Does approved site plan have to conform with new zoning code

Visitor Question: A storage facility submitted a site plan in 1996. They are going to erect the final building this year, 2019. We are being told that they do not have to comply with the zoning regulations that changed in 2011. Is this a true statement?

Editors Respond: We usually don't answer this type of question, since the answer is a frustrating "it depends." But your case offers some good learning opportunities.

What we understand from your question is that a site plan for a multi-building storage facility was approved in 1996. At that time, obviously it should have been conforming to the zoning ordinance, or it would not have been approved.

If the site plan was only "submitted" in 1996, but your zoning ordinance or other ordinance that covers the site plan process requires that each building be "approved" as the precise drawings for said building are submitted, then our take on the situation would be that the latest proposed building indeed should conform to 2011 zoning changes. We are being a little cautious in our language because there could be even further local laws that would make our answer incorrect. But most places would have only a zoning ordinance, possibly a freestanding site plan review and approval ordinance, and a building code that would pertain to new storage facilities.

Now let's take the more likely case that a site plan was both submitted and approved in 1996, and that the 2019 proposed building conforms to that site plan. Barring provisions to the contrary in the zoning ordinance and any other ordinance that governs approved site plans, the 2019 building can proceed as planned. This is what your local government is telling you.

But in our answer in that last paragraph, again there is a big red flag that your local ordinances could address directly what happens if an approved site plan does not conform to the latest laws.

So in the final analysis, we have to say the answer to your question is still "it depends." It depends on what your local ordinances say.

Another interesting aspect of this question is whether site plan approvals should have an expiration date. We certainly advocate including such a provision in whichever law a municipality enacts to enable site plan review. An approval that is 23 years old shouldn't be allowed to govern today's development, since the goals of the comprehensive plan and its implementing ordinances certainly should have be re-evaluated and changed as necessary more frequently than 23 years.

So municipal leaders and planning commissioners who might be reading this, how about a five-year expiration on site plan approval? If you think that is too harsh, you could provide for an automatic extension after review if the site plan still meets all ordinances and codes.

By allowing developers and property owners to delay so long in implementing an approved site plan, you really are negating the whole benefit of having a site plan approval process. We think site plans should imply that all buildings shown will be constructed. In the case of a storage facility, it might not matter much if all buildings are constructed, but if you allow a retail center or residential area to remain half-built over many years, you really haven't given the community the successful development envisioned by the site plan.

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