ALL SEASONS WAYNE, LLC, et al. v. THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WAYNE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1253-04T51253-04T5

ALL SEASONS WAYNE, LLC, a

Pennsylvania Limited Liability

Company; ROY DEPETRO, ROBERT

LEFELAR and IRENE WEINBERG,

individuals,

Plaintiffs-Appellants,

v.

THE ZONING BOARD OF ADJUSTMENT

OF THE TOWNSHIP OF WAYNE, and

AFFORDABLE STORAGE BY DANIEL,

LLC, a New Jersey Limited

Liability Company,

Defendants-Respondents.

________________________________________________________________

 

Submitted October 25, 2005 - Decided

Before Judges Lefelt, Hoens and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Passaic

County, Docket No. L-4552-03.

Saul Ewing, attorneys for appellant

All Seasons Wayne, LLC (Henry L. Kent-

Smith, of counsel; Mr. Smith and

Jennifer Forrest, on the joint brief).

Phillip R. Glucksman, attorney for

appellants Roy DePetro, Robert Lefelar

and Irene Weinberg (Mr. Glucksman, of

counsel and on the joint brief).

Daggett, Kraemer, Eliades,

Vanderwiele & Ursin, attorneys for

respondent Affordable Storage by

Daniel LLC (John E. Ursin, of counsel

and on the brief).

Kenneth A. Kovalcik, attorney for

respondent Zoning Board of Adjustment

of the Township of Wayne.

PER CURIAM

The Wayne Township Zoning Board of Adjustment granted Affordable Storage by Daniel LLC a use variance and site plan approval for a four-story self-storage facility with seventeen off-street parking spaces and 674 storage units on Hamburg Turnpike in Wayne. The Board approved the variance and site plan despite the objections by competitors, All Seasons Wayne, LLC; Roy DePetro; Robert Lefelar; and Irene Weinberg. All Seasons appealed by filing a complaint in lieu of prerogative writs, which was dismissed when the Law Division judge affirmed the Board's grant of the variance and site plan approval. All Seasons appealed to this court, arguing the Board's action was arbitrary because the site plan lacked adequate parking provisions and the variance application failed to meet the statutory proof requirements. We affirm.

Affordable Storage's variance and site plan applications were considered by the Board at five public hearings. Testimony at the hearings focused on the need for a storage facility, the potential visual impact of the large building on the Turnpike, the encroachment into the residential district, and the off-street parking plan. Because the zoning ordinance did not provide a standard for off-street parking at such a facility, a great deal of time was focused on this issue.

Affordable Storage argued before the Board that the use would benefit the community by replacing an existing non-conforming used car dealership and towing business. It presented testimony to establish a growing need for climate controlled storage facilities and that if Affordable Storage and all of the proposed and operating storage facilities in the area were operating at 100%, the market would still only be at eighty percent capacity. Affordable Storage's evidence also demonstrated that the proposed seventeen parking spaces were appropriate for the use. Further, Affordable Storage argued the intrusion into the residential zone was limited both in space and in use, as only 1,500 square feet of a driveway, fence, and portion of a retaining wall encroached into the zone. Moreover, it noted the existing non-conforming use encroached into the residential zone to the same extent as the proposed use. An Affordable Storage witness also asserted the encroached area would be inappropriate for residential purposes and that there was sufficient buffer between the business and the nearest residential property.

At the hearings, All Seasons contended that there was not sufficient need in the community to support such a large self-storage facility. All Seasons argued that Affordable Storage's facility would create an oversupply of approximately 57,000 square feet of climate controlled space and, based on experience, asserted the Affordable Storage's proposal provided insufficient parking for such use.

The Board planner developed a report comparing the parking ratios of Affordable Storage and the five other self-storage facilities in the township. The report concluded that "the proposed development appears to appropriately address parking demand."

Ultimately, the Board approved the variance and the site plan by a vote of five to one, noting the sole dissenter's opinion that because Affordable Storage could reduce the footprint of the structure to fit within the business zone, there was no special reason to support the variance.

All Seasons' complaint in lieu of prerogative writs challenged the grant of the use variance and site plan. It sought reversal for three reasons: (1) the size of the proposed building was incompatible with adjoining uses; (2) the Board failed to consider the parking scheme and approved a site with inadequate parking; and (3) Affordable Storage failed to satisfy either the enhanced burden of proof necessary for a use variance or the negative criteria regarding the substantial impact the proposal would have on the master plan and zoning. The trial court rejected all of these arguments and affirmed the Board decision. This appeal followed.

In its appeal, All Seasons claims the trial court erred by affirming the Board's action because Affordable Storage failed to satisfy the positive and negative variance criteria identified in Medici v. BPR Co., 107 N.J. 1, 4 (1987), and was unjustly benefited by erroneous advice given to the Board by its attorney. In addition, All Seasons argues the trial court erred when it failed to rule that Affordable Storage's parking scheme was both insufficient and inadequately addressed by the Board.

The only reason Affordable Storage requires a use variance is that a small portion of the subject property is located in Wayne's residential zone. The subject property comprises 103,000 square feet, which is bisected diagonally by the line dividing Wayne's business district from the residential A district. The front of the property, closest to the Turnpike, is completely in the business district. The rear of the property is triangular and contains approximately 30,000 square feet in the residential zone, of which only 1,500 square feet is designated for use, with the remainder serving as a buffer zone. The far rear of the property is a steep, wooded incline that separates the business from the nearest single family residence, which is approximately 300 feet from the proposed storage facility. The surrounding properties are mostly industrial, but single family homes are located to the east of the property and condominiums are located approximately 150 feet to the southeast.

We agree with the trial court that the proposed use "is [a] de minimus incursion into the residential zone," and that the Board appropriately addressed all of the positive and negative criteria necessary to support the grant of a use variance. There being sufficient evidence in the record to support the Board's decision, it is not arbitrary, capricious, or unreasonable, and was correctly affirmed by the trial court. See Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268, 296-97 (1965).

All Seasons also claims that the Board attorney improperly advised the Board that the proposed use was permitted in the business zone without regard to whether the facility would permit the storage of commercial goods. This advice, while perhaps technically wrong at the time, was subsequently found to be accurate by us. See DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 176-77 (App. Div.), certif. denied, 181 N.J. 544 (2004). Accordingly, All Seasons' contention on this issue is without merit.

We next address the site plan approval. The Wayne Township Zoning Ordinance is silent on parking standards for self-storage facilities. The ordinance requires one stall per 1,000 square feet of space and one stall per employee for commercial warehouses in its industrial zone. The evidence demonstrated, however, that this type of facility does not draw the same quantity and type of heavy traffic that would result in significant parking concerns. Because a clear standard for this type of facility was lacking, there was a great deal of testimony and argument on the parking plans for the proposed facility.

Affordable Storage's position was basically that because of the type of use, "parking is not a very big requirement." Indeed, when the applicant increased the number of units from 500 to 647, no additional parking spaces were provided because the company "felt that [it] didn't need any extra."

All Seasons based its objection to the parking plan primarily on its operation of a similar facility, also on the Hamburg Turnpike; experience operating eighteen self-storage facilities for two years; and the purported industry standard. All Seasons' similar facility is two stories and 35,700 feet with fifteen parking spaces, or one stall per 2,380 square feet. According to All Seasons' witness, parking at this facility is "tight."

For all eighteen of All Seasons' facilities, the average ratio was one parking space per 3,172 square feet in a one story building and one parking space per 2,062 square feet for a two story building. According to this witness, the parking at these facilities was adequate, but should be enhanced for a multi-story building because of the increased time required to access the storage units.

All Seasons also presented evidence of the industry standard. According to its witness, "[n]o one has written a precise rule," but generally, the industry standard ranges from one parking space per 1,000 square feet to one parking space per 3,000 to 5,000 square feet, with greater parking in the more urban locations.

The Board's resolution of approval made no specific mention of the parking controversy, and merely noted the use was a low traffic generator. In affirming the Board, the Law Division judge excused this omission by stating that in the absence of a parking standard contained in the local ordinance, "[i]t would be a dereliction of duty for the Board to consider some other [parking] standard or make up their own standard, such as a national standard or a regional standard." The judge recognized that the Wayne planner was satisfied that "the off-street parking provided was consistent with the region or municipality generally," but explained that "the basic thesis for [the court's] rational[e] [in the variance] decision is that there's an absence of standards."

Our problem with the judge's rationale is that the Board may not grant site plan approval for a development that will provide inadequate off-street parking. The Municipal Land Use Law, N.J.S.A. 40:55D-1 to -99, requires that any site plan ordinance provide standards relating to parking and circulation. N.J.S.A. 40:55D-41 ("[a]n ordinance requiring site plan review and approval . . . shall include . . . [s]afe and efficient . . . parking and loading"). Although a zoning ordinance may "[e]stablish, for particular uses or classes of uses, reasonable standards . . . [for] off-street parking," N.J.S.A. 40:55D-65(d), "it is not feasible to legislate for every detail of every development application which might come before a local planning board in a way that would adequately serve the public interest." 36 New Jersey Practice, Land Use Law 5.1, at 122 (David J. Frizell) (rev. 2d ed. 1999) (citing Kozesnik v. Twp. of Montgomery, 24 N.J. 154, 186 (1957)). The pertinent ordinance requires that for site plan approval, "adequate off-street parking and loading areas" must be provided. Wayne Twp., N.J., Planning and Dev. Ordinance 134-135 A(2). Therefore, although a zoning board is required to act within the bounds of the ordinance and pertinent statutes, it "must be given latitude during the site plan review process to impose standards and conditions which are reasonable in the context of the specific proposal and the particular site involved." 36 New Jersey Practice, Land Use Law 5.1, at 122.

In the case of conflicting evidence, as there was in the parking dispute, the Board should articulate its findings of fact and conclusions of law. See New York SMSA v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 333 (App. Div. 2004). The resolution must contain sufficient findings, based on the proofs submitted, to satisfy a reviewing court that the Board has not acted arbitrarily. Ibid.

Here, the Board failed to iterate its findings in the resolution from the evidence presented at the hearing regarding parking and, moreover, the Board did not specifically indicate its conclusions regarding the adequacy of the parking plan. The only specific reference in the resolution to parking was an acknowledgement of the applicant's requested waiver of a "requirement to provide 0.5fc illumination in all parking stalls." It would have been preferable for the Board to have specifically addressed the parking dispute in its formal resolution. See id. at 333.

Nevertheless, we are able to discern the Board's decision from the resolution and the record. The Board attached to and incorporated within the resolution reports from the Parks Department, Water Sewer Department, and Engineer. The Parks Department report included a sketch that reflected the proposed seventeen parking spaces. Although the report itself focused on the required plants and bushes, we can infer from its incorporation into the resolution that the Board found the proposed seventeen parking spaces to be adequate.

For example, the record contains a Board Commissioner's comment indicating that he lived near All Seasons and "pass[es] it probably four or five times a week, and [he has] never seen [fifteen] cars in the parking lot, ever." Remarks by individual Board members are not substitutes for the formality required by N.J.S.A. 40:55D-10(2) in drafting a resolution, but they may be used to interpret an ambiguous resolution. New York SMSA, supra, 370 N.J. Super. at 333. Furthermore, the average parking per square foot ratio in all eighteen of All Seasons' facilities far exceeded the parking standard All Seasons advanced as suitable for Affordable Storage. In addition, the Board specifically determined in the resolution that the proposed use was "a low traffic generator."

Although we are generally loath to affirm where a board fails to indicate clearly its findings on a contested issue, on the facts of this case, we interpret the Board's resolution as approving the adequacy of the proposed seventeen parking spaces depicted in the Parks Department report. Because the Wayne planner found the parking plan to be adequate, there is sufficient evidence in the record supporting the Board's decision. See Kramer, supra, 45 N.J. at 296-97. Therefore, just as we have found no reason to overturn the Board's variance, we also see no reason to reverse the site plan approval.

 
Affirmed.

We refer to all individual defendants and the company as "All Seasons."

(continued)

(continued)

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A-1253-04T5

December 9, 2005