Newark parking lot case gets turned down by N.J. Supreme Court.

By Barry Carter | The Star-Ledger
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on January 08, 2017

Residents in the Ironbound section of Newark have been fighting four years to stop this parking lot from operating. They prevailed when the Appellate Division ruled that the city's zoning board should not have granted a variance to build the parking lot. The state Supreme Court recently denied a request for an appeal from the law firm that was representing the owner of the parking lot.

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Residents in the Ironbound section of Newark have done just about everything they can to stop a parking lot from operating near Penn Station.

The problem is that PLANewark, a group of residents, architects and planners who worked against the lot, haven't been as successful as it wanted after four years and a court decision that supports their position.

The principal owner, Jose Lopez Jr. of McWhorter LLC, is still in business on the 1.25-acre site at 28 McWhorter St., while those fighting the parking lot say the operation should be shut down.

Lopez has a license from the city to operate the lot, but the state Appellate Division ruled in August that Newark's Zoning Board of Adjustment should not have approved a variance to build the lot, which began operation in 2012. The three-member panel determined that McWhorter LLC did not prove that the parking lot would benefit the neighborhood, and that it would not negatively impact the community or go against the city's master plan. As part of its ruling, the Appellate Division also reversed the decision of a Law Division judge, who said the zoning board had not acted capriciously and arbitrarily when it approved the variance.

Last September, the law firm Eckert Seamans Cherin & Mellott, which represents Lopez, appealed the ruling to the state Supreme Court, saying the Appellate Division decision would cause McWhorter LLC to go out of business. It also said the Appellate Division erroneously concluded that McWhorter LLC failed to satisfy criteria needed to obtain a variance to build the parking lot.

However, last month the Supreme Court denied the request for an appeal.

PLANewark, however doesn't see itself as a winner, said Madeline Ruiz, a Newark resident and architect. Not until the city encourages Lopez to build commercial or residential projects on the parking lot property that are compatible to the master plan.  In the case of the parking lot variance, the city's administration agreed with the zoning board, even though its own planner opposed the parking lot.

Renee Steinhagen, attorney for PLANewark has asked the city to enforce its zoning laws and tell Lopez that he can't use the land for parking.

"If you don't stop him from using it, he'll never have incentive to develop it,'' Steinhagen said.

Lopez, who owns several parking lots, disagrees. In a statement, he said the parking lot was not built to be permanent, and he has constructed other projects that demonstrate his commitment to Newark. Last year, McWhorter LLC built a 72-unit residential development on Bruen Street in the Ironbound. Currently, he is redeveloping a former textile factory in Newark into a five-story mixed-use development that will include 64 units and ground commercial space.

"Operating the property as a commercial parking lot has always been an intended interim use as this particular site has long been identified for redevelopment,'' Lopez said in the statement. "Our approach to any future redevelopment will be thoughtful as we view ourselves as long-term stakeholders in Newark with a responsibility to support the city and its promising future.''

But Steinhagen doesn't understand Lopez's latest move. He has filed another application to the Newark zoning board proposing to use the same parking lot as a parking lot with 162 spaces, enhanced lighting and a control booth. PLANewark believes there's no difference in Lopez's application. It's a tactic, they say, to delay development of the property and to improve the neighborhood.

"He is illegally operating as a parking lot," Ruiz said. "He's pulling every trick in book to continue operating.''

Gary Lipshutz, assistant corporation counsel for Newark, said the law department plans to reach out to the code enforcement department to talk about the request.

That decision doesn't make sense to PLANewark members, either.

"Why isn't the city enforcing the law,'' said Evelyn Kalka, a PLANewark member and resident.  "Why they are not doing their job is the biggest question mark to me.''

The fight over how the land at 28 McWhorter St should be used started in 2006.

Lopez tried to develop the property after he received approval from the zoning board to demolish an industrial building at the site.  His plan at the time was to construct a seven-story mixed-use building with a parking garage, residential units, retail and commercial space.

However, the poor economy at the time scuttled his plans, including demolition. Instead he rented the building to a church for five years. Then, in 2012, 

the zoning board gave him permission to demolish the building and use the land as a parking lot, which has now been in operation for the past three years.

"Parking has been, and continues to be, in high demand in the neighborhood, Lopez said.

After years of legal wrangling over this issue, both sides recently met to talk about possible solutions.

Lopez said he has plans to place residential housing on the site.

East Ward Councilman Augusto Amador said the ruling by the court Apellate Division is not germane at this point. What's important, he said, is that the area surrounding Penn Station be developed with commercial and residential developments.

"He (Lopez) guaranteed that he'll be developing the site sometime in the near future,'' Amador said. "Regardless of what happens with the (court) decision, his intent is to develop, which is what I've been calling for from the very beginning.''

In the meantime, the zoning board will review Lopez's plan next month to continue operating the parking lot, a move considered by residents as an effort to delay development.

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