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Wachovia Bank, N.A. v. Planning Board of the Borough of Westwood

A-4039-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING — There is nothing arbitrary about a land use board’s policy judgment that a large commuter parking lot is not a particularly desirable use for its central business district.

A bank sought to build in the central business district (CBD) zone of a municipality. The bank’s building would have two drive-through transaction lanes, a drive-through ATM lane, and a bypass lane. The applicant designed the site to accommodate a second permitted use on the property in the form of a large, long-term commuter parking lot. The building would sit two feet back from the adjoining sidewalk. Both the bank and drive-through feature were permitted uses in the CBD at the time the planning board considered the application. Further, the CBD zoning allowed for two principal permitted uses on a single property.

The planning board denied the application by a vote of five to four. It believed that the lot was large enough for the applicant to build a structure that conformed to the zoning ordinance’s twenty foot setback requirement from the sidewalk. The board also reasoned the proposed commuter lot would add no benefit to the CBD. The bank filed suit, contending the board pressured the company into withdrawing a variance-free application and persuaded it to propose a series of different applications, each of which required variances to satisfy board concerns. The bank argued to the lower court that the municipality was poised to adopt an ordinance prohibiting banks with drive-through teller lanes, and in order to deter that vote, the bank decided to revise its plan to address a need for parking in the municipality. The board indicated that its members were very split over the series of revised plans, but agreed the plans were not fully engineered and no study had been submitted showing a need for parking in the area.

The lower court ruled the board acted in an arbitrary and capricious manner in denying the application. It reversed the denial, conditioned upon the municipality accepting an easement or license from the bank for public parking on the site. The court concluded the board wanted the bank closer to the street and had safety concerns with having a driveway in front of the bank. It referred to the board’s own planner who suggested that placing the building closer to the street would be more in keeping with the character of the area. The court further noted a master plan reexamination report, which the board had adopted, specifically referred to a shortage of public parking in the CBD. It found that the type of public parking recommended by the company was a permitted use in the CBD zone provided that an easement or license was given to the municipality. The court also held the application should not be subject to a later-enacted ordinance prohibiting drive-through teller windows.

The Appellate Division, after reviewing the transcript of the board hearing as well as the board’s resolution, reversed the lower court’s decision, and reinstated the board’s denial of the application. The Court said there was no evidence to support the bank’s claim that it was induced to abandon its first conforming application in favor of an application that required variances. It said the board was not bound to its planner’s opinions, and found there was nothing arbitrary about the board’s policy judgment that a large commuter parking lot was not a particularly desirable use for this CBD lot. The Court would not second guess the board’s conclusion that the applicant’s offer to create a commuter parking lot did not justify allowing the bank to build its building, on a large piece of property, only two feet from the sidewalk instead of twenty feet back as the zoning ordinance required.

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