Newark residents thrilled with latest decision in parking lot battle

By Barry Carter | The Star-Ledger
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on September 16, 2016

Nobody would listen to them – even though a group of Newark residents, some who happen to be planners and architects, know a thing or two about why surface parking lots are not good for neighborhoods.

The city's Zoning Board of Adjustment didn't agree with their argument when it voted, in 2012, to grant McWhorter LLC a variance to build a parking lot on McWhorter Street in the Ironbound section.

The city's administration, despite a report from its own planner, who also opposed the parking lot, went along with the board. The City Council did nothing as well, declining to hold an appeal hearing that residents requested.

Lastly, the residents, who call themselves "PLANewark" were turned down in court when they tried to stop McWhorter LLC from building the lot on the 1.25-acre site. A law division judge said the zoning board did not act arbitrarily or capriciously when it approved the variance.

But after four years of waiting, the residents learned that the state Appellate Division believes they had valid points in opposing the parking lot.

"We agree, reverse the trial court's order and vacate the resolution of the Board granting the variance and site plan approval,'' the court wrote in its ruling last month.

A three-judge panel rejected arguments from McWhorter LLC, concluding that opinions of the planner it hired were legally unsound and unsupported.

"Everyone just ignored us,'' said Madeline Ruiz, a Newark resident and architect, who has been critical of the board "handing out variances like candy.''

Residents believed their reasoning was convincing enough to stop the 13th parking lot situated between the Prudential Center and the rear of Penn Station. Of their many points, residents said parking lots are not a permitted use under the city's ordinance. They said the new parking lot would increase traffic on Ferry Street and discourage pedestrians from walking and shopping. They argued that parking lots are islands for crime at night, and that the usage does not jibe with the city's master plan, which calls for underground parking and development to be a mix of commercial, office and residential projects.

Most important, the PLANewark residents insisted – and the appellate judges agreed – that McWhorter LLC failed to prove that the parking lot would be a positive benefit to the neighborhood, and that it would not negatively impact the community or go against the master plan.

"The city of Newark should have been so much more supportive,'' Ruiz said. "This is enormous.''

Frank J. Petrino, attorney for McWhorter LLC, could not be reached for comment, but lawyers for the city, the zoning board and the residents said McWhorter LLC is filing an appeal to the state Supreme Court.

Manual Lopez, principal owner of McWhorter LLC, also could not be reached for comment. 

What does this decision ultimately mean? The parking lot, which has been in business for three years, shouldn't be operating, said Renee Steinhagen, attorney for PLANewark.

She has written to Ade Afolabi, the city's zoning officer, asking Newark to tell McWhorter LLC to stop using the land as a parking lot.

Gary Lipshutz, assistant corporation counsel for Newark, said he couldn't comment on the PLANewark request because the property owner has filed a motion to stay the judgement of the Appellate Division and submitted a petition for certification with the Supreme Court.

"For that reason, we would decline comment on ongoing litigation,'' he said.

Rosemarie Ruivo, a zoning board member who represents the Ironbound, said the board should abide by the Appellate Division ruling.

"I just don't want the owner to abandoned the property, because that's the front door to the Ironbound,'' Ruivo said. "I'm hoping something positive comes out of it.''

"We have to open dialogue with the owner of the site to come up with something that works,'' said Anker West, a resident and architectural designer. "Hopefully, this (decision) will put the brakes on any future plans to do parking like this.''

How this parking lot fight started requires some replay.

Lopez, who owns several surface parking lots in Newark, received approval from the zoning board in 2006 to demolish an industrial building at 28 McWhorter St. He had planned to construct a seven-story, mixed use building, with a parking garage, commercial and retail space, and residential units.

When the economic recession hit, Lopez testified during a board hearing that he was not able to develop the project. He rented the building to a church for five years, instead of demolishing it.

In the sixth year – make that May 2012 – Lopez went back to the zoning board seeking permission to demolish the building in order to use the land as a parking lot.

The following September, the city's acting planner, Nancy Gould, advised the planning board that she would not recommend the parking lot project be granted a variance.

"It is the opinion of the city that a surface parking lot in this location would detract from the walkability of the neighborhood, create a hazard to pedestrians and otherwise negatively impact the quality of life for residential and institutional uses,''she wrote in a memo to the board.

The board did not concur. But the appellate division saw differently.

"The court methodically went through what was presented and it made remarks about how the board of adjustment didn't really do much fact finding itself,'' Steinhagen said.

While it is unknown what will happen at the Supreme Court, this much is inarguable: The residents stuck together in this Goliath-style fight. And they didn't mind being a warrior like David, the biblical little guy with the slingshot and some stones.

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