Posted by: Patricia Salkin | November 29, 2019

NJ Apellate Court Rules that Criteria for Parking Lot Approval was Impermissibly Vague

This post was authored by Amy Lavine, Esq.

A New Jersey case decided in June addressed conditional use variance criteria for non-residential parking lots located in residential zones and concluded that the ordinance was invalid because the requirement that such parking lots be “reasonably necessary for the convenience of the community” lacked sufficient specificity.

The plaintiff requested a conditional use variance to expand the parking lot at its Dunkin Donuts franchise onto an adjoining lot in the township’s residential zone. Under the township’s zoning ordinance, the criteria for granting a conditional use variance for a nonresidential parking lot included a requirement that the parking lot had to be “reasonably necessary for the convenience of the community.” After considering testimony from the plaintiff’s experts and comments from the public, the planning board denied the plaintiff’s application on the basis that expansion of the parking lot wasn’t “reasonably necessary for the convenience of the community.” In the board’s view, street parking was available to accommodate the parking needs of Dunkin Donuts customers and the evidence failed to establish that a lack of parking had created any safety issues of other dangerous conditions.

The plaintiff challenged the planning board’s denial of its conditional use variance, asserting that the ordinance was invalid because it failed to provide sufficient specificity. The trial judge ruled in the plaintiff’s favor and the court affirmed on appeal. As the court explained: “subsection (d) of the Ordinance required the Board to ascertain whether plaintiff’s proposed parking lot was ‘reasonably necessary for the convenience of the community and [would] not be detrimental to the health, safety or general welfare of the community or the surrounding property.’ However, subsection (d) of the Ordinance lacked “definite specifications and standards” consistent with N.J.S.A. 40:55D-67(a) to enable plaintiff to know the limit and extent of the Ordinance’s provisions to satisfy the conditional use requirement. Therefore, subsection (d) of the ordinance is void, and the Board’s denial of plaintiff’s application based on the void provision was arbitrary and capricious.”

The court also affirmed the conclusion of the trial judge that the ordinance was invalid in its entirety. As the court explained, the ordinance was intended to provide flexibility in the review of parking lots located within the township’s residential zones. If the invalid criteria was merely severed from the rest of the ordinance, the plaintiff’s parking lot would comply fully with the remaining criteria and neither the planning board nor the zoning board would have the authority to review the plaintiff’s application and consider the potential negative impacts associated with non-residential parking lots in residential zones. Severing the invalid criteria would accordingly frustrate the intent of the ordinance and the trial judge correctly invalidated the entire ordinance instead.

AMEE @ 46, LLC v. Twp. of Denville, 2019 WL 2591203 (NJ App. 6/25/19).


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