Posted by: Patricia Salkin | November 16, 2015

NJ Superior Court Finds Evidence was Sufficient to Support Grant of Bulk Zoning Variance Allowing Reduction in Required Parking Spaces

The primary dispute of this case involved the Board’s grant of a height variance allowing LG to construct a 143.8–foot office building in a business zone where the maximum permitted building height was 35 feet. The height of the building authorized by the variance dramatically affected the view of the historic Palisades Cliffs. The opponents to the variance maintained that the building would ruin the natural beauty of the Palisades Cliffs because it would be visible on the west side of the Hudson River above the tree line from multiple vantage points in New York and New Jersey. The intervenors also challenged the issuance of the bulk variance reducing the number of required parking spaces. The New Jersey State Federation of Women’s Clubs, Scenic Hudson Inc., Margo Moss, and Jakob Franke (the intervenors), Carol Jacoby, and Marcia Davis, appealed from an August 9, 2013 order upholding defendant Board of Adjustment of the Borough of Englewood Cliffs’ site plan approval and grant of height and bulk variances to defendant LG Electronics USA, Inc.

The court found that an applicant seeking a height variance must show: “special reasons,” or the so-called positive requirement; and that the variance can be granted “without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance,” or the so-called negative requirement. Here, the Board was obliged to consider the effect of the proposed height variance on the surrounding municipalities affected by the decision. Here, the Board did not sufficiently determine that the excessive height of the main building would be compatible with the “surrounding neighborhood” because it did not adequately consider whether the proposed height variance was tailored to the purpose for which the height restriction was imposed. Moreover, the Board did not properly determine whether the main building could be constructed “without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.”

Next, the intervenors argued that LG was improperly granted a bulk variance for the number of parking spaces because LG failed to establish that the physical condition of the property prevented them from conforming to the bulk requirements. Here, the reduction in the number of parking spaces would promote a desirable visual environment by eliminating surface asphalt parking, and prevent a degradation of the environment by eliminating the stormwater runoff to the residential neighborhood to the south through the planting of an added tree buffer in place of the asphalt parking. As a result, replacing the surface parking with parking decks and trees created an opportunity for improved zoning and planning that would benefit the community. Thus, evidence was sufficient to support grant of bulk zoning variance allowing reduction in required parking spaces. The court therefore reversed the order upholding the granted height variance. 

Jacoby v Zoning Board of Adjustment of the Borough of Englewood, 2015 WL 6160248 (NJ Super. 10/5/2015)

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