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Perk’s Café, LLC v. Point Pleasant Beach Board of Adjustment

A-3274-04T1 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; VARIANCES — A court may not disturb a municipal board of adjustment’s denial of a variance application unless it can be shown that the board’s decision was arbitrary, capricious or unreasonable.

A company leased property for a restaurant. The property was located in a residential zone and therefore the operation of the restaurant was a non-conforming use. It had a twenty-one space parking lot where the restaurant’s patrons parked for free. The company sought to transform the free parking lot into a “pay” parking lot and applied to the municipality’s board of adjustment for a variance. In support of its application, the company asserted that the “pay” parking lot would increase available parking in the area. The company’s experts testified that the parking lot would not damage the character of the neighborhood and would alleviate traffic congestion. Several local residents opposed the application contending that the “pay” parking lot would increase traffic congestion in the area. The board ultimately denied the application on the basis that the nonconforming use would impair the intent and purpose of the local zoning ordinance. The company then filed an action in lieu of prerogative writs challenging the board’s decision. A trial was held after which the lower court upheld the board’s decision on the basis that it was not arbitrary, capricious or unreasonable. It found that the board properly considered and weighed the evidence presented as it related to the site’s location. The board acknowledged the benefits that the lot would bring to the area, such as meeting the great need for additional parking in the area. It then weighed the benefits of a “pay” parking lot against the fact that the lot would create a new nonconforming use within the residential zone. After evaluating these factors, the board concluded that the addition of a few parking spaces in the area was not enough to reduce the existing parking and congestion problems. The Court noted that one board member found that the late hours of the parking lot would have a negative effect on the surrounding residential neighborhood. It also found that the company failed to demonstrate special reasons for the variance and that the fact that the lot would offer more parking in area where it was needed was not per se a special reason for granting the variance. On further appeal, the Appellate Division affirmed the lower court’s decision for substantially the same reasons set forth by the lower court.


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