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Phillis v. Rider

A-2159-03T3 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; PROCEDURE—It may not be necessary to have extensive hearings on a parking variance application if the overall development plan had been before the land use board and had been previously approved so long as the essential information about the project was available to persons interested in the application and they had an opportunity to participate in the variance hearing.

After a hearing, a planning board granted amended preliminary and final site plan approval for a developer’s project located on property in a major commercial district. The most significant variance involved parking requirements. The planning board allowed the developer to provide only five parking spaces, instead of five-and-one-half spaces, per 1,000 square feet of space. An objector brought an action challenging the board’s approval. The lower court dismissed the complaint.

On appeal, the objector contended that the planning board’s hearing had not been properly conducted. The Appellate Division disagreed. It held that although the hearing was not as extensive as one would expect, the development project had been before the planning board at prior public hearings and an approval had already been granted. The public was not prevented from knowing the terms of an important consent order or from participating in the hearing or any previous public hearing.

The opposition also argued that the developer failed to satisfy its burden of proof with respect to the parking variance that had been granted pursuant to N.J.S.A. 40:55D-70c(2). Such variances must advance the purposes of the Municipal Land Use Law (MLUL). One of the purposes of the MLUL is to encourage the location and design of transportation routes that promote the free flow of traffic and discourage locating such facilities and routes where they would result in congestion or blight. The Court noted that, in this case, the major contention between the developer and the planning board dealt with traffic. There had even been prior litigation arising out of the planning board’s earlier demand for off-tract improvements to address traffic conditions. At the hearing itself, the developer’s traffic expert testified that the developer’s “five parking spaces per 1,000 square feet” plan was consistent with industry standards and was in fact recommended by the Urban Land Institute and the Institute of Transportation Engineers. The expert also testified that there were no substantial detriments. With that as background, the Court found that the record supported the lower court’s decision and upheld the grant of the variances as having been grounded in the purposes of zoning with benefits that substantially outweighed any detriments.


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