's property that had been zoned residential to commercial uses. As a result of this zoning amendment, a shopping center is now a permitted use on all of Owen's property.
Owen subsequently contracted to sell the property to defendant Liberty Square, which also planned to construct a shopping center. Consequently, Liberty Square undertook to obtain approval from the Planning Board for construction of a shopping center based on the 1989 site plan approval. The reason for the developer's reliance upon the 1989 site plan approval was that the proposed shopping center site is located within the "preservation area" established by the Highlands Water Protection and Planning Act (Highlands Act), N.J.S.A. 13:20-1 to -35, which imposes severe limitations upon development in the preservation area, but provides an exception for development projects that received preliminary or final site plan approval before March 29, 2004, N.J.S.A. 13:20-28(a)(3)(a)(i).
On March 16, 2006, the Independence Zoning Officer issued a letter opinion that "the  approvals for this [shopping center] project are still in force[,]" and that "[a]ny current changes in the approved plan will merely be referred to as amendments and subject to site plan approval." Shortly thereafter, the Independence Planning Board merged with the Independence Board of Adjustment to form a single Land Use Board. See N.J.S.A. 40:55D-25(c).
By resolution approved May 21, 2007, the Land Use Board determined that Liberty Square's site plan was "substantially consistent with the... preliminary major site plan approved by the... Planning Board in ... and that requested changes in the plans... may be accomplished through amendment to the previously approved site plan and that said amended plans will relate back to the 1989 plan approval." By a further resolution approved July 29, 2007, the Board granted Liberty Square amended "final site plan approval" predicated on "the  approved preliminary and final site plan," together with multiple waivers and variances. This approval was conditioned upon "[a]pproval from the [Department of Environmental Protection] and/or Highlands Council of the continued and perfected exemption from the limitations and requirements of the [Highlands Act] and all regulations promulgated thereunder."
Plaintiffs, who own property adjoining the proposed shopping center, brought three actions in lieu of prerogative writs challenging the adoption by the Independence governing body of an ordinance rezoning the part of defendant's property formerly zoned residential to commercial and the Land Use Board's resolutions granting the approvals required for construction of Liberty Square's proposed shopping center. Plaintiffs' complaints claimed, among other things, that the Planning Board lacked jurisdiction to entertain the 1989 application for site plan approval by Owen's predecessor in title and that the approval of that application was therefore "void ...