On appeal from the Superior Court, Law Division, Middlesex County.
The opinion of the court was delivered by Pressler, J.A.D.
This is an action in lieu of prerogative writs in which plaintiff Yehuda Barsel appeals from a judgment of the Superior Court, Law Division, affirming the municipal denial of his application for relief in respect of parking for his medical office.
The premises in question are located in a single-family residential zone on New Dover Road in Woodbridge. While the land development ordinance no longer permits a combined medical-office and residence in that zone, the premises have been so used for many years as a nonconforming use established and maintained by plaintiff's predecessor in title, a Dr. Eugene Gosselin. Dr. Gosselin used approximately 90% of the premises for his medical practice, and plaintiff, since his acquisition of the property in 1975, has made no greater residential use thereof.
The medical practice in Dr. Gosselin's time was an extremely active one, generating about 15 patient visits an hour during office hours and employing a substantial number of medical and paramedical staff. The extent of this activity required a substantial amount of convenient parking. The only on-site parking consisted of a U-shaped driveway accommodating seven or eight cars but in such a manner that only the first and last cars parked therein would be able to exit. Consequently, the bulk of the parking was in the public street. At some time towards the end of Dr. Gosselin's occupancy, and apparently as a result of the complaints of neighbors, the municipality adopted an ordinance prohibiting street parking on New Dover Road in the vicinity of the office. In order to accommodate his parking needs, Dr. Gosselin established a gravelled parking area at the front of the premises where cars could be parked perpendicularly to New Dover Road. That parking area lies substantially within the public right of way of New Dover Road although not on any paved portion thereof. In time the gravel surface disappeared and the parking area was apparently simply a grassy strip. Plaintiff acquired the property with these parking arrangements and continued them.
The present controversy began in 1979 when plaintiff was issued a summons on a municipal complaint challenging the legality of his use of the perpendicular parking area on the unpaved portion of the public right-of-way. At that point plaintiff attempted to solve his parking problems by applying to the board of adjustment for a variance permitting him to expand the nonconforming use by creating in effect an appropriate on-site parking lot. Apparently by rider to the application, he also sought permission to continue to use the perpendicular parking area either in addition to or alternatively to the proposed on-site parking lot. The municipality's planning board and planning department reported to the board of adjustment in generally favorable terms respecting the on-site parking lot. Following public hearing, however, the board of adjustment voted to deny the application in its entirety. Plaintiff appealed to the municipal council, which concurred in the board of adjustment's determination. This action challenging the determinations of both the board of adjustment and the council ensued. The Law Division sustained the municipal decisions and plaintiff appeals.
Both in the trial court and before us, plaintiff argues that the municipal denial of the application in respect of the on-site parking lot was arbitrary and capricious since his proofs before the board of adjustment clearly demonstrated compliance of his proposal with both the affirmative and negative criteria of N.J.S.A. 40:55D-70(d). Our review of the record persuades us, however, that there was an adequate evidential basis for the denial. It is our view that the adverse findings of fact respecting that portion of the application as set forth in the resolutions of both municipal bodies were adequately supported by the evidence and, in turn and as a matter of law, adequately supported the ultimate adverse determination. Accordingly, we affirm the Law Division as to that claim for the reasons orally stated by the trial judge.
Plaintiff's second contention relates to his application for permission to continue to use the perpendicular parking area in the unpaved right-of-way. It is his position that neither the resolution of the board of adjustment nor of the governing body addressed that portion of the application and that there was hence no denial thereof. Thus, he argues, he is entitled to relief pursuant to the automatic approval provisions of N.J.S.A. 40:55D-10(g). This argument is not without merit. The resolutions do not, in fact, expressly address the existing perpendicular parking area, and it is legitimately arguable that the respective denials of relief are not construable as encompassing that part of the application. We do not, however, reach that question because we are satisfied that there is a more fundamental bar to the relief therein sought.
Plaintiff asserts that the jurisdiction of the board of adjustment to grant his perpendicular parking area request is not within its variance relief power conferred by N.J.S.A. 40:55D-70 but is, rather, based upon the specific grant of statutory jurisdiction conferred by N.J.S.A. 40:55D-34. We agree that the board's power to grant the relief requested is either conferred by that section or not at all. We conclude, however, that that section is not applicable to this request and hence that the board of adjustment lacked the authority to grant it.
N.J.S.A. 40:55D-34 provides in full as follows:
For purpose of preserving the integrity of the official map of a municipality no permit shall be issued for any building or structure in the bed on any street or public drainage way, flood control basin or public area reserved pursuant to section 23 hereof as shown on the official map, or shown on a plat filed pursuant to this act before the adoption of the official map, except as herein provided. Whenever one or more parcels of land, upon which is located the bed of such a mapped street or public drainage way, flood control basin or public area reserved pursuant to section 23 hereof, cannot yield a reasonable return to the owner unless a building permit is granted, the board of adjustment, in any municipality which has established such a board, may, in a specific case, by an affirmative vote of a majority of the full ...