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Village Supermarkets, Inc. v. Planning Board of the Township of Union, New Jersey

A-6340-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; VARIANCES — When a land use board weighs whether the benefits of a proposed project substantially outweigh any detriment, it may favorably consider an applicant’s proposal to ameliorate a blighted condition, thereby enhancing the property, if the applicant can do so without causing a detrimental impact.

A property owner filed an application for site plan approval and for variances to construct a supermarket building. The owner sought relief from restrictions in the zoning ordinances that: (a) prohibited parking in the front of the property; (b) required the building to be of colonial design; and (c) required any signage to be of colonial design.

One of the owner’s experts testified that front lot parking was a common design in the neighborhood, as evidenced by the drug store next door which also had parking in the front of its building. Another expert testified that the owner’s plan mirrored every building along the same street. He also testified that front parking was safer than having a parking lot in the rear where trucks were navigating toward the loading area.

With respect to colonial design and signage, one of the owner’s experts testified that even though the zoning ordinance required retail buildings and signage to be of colonial design, many buildings within the municipal were of company prototypes or not of colonial design at all. He noted that the drug store next door to the property and the bank immediately to the right of it did not have colonial signage. With respect to deliveries, the owner’s expert testified that there was sufficient room for trucks to maneuver in the parking lot to reach the loading docks and that the property was designed in the most efficient manner to avoid any hardships. Lastly, one of the owner’s experts testified that the project would advance the purposes of the Municipal Land Use Law by enhancing the general welfare. The general welfare would be enhanced by demolishing an old, unattractive, outdated, and unsightly building currently on the site with a new modern building up to contemporary standards.

A neighboring supermarket challenged the variance application. Its traffic expert testified that the proposed supermarket would have a negative impact because the site was not configured to allow large trucks to easily get into or out of the site and that truck deliveries would result in the loss of six parking spaces. The owner’s expert disagreed, arguing that, at most, one parking space would be lost.

The planning board approved the application and the neighboring supermarket sued. It argued that the board’s decision was arbitrary, capricious, and unreasonable. The neighbor claimed that the planning board chose to treat the zoning ordinance as insignificant in allowing the owner to avoid its requirements. It also argued that there was insufficient parking because several spaces would be lost when trucks maneuvered to get to and from the loading docks. With respect to the parking requirements, the owner advised the lower court that the parking ordinance had been amended for retail food establishments with less than 50,000 square feet and only required one parking space per 200 square feet of floor area as opposed to the old standard of one parking space per 150 square feet of floor area. The owner argued that, under the “Time of Decision” rule, the newer ordinance applied, and based on the reduced parking requirement, it had sufficient parking. The lower court affirmed and the neighbor appealed.

The Appellate Division affirmed. It rejected the neighbor’s claim that the board had ignored the Municipal Land Use Law criteria for variances, specifically that: (a) the application refer to a specific piece of property; (b) the purposes of the statute would be advanced by deviating from an ordinance requirement; (c) the variance could be granted without substantial detriment to the public good; (d) the benefits substantially outweigh any detriment; and (e) that the variance would not substantially impair the intent and purpose of the zoning plan and ordinance. The Court noted that the record established that the property, in its present state, was blighted. It also found that the owner’s proposal would not only ameliorate those conditions, but would enhance the property and not cause a detrimental impact.

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