Bleznak v. Evesham Tp.
| Decision Date | 16 August 1979 |
| Citation | 170 N.J.Super. 216,406 A.2d 201 |
| Parties | Donald A. BLEZNAK, S. David Brandt and Golden Land Co., a partnership, Plaintiffs, v. TOWNSHIP OF EVESHAM, a body politic, Defendant. |
| Court | New Jersey Superior Court |
S. David Brandt, Haddonfield, for plaintiffs (Brandt, Haughey, Penberthy & Lewis, Haddonfield, attorneys).
William S. Ruggierio, Marlton, for defendant (Ruggierio & Freeman, Marlton, attorneys).
Plaintiffs own 12.6 acres of land with a nursery school building constructed thereon in Evesham Township, Burlington County, New Jersey. They were granted a preliminary site plan approval for their nursery school use on August 17, 1978. Final approval was obtained on August 23, 1978. The findings of fact and conclusions of law incorporated in the resolution of preliminary approval provided:
The subject area is zoned GB; the Board finds that the intended use for the existing 21/2 story building is of the same general character as the uses allowed in said zone within the meaning of Code Section 160-27G. The Board further finds that the entire 12.6 acre area may be allotted to the proposed site in satisfaction of the one-acre minimum requirement of Code Section 160.28A.
At the time plaintiffs were granted their approvals their property was situate in the general business zone as established by the zoning ordinance. In January 1979 that ordinance was amended and plaintiff's property became a part of the R-1 Residential District of the township. Defendant takes the position that its revised ordinance controls the use of plaintiffs' property; that their nursery school undertaking may continue as a nonconforming use, but may not be expanded or otherwise changed except in conformity with the residential provisions of the ordinance. Plaintiffs argue to the contrary. They contend that the use for which they obtained approvals is protected as to their entire 12.6-acre site for a period of two years under N.J.S.A. 40:55D-49 and 52 which provide:
Preliminary approval of a * * * site plan * * * shall * * * confer upon the applicant the following rights for a 3-year period from the date of the preliminary approval:
(a) (t)hat the general terms and conditions on which preliminary approval was granted shall not be changed, including but not limited to use requirements * * * except that nothing herein shall be construed to prevent the municipality from modifying by ordinance such general terms and conditions of preliminary approval as relate to public health and safety. * * * (N.J.S.A. 40:55D-49)
The zoning requirements applicable to the preliminary approval first granted * * * shall not be changed for a period of 2 years after the date of final approval. * * * Notwithstanding any other provisions of this act, the granting of final approval terminates the time period of preliminary approval. (N.J.S.A. 40:55D-52)
The statutory permission to modify conditions of preliminary approval relating to public health and safety is of no moment here. Nothing before me indicates any modification for such purposes. Were that so, it would not matter: plaintiffs have received final approval and the statute permits modification of terms and conditions only with respect to Preliminary approval.
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...the statute is to give a developer a reasonable period of protection from changes in the zoning law. Bleznak v. Township of Evesham, 170 N.J.Super. 216, 219, 406 A.2d 201 (Law Div.1979). Thus, an applicant who receives preliminary site-plan approval for a project is protected under N.J.S.A.......
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Case List
...Crim. App. 2002) Black v. City of Waukesha , 125 Wis. 2d 254, 371 N.W.2d 389 (Wis. Ct. App. 1985) Bleznak v. Township of Evesham , 170 N.J. Super. 216, 406 A.2d 201 (1979) Bloom v. City of Fort Collins , 13 Brief Times Rptr. 1548, 784 P.2d 304 (Colo. 1989) Blue Jeans Equities W. v. City & C......
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