MILLBURN COURTYARD ASSOCIATES, LLC, d/b/a MILLBURN COURTYARD v. PLANNING BOARD TOWNSHIP OF MILLBURN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6258-05T16258-05T1

MILLBURN COURTYARD ASSOCIATES,

LLC, d/b/a MILLBURN COURTYARD,

Plaintiff-Respondent,

v.

PLANNING BOARD OF THE TOWNSHIP

OF MILLBURN,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 15, 2007 - Decided May 25, 2007

Before Judges Lisa and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-9985-05 and L-10246-05.

Stickel, Koenig & Sullivan, attorneys for appellant (Stuart R. Koenig, on the brief).

Budin, Greenman & Greenman, attorneys for respondent (Arnold I. Budin, of counsel and on the brief).

PER CURIAM

The Planning Board of the Township of Millburn approved two site plan applications in conjunction with change in use within an existing building. In each case, the new use lacked the requisite number of off-street parking spaces required by the Township Development Regulations and Zoning Ordinance. The Planning Board granted relief from the off-street parking requirements as exceptions from the requirements for site plan approval, see N.J.S.A. 40:55D-51b, rather than as variances from zoning requirements, see N.J.S.A. 40:55D-70c. Both forms of relief require a showing of impracticality or hardship. However, a variance also requires proof of the negative criteria, namely that the relief will not cause "substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70. Because the Planning Board treated the relief in these cases as exceptions, it made no findings regarding the negative criteria.

Millburn Courtyard Associates, LLC, a competing property owner in the area, filed this action challenging the decision of the Planning Board. In a comprehensive written opinion, Judge Goldman determined that although "parking" is a proper subject of a site plan ordinance, see N.J.S.A. 40:55D-41b, "off-street parking" may be addressed only in a zoning ordinance, see N.J.S.A. 40:55D-65d. He found that the Millburn Township Development Regulations and Zoning Ordinance is an integrated land use ordinance containing both zoning and site review provisions, and that placement of the off-street parking requirements within a particular portion of that ordinance is not dispositive of the character of the provision. He concluded that the more specific provision in the Municipal Land Use Law, which treats "off-street" parking as a zoning issue, takes precedence over the more general provision treating "parking" as a site review issue. Therefore, the judge held that off-street parking relief could not be granted as an exception. He ordered the approvals vacated and remanded the matters to the Planning Board for reconsideration as variance applications with respect to off-street parking, which would require a determination of the negative criteria.

The Planning Board argues on appeal that the judge erred in his determination that the off-street parking relief must be treated as a variance from zoning requirements. We disagree with the Planning Board and affirm Judge Goldman's order substantially for the reasons set forth in his written opinion of May 23, 2006.

Affirmed.

 

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A-6258-05T1

May 25, 2007