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Valenti v. Planning Board

Decided: October 17, 1990.

RICHARD VALENTI, LEO SHEARN AND JOHN ARMSTRONG, AS TAXPAYERS OF THE CITY OF ABSECON, INDIVIDUALLY AND AS REPRESENTATIVES OF AN UNINCORPORATED ASSOCIATION KNOWN AS CONCERNED FOR ABSECON, PLAINTIFFS-RESPONDENTS/CROSS-APPELLANTS,
v.
THE PLANNING BOARD OF THE CITY OF ABSECON, DEFENDANT/CROSS-RESPONDENT, AND SHOPPING CENTER PROPERTIES, INC., DEFENDANT-APPELLANT/CROSS-RESPONDENT



On appeal from Superior Court, Law Division, Atlantic County.

Pressler, Baime and DiMartino. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

This is an action in lieu of prerogative writs arising out of the grant of dimensional variances by defendant Absecon Planning Board ("board") pursuant to N.J.S.A. 40:55D-70(c)(2). The variance permitted defendant Shopping Center Properties, Inc. ("applicant") to deviate from various of the applicable bulk limitations of the zoning ordinance in the development of its property for a shopping center. Plaintiffs, neighborhood objectors, brought this action challenging the board's decision on both substantive and procedural grounds. Defendant applicant appeals from the ensuing judgment of the Law Division, which reversed the Planning Board's grant based on the trial judge's conclusion that the board had exceeded the scope of its statutory discretion in granting the variances. Plaintiffs cross appeal from the trial court's rejection of their procedural and technical challenges. We concur with the trial judge's conclusion that the board's proceedings in the respects challenged were sufficiently regular. We conclude, however, that the Planning Board's application of N.J.S.A. 40:55D-70(c)(2) constituted an appropriate exercise of discretion entitled to judicial deference. We therefore reverse the order setting aside its grant of relief to the applicant.

The premises in question, a tract of 16.05 acres, fronts on U.S. Highway 30, also known as the White Horse Pike, and is located in the Design Commercial District of Absecon. As stated by the Absecon zoning ordinance:

The purpose of the Design Commercial District is to encourage major commercial concentration with easy highway access with sufficient controls and within an overall design motif.

Permitted uses, on minimum lots of six acres, include retail stores, restaurants, banks, theaters and professional and business offices. The applicant proposes to develop its tract as a shopping center containing one large anchor store and a number of smaller retail units. It filed its initial application for site plan approval and variance relief pursuant to N.J.S.A. 40:55D-70(c)(2) in October 1988. Its consultants thereafter participated

in four work sessions with the board and its professional consultants, as a result of which various modifications in the original plans were made to meet board suggestions and recommendations. Public hearings were held in February and March, 1989, resulting in the resolution which is the subject of this action.

The proposed development is in large measure consistent with the ordinance's dimensional requirements, including lot coverage.*fn1 The applicant required, however, five bulk variances, four which were of de minimus nature. First, the height limitation for buildings is 35 feet. The only proposed deviation from this limitation is the 38-foot height resulting from the planned construction of several cupolas, added to the plan for reasons of aesthetics and architectural consistency. Second, the free-standing highway signs, while conforming to area limitations, are proposed to be 30 feet high rather than the 25 foot limitation, an excess found by the board to render the signs more legible and visible in view of the scope and nature of the development. Third, the building access limitation requires 20 feet of open space in front of the building and 12 feet at the rear and sides. These areas are permitted to include pedestrian walkways and landscaping. Although one facade of the proposed anchor store complies, the others do not strictly comply. The board nevertheless concluded, based on the planter and landscaped areas proposed, that "while the strict provisions of this section have not been met, the intent to provide an open area adjacent to the buildings has been met while maintaining the overall design requirements of the site." Fourth, instead of

the required 650 parking spaces required for retail use, the plan proposes 605. The board concluded that:

The ordinance requirements for the number of parking spaces does not take into consideration the reduction in the number of spaces required where a commercial project increases in size and both generally accepted industry and professional standards support a need for less than the 605 spaces provided.*fn2

The fifth variance sought was from the building length requirements of the ordinance. The deviation requested and granted was substantial, and it was this deviation which underlay the trial court's reversal. In sum, the ordinance limits building length to 100 feet or eight units in a row, with no more than two contiguous units without variation in setback. The anchor store of the proposed development has a projected rear facade of 367 feet. As to the other structures, the eight-unit requirement has been met, but contiguous units vary up to five rather than two. Since the units are, however, all 25-foot wide modules, consolidation of use might result in ...


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