Skip to main content



Baker Residential, L.P. v. Township of Washington

A-5816-06T1 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; MUNICIPALITIES; @STREETS — A municipality’s decision to vacate a public street is only to be disturbed if found to be fraudulent or not in the public interest and an applicant for subdivision approval and variances whose project is rejected because a street has been so vacated has no cause to complain.

A developer sought subdivision approval and variances for the construction of a residential development that was to include both single-family residences and townhouses. While the developer’s application was pending, the municipality passed an ordinance to vacate a portion of a road. This road vacation blocked access from the proposed development to the rest of the municipality. Subsequently, the planning board denied the developer’s application because it did not meet certain criteria for conservation, storm water management, sidewalk construction, and steep slope conditions, as well as its failure to have adequate road access. On the developer’s challenge to the board’s decision to deny its application, the lower court found that the board’s reasons for denying the request were arbitrary and capricious except for the board’s denial on the basis of inadequate road access and, as a result, it affirmed the board’s decision. The lower court found that allowing access through the road would have created a safety hazard and that the road vacation was proper given that other means of access existed.

On appeal, the developer argued that the municipality’s vacation of the road was an unlawful abuse of power intended to frustrate the proposed development and that there were no adequate reasons for the vacation was rejected. The Appellate Division rejected this claim, pointing out that a municipality’s decision to vacate a public street is only to be disturbed if found to be fraudulent or not in the public interest. It found that the municipality’s reasons for the road vacation were adequate given that the road serviced only five homes and because the nearby intersection was already hazardous and the increase in traffic from the proposed development would have increased the danger. The Court added that insufficient access to the proposed development was not solely the result of the vacation of the road, but that the developer had failed to create access through another street and a nearby apartment complex. Furthermore, it found that the board was not required to condition its subdivision approval of the application on the granting of easements through the apartment complex and over railroad tracks. Based on its findings, the Court affirmed the board’s denial of the developer’s claims.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com