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Four M. Properties LLC v. Newark Central Planning Board

A-2964-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; VARIANCES; PARKING — A land use board can properly decide to grant a parking variance in a designated growth center where ready access to mass transit is available and the board can accept parking spaces in order to satisfy a zoning ordinance’s parking requirements.

As part of an application submitted to a municipal planning board, a developer sought a variance to construct a parking facility having a capacity of approximately 20 percent less than what was required under the zoning ordinance. A neighbor complained that allowing the variance would add to the area’s parking problems. It also argued that parking lifts, which were being used to provide many of the parking spaces, did not create the kind of parking spaces contemplated by the zoning ordinance. Despite the testimony of the neighbor and others, the board granted the application. The board’s resolution recited that even if the board had taken into account the ratio of parking spaces to dwelling units, the number of parking spaces was still “suitable for an urban development in an area with good transit service.” It further noted that the municipality was a “designated growth center” where the municipality was desirous of promoting new housing development for all income levels, including middle and higher income individuals able to pay market rates for housing. Moreover, the availability of mass transit, and the prevalence of walk-up traffic in similarly situated commercial properties, were all factors considered by the board in reaching its decision. It concluded that the variance grant benefitted both the community and the region and advanced the purposes of the Municipal Land Use Law (MLUL). The neighbor appealed.

The lower court affirmed, holding that parking lift spaces could be considered “parking spaces” and that the board did not act arbitrarily, capriciously or unreasonably. First, it noted that although no law existed on the legal definition of a parking stall, the plain meaning of the statute “says that a parking stall has to be of a certain size.” Since the lift spaces satisfied the size requirements in the ordinance, the court found that a parking stall could be a lift space. Second, it found that the neighbor had the burden of proof to show that the board acted improperly failed to satisfy its burden.

On further appeal, the Appellate Division affirmed by applying the same standards as the lower court did to uphold the board’s action. It stated that prior to granting a “c(2)” variance, a planning board must: (a) determine whether a deviation from the zoning ordinance requirement would advance the purposes of the MLUL; (b) weigh the benefits of the deviation against any detriment (“positive criteria”); and (c) consider whether the variance would substantially impair the intent and purposes of the zone plan and zoning ordinance or cause substantial detriment to the public good (“negative criteria”). The Court was satisfied that the board properly considered the parking variance, not in isolation, but in the context of its effect on the development proposal, the neighborhood, and the zoning plan. The Court declared that the board identified several aspects of the MLUL which would be advanced if the variance were granted, and noted that there was substantial testimony offered to establish that the negative implications of the parking variance would not cause substantial detriment to the public good. Finally, it construed the language of the ordinance as not prohibiting the use of lift parking spaces since it did not expressly exclude a lift space as a parking space.


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