Re-Imagining the Shopping Center Post-COVID: Zoning Changes Needed to Accommodate Store Features No Longer Deemed Convenience Amenities
Land Use/Real Estate
April 30, 2020
Curbside pick-up lanes and “to-go” parking spaces—already trending in shopping centers before the pandemic—have become essential features of retail stores in the wake of COVID-19 and are likely to become permanent fixtures in shopping centers. Likewise, drive-throughs and walk-up or vestibule kiosks will no longer be limited to banks and pharmacies, as retailers of every type seek to adapt to the new public health normal and avoid risks and exposures to employees and customers alike. How does this sudden shift in shopping center design and layout square with existing zoning laws and municipal codes around the Garden State?
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.
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