Re-Imagining the Shopping Center Post-COVID: Zoning Changes Needed to Accommodate Store Features No Longer Deemed Convenience Amenities

You may be surprised to learn that many New Jersey municipal zoning ordinances do not permit these features as accessory uses, and sometimes planning and zoning boards are downright hostile to them. In fact, under New Jersey’s statewide land use law, any such use that is not expressly permitted is prohibited in the absence of the retailer or property owner obtaining a hard-to-get use variance. Further, many municipal zoning ordinances expressly prohibit such uses.

Despite the obvious public health, safety and welfare-protective benefits, there is peril for the merchant or property owner who proceeds without municipal authorization. Unless previously approved, the incorporation of these features into an existing structure could subject both the retailer and property owner to zoning code violations and fines, and the merchant could potentially be forced to cease its use. Fortunately, there are individual, ad hoc and comprehensive approaches retailers and property owners may take to address this issue, and strong, sensible arguments can be made in many circumstances to support approval of these new features that are grounded in public health, risk reduction and litigation avoidance.On an individual, ad hoc basis, a retailer or property owner has two approaches available. First, many zoning ordinances permit the concept of accessory uses typically associated with the principal use or contain language to that effect, so a creative, succinctly-tailored and well-supported request to the municipality can make all the difference. Accordingly, a retailer or property owner can request an interpretation from the municipal zoning officer or zoning board confirming that curbside pick-up, a drive-through, or a walk-up, vestibule or other kiosk is typically associated with the principal retail use. However, these types of accessory uses may well be “first impression” requests and the zoning officer may be reluctant to unleash a novel kind of use, albeit an accessory use. Moreover, even if the retailer or property owner prevails, site plan approval will still be required.

The second individual, ad hoc approach is to seek a use variance (under a joint request for preliminary and final site plan approval) from the municipality where the business is situated. However, under the law, there is no assurance that such variances will be granted, and there is even a super-majority burden placed on the applicant. However, again, with a creative strategy and equally creative counsel, it can potentially be effectively argued that such uses promote public health, safety and welfare, which is a fundamental obligation of the local governing body and, not coincidentally, a critical element required for demonstrating entitlement to use variance relief. While this proof is easier to demonstrate while the pandemic and gubernatorial-declared State of Emergency is pending, all hope is not lost as there will be sound reasoning to support these adaptations to commercial and retail spaces indefinitely because of the protections they will continue to provide to public health, safety and welfare concerns long after the pandemic subsides.

The better approach is to ask permission rather than forgiveness. As such, it is a more prudent strategy to proactively address these issues comprehensively in advance under the ad hoc strategies noted above. However, where those strategies are unavailing, the merchant or property owner can seek zoning ordinance amendments from the municipality expressly permitting these accessory uses in all retail zoning districts with all retail uses, carefully tailored to avoid spot-zoning concerns and in a manner consistent with the municipality’s Master Plan. A more ambitious, but ultimate solution, is for retail or real estate trade associations to seek an amendment to the New Jersey Municipal Land Use Law (MLUL) from the State Legislature providing that curbside pick-up, drive-through and walk-up or vestibule kiosk uses are permitted accessory uses in all retail and commercial zoning districts throughout the state and mandating that municipalities so amend their zoning ordinances. The MLUL already engages this consistency statewide; it currently applies a broad-brush approach to commercial and retail uses where the law harmonizes the legal landscape by providing that specified uses are automatically permitted, akin to a preemption, in certain types of zoning districts, notwithstanding a local zoning ordinance in conflict. While that is the preferable legislative approach, the State Legislature could also amend the MLUL to relax the statutory burden and provide that curbside pick-up, drive-through and kiosk features are not use variances, but are either C variances, or that they enjoy an “inherently beneficial use” designation, thereby making such approvals easier to obtain.

Many people are wondering about the “new normal” we will encounter as society and the economy spring back to life. In the public health, safety and welfare new normal, it makes sense for our public officials to adopt common sense approaches to address the problems of contagion we just encountered and prevent reoccurrence. Retailers and property owners should not assume that such essential new store features and uses will be tolerated simply because of their hygienic importance; they must take proactive steps in advance of implementing them to assure that local zoning ordinances will accommodate these evolving trends in their stores and shopping centers.

This has been prepared by Sills Cummis & Gross P.C. for informational purposes only and does not constitute advertising or solicitation and should not be used or taken as legal advice. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their state. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. Confidential information should not be sent to Sills Cummis & Gross without first communicating directly with a member of the Firm about establishing an attorney-client relationship.