In a recent case an application was filed before the Municipal Land Use Board for approval to build a commercial enterprise. The Board was concerned about the impact of the commercial use upon the adjacent residential neighborhood and wanted to deny the applicant, but didn’t have the votes. So, a board member made a motion for an approval with a condition which, if violated, would void the approval. With the condition added to the resolution the vote passed and the application was approved. Now the applicant wants to remove the condition based upon what it believes is proof that the board’s concerns are unwarranted, i.e. that negative impact(s) on the residential neighborhood will not occur.
Should this new application be characterized as a “change of circumstances”? To me it sounds like an application for reconsideration, based upon information which the board was unaware of when it imposed the condition.
In my opinion, section 11 of the New Jersey Municipal Land Use Law (MLUL) mentions an application to modify a condition, albeit in the context of notices. Regardless, I believe that this application should be for an amended approval. The application would be based on changed circumstances. Essentially the applicant should argue that the condition as imposed is no longer necessary and retaining the condition is arbitrary, capricious and unreasonable. Having said that, I’d typically recommend the applicant pick up the phone and speak to the board planner, attorney and/or land use administrator to seek the path of least resistance on how they suggest the application be filed for consideration.
To discuss NJ zoning and land use, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Zoning / Land Use Attorney