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Millburn Courtyard Associates, LLC v. Planning Board of the Township of Millburn

2006 WL 1413698 (N.J. Super. Law Div. 2006)

ZONING; ORDINANCES—To determine whether an application before a land use board is seeking a variance from a zoning ordinance or is seeking an exception from site plan standards, the entire ordinance must be read as a whole; one can not look at one section or another in isolation.

Over the objections of a landlord in its municipality, a planning board granted site plan approval to two applications with relief from the on-site parking requirements of a local ordinance. The landlord claimed the planning board erred in approving the applications because the applicants failed to satisfy the negative criteria to achieve a variance. The planning board claimed that the approvals were not “variances,” but instead “exceptions” to planning standards set forth for site plan approval. The planning board so contended, even though the applicants themselves stated that they were seeking parking variances, the planning board members called them variances at the hearings, and the architect-planner referred to the application as one for a variance. However, the final written resolutions stated that “exceptions” were granted and that the negative criteria standard only applied to variances, not exceptions. In effect, the planning board treated the applications as ones for site plan approval and not as variances. Thus, according to the planning board, it was not necessary to satisfy the negative criteria.

The planning board argued that the municipality’s zoning provisions were set forth in only one article (Article 6) of the zoning ordinance. It also contended that the site plan requirements, deviations from which did not require satisfaction of the “negative criteria,” were set forth in another article (Article 5) of the zoning ordinance. The board’s logic was that because the off-street parking requirements were not provided in Article 6, but set forth instead in Article 5, they were only an “exception” and no variance was required. The landlord disagreed with the planning board’s assertion that the relief requested by the applicants from the parking standards in Article 5 was limited to one statutory provision. It claimed that the off-street parking requirements were part of a single, integrated zoning ordinance.

The need for an applicant to prove “negative criteria” is a statutory requirement. Thus, when one seeks relief from a zoning ordinance, a variance is required and the applicant must establish, and the board must find, that the elements of proof are met, including the negative criteria. The Appellate Division held that the critical issue was whether the parking requirements in the governing article of the ordinance were considered zoning requirements or site plan standards. The Court reasoned that if the planning board’s theory were correct, the items in Article 5 of the zoning ordinance would only relate to site plan approvals, while Article 6 of the zoning ordinance would contain only items related to the zoning ordinance. If, on the other hand, Article 5 contained items appropriate for zoning, then that would be corroborative of the landlord’s contention that the zoning ordinance was a single, integrated ordinance and the placement in Article 5 of parking requirements did not prove that it was only a site plan design requirement subject to an exception.

Following the Court’s review of the pertinent Articles in the zoning ordinance, the Court could not find a clear line between the two Articles. To the contrary, the Court was persuaded that the entire zoning ordinance was a single, integrated, and comprehensive zoning ordinance. In sum, the Court found no basis for the planning board’s thesis that because off-street parking requirements were included in Article 5 and not in Article 6, only an “exception” would be required for a proposed deviation. Thus, by looking at the zoning ordinance as a whole, the off-street parking requirements became part of the zoning requirements, deviations from which required a variance. Because no such variance was granted, the two approvals were reversed and the matter was remanded to the planning board to reconsider the applications as variance applications.


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