May 14, 2012
LT PROPCO, L.L.C., PLAINTIFF-APPELLANT,
WESTLAND GARDEN STATE PLAZA LIMITED PARTNERSHIP AND BOROUGH OF PARAMUS PLANNING BOARD, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 traffic circulation both between the Plaza and the surrounding road network and the development context within the Plaza property itself.
Accordingly, in setting planning goals for commercial development in its 2006 Master Plan, the Borough of Paramus listed as goals:
Goal 1: To maintain the borough's status as the major retail center for Bergen County as well as for all of northern New Jersey and the NY/NJ metropolitan area. The borough looks to accomplish this by promoting redevelopment of existing commercial sites in a format that assures the future trends in retailing and other sectors of the economy will be accommodated while at the same time respecting the planning goals of the borough. The Borough of Paramus has the largest employment base of any Bergen County municipality and therefore recognizes its non-residential development as a vital economic element to the community as a whole and looks to ensure its continued success.
Goal 2: To promote the revitalization and enhancement of the Route 4 and Route 17 retail corridors; to provide a comprehensive and coordinated long-range plan to guide the growth, development and physical improvements which are necessary to ensure the continued vitality of this portion of the borough . . .
Two years after the promulgation of the Borough's 2006 Master Plan, on August 29, 2008, Westland applied to the Planning Board for approval of an amendment to its site plan to permit the improvements that we have previously set forth, reconstructing a parking deck, adding retail space, modifying traffic circulation and pedestrian walkways, better directing ring-road traffic to the Mall's anchor tenants, and erecting airport-like signs to clarify routes of travel. In order to complete the improvements as planned, Westland would need: (1) a gross floor area variance from the maximum 2,396,967 square feet allowed to 2,641,812 square feet*fn1 ; (2) a parking deck variance from the allowed three stories with a height above grade not to exceed fifty-two feet to permit construction of a five-story garage with a total height of fifty feet; (3) multiple variances to permit the erection of monument signs,*fn2
which were not permitted in the zone, and additional signs, the erection of which was not specifically addressed in the zoning ordinance. Additionally Westland sought a waiver to permit parking space dimensions of nine feet by eighteen feet, rather than the required nine feet by nineteen feet and some parking aisles of twenty-three or twenty-four feet in width, not the required twenty-six feet.
The Planning Board conducted public hearings in the matter on February 19, March 19, April 16, May 21, June 17, and July 16, 2009. The trial court summarized the proceedings as follows:
In support of the Application, Westland first presented lay testimony from Charles DiGiovanna, the Senior Vice President of Development for the Northeast region of Westfield,*fn3 who testified as to competition in the shopping mall business arena and how, in his opinion, the proposed changes would affect the Garden State Plaza. Defendant Westland then presented expert testimony from civil engineer William Page, who testified as to the proposed addition of retail space, the proposed pedestrian and motor vehicle traffic improvements, and the proposed changes to the parking structure. Next, Defendant Westland presented a traffic report and traffic expert testimony from Karl Pehnke of CMX Engineering, as well as expert testimony pertaining to the proposed signage changes given by Ann Dudrow, Westfield's Director for Environmental Graphic Design. Finally, Defendant Westland presented expert testimony from its professional planner, Matthew Jakubowski, who testified as to each of the specific variances requested by the Application.
At the initial hearing, and at several points throughout the following hearings, Board professionals and members recommended several modifications to the plans proposed by Westland. Specifically, the Board Engineer, William Ten Kate, and the Board Planner, Bridgette Bogart, cited to various reports from several Borough entities, including the Borough Police and Fire Departments, which contained suggestions involving lighting, traffic, circulation and signage. Defendant Westland complied with some of the Board's recommendations, which resulted in several alterations to the Application proposal. However, Defendant Westland also expressly declined to comply with several of the Board's specific recommendations, instead choosing to continue with those portions of the proposal as unmodified. In response to Westland's modifications to the Application proposal, the Borough Police and Fire Departments submitted memoranda on July 10 and July 16, 2009, respectively, in which they provided their comments to the modifications.*fn4
The only testimony given in opposition to the application on behalf of Lord & Taylor was provided by attorney Kathryn Razin, who testified about documents obtained from the Paramus Police Department regarding accidents at the site in the period from 2003 through 2009, indicating the occurrence of 1,963 motor vehicle accidents - a circumstance that Westland sought to ameliorate by its improvements. It offered no expert testimony to challenge Westland's experts.
We focus on the testimony of planner Matthew Jakubowski. He described the site as containing just under 135 acres, located in a very busy commercial area and bounded by highways. Jakubowski testified that the addition of retail space to the Mall would allow it to make productive use of its interior space for retailing and permit it to remain vibrant and competitive with the internet and other malls in the area. The new parking deck, which was designed to conform to Borough height restrictions, was required to replace a deck that had become costly, difficult and inconvenient to maintain, and would create a surplus number of parking spaces for use on high volume days.*fn5
Both improvements, along with the extensive sign and pedestrian/ traffic circulation enhancements, would benefit not only the Mall but also the public, by providing a safe and comfortable place to shop. In that connection, Jakubowski noted that the Mall acted as a de facto town center to Paramus, as recognized by the Borough in its Master Plan, and that the maintenance of the Mall's status as a major retail center for the region constituted a significant municipal planning goal. Of similar significance was the Mall's continuing role in the revitalization and enhancement of the Routes 4 and 17 retail corridors.
Additionally, Jakubowski testified that the site was large enough to accommodate the proposed expansion, noting that lot coverage would be increased by the expansion by only 1.2 percent. He noted that allowable lot coverage in the BML zone was 25 percent. However, even with the proposed expansion, the Mall would only cover 21.9 percent of the lot. Relying on testimony provided by Westland's traffic expert, Pehnke, Jakubowski stated that the increased retail floor area would have an almost unnoticeable effect on traffic.
Jakubowski noted favorably, as well, the traffic circulation improvements, traffic calming measures, the improved lighting, and the additional signage that made the site safer and more visually pleasing for drivers and pedestrians. Thus, the proposed improvements advanced the purposes of zoning as stated in the MLUL.
Jakubowski found no substantial detriment to the public good occurring as the result of the implementation of Westland's proposals. In this regard, he emphasized again that the site could accommodate the proposed development. The reconstructed parking deck would contain a surplus of parking spaces over that required by the Borough. And the enhancement and stabilization of the Mall benefited Paramus because it revitalized the Borough's de facto downtown and advanced the economic development goals of the Borough's Master Plan.
Turning specifically to signage, Jakubowski admitted that, by his count, Westland sought 126 variances. He continued:
This is generally related to the fact that some of the signs are not permitted. This is a very unique site. Therefore, the zoning ordinance hasn't really envisioned this type of situation. This is the reason for the number of variances. Some of the variances are required for sign area, for sign height, the illumination of the signage, which the ordinance doesn't permit in this case, to the number of colors on the sign, in which some of the signs are in excess of the colors required.
Jakubowski described the signs requiring variances to include monument signs, directional signs directing vehicles to parking areas for specific stores, parking identification signs, freestanding signs along Routes 4 and 17, and vehicle exiting directional signs.
Stating why the statutory positive criteria were met, Jakubowski testified:
As the board is aware, this is a very complicated site. There are a lot of people traveling to the site on and off. There are a lot of pedestrians traveling from parking spaces to the mall. So just by its very nature there needs to be a very complex signage program to make sure people really know where they are going. Because of this and because of the large size of the site, the signs generally need to be larger and more repetitive. So that's the reason why so many variances are required for the look of the sign, the size of the sign and the number of signs.
I think what needs to be considered as far as the positives are concerned is that the reason for the extensive sign package is specifically for safety and giving drivers and pedestrians enough information that they can safely navigate the site. . . .
Because there is such an expanse of parking, it's also necessary that there be signs identifying exactly where people have parked so they can find their way. So I think from the standpoint of the site being very unique and the standpoint of needing to provide numerous signs in a somewhat repetitive nature to safely move people from point A to point B, it shows there are plenty of positives that would outweigh complying with the zoning ordinance and not having enough signs to effectively generate the information that needs to be provided.
Jakubowski also noted that the existing signage was old and worn out, whereas the new signage would be more aesthetically pleasing.
Jakubowski further testified that he saw no detriment in Westland's signage plan. He stated that there was no way that the zoning ordinance and Master Plan could have properly regulated, in advance, the signage required by a site such as the Mall presented, and that neither the zoning ordinance nor Master Plan were impaired by a plan that actually would do what it was supposed to do - safely and effectively move vehicles and pedestrians. Indeed, the plan effectuated Goal 5 of the 2006 Master Plan, which was to promote increased pedestrian safety and enhance aesthetics in the Borough's commercial districts.
On July 16, 2009, the Planning Board approved Westland's application by a vote of eight to one. Although a number of the Board members had missed one or more Board meetings, prior to the vote, a majority certified that they had read the transcripts of the meeting or meetings they had missed. Thus, statutory compliance with N.J.S.A. 40:55D-10.2 was achieved.*fn6
On September 17, 2009, the Board adopted a thirty-three page resolution with forty-nine conditions, approving Westland's plan and granting the variances sought. The resolution included the following factual findings, among others:
6. The existing parking Deck B is in need of frequent maintenance which is a continuing disruption to the proper operation of the deck. The proposed deck will be a physical improvement, enhance the appearance of the mall, provide a safe and comfortable shopping experience, provide improved lighting in the garage which will cut down on glare, and improve the entry and exit point for the deck. . .
7. . . . The expansion of the retail space is an infill. It does not expand the footprint of the mall. The expansion is part of an application which provides substantial positive benefits that, when taken as a whole, promote the purposes of zoning by improving the vehicular and pedestrian circulation, safety, and aesthetic appearance of the mall as well as the signage at the mall. All of this advances the goal of the master plan and the general welfare purpose of the zoning ordinance [by] keeping the Property as a vibrant town center retail area in the Borough. The increased traffic produced by this infill expansion is minimal . . . .
9. The proposed vehicular and pedestrian enhancements and sign modifications will promote the safety, comfort and convenience of the general public visiting the site and is a more appropriate use of the Property over that which exists. The specific modifications for vehicular and pedestrian movements such as improvements that limit traffic turns, signalization improvements, raised crosswalks and sign modifications as testified to at the hearings and as shown on the Site Plan will allow the visiting public a safer, more comfortable, and accessible shopping experience which will aid in maintaining the site as a first class, destination retail center which is vitally important to the Borough and the surrounding community.
10. The sign variances proposed for the site as set forth on Exhibit A attached hereto will be a major and significant benefit for the safe and efficient operation of the Property. The Board finds that this site is unique based on its size, location and use. It is a very busy site. People need to know where they are going. The existing signage is outdated for that purpose. The Board finds that the site requires an increase in the number of signs over that allowed by Code for the safety, convenience and general welfare of the visiting public. The signage proposed is designed to aid the public in entering and exiting the site and to circulate throughout the site in vehicles and as pedestrians in a more efficient and safe manner. . . .
12. The variances for the size of the parking stalls and the exceptions required for the aisle's width are appropriate for the site. The deviations aid the traffic flow, and allow an increased number of parking spaces on the site. The stall size is sufficient for its intended use and will not negatively affect the purpose of the Code.
13. The number of stories in the proposed parking garage while exceeding the amount allowed by Code, will be an aesthetic improvement to the garage and provide a more efficient use of the garage space.
The Board also noted that the planned improvements were consistent with the Borough's 2006 Master Plan, in that they enhanced the Route 4 and Route 17 corridors, maintained the Mall as a de facto town center, and kept the Borough as an important commercial retail magnet in the area. Thus, the proposal would advance the purposes of the zoning code and benefit the community at large.
Prior to the Board's vote, on July 13, 2009, Lord & Taylor filed a verified complaint and an order to show cause against Westland and the Board in the Chancery Division, seeking to enjoin Westland from prosecuting its land use development application or to enjoin the Board from continuing its review of that application. Temporary restraints were denied on September 15, 2009, and Lord & Taylor's application to withdraw its request for preliminary injunctive relief without prejudice was granted. As stated, on November 6, 2009, Lord & Taylor challenged the Board's resolution in an action in lieu of prerogative writs. A bench trial was held in the matter on October 19, 2010, and on March 17, 2011, the trial court issued a comprehensive opinion affirming the Board's approval of Westland's application. This appeal followed.
In reviewing this matter, we are guided by the principle that "[a] local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved." Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965). This is so because public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion. Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they exercise anew the original jurisdiction of such boards or trespass on their administrative work. So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere. [Id. at 296.]
"The proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Jock v. Zoning Bd. of Adjustment, Twp. of Wall, 184 N.J. 562, 597 (2005) (citing Kramer, supra, 45 N.J. at 296; Kessler v. Bowker, 174 N.J. Super. 478, 486 (App. Div. 1979), certif. denied, 85 N.J. 99 (1980)). Nonetheless, in our review, our function is not simply to act as a rubber stamp upon findings that are not reasonably supported by the evidence. CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd. of Adjustment, 414 N.J. Super. 563, 578 (App. Div. 2010).
As we stated initially, in order for a grant of a c(2) variance to be proper, the applicant must establish in connection with the property at issue that the purposes of the MLUL would be advanced by the proposed deviation from the zoning requirements, that the variance can be granted without substantial detriment to the public good, that the benefits of the deviation substantially outweigh any detriment and that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance. N.J.S.A. 4:55D-70c(2); Wilson v. Brick Twp. Zoning Bd., 405 N.J. Super. 189, 198 (App. Div. 2009). Discussing c(2) variances, the Supreme Court has observed:
By definition, . . . no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not 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. . . . Obviously, the Legislature contemplated that deviations from zoning requirements without "hardship" could advance the purposes of zoning, else it would not have enacted the c(2) provision.
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 v. Planning Bd. for Warren Twp., 110 N.J. 551, 563-64 (1988).]
Our review of the record in this matter satisfies us that Westland's proposed improvements "would put the land more in conformity with the community's development plans and thereby would advance the purposes of zoning." Id. at 564. We do not find that Lord & Taylor met its burden of demonstrating an abuse of discretion on the part of the Board or other failing requiring reversal. Cell South of N.J., Inc. v. Zoning Bd. of Adjustment, W. Windsor Twp., 172 N.J. 75, 81 (2002) (because a zoning board's actions are presumed valid, the party attacking such action has the burden of proving otherwise); N.Y. SMSA Ltd. P'ship v. Bd. of Adjustment of the Twp. of Bernards, 324 N.J. Super. 149, 163 (App. Div.), certif. denied, 162 N.J. 488 (1999).
In its appeal, Lord & Taylor expresses a litany of complaints in connection with each of the variance approvals. But it offered no expert testimony before the Planning Board in opposition to Westland's proposals. Moreover, we observe that many of the improvements will be of obvious benefit to the company. Indeed, while discussing the expansion of the retail space in its brief and arguing that there was no evidence that the expansion benefited the public, Lord & Taylor stated that "[p]laintiff certainly acknowledges that other aspects of the proposal may be desirable." Nonetheless, it raises objections to each of the categories of variances that were granted in an unfocused manner, needlessly complicating our evaluation of the appeal.
Lord & Taylor argues that the Board took improper shortcuts and was cavalier in its approach in reviewing the substantial land use application presented to it, claiming that the Board allowed Westland, as a prominent commercial landowner, to dictate what proofs were to be offered and how they were to be presented. We find that argument to be belied by the extensive hearings conducted in the matter and the detailed findings made by the Board in its resolution approving the requested variances.*fn7
In evaluating the Planning Board's actions, we first consider the issue of whether it had a reasonable basis to decide that Westland's application satisfied the MLUL's positive criteria: that "the purposes of [the MLUL] would be advanced by a deviation from the zoning ordinance requirements." N.J.S.A. 40:55D-70c(2). The zoning ordinance in question was statutorily required to reflect the land use element of the Borough's Master Plan. N.J.S.A. 40:55D-62a. And the Master Plan, in turn, was designed to "guide the use of lands within the municipality in a manner which protects the public health and safety and promotes the general welfare." N.J.S.A. 40:55D-28. In that respect, it was designed to effectuate the "intent and purpose" of the MLUL, which includes "encourag[ing] municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare[,]" as well as "encourag[ing] the location and design of transportation routes which will promote the free flow of traffic" and "promot[ing] a desirable visual environment through creative development techniques and good civic design and arrangement." N.J.S.A. 40:55D-2a, h, and i.
We have previously quoted portions of the economic plan element of the Borough's 2006 Master Plan, which include promoting redevelopment of existing commercial sites so as to assure the continued economic vitality of its retail businesses and promoting the revitalization and enhancement of the Route 4 and Route 17 retail corridors. As noted in the Borough's 2005 Master Plan Re-Examination Report, a particular focus of that effort was projected to be on the integration of the Garden State Plaza into the community as the Borough's downtown, and the improvement of the traffic flow to and within the Mall. It is thus clear from the Master Plan that the Borough considered its welfare to be closely tied to that of the Mall, and that it considered improvements to the Mall to be important to the future of the Borough and its citizens.
In its resolution approving the variances sought by Westland, the Board expressed its view, in specific terms, that the proposed improvements were consistent with the 2006 Master Plan, in that they enhanced the Route 4 and Route 17 corridors, maintained the Mall as the de facto town center, and kept the Borough as an important regional commercial retail location. It is thus clear that in the Board's view, the grant of the variances benefited not only Westland, but also the Borough community as a whole and constituted a better zoning alternative for the property than could have been created by conformance to existing zoning. Kaufmann, supra, 110 N.J. at 563-64. We note in that connection that evidence of the high occupancy rate in the Mall supported the position that additional retail space would be profitably occupied, thereby increasing employment opportunities in the community and retail choices for community and regional residents. The parking garage, although containing more floors than the zoning ordinance specified, conformed in height to applicable zoning and would replace an outmoded and difficult to maintain structure while increasing parking spaces for the community's use as required on high-volume shopping days. The traffic engineering and signage increased safety at the Mall, while providing clearer direction to shoppers as to how to reach their desired destinations and obtain parking in proximity to them.
Lord & Taylor nonetheless contests the Board's view, arguing that the
improvements benefited only Westland. However,
it supports that position with cases that are inapposite.*fn8
See Reinauer Realty Corp. v. Nucera, 59 N.J. Super. 189,
(App. Div.) (upholding denial of a variance to construct
600,000-gallon petroleum storage tanks on property in a light
industrial zone that allowed at most 200,000 gallons to be stored on a
lot, thereby sacrificing the welfare of the community through the
creation of a greater fire hazard and the possibility of an
explosion), certif. denied, 32 N.J. 347 (1960); Cicchino v. Twp. of
Berkeley Heights Planning Bd., 237
N.J. Super. 175, 181-83 (App.
Div. 1989) (upholding determination of planning board to deny
variances to reconfigure four undersized existing lots so as to create
three substandard lots, one of which would be available for the
construction of a house of an undescribed nature, because the
applicants demonstrated no benefit to the community and because the
proposed development was contrary to the municipality's zoning policy
of increasing minimum lot sizes).
These cases do not support Lord & Taylor's contention that Westland failed to supply sufficient proof that its application would satisfy the positive criteria. Rather, they stand for the proposition that a variance should be denied where the applicant would benefit to the detriment of the community. We also find Medici v. BPR Co., 107 N.J. 1 (1987), inapposite, because it concerned the grant of a use variance for the construction of a motel in a zone that did not permit such construction, and thus it addressed issues different from the grant of a c(2) variance in a district permitting the underlying use. We thus reject Lord & Taylor's challenge as it relates to the positive criteria.
We similarly reject its challenge to Westland's proofs with respect to the negative criteria. In that regard, Lord & Taylor argues that Westland offered no proofs on that issue. That is incorrect. As the testimony of planner Jakubowski reveals, he addressed the subject. However, he found no detriments to the public good to exist as the result of the implementation of Westland's proposal. Examination of the record does not reveal a significant challenge to his testimony on that issue.
Following the conclusion of testimony, the Board addressed the negative criteria to determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good. See N.J.S.A. 40:55D-70c(2); Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 324 (1998). It found that the retail expansion "does not expand the footprint of the mall," and that "the increased traffic produced by this infill expansion is minimal and quickly dispersed . . . ." Similarly, it found that since the proposed parking deck would fall within the BML zone's height restrictions, the extra stories "will not have any substantial negative impact on the intent of the zoning ordinance or the community at large." It found that while the expanded parking deck would have a larger footprint than the current one, "[t]he site can accommodate the proposed [deck] without any substantial negative effect on adjacent property owners." It found that the proposed signs would "have no significant impact on any neighboring property owner or the community at large." In sum, the Board found the plan would cause "no substantial detriment to the public good and . . . no substantial impairment to the Code or the Master Plan of the Borough."
In its brief, Lord & Taylor does not clearly specify what it perceives to be the detriment to the public good resulting from the approval of Westland's application. However, in connection with its arguments regarding the signage variances, it does claim that the Board's grant of relief "was tantamount to a rezoning, which is wholly improper."
It is true that a zoning board exceeds its authority when it abuses its variance power in such a way that it "'effect[s] a de facto rezoning . . . thereby exercising a power delegated to the governing body.'" Vidal v. Lisanti Foods, Inc., 292 N.J. Super. 555, 563 (App. Div. 1996) (quoting Feiler v. Fort Lee Bd. of Adjustment, 240 N.J. Super. 250, 256-57 (App. Div. 1990), certif. denied, 127 N.J. 325 (1991)). However, examination of the cases upon which Lord & Taylor relies demonstrates that the circumstances in which courts have found a board's misuse of its variance powers in the fashion claimed here are markedly distinguishable.
Vidal was one of a series of cases in which the courts had reversed grants of variances to allow new nonconforming uses. See id. at 561-64 (discussing cases). In Vidal, the applicants sought to construct a retail sales outlet and warehouse distribution operations that were not permitted by governing zoning. Id. at 558. The East Hanover Board of Adjustment granted the applications, determining that the current zoning was no longer appropriate. Id. at 559. We held: "The Board's grant of use variances to [applicants] based on its view that the present zoning of the tract is inappropriate constituted an arrogation of the power to rezone . . . ." Id. at 564. In Saddle Brook Realty, LLC v. Township of Saddle Brook Zoning Board of Adjustment, 388 N.J. Super. 67 (App. Div. 2006), another use variance case, we reversed a board determination to grant a use variance to a fast food restaurant when relatively recent amendments to the municipality's zoning ordinances had prohibited fast food restaurants in every zoning district holding, in part, that "'[a] variance may not be based upon a conclusion by a board of adjustment that there is no factual justification for the regulation as an act of legislation.'" Id. at 78 (quoting Bern v. Borough of Fair Lawn, 65 N.J. Super. 435, 451 (App. Div. 1961)). Thus both of the cases upon which Lord & Taylor relies concern use variances, an inherently more sensitive type of variance with stronger implications for the municipal balance of powers.
In each of the cases upon which Lord & Taylor relies, Reinauer, Cicchino, Vidal, and Saddle Brook, the proposed uses had an evident and negative impact upon the surrounding portion of the zone. Here, it cannot be said that allowing Westland's improvements would alter the zone's character to the disadvantage of another property owner or change the function of the zone. The Mall constitutes the sole property in the BML zone, and as the Board found, the improvements that Westland proposed are largely self-contained within the Mall's existing footprint. In these circumstances, we find that Lord & Taylor has failed to credibly attack the presumption of validity in favor of the Planning Board's decision, or to raise any precedent that would suggest that the Board's action ran contrary to existing land use law. "The Legislature undoubtedly intended through the c(2) variance to vest a larger measure of discretion in local boards in a limited area of cases. Courts are obligated to respect that grant of power." Kaufmann, supra, 110 N.J. at 566.
Lord & Taylor focuses additionally on the conditions of approval set forth in the Board's resolution, and argues that, as the result of those conditions, issues of great importance remain that will be resolved off the record without proper Board guidance. As Lord & Taylor notes, "if a site plan lacks sufficient specificity or if an applicant has failed to provide information pertinent to a plan, the plan may be denied on that basis." Morris Cnty. Fair Hous. Council v. Boonton Twp., 228 N.J. Super. 635, 642 (App. Div. 1988). As we noted in that decision:
It is evident that a municipality cannot guide the use and development of lands in this state if fundamental elements of a development plan are left unresolved before preliminary approval, leaving them instead for an unspecified later day. Certain elements - for example, drainage, sewage disposal and water supply - may have such a pervasive impact on the public health and welfare in the community that they must be resolved at least as to feasibility of specific proposals or solutions before preliminary approval is granted. If the applicant fails to provide sufficient information on the fundamental elements of his plan, preliminary approval should be denied. [Ibid. (quoting Field v. Franklin Twp., 190 N.J. Super. 326, 332-33 (App. Div.) (citations omitted), certif. denied, 95 N.J. 183 (1983)).]
Our review of the Board's conditions satisfies us that none is of such fundamental importance and none has such a pervasive impact on the public's health and welfare that a delay in approval of Westland's application was required. The conditions are basically of two types. One requires adherence by Westland to specifications dictated by the Board. The other suggests modifications to be approved, as appropriate, by the Borough Engineer, the Borough Planner, the Paramus Shade Tree Commission, the Paramus Police Department, and the Paramus Fire Department. In our view, those modifications requiring further approval concern technical details that were appropriately delegated to the named persons and entities for oversight and implementation. We find no ground for reversal as the result of this argument or any of those that preceded it.