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

May 6, 2009

ONE GREENWOOD, L.L.C., A NEW JERSEY LIMITED LIABILITY COMPANY, PLAINTIFF-APPELLANT,
v.
GLEN WILLOW PARTNERS, L.L.C., AND THE TOWNSHIP OF MONTCLAIR PLANNING BOARD, DEFENDANTS-RESPONDENTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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, ...


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