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Four M. Properties LLC v. Newark Central Planning Board


January 27, 2010


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5535-07.

Per curiam.


Argued October 27, 2009

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 plant every week. To reach the loading area, the trucks must maneuver through that street.

Mr. Gregory submitted photographs demonstrating the density of parking in the area in question that he had taken between 12:25 and 12:35 p.m. that day. He further testified that traffic continued to be an issue in the area well into the evening due to the proximity of the Ironbound Recreation Center. Mr. Gregory stated that the parking and traffic situation was "close to crisis here, and we are talking about adding a [three hundred] plus unit apartment complex to this neighborhood."

Plaintiffs presented no expert witnesses, and at the conclusion of Mr. Gregory's testimony the Board agreed to hear from members of the community who had not testified at the first hearing. A single-family homeowner, Rafael Acuavera, testified that "the parking situation in the area is extremely overwhelming, the density of the traffic is getting worse everyday. You have tracker[-]trailers [sic] sixteen wheelers, 40 foot trucks going up and down [the street] already, being that it is already in front of a park and it is a residential area."

Anthony Cabello, the property manager for a retail/wholesale bakery immediately contiguous to the subject property, testified that he has over two hundred employees. He was concerned not only with the parking situation in the area but also that it was "an industrial area and what we are afraid of is that area is changing, what about the industry that provides jobs to the residents [of] the city of Newark?"

Nancy Zach, a homeowner in the adjacent Ironbound section, objected to the size of the project, claiming that the "height of this project[] sets a precedent that is just very negative because it is higher th[a]n everything else around it." She also "echo[ed] what . . . the prior speakers . . . said about the parking and the traffic . . . ."

At the conclusion of the public testimony, the Board voted to "approve the application for preliminary and final approval, minor subdivision and parking variance based on the evidence that was shown and [sic] was positive in their criteria and necessary approval."

The Board memorialized its vote in a resolution adopted on March 3, 2008. While the factual findings in that resolution are virtually identical to the findings in the earlier resolution, the Board included additional language supporting its decision to grant the parking variance. Specifically, the Board stated that, taking into consideration the ratio of parking spaces to dwelling units, the number of parking spaces was still "suitable for an urban development in an area with good transit service." The Board further noted that Newark is a "designated growth center according to the State Development and Redevelopment Plan that is desirous of promoting the development of new housing for all income levels including not only low income individuals but also middle income and higher income individuals able to pay market rates for housing." The Board concluded that the "granting of a parking variance is beneficial to the community and region and advances the purposes of the [MLUL] and sound planning principles in that this project represents an urban redevelopment project that promotes the growth of this city . . . ." For those reasons, the Board concluded that the variance was "justified and recommendable."

The trial judge conducted a hearing on December 12, 2008. Following oral argument, the judge rendered her decision:

I would just like to address the zoning issue first. The [c]court has . . . reviewed the definition of a parking space in [the municipal zoning ordinance]. Clearly, the first paragraph does not explicitly address a lift space. There's been no law cited I'm sure because no law exists on the legal definition of a parking stall, leaving the [c]court to go with the traditional view that the [c]court should consider the plain meaning of the statute. The plain meaning says that a parking stall has to be of a certain size. It doesn't say that the parking stall has to be on ground level. The parties agree that even the lift spaces on a lift satisfy the necessary size requirements that are listed in [the ordinance]. And accordingly, the [c]court finds that [the ordinance's definition] of what a parking stall is encompasses a lift space.

In addition, the third paragraph of that definition addresses the relaxation of size requirements . . . where there is valet parking. And the [c]court finds that this third paragraph further supports this reading that there is to be flexibility in cases where valet parking is available and that valet parking is no less desirable in terms of parking spaces than the self-park spots.

So I would just like to start . . . therefore with the conclusion that . . . this [c]court finds that the variance in this case was the smaller reduction of 62 parking spots and not the larger reduction of a hundred plus parking spots.

So the court is now considering the reduction of 62 parking spots under the C(2)*fn2 analysis. The [c]court finds, first of all, that the plaintiff has really asked the

[c]court to revisit the wisdom of allowing these residential spaces here and the

[c]court notes for the record that the wisdom of the residential spaces is not what is before the [c]court. . . .

But the only thing that the [c]court is going to review is the wisdom of granting a variance in allowing the residential buildings to have 62 fewer parking spots than is required by the regulations. The standard that the [c]court has to consider is set forth in the case of Lang v. Zoning Board of North Caldwell*fn3 . . ., where the Supreme Court wrote . . . that, . . . the overriding principle governing judicial review of variance decision[s] by Boards of Adjustment is that . . . the judgment of local zoning boards ordinarily is appropriate.

The [c]court finds that under this standard the plaintiff has failed to meet its burden of proof, a finding that the Board either did not sufficiently address the positive and negative criteria in the resolution or that the conclusions in the resolution were not sufficiently supported by the record before it.

As to the positive and negative criteria in the resolution, which is the issue of whether the resolution is facially adequate, the positive criteria I think are discussed . . . fairly much more broadly than the negative criteria, I don't think that's an issue at all. . . .

As to the negative criteria, the obvious negative as not having sufficient parking spaces and the Board found that the number of dwelling units and its ratio to the number of parking spaces is suitable for an urban development in an area with good transit service. When they use the word ratio, it's clear that what the Board is addressing is the number of spots per residential unit and that that sufficiently addresses as far as what's required to be recited in the resolution for a discussion of the negative criteria.

Turning to the issue of whether the conclusion that . . . the ratio of parking spots to units is appropriate in this kind of urban development where it's located, the

[c]court finds that the record that was before the Board amply supported that conclusion. And I won't repeat it but a lot of that discussion was read into the record by counsel for [defendants].

Accordingly, because it is the plaintiff's [sic] burden to demonstrate that the Board acted arbitrarily and capriciously, the [c]court finds that the plaintiff has failed to meet its burden in this case.

Based on this decision, the trial judge issued an order on January 7, 2009, denying plaintiffs' challenge to the "validity, enforceability and effect" of the Board's resolution of March 3, 2008, and dismissing the Complaint in Lieu of Prerogative Writs with prejudice.

On appeal, plaintiffs challenge the trial court's decision on the following grounds: (1) "the record before the Board was insufficient to meet the requirements of N.J.S.A. 40:55D-70(c) to grant the parking variance;" (2) the Board's resolution did not meet the requirements of N.J.S.A. 40:55D-10(g) and, therefore, is invalid on its face; and (3) lift spaces do not satisfy the zoning ordinance's definition of a parking space. Having considered these contentions in light of the record and the controlling legal principles, we conclude they are without merit.

We note initially that our review of the Board's judgment "is no different from the trial judge's review of the Board's determinations. We are to presume that the Board acted fairly and will not attempt to determine whether its decision was 'wise or unwise.'" Park Center at Route 35, Inc. v. Zoning Bd. of Adj. of Twp. of Woodbridge, 365 N.J. Super. 284, 288 (App. Div. 2004) (quoting Kaufmann v. Plan. Bd. of Warren Twp., 110 N.J. 551, 558 (1988)). We are "'[b]ound by the same scope of review as the Law Division' [and] we defer to the broad discretion of a local land use agency and 'reverse only if we find its decision to be arbitrary, capricious, or unreasonable.'" Id. at 288-89 (quoting Bressman v. Gash, 131 N.J. 517, 529 (1993)). Here, as in the trial court, plaintiffs "have to overcome the presumption of validity of the planning action." Toll Bros., Inc. v. Bd. of Freeholders of Burlington County, 194 N.J. 223, 256 (2008).

When "a municipal agency's interpretation of its ordinances . . . is informed by knowledge of local circumstances[,]" we "give substantial deference" to that interpretation. Wyzykowski v. Rizas, 254 N.J. Super. 28, 38 (App. Div. 1992), aff'd in part, modified in part, 132 N.J. 509 (1993). We accord such deference to zoning decisions, including interpretations of ordinances, because the agency is presumed to be intimately acquainted with the rules it has adopted and the area in which those regulations apply. Ibid.

Applying these standards to this matter, we are satisfied that the Board "acted reasonably upon the showing made before it" and its decision has not been "affirmative[ly] show[n] . . . [to be] unreasonable, arbitrary or capricious." Rexon v. Bd. of Adj., 10 N.J. 1, 7 (1952).

N.J.S.A. 40:55D-70(c)(2) provides that the grant of a variance is appropriate "where in an application . . . relating to a specific piece of property the purposes of [the MLUL] . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment . . . ." See Kaufmann, supra, 110 N.J. at 562-63. The grant of a c(2) variance must benefit the community and, therefore, "[t]he focus of a c(2) case, . . . will not be on the characteristics of the land that, in light of current zoning requirements, create a 'hardship' on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community." Id. at 563.

Prior to granting a c(2) variance, a planning board must:

(1) determine whether a deviation from the zoning ordinance requirement would advance the purposes of the MLUL (the "positive criteria"); (2) weigh the benefits of the deviation against any detriment; and (3) consider whether the variance will substantially impair the intent and purpose of the zone plan and zoning ordinance or cause substantial detriment to the public good (the "negative criteria"). Wawa Food Market v. Plan. Bd. of Ship Bottom, 227 N.J. Super. 29, 40 (App. Div.), certif. denied, 114 N.J. 299 (1988).

By rooting the c(2) variance in the purposes of the MLUL, the Legislature has confined the discretion of Boards: they cannot rewrite ordinances to suit the owner or their own idea of what municipal development regulations should be. Rather, the Board should seek . . . to effectuate the goals of the community as expressed through its zoning and planning ordinances. [Kaufmann, supra, 110 N.J. at 564.]

We are satisfied that the Board did so in this case. The Board properly considered the parking variance not "in isolation, but . . . in the context of its effect on the development proposal, the neighborhood, and the zoning plan." Pullen v. Twp. of S. Plainfield, 291 N.J. Super. 1, 9 (App. Div. 1996). The Board identified several aspects of the MLUL which would be advanced if the variance were granted. As noted, the Board received significant testimony in support of the argument that the proposed project would promote the general welfare. Based upon that evidence, the Board determined that the project furthered the underlying principles of the MLUL.

Defendants also offered substantial expert testimony to establish that the negative implications of the parking variance would not cause substantial detriment to the public good. The availability of mass transit, the census data regarding the density of car owners in the area, and the prevalence of walk-up traffic in similarly situated commercial properties, were all factors addressed by the experts and considered by the Board in reaching its decision.

By contrast, plaintiffs' rebuttal testimony consisted only of lay testimony from members of the surrounding community, complaining that granting the variance would generate increased traffic thereby hindering the general welfare.

The Board found that the valet parking system combined with lift parking spaces would allow for maximum efficiency. Furthermore, the Board determined that, given the unique shape and characteristics of the property, there was not adequate space to provide the number of spots required by the ordinance. The Board further found that taking into consideration the ratio of parking spaces to dwelling units, the number of parking spaces was still "suitable for an urban development in an area with good transit service." After considering all of the evidence, the Board concluded that the benefits of the deviation substantially outweighed any detriment and that the variance would not substantially impair the purpose of Newark's zoning law.

We are confident that the Board used its local insight and knowledge of the area in question to inform its decision to grant the c(2) variance. As such, we accord substantial deference to that decision.

Plaintiffs contend that the Board did not properly consider "the statements made by members of the public at the hearings and did not examine the effect of the [p]arking [v]ariance on the neighboring properties[.]" As noted, however, neither Gregory nor the other objectors presented any expert evidence to support their claims. "Prudence dictates that zoning boards root their findings in substantiated proof rather than unsupported allegations." Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 88 (2002). A board should neither "afford[] undue weight to the residents' unsubstantiated testimony," nor should it "disregard[] the weight of the evidence in the record in determining" whether to grant the variance. Ibid. Where, as here, the "record . . . is devoid of any expert testimony concerning the detrimental effects of the proposed [project,]" the objectors' "'[b]are allegations . . . rarely will suffice.'" Id. at 87, (quoting Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adj., 152 N.J. 309, 336 (1998)).

Plaintiffs further contend that the Board failed to address why the parking variance was essential to the success of the project or why defendants could not reduce the number of proposed units so as to reduce the parking requirements. The first part of this contention is contrary to the record. The Board's resolution specifically sets forth that "[a] parking variance is requested because the site has an irregular shape causing a minimal deficiency in the amount of parking provided.

A total of [3]27 spaces are [sic] required, but there is not adequate area at the site to provide those spaces."

Regarding the second half of that contention, plaintiffs cite to El Shaer v. Plan. Bd. of Twp. Of Lawrence, 249 N.J. Super. 323 (App. Div.), certif. denied, 127 N.J. 546 (1991), to support their position that the Board erred in failing to address alternative plans under which defendants could have either reduced the number of residential units or provided the required 327 parking spots. In El Shaer, however, the court upheld a zoning board's denial of a variance, rather than reversing the board's grant of a variance on such grounds as plaintiffs seek here. Moreover, plaintiffs' analysis ignores the fact that it remains their burden to demonstrate that the Board acted in a manner that was unreasonable, arbitrary or capricious. Kramer v. Bd. of Adj., 45 N.J. 268, 296-97 (1965); El Shaer, supra, 249 N.J. Super. at 327 (noting that the board's decision was upheld because the "plaintiff has failed to overcome the presumption of reasonableness which attaches to the Board's decision").

Plaintiffs also assert that defendants' experts did not present testimony "relat[ed] to a specific piece of property as required by N.J.S.A. 40:55D-70(c)." However, the record contains extensive expert testimony describing the details of the development, and the Board expressly acknowledged that the project would have the added beneficial effect of bridging the gap between the residential and commercial neighborhoods and providing housing for higher income individuals, which is currently in short supply in Newark.

Plaintiffs' contention that the Board did not consider how the variance furthers the purpose of the MLUL is also without merit. In its resolution, the Board expressly stated that given Newark's status as a growth center, the promotion and development of new housing was in line with the MLUL.

For these reasons, we also reject plaintiffs' contention that the Board failed to set forth sufficient findings to support the grant of the parking variance. A board's resolution must provide findings of fact and conclusions of law sufficient to provide a reviewing court with notice of the board's basis for its decision. N.Y. SMSA, L.P. v. Bd. of Adj. of Twp. of Weehawkin, 370 N.J. Super. 319, 333-34 (App. Div. 2004). The Board is obligated to provide facts sufficient to "satisfy a reviewing court that [it] has analyzed the applicant's variance request in accordance with the statute and in light of the municipality's master plan and zoning ordinances." Id. at 333.

We are satisfied that the Board's resolution sets forth sufficient findings to support its decision. First, the Board explained that the project "represents an urban redevelopment project that promotes the growth of this city by offering desirable, high quality market[-]rate housing for Newark." In its March 3, 2008 resolution, the Board emphasized that Newark is a "growth center . . . [and] . . . is desirous of promoting the development of new housing for all income levels." The Board observed that Newark lacks available housing for higher income individuals capable of paying the market rate, and that such housing has been built in rural and suburban areas. The Board further noted that the proposed development had the additional benefit of reducing urban sprawl "by creating desirable market-rate housing in a pre-development urban area."

The Board set forth the following additional benefits: (1) the promotion of a desirable visual environment "through the use of creative mixed use development techniques including screened parking areas and attractive exterior finishes;" (2) the advancement of an overall scheme that harmoniously transitions from commercial to residential neighborhoods; (3) the efficient use of public funds as there is no need for a new public infrastructure in connection with the proposed construction; and (4) the project "represents an appropriate density for a highly urban area[.]"

The Board further addressed potential detriments if the variance were granted, and proceeded to determine whether the benefits would outweigh those detriments and whether the variance would impair the purpose of the overall zoning plan and ordinance. The Board found that the ratio of dwelling units to parking spaces is suitable for an urban area with good public transportation services. The Board also found that the utilization of valet parking in conjunction with staff operated lift spaces would allow for maximum utility and efficiency and, therefore, required fewer spaces. Moreover, the Board noted that defendants' expert, Intindola, testified that the project would result in a net gain of on-street parking spaces due to the consolidation of several driveways. Based upon these considerations, the Board concluded that "a negative impact on the community is not to be expected from the granting of this variance."

In sum, we are satisfied that the Board's factual findings were based upon specific evidence of record and did not merely express conclusory views, as plaintiffs suggest. The memorializing resolution, therefore, comports with the requirement of N.J.S.A. 40:55D-10(g).*fn4

Finally, we address plaintiffs' contention that the lift parking spaces do not comport with the zoning ordinance's definition of parking spaces. The municipal zoning ordinance, Newark, N.J., Rev. Code § 40:5-3, defines parking spaces as follows:

In all districts for all required off-street parking spaces as defined herein, whether or not the parking space is an enclosed or open area, each parking stall shall be no less than eight and one-half (8.5) feet in width and eighteen and one-half (18.5) feet in the length, and the defined area shall be considered one (1) parking space.

Plaintiffs contend that because the ordinance does not specifically mention lift spaces in the definition of a parking space, a lift system is not permissible. We disagree. We construe the language of the ordinance as not prohibiting the use of lift parking spaces since it does not expressly exclude a lift space as a parking space.

As the Supreme Court has recognized, "it is an established rule of statutory construction that a statute written in general terms will be given prospective application to situations unknown or nonexistent at the time of its enactment which are within its general purview and scope where the language fairly includes them." Place v. Saddle River Bd. of Adj., 42 N.J. 324, 328 (1964) (internal quotations omitted). As the Board found here, "the project's proposed configuration with valet parking and staff-operated parking lifts would ensure that the provided parking spaces would be used to their maximum efficiency[,] enabling fewer spaces to be necessary."

In sum, we are satisfied that both the Board and the trial judge properly concluded that as long as the lift spaces met the width and length requirements in the ordinance, vertical lift parking did not constitute a violation of the ordinance.


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