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Lincoln Heights Association v. Township of Cranford Planning Board

321 N.J. Super. 355, 729 A.2d 50 (App. Div. 1999)

ZONING; CONDITIONAL USES—A conditional use applicant can request appropriate variances from a planning board with respect to deviations from general design standards for the zone.

A supermarket filed a preliminary and final major site plan application for the conditional use of a grocery store on property located within a zone where a grocery store was listed as a conditional use. The application was made to the planning board. In this particular municipality, a site plan applicant seeking to operate a grocery store as a conditional use must satisfy six specific standards in the municipal ordinance. There was no question that the supermarket applicant satisfied the first five. The sixth provision, which was the subject matter of this appeal, provided that for a grocery store to satisfy the conditional use requirement, “other yard and building requirements shall comply with [zoning] standards… .” The applicant sought four waivers from the development requirements and standards relating to (1) lighting, (2) signage, (3) a 10% landscaping coverage requirement for the parking lot area, and (4) the size of parking stalls. Under the municipal ordinance, those requirements were termed “design standards: specific” and were included in a section of the ordinance titled “Development Requirements and Standards.” The municipality’s zoning requirements or standards were set forth in a different article of the ordinance titled “Zoning.” The application was approved.

A citizen’s rights group argued to the Court that the application should have been presented to the zoning board of adjustment because the applicant did not satisfy specific criteria for the conditional use of a grocery store within the zone. They accused the supermarket applicant of deviating from general zoning requirements, which were incorporated by reference as a specific conditional use requirement unique to a grocery store. Because deviations from specific conditional use requirements require a “d” variance, the protestors claimed that only the board of adjustment had authority to grant that variance. The supermarket argued that the planning board had jurisdiction to hear the matter because the waivers that were granted related to general development design requirements and not the general zoning requirements. In the alternative, the applicant argued that the unsatisfied section of the municipal ordinance was not a specific conditional use requirement, but was rather a reference to the general requirements for all uses within the specific zone and relief from such a requirement may be properly granted by a planning board in the form of a waiver or a “c” variance.

The Court held that to determine where jurisdiction fell in this case, it needed to determine the type of requirements for which waivers were sought and granted. The protesters contended that the requirements were specific to the conditional use of a grocery store. The supermarket contended those requirements were general zoning conditions from which relief could be had from the planning board. It was clear to the Court that the standards from which the applicant sought waivers were site plan design standards which the planning board had authority to waive when it found that adherence to those standards was impracticable. Although a planning board may not grant exceptions from the provisions of zoning ordinances, it is empowered to grant exceptions from design standards set forth in subdivision and site plan ordinances. The Court was not concerned that the municipality’s land use and zoning requirements were part of a single ordinance because the subdivision and site plan development requirements and the design standards were in one article of the ordinance and the general zoning requirements were part of another, discrete article of the ordinance.

The protestors also complained that a board member’s parents resided in a senior citizen complex a block away from the proposed supermarket site and that approval of the site plan application personally benefitted the board member insofar as the member would no longer need to assist in the shopping for the member’s elderly parents. Although no local government officer or employee may act in an official capacity in any matter where the member, or immediate family members, or a business organization in which the member has an interest, has a direct or indirect personal involvement, that requirement also requires that such involvement “might reasonably be expected to impair his objectivity or independence of judgment.” Here, the board member’s parents did not have an interest in any property in close proximity to the proposed supermarket site. Though the board member’s parents had an interest in shopping for groceries at the proposed supermarket site, that interest could not reasonably be compared with the disqualifying interests found in prior cases.

The protestors further argued that two of the board’s members should have recused themselves because, as candidates for the municipality’s governing board, they actively supported a new supermarket for the municipality. The Court found that the campaign statements cited by the protesters did not address this particular supermarket. Expression and support of a general proposition during a prior political campaign does not invalidate a subsequent decision by a campaigner acting in his or her official capacity as a planning board member.

The protestors also contended that the planning board made no finding that the conditional use neither substantially impaired the use and enjoyment of the surrounding properties nor substantially impaired the character of the area. Although the protestors cited the municipal ordinance for these requirements, the Court held that the municipal ordinance could not serve to shift the balance of powers set by the Legislature between a planning board and a zoning board and could not, therefore, include the negative criteria as a specific requirement to be satisfied in order to establish a conditional use. The Court emphasized that a conditional use is a permitted use in the zone as long as all conditions are satisfied. If all the conditions are met, the applicant has no reason to seek a variance from the terms of the zoning ordinance. A “negative criteria” requirement would transform a conditional use into a non-permitted use and would transform a conditional use application into an application for a use variance. This was not the intention of the Legislature. Consequently, the supermarket applicant was not required to show, and the planning board was not required to consider, any negative criteria in this case.


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