On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5535-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Messano and LeWinn.
Defendants Kossuth Rome, LLC (Kossuth) and Aris Fashions, Inc. (Aris) submitted an application to the Newark Central Planning Board (Board) to develop certain property located in Newark's First Industrial District. Plaintiffs Four M. Properties, LLC (Four M), the Searchers, LLC (Searchers) and Gregory Packaging, Inc. (Gregory) are the owners and lessors of certain properties located within 200 feet of the proposed development. Plaintiffs appeal from the January 7, 2009 final judgment of the Law Division dismissing their challenge to the Board's approval of defendants' application. The focus of plaintiffs' dispute at all times has been with respect to the parking variance granted by the Board. For the reasons that follow, we affirm.
Defendants submitted their application to the Board on May 7, 2007. The application was submitted by Kossuth for property owned by Aris.*fn1 The property in question is "an irregular shaped parcel with a total of 84,622 square feet," which defendants sought to clear of its existing structures, "merge and subdivide into two lots with 41,911 and 42,710 square feet respectively." The parcels would have various permanent easements, which would create and provide access to a joint parking area. Each lot was to be the site of a six-story condominium building, one of which would have 110 residential units as well as retail and commercial spaces ranging in size from 1381 to 2800 square feet on the ground floor, and the other would contain only a residential structure with ninety-five units. This use was permitted under the controlling municipal zoning ordinance.
As part of the joint infrastructure, defendants sought to construct a partially covered parking facility with the capacity for 265 vehicles. This parking facility would be designed for valet service for the majority of the spaces, because most of the spaces would be in a lift system. There would be eighteen non-lift spaces with direct driver access to serve as valet cueing areas, and there would be nine direct driver access spaces positioned exclusively for the commercial area. The project would have three driveway access points of which two would serve the residential component and one would serve the commercial component.
Given the density of the proposed development, the pertinent zoning ordinance covering the First Industrial District required 327 parking spaces. Because the irregular shape of the property "caus[ed] a . . . deficiency in the amount of parking provided[,]" defendants sought a variance to allow them to provide only 265 parking spaces.
At a hearing before the Board on May 7, 2007, defendants presented the following evidence. Brian Intindola, a traffic engineer, testified that based upon census data, and the "availability of mass transit in the area[,]" as well as the fact that the retail space will predominantly be frequented by "walk-up traffic[,]" the "parking provided would meet the anticipated demand." Intindola based his opinion on "a number of studies" generated by the Institute of Transportation Engineers.
John McDonough, a professional planner, testified that additional street parking was available in the area immediately surrounding the proposed project; he emphasized that the variance sought was "a de minimis parking variance[,]" underscoring that of the 327 required parking spaces, 265 spaces would be provided, which constituted "roughly 81 percent in compliance with [Newark's] Ordinance." McDonough also explained that urban ordinances typically require 1.25 parking spaces per dwelling unit and defendants' proposed plan provided for 1.29 spaces per unit. McDonough cited census data to the effect that "in Newark, . . . we have 80 percent of the population hav[ing] one car, 50 percent carpool, and of course, there are many other means of transportation, other than a . . . motor vehicle." McDonough noted that the site "is within fifteen walking minutes of Penn Station[,]" and considered that to be "a very key and important finding, with respect to the mitigation of the variance." McDonough continued:
To apply the balancing test, we look at the positive criteria. We see the promotion of the general welfare, . . . by providing housing. We look at the promotion of a desirable visual environment . . . . Weighing that against the negative, we see no functional detriments, no visual detriments . . . on balancing extreme weight on the positive here.
This traditional mixed use redevelopment [is] exactly what planners are looking for, and from my standpoint, a very, very positive reinvestment in your community.
Plaintiff Gregory and other objectors appeared at the hearing, through counsel. Gregory leases property from the Searchers and Four M to maintain a juice packaging business across the street from the proposed development. The facility is active twenty-four hours a day.
Counsel asserted that the traffic which would result from the development would interfere with Gregory's shipping and receiving activities. Counsel questioned defendants' architect, Nicholas J. Netta, who testified that of the 265 parking spaces, 238 would be lift spaces, not surface spaces, consisting of 119 spots which would each hold two cars, vertically stacked. When asked if the lift spaces met the definition of "parking space" under the municipal zoning ordinance, Netta stated: "Under the terms of the Zoning Ordinance, if it meets the same . . . parking space size criteria . . . [w]e believe that it satisfies the requirement."
Netta added that although the ordinance "doesn't directly mention lift spaces as a parking space," he believed that the proposal "satisfies the requirements of . . . a parking space." Netta also pointed out that each of the lift spaces would have dimensions of nine by eighteen feet, while the zoning ordinance requires parking spaces in general to have dimensions only of eight-and-a-half by eighteen feet.
Counsel advised the Board that he was trying "to establish that these are not really parking spaces, as defined by the Newark Zoning Ordinance. They are something other than parking spaces. They are spaces where cars are lifted into the air." Counsel argued that the zoning ordinance "does not contemplate these to be parking spaces, and therefore the variance being sought is really an extraordinary variance in terms of the number of parking spaces that would be required . . . ."
The Board then called upon Alex Danbach, Principal Planner for Newark, who stated that although a lift parking spot may not meet the strict definitional requirements under the zoning ordinance, nonetheless the proposed construction site is in an urban area and the lift spots satisfy the need for parking which is the true purpose and intention of the zoning ordinance. Danbach noted that lift parking is "a fairly common method of addressing parking needs in an urban setting."
When counsel sought to have Edward P. Gregory, the president of Gregory, testify, the Board chair refused, stating that "the record is clear that your client objects. He's stated that for the record." The chair indicated that he wished to hear comments from the general public.
The Board voted eight to two to grant the variance. This vote was memorialized in a resolution adopted on May 21, 2007.
On July 9, 2007, plaintiffs filed a Complaint in Lieu of Prerogative Writs, challenging the Board's grant of the parking variance, claiming that the Board's failure to allow plaintiffs to present evidence at the meeting violated the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. Plaintiffs claimed the Board had "impaired [their] right to due process[,]" and sought to have the May 21, 2007 resolution declared "null, void and of no effect . . . ."
On January 8, 2008, the trial judge issued a decision remand[ing][the matter] to the . . . Board for two purposes: (a) to permit Mr. Gregory an opportunity to be heard, which opportunity was denied to him as a result of time exigencies at the hearing and (b) to allow the Board to reconsider the matter with the benefit of Mr. Gregory's testimony and to enact a new resolution that is specific enough to meet the requirements of the [MLUL].
Pursuant to that remand order, the Board conducted additional proceedings on January 22, 2008. At that hearing, Gregory's president testified that his business occupies property across the street from the proposed development, and that approximately 120 to 150 forty-eight to sixty-five-foot-long semi-trailer trucks pick up products from his ...