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Verona Inc. v. Mayor and Council of Borough of West Caldwell

Decided: May 8, 1967.

VERONA, INC., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
THE MAYOR AND COUNCIL OF THE BOROUGH OF WEST CALDWELL, IN THE COUNTY OF ESSEX, BOARD OF ADJUSTMENT OF THE BOROUGH OF WEST CALDWELL AND JOSEPH MARZIALE, BUILDING INSPECTOR AND ZONING OFFICER OF THE BOROUGH OF WEST CALDWELL, DEFENDANTS-APPELLANTS



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.

Proctor

[49 NJ Page 277] This case arises under the zoning ordinance of the Borough of West Caldwell. Plaintiff sought permission to extend its parking lot into an adjoining area zoned for residence and also sought a variance from the rear yard requirements applicable to its commercial building. The Board of Adjustment after public hearing recommended approval of both requests. The Mayor and Council by resolution denied both applications. Plaintiff brought this action in lieu of prerogative writ challenging the denial of its requests. However, at the pretrial conference the application for a variance from the rear yard requirements was expressly withdrawn. The trial judge found for plaintiff and ordered

that plaintiff be granted a special exception for parking as requested. We certified the appeal to this Court before argument in the Appellate Division.

When the plaintiff made application to the Board of Adjustment it was the contract purchaser of some nine acres of land in West Caldwell, part of the tract being in a B-3 Highway Business District Zone fronting on Passaic Avenue near the intersection of that street and Bloomfield Avenue, and the remainder of the tract being in an R-3 Residence Zone. Plaintiff had received a building permit authorizing it to construct on its property in the Business Zone a large building designed for use as a Shop-Rite Market together with a lot designed to provide parking for 192 cars. Plaintiff desired to extend its parking lot 77 feet to the south and 100 feet to the east into the adjoining land which it owned that was zoned for residence use.*fn1 The residential land to the east which plaintiff wanted to use for parking was already bordered on its northerly side by a parking lot for a large shopping center which fronts on Bloomfield Avenue.

At the hearing before the Board of Adjustment, due notice of which had been given to interested parties, plaintiff offered testimony to support its request. A stenographic record was made of the proceedings. Section 601(d)(7) of the West Caldwell zoning ordinance reads:

"Parking areas for business use shall be permitted in adjoining residential zones for a distance not exceeding 100 feet, provided said area is contiguous to the lot upon which the main business building is located; and provided an application is made to the Zoning Board of Adjustment for a special variance and recommendation after hearing upon notice to adjoining property owners as provided by statute in such case made and provided."

The president of plaintiff corporation testified that the application was designed to meet the requirements of this

section.*fn2 The architect who designed the building gave his opinion that a supermarket of the size for which the building permit had been issued should have parking for some 330 cars as would be provided by the requested extension. He said that the smaller lot originally planned, though it might meet the legal minimum for issuance of a building permit, would cause congestion and back-ups in the lot and on the street. Plaintiff's next witness, an expert parking and traffic consultant, gave his opinion that the larger parking lot would not increase the number of cars coming to the market but would relieve traffic problems which would be caused by congestion because of the smaller lot. An expert city planner, who was acquainted with the zoning ordinances of West Caldwell, then testified that the proposed parking lot extension would not have any detrimental effect on the public good or to the intent and purpose of the zoning plan. Finally, a qualified real estate expert gave his opinion that the extension as proposed would not adversely affect the value of nearby residential property.

No expert testimony was presented to contradict the evidence offered by plaintiff. However, several persons owning property in the vicinity voiced their objection to the supermarket generally and to any extension of its effects.

The extension of the parking lot as proposed contained many factors designed to minimize the effects of the lot on adjoining property. Some of these factors were required by the zoning ordinance itself.*fn3 In addition, plaintiff agreed to

set aside as a buffer the last 50 feet of the 150 feet it owned in the residence zone to the east of its property in the business district. This buffer area would keep ...


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