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Wachovia Bank, N.A. v. Planning Board of the Borough of Westwood

July 7, 2010


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-6403-07.

Per curiam.


Submitted June 15, 2010

Before Judges Fisher and Reisner.

Defendants, the Borough of Westwood and the Borough Planning Board (Board)*fn1, appeal from an August 8, 2008 trial court order reversing the Board's denial of plaintiff Wachovia Bank's site plan application with variances, and from a March 11, 2009 final judgment issued after Wachovia agreed to the dismissal of certain additional claims not pertinent to this appeal.*fn2 We reverse the trial court's orders, thus reinstating the decision of the Board.


Wachovia sought to construct a bank building in the central business district (CBD) zone of Westwood Borough. The structure would measure 4025 square feet, on a 51,564 square foot property formerly occupied by a car dealership; the latter consisted of a 15,000 square foot building, which the applicant proposed to demolish. The proposed bank would have two drive-through transaction lanes, a drive-through ATM lane, and a bypass lane. The applicant designed the site to accommodate a small public park, and a second permitted use on the property, in the form of a large amount of long-term commuter parking. Both the bank and the drive-through feature were permitted uses in the CBD at the time the Board considered the application. Municipal public parking was also a permitted use provided the municipality agreed to accept the parking lot for its purposes. There is no dispute on this record that the CBD zoning allows for two principal permitted uses on a single property.

In denying the application, by a vote of five to four, the Board considered that the lot was large enough that the applicant should have been able to build a structure that completely conformed to the zoning ordinance in terms of its placement on the property. In particular, the Board found no justification for building the structure with a two-foot setback from the sidewalk instead of the twenty feet required by the zoning ordinance. The Board also reasoned that the proposed large amounts of commuter parking would add no benefit to the downtown:

Working with a blank slate on the site after demolition of the existing building presents no difficulty to the applicant in complying with a conforming setback and such has been acknowledged by the applicant in testimony. The board finds no aesthetic benefit provided by a building of the proposed size surrounded by a vast expanse of macadam to serve general parking.

Additionally, there is no evidence in the record for a need for parking in that area or the numbers proposed and applicant makes no mention of the CBD study that was conducted by the Borough in its making of its unfounded assumption. While there was a hypothetical benefit proposed to benefit a small group of commuters and shoppers through off street parking, any benefit to the community at large or to the CBD zone under a C(2) analysis was speculative at best.

There is also no nexus shown between any parking that might go in that area and its impact in promoting a pedestrian environment which would be encouraging to the business community.... The Board is skeptical that the parking associated with the proposed use of a bank would generate pedestrian traffic that would revitalize the downtown.... Further this hypothetical benefit to a limited group of people is not shown to outweigh any detriment that might occur due to lost revenues to the town from restricted commercial development on the site to warrant such an extreme variance.

... [I]t was apparent throughout the hearing that the applicant could readily comply with the zoning requirements of the Borough.

Regarding applicant's obligations under N.J.S.A. 40:55D-70(C)2, the testimony did not support and did not persuade the Planning Board that granting [the] variances were warranted.... There is no benefit particularly to the setback to anyone but the Bank....

... Finally, there is detriment in locating the building in the front yard, particularly... in the absence of specific testimony as to the ...

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