Before Judges A. A. Rodr¡guez, Bilder and Lefelt.
The opinion of the court was delivered by: Lefelt, J.A.D., t/a
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Morris County.
Randolph Joint Venture (Joint Venture) applied for a floor area ratio (FAR) variance, N.J.S.A. 40:55D-70 (d)(4); several (c) variances, N.J.S.A. 40:55D-70(c); and design waivers and site plan approval for the construction of a supermarket and bank on a 7.59 acre tract located in a commercial zone in Randolph Township, where both banks and supermarkets were permitted uses. Randolph Town Center Associates (Associates), a potential competitor of Joint Venture, owning property about 1/4 mile East of the proposed tract, opposed Joint Venture's application.
Following numerous hearings, which began on April 25, 1996 and extended over one year, the Randolph Township Board of Adjustment on September 11, 1997 adopted a detailed resolution approving Joint Venture's application. Associates then filed a complaint in lieu of prerogative writs which came before Judge Stanton who eventually issued a final judgment dismissing the complaint and upholding all of the Board's decisions granting the various variances, waivers and site plan. Associates appeals from Judge Stanton's judgment and claims the Board made various errors in approving the development. We reject all of Associates' claims and affirm.
We believe that of all the arguments Associates advanced, only its objection to the grant of the floor area ratio (FAR) variance requires additional Discussion. Associates contended that to satisfy the "special reasons" requirement, Joint Venture under Medici v. BPR Co., 107 N.J. 1 (1987), had to prove that the property was particularly suited to a higher than permitted FAR. We, like Judge Stanton, disagree with that contention. Accordingly we detail only those facts pertinent to the issue on which we write.
The property consists of a trapezoid-shaped parcel located at the Northeast corner of Sussex Turnpike and Millbrook Avenue in Randolph Township. The proposed development, which was approved by the Board, was located in a B-1, Neighborhood Business District zone and was to contain a bank and a Grand Union supermarket. Under the Town Zoning Ordinance, banks and supermarkets were permitted uses in the B-1 zone. While the subject property was close to other properties located in zones which permit floor area ratios of .18 to .25, the B-1 zone does not permit a FAR in excess of .13.
Under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to - 129, FAR is calculated by taking the sum of the area of all floors of buildings or structures in square feet and dividing by the total area of the site in square feet. N.J.S.A. 40:55D-4. Thus, the FAR regulates the square feet of floors and not height. Therefore, under the FAR standard, a building could be built either on one level or multi-levels and contain the same number of square feet for FAR purposes. Essentially, the FAR measures the percentage of total floor area to the entire site.
The proposed Grand Union supermarket would have a floor area, as defined by State standards, of 45,281 square feet. The proposed bank contains an area of 2,700 square feet. According to the MLUL, N.J.S.A. 40:55D-4, the development would have a .142 FAR, and be .012 in excess of the Ordinance. Even if the bank were removed from the development, the supermarket alone would still require a FAR variance.
Under the Township Ordinance, which excludes floor area for stairwells, elevator shafts, mechanical rooms, janitor rooms and loading areas in calculating FAR, the development had a .133 FAR, and was .003 over the Ordinance FAR.
FAR restrictions, like restrictions on density, bulk or building size, are all commonly employed techniques for limiting the intensity of use of property. Commercial Realty and Resources Corp. v. First Atlantic Properties, 122 N.J. 546, 561 (1991). FAR standards are generally utilized to regulate commercial uses, whereas density restrictions, which limit the number of dwelling units per acre, achieve the same effect for residential development. William M. Cox, New Jersey Zoning and Land Use Administration Sec. 7-7.1 at 181 (1999).
Variances from either FAR restrictions or limits on density are governed by subsection (d) of N.J.S.A. 40:55D-70 because they can pose a greater threat to the zone plan and public good than other dimensional controls, which are regulated by subsection (c). Commercial Realty, supra, 122 N.J. at 562-63.
The application for a FAR variance, therefore, is governed by N.J.S.A. 40:55D-70(d)(4), which authorizes a variance for "an increase in the permitted floor area ratio as defined [by N.J.S.A. 40:55D-4]" upon a showing of special reasons (the positive requirement) and provided that the variance can be granted "without substantial detriment to the public good and will not substantially ...