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One Greenwood, L.L.C. v. Glen Willow Partners


May 6, 2009


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7390-07.

Per curiam.


Argued March 31, 2009

Before Judges Wefing, Parker and Yannotti.

Plaintiff One Greenwood, L.L.C. appeals from a judgment entered by the Law Division on July 22, 2008, which affirmed the grant by defendant Township of Montclair Planning Board (Board) of preliminary and final site plan approval and variance relief to defendant Glen Willow Partners, L.L.C. (Glen Willow), and dismissed plaintiff's complaint with prejudice. For the reasons that follow, we affirm.

Glen Willow is the owner of property at 131 Glenridge Avenue in the Township. The property is an irregularly-shaped lot consisting of about 1,867 square feet of land. It is located within the Township's C-1 Central Business Zone. The property fronts on Glenridge Avenue and is situated between the post office and a commercial building that is currently used as a martial arts center.

Prior to 2006, a one-and-one-half story building was located on the property, and the building was used as an automobile parts supply store. In early 2006, the Township's planning and building department issued demolition and construction permits permitting Glen Willow to demolish the existing structure and build a new 3,864 square foot, two-story loft and commercial/retail building that would be used as an art gallery.

After Glen Willow commenced demolition of the building, the Township's construction official issued a stop work order. Glen Willow was told that the demolition and construction permits had been issued in error and it required site plan approval and variance relief for the new building. Glen Willow appealed that decision to the Essex County Construction Board of Appeals and the Township's Board of Adjustment.

In April 2007, while its appeal was pending, Glen Willow filed an application with the Board for preliminary and final site plan approval and variance relief. Glen Willow amended the application in June 2007, reducing the square footage of the building to 3,510 square feet. Glen Willow sought relief from the provisions of the zoning ordinance which require eighteen off-street parking spaces for a development that includes 3,510 square feet of space.

The Board considered Glen Willow's application at public meetings held on June 11, 2007 and July 9, 2007. Glen Willow presented testimony from Harlan Waksal (Waksal), who is one of the Glen Willow partners. Waksal stated that Glen Willow planned to use the new structure as an art gallery. He said the gallery would be open two or three days a week, between the hours of 10:00 a.m. and 5:00 p.m.

Waksal said that, on a quarterly basis, the gallery may have special exhibits in the early evenings or during regular working hours. Waksal stated that he expected that "one to two people" would visit the gallery "at any given time during the week[.]" He added that twenty or twenty-five people might visit the gallery "for major exhibits on Thursday, Friday and Saturday."

Joseph Staiger (Staiger), an engineer who specializes in transportation matters, also testified. Staiger stated that he calculated that there were eighty-eight on-street parking spaces "within convenient walking distance" of the Glen Willow property. He said that he had performed "parking counts" during the times that the gallery would be the most active and found that at least twenty-one to fifty-nine parking spaces were not being used at any given time. Staiger testified that, in his professional opinion, there was an adequate amount of on-street parking for the building's proposed use as an art gallery.

Peter Steck (Steck), a professional planner, also testified for Glen Willow. Steck stated that Glen Willow would qualify for a hardship variance because the property is small and narrow and did not lend itself to off-street parking.

Steck also testified that there were many benefits to granting the variance. He said that a two-story structure would be "more usable over its lifespan" and would have a better appearance than the previous structure. The art gallery would also advance the goal of promoting the Township's downtown area as an arts center. In addition, the gallery will generate very little traffic and will not require extensive parking. Steck added that, due to the narrowness of the property, there was no room for turn-around aisles, and drivers parking on-site would be compelled to back out onto Glenridge Avenue.

Plaintiff is the owner of certain property situated directly across from the Glen Willow property. Plaintiff opposed Glen Willow's application. Cary Heller, one of plaintiff's managing members, testified that there had recently been parking problems in the area and in its parking lot. Heller said that persons who were not going to plaintiff's building would use plaintiff's parking lot when there is a special event in the area. Heller stated that once the building is constructed it could be used for another use, such as a restaurant or learning school. Heller said that the area would suffer "if people can't park." Plaintiff did not present any expert testimony.

After hearing argument by the attorneys for plaintiff and Glen Willow, the Board voted to grant the application and thereafter adopted a resolution dated August 13, 2007, which memorialized its decision. The Board found that the variance was justified under either N.J.S.A. 40:55D-70c(1) or (2). The Board found that

[d]ue to the narrowness and size of the property, as well as the exceptional situation that the existing building covers virtually the entire property, the strict application of the on-site parking regulation would result in peculiar and exceptional practical difficulties and exceptional and undue hardship to the applicant.

The Board further found that the proposed structure would have a better appearance than the prior structure and therefore would advance various purposes and goals of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163.

The Board also found that the benefits of the variance would substantially outweigh any detriments. The Board stated that [t]here is no substantial detriment to the public good. The auto parts store is eliminated. The gallery brings a desired use and continues economic renewal in the Central Business District. The project improves a small building on a small lot, makes the building's second floor more usable, and will improve the pedestrian frontage in the Central Business District.

The Board added that there are a substantial number of on-street parking spaces within a reasonable walking distance of the property. It concluded that "there is sufficient on-street parking available to the property."

The Board additionally found that there was no substantial impairment to the intent and purpose of the Township's zone plan and zoning ordinance. It noted that the project was consistent with the goals in the Township's 2006 Master Plan Reexamination Report, which favored revitalization of the Central Business District and support for the arts.

Plaintiff One Greenwood, L.L.C. thereafter commenced an action in the Law Division seeking, among other things, an order reversing the Board's decision. The trial court considered the appeal on July 11, 2008, and placed its decision on the record on that date.

The court determined that plaintiff had not shown that the Board acted arbitrarily, capriciously or unreasonably in granting Glen Willow's application. The court found that the Board's decision to grant the variance from the on-site parking requirements was justified under N.J.S.A. 40:55D-70c(1) or (2) and there was sufficient credible evidence to support the Board's decision. The court also rejected plaintiff's argument that the Board erred by failing to impose a condition on its approval, which would preclude Glen Willow from changing the use of the building without further approval.

The court entered an order dated July 22, 2008, affirming the Board's decision and dismissing plaintiff's complaint with prejudice. This appeal followed. Plaintiff argues that: 1) the Board should have imposed conditions limiting future use of the building; 2) the Board lacked a factual basis for granting the variance; and 3) the trial court erred by reaching the wrong conclusion in this case.

We are convinced from our review of the record that plaintiff's arguments are entirely without merit. We therefore affirm the trial court's order of July 22, 2008, substantially for the reasons stated by Judge Alfonse J. Cifelli in his thorough and well-reasoned decision from the bench on July 11, 2008. R. 2:11-3(e)(1)(A) and (E). We add the following.

The standard of review that applies when a court reviews a decision of a local zoning board is well-established. A zoning board's decision may be reversed only if shown to be "'arbitrary, capricious or unreasonable.'" Cell S. of N.J. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). A board's decision is presumed to be valid and the party challenging the decision has the burden of proving its invalidity. Ibid. (citing New York SMSA Ltd. P'ship v. Bd. of Adj., 324 N.J. Super. 149, 163 (App. Div.), certif. denied, 162 N.J. 488 (1999)). A court may not reverse the decision of a local zoning board unless the decision is a clear abuse of discretion. Id. at 82 (citing Med. Realty Assocs. v. Bd. of Adjustment, 228 N.J. Super. 226, 233 (App. Div. 1988)).

In this appeal, plaintiff argues that the trial court erred by affirming the Board action because the Board should have imposed a condition on its grant of the variance limiting the future use of the building as an art gallery. Plaintiff says that, while there might be sufficient off-site parking for an art gallery, there may be insufficient off-site parking should the building be put to some other use. We are not persuaded by these contentions.

As the trial court recognized, a zoning board has the discretion to impose a condition upon the grant of a variance, provided the condition is "'directly related to and incidental to the proposed use of the land,'" and it is imposed "'without regard to the person who owns or occupies it.'" Orloski v. Planning Bd. of Borough of Ship Bottom, 226 N.J. Super. 666, 672 (Law Div. 1988) (quoting 3 Rathkopf, The Law of Zoning and Planning § 40.02 (4th ed. 1987)), aff'd on other grounds, 234 N.J. Super. 1 (App. Div. 1989). To be valid, such a condition may "'(1) not offend against any provision of the zoning ordinance; (2) not require illegal conduct on the part of the permittee; (3) be in the public interest; (4) be reasonably calculated to achieve some legitimate objective of the zoning ordinance; and (5) not be unnecessarily burdensome to the landowner.'" Ibid. (quoting Rathkopf, supra, at § 40.02).

We are satisfied that the trial court correctly found that the Board did not abuse its discretion by refusing to impose the condition upon its grant of the variance. In its decision from the bench, the court observed that revitalization of the Central Business District was one of the goals of the Township's master plan and zoning ordinance.

The court stated that the uses permitted in that district are "consistent with that vision and goal." The court aptly noted that, to impose a condition precluding the owner from converting the use of the building to another use permitted under the ordinance would be inconsistent with the ordinance.

The court further found that such a restriction could not be deemed to be imposed for the purpose of advancing a legitimate objective of the ordinance "in light of the clear and unequivocal provisions to the contrary[.]" Moreover, the court noted that there was no evidence that any similar restriction had ever been imposed on any landowner in the area. Thus, the court correctly found that the condition sought by plaintiff "would be discriminatory and . . . unnecessarily burdensome to the landowner."



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