Jackson Township's Planning and Zoning Boards have their own professional traffic expert.
Lakewood Township's Planning and Zoning Boards do not.
A recently released ruling from the New Jersey Appellate Division highlights how Lakewood's boards would benefit from getting their own professional traffic expert - their denials of applications would be more likely to be affirmed in court.
ET Management & Investors LLC submitted an application to the Weehawken Township Zoning Board of Adjustment for final site plan approval and variances for a four-story, ten-unit multi-family residential building.
The application sought variances including for density because 5.3 residential units are allowed but ten are proposed, and parking because nineteen spaces are required but twelve are proposed.
Some members of the public expressed concern over the size of the proposed building; the adequacy of parking; and the impact on the surrounding area and traffic.
Ultimately, the Board voted unanimously in favor of a motion to deny the application because it "does not have significant enough or adequate . . . parking for [the] area."
The Board's resolution of denial summarized the testimony of the developer's expert witnesses and noted that the Board relied on part upon the testimony of its planner, Jill A. Hartmann who testified as to each of the variances sought . . . as well as the deficiencies in the [a]pplication . . . ."
The Board determined, "the variances sought would be a substantial detriment to the public good and that the benefits do not outweigh the detriments that would result from . . . the proposed project."
Specifically, the Board noted:
The proposed mechanical parking is insufficient for the proposed number of units and the limited public parking in the area (both on and off-street) will not accommodate the additional vehicles that the [p]roject will bring to the immediate neighborhood both from residents and visitors. The Board did not find the proposed driveway to be a sufficient alternative and believed [it] created as many problems as it solved. It has also been determined that the [p]roject cannot accommodate the problems created by the proposed increased density, specifically with respect to traffic circulation, off-street parking[,] and the impact on the surrounding properties with respect to building coverage and side yard setbacks. Given the existing traffic conditions, the limited availability of public parking in the area . . . and the surrounding properties, the proposed structure is simply too large for the neighborhood.
The Board noted it "disagree[d] with . . . the developer's expert's contention that the mechanical parking space and adjacent driveway are sufficient to accommodate the parking needs of the site" and "given its particular knowledge and expertise regarding local traffic and parking conditions, [it] disagreed with the contentions of the [a]pplicant's traffic experts regarding the [p]roject's impact on thereupon."
The developer filed a complaint in lieu of prerogative writs in New Jersey Superior Court in Hudson County challenging the Board's denial of its application.
The trial court first remanded the matter back to the Board for an amended resolution.
After the Board amended the resolution, the trial court again reversed the Board's decision.
The court found:
[T]he evidence as addressed in the amended resolution was overwhelmingly in favor of the applicant. There is no explanation in the amended resolution as to the reasons for rejecting . . . all three experts that were presented by the applicant, the amended resolution just says, we disagree, we disagree, we disagree. . . .
Simply saying, I do[not] care what your expert says, I disagree is, by definition, arbitrary and capricious and unreasonable.
The court also noted if the Board chooses to ignore expert testimony, it needs to:
[G]ive a rational, reasonable, articulable basis based upon evidence in the record as to why [the Board is] rejecting it, i.e., the expert assumed facts that are incorrect. Here[are] the facts that were wrong. And therefore, because of that[,] [the Board is] not relying on that expert opinion. . . . [G]ood rational reasons to reject an expert opinion besides nothing else but, I disagree, I disagree.
After remanding the matter, the court expected to "get an amended resolution back" explaining why plaintiff's traffic expert's conclusions were incorrect. Instead, "[t]he amended resolution . . . states that 'given its particular knowledge and expertise, i.e., the personal beliefs of a [B]oard member, regarding local traffic and parking conditions, the [B]oard disagrees with the contentions of the applicant's traffic experts . . . plural, regarding the project's impact on the community.' That[is] not enough."
The court determined, there [are] no factual findings of the [Board] in this amended resolution except to say, we do[not] like those opinions so we[ are] going to reject all of them. They relied upon [Hartmann's] opinion, a planner, she[is] not even a traffic expert, to find that the parking [proposed] was insufficient.
Ultimately the court found, "[t]here is nothing in [the amended resolution] that would rationally support the [B]oard's . . . decision to reject so many expert qualified witnesses' testimony in favor of this application."
The Board sought reconsideration of the decision. The trial court denied the motion.
The Board appealed to the New Jersey Appellate Division, arguing the trial court erred in finding its decision was arbitrary, capricious, and unreasonable. Specifically, the Board argued its findings of fact and legal conclusions were sufficient to support its denials of the density and parking variances. The Board also contended the court erred in rejecting the testimony of its professional planner.
In a written ruling just released, Appellate Division Judges Mawla, Natali, and Vinci affirmed the lower court's decision.
We are satisfied the court correctly determined the Board failed to make sufficient findings supported by competent evidence in the record to support its denial of plaintiff's application. The Board relied primarily on the testimony and report of its planner, Hartmann, for its findings that: (1) the proposed mechanical parking is insufficient for the project; (2) the limited public parking in the area will not accommodate the additional vehicles the project will bring to the immediate neighborhood; and (3) the project cannot accommodate the problems created by the increased density, specifically with respect to site and traffic circulation, off-street parking, and the impact on the surrounding properties.
On the issue of parking, plaintiff provided expert analysis and testimony establishing the project would be a very low traffic generator, resulting in "less than five trips during" peak hours. According to plaintiff's experts, this insignificant change in traffic would not have a detrimental impact on traffic in the area. Likewise, plaintiff offered expert testimony in support of its contention that the twelve parking spaces proposed would be sufficient for the project.
As the court found, the Board simply declared that it disagreed with plaintiff's experts without any competent factual basis for doing so. The Board relied on Hartmann who is not a traffic engineer, did not undertake any sort of parking or traffic study, and did not have any factual basis for her opinions on parking or traffic.
In fact, Hartmann's opinion on the sufficiency of the proposed parking spaces was based primarily on her contention that the mechanical parking system was "not recognized by" Weehawken. Hartmann did not offer any support for that position or for her decision to disregard plaintiff's expert testimony on the utility and increasingly common acceptance of such parking systems. Likewise, Hartmann did not offer any evidence to contradict or disprove plaintiff's expert testimony that the project would be a very low traffic generator and would have not detrimental effect on traffic in the area. Instead, as the court noted, Hartmann and the Board simply declared that they disagreed and concluded, without any factual basis, that the project would bring too many additional vehicles to the immediate neighborhood.
In a similar manner, Hartmann and the Board disregarded plaintiff's expert testimony that the twenty-four-foot-wide driveway would be able to accommodate delivery, maintenance, and repair vehicles. Again, without providing any factual basis, Hartmann and the Board simply declared plaintiff's experts were wrong and the project could not accommodate the additional vehicles.
As to density, plaintiff's expert planner testified the proposed density is similar to other properties in the area and cited several examples in the immediate vicinity. Hartmann again simply disagreed, contending only that the property at 85 Maple Avenue did have a similar density, but also had significantly more parking. Hartmann did not provide any factual basis for her contention that the Maple Avenue property had significantly more parking and did not address the other properties in the area identified by plaintiff's expert.
Again, Hartmann's opinion regarding density was based in large part on her opinions regarding traffic and parking, that were factually unsupported and directly contradicted by plaintiff's experts.
As the court aptly noted, the Board's amended resolution was based on the personal disagreement of the Board members with plaintiff's evidence and experts, not on competent facts in the record. Because the amended resolution sets forth only bald conclusions rather than sufficient findings supported by facts in the record, we conclude the court determined correctly the Board's decision denying plaintiff's application was arbitrary, capricious, and unreasonable.
We are not persuaded by the Board's argument that the court rejected Hartmann's testimony because she was not a traffic expert. The court did not reject Hartmann's testimony. Instead, it gave her testimony less weight because her opinions were not supported by facts in the record and were contradicted by plaintiff's three experts whose opinions were properly supported.
Finally, we are satisfied plaintiff set forth evidence sufficient to support its requests for variance relief. As to the density variance, plaintiff established the project: (1) promotes the general welfare by creating new more efficient and modern housing and advances the goal of providing a desirable living environment; (2) proposes a use of the property more in harmony with the area than leaving the two lots with the existing non-conforming conditions; (3) promotes a more desirable visual environment; and (4) promotes the efficient use of land. Plaintiff also established the proposed density was consistent with the density of other properties in the immediate area and would not create a substantial detriment to nearby properties. As to the parking variance, plaintiff established through unrebutted expert testimony the proposed mechanical parking system is reliable, effective, and is commonly being implemented in similar projects. In addition, plaintiff established the twelve proposed spots would be sufficient for the project. The Board failed to offer any competent evidence to refute plaintiff's supporting expert testimony and evidence, the Appellate panel concluded.
The winning attorney is J. Alvaro Alonso.
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1 comment:
Jackson has its own traffic planner? Who?
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