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Witherow v. Burlington Township Planning Board

2010 WL 2991036 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; VARIANCES; DESIGN EXCEPTIONS — Where a municipality chooses to include its parking space size and loading dock requirements in its design standards rather than in its zoning ordinances, an exceptional waiver is available to applicants seeking site plan approval from a land use board.

A landowner sought preliminary and final site plan approval for expansion of an existing retail store. It sought variances to permit impervious coverage of approximately 54.9 percent where 50 percent was the limit. It also sought a design exception from the number and size of the parking places, and a design exception from the number and size of loading spaces.

Hearings were held before the municipal planning board. There, a planner testified that the land use and variances would have a positive effect in that they would comply with smart growth principles and intensify and concentrate necessary uses for the residents of the area. She also testified that the variance from impervious coverage would be only slightly non-conforming, and that the minimal excessive coverage would not have a negative impact on the surrounding properties. Lastly, she testified that the loss of 57 parking spaces would, in fact, promote a desirable and visual environment by allowing for additional green space on the site, and would have no negative impact on the surrounding properties. An engineer testified that the applicant’s design exception for loading spaces of twelve feet in width, rather than the required fifteen feet, was sufficient to satisfy an operational need for loading docks utilizing tractor trailers. The board engineer saw no problem with a design exception for a shortfall in the required parking spaces because historical observations showed the parking lot was substantially underutilized. Further, he saw no problem in slightly reducing the size of the parking space because there was no record of complaints that would show the size of the parking spaces had been a problem. Further, the board engineer concluded the site plan complied with state regulations and with Americans with Disabilities Act requirements. The board granted the application, and was upheld by the lower court upon an objector’s lawsuit.

On further appeal, the Appellate Division affirmed, finding that the lower court properly concluded that the board’s grant of a variance permitting excessive impervious coverage was reasonably reached upon the record. Notably, the planner had testified that the application advanced the potential of the general welfare by introducing a mix of retail, office, industrial, and heavy industrial uses that could strengthen the tax base, ensure Smart Growth, prevent urban sprawl, and meet the needs of residents in the area.

The Court also found that the lower court properly concluded that an exception to the site plan was proper with regard to the off-street parking and loading deficiencies. It held that although the municipal site plan ordinance established parking and loading requirements of 10 foot wide parking spaces and 15 foot wide loading spaces, the municipal government did not choose to include these standards in its zoning ordinance. Therefore, an exception/waiver was available to the applicant. Additionally, the record established that the existing parking lot had a mix of 9 and 9-1/2 foot wide spaces, and included the planner’s testimony that the loss of parking spaces would promote green space on the site and would have no impact on any of the surrounding properties. Further, the engineer testified that 12 feet was more than adequate to satisfy loading operational needs.


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