On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-10113-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically January 25, 2012 Before Judges Payne, Simonelli and Hayden.
Defendant Westland Garden State Plaza L.P. (Westland), the owner of the Garden State Plaza Mall in Paramus, successfully sought c(2) variances, pursuant to N.J.S.A. 40:55D-70c(2), to permit it to replace an existing parking deck with a new five-story structure, add 80,722 square feet of retail space as infill, modify traffic circulation and pedestrian walkways, and install new signage. Following extensive hearings in the matter and the Borough of Paramus Planning Board's adoption of a resolution granting the variances, plaintiff LT Propco, L.L.C. (Lord & Taylor), a mall sub-tenant, challenged the Board's action by way of an action in lieu of prerogative writs, naming as defendants Westland and the Board. When that was unsuccessful, Lord & Taylor filed the present appeal.
On appeal, Lord & Taylor presents the following arguments:
I. THE TRIAL COURT ERRED IN NOT REVERSING THE BOARD'S DECISION ON THE APPLICATION
II. THE TRIAL COURT ERRED IN SUBSTITUTING ITS JUDGMENT
III. THE TRIAL COURT ERRED IN UPHOLDING THE APPROVAL OF DEFENDANT WESTLAND'S APPLICATION, IN LIGHT OF THE FAILURE TO MEET STATUTORY REQUIREMENTS FOR GRANT OF VARIANCE RELIEF
A. VARIANCE FOR INCREASE IN RETAIL SPACE
B. VARIANCE RELIEF FOR DECK HEIGHT
C. VARIANCE RELIEF FOR SIGNAGE
IV. BOARD MEMBERS' FAILURE TO PROVIDE ADEQUATE CERTIFICATIONS PRIOR TO BOARD VOTE MANDATES A REVERSAL AND REMAND
V. THE LOWER COURT ERRED IN UPHOLDING THE DECISION DESPITE THE LACK OF ANY VALID FINDINGS BY THE BOARD ON THE RECORD AND IN THE RESOLUTION
VI. THE LOWER COURT IMPROPERLY IGNORED THE LACK OF SUFFICIENT INFORMATION AND THE NUMEROUS DESIGN ELEMENTS TO BE FINALIZED POST-HOC ABSENT BOARD AND PUBLIC REVIEW
In the leading treatise on New Jersey land use law, the authors have stated, with respect to the grant of a variance pursuant to N.J.S.A. 40:55D-70c(2):
What must be shown is that the application
(1) relates to a specific piece of property;
(2) that the purposes of the Municipal Land Use Law [(MLUL) N.J.S.A. 40:55D-1 to -163] would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment; and
(5) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance. [William M. Cox and Stuart R. Koenig, New Jersey Zoning & Land Use Administration, Chapter 6-3.3 at 160 (2012).]
The variances at issue were sought in order to make improvements to the existing Westland Garden State Plaza Mall, located in Paramus at the intersection of Routes 4 and 17, and in close proximity to the Garden State Parkway. The Mall falls within Paramus's BML Mount Laurel Business Zone, governed by Article XXII of the Borough Zoning Ordinance.
We provide context to Westland's application by referring to the Borough's 2005 Master Plan Re-Examination Report, in which consultants to the Borough discussed the unusual nature of Paramus and made recommendations with respect to the Mall:
The 1997 reexamination report states that the Borough lacks a traditional commercial core downtown. This resulted from the Borough's historical development pattern and the absence of mass transit hubs. . . .
The Garden State Plaza occupies a strategic location in Paramus, and in many respects represents the commercial core of the community and the region. The Borough should continue to carefully review the transformation of the Garden State Plaza while seeking to cooperatively encourage it to fill more of a traditional downtown main street civic function. To accomplish this role fully the Plaza should be integrated to a greater degree into the larger community. One aspect of design that is extremely important is ...