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Baran v. Township of Plumsted

A-1497-04T3 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; ROADS; VACATION; MLUL—A municipality’s ordinance vacating a public road is authorized by a statute other than the Municipal Land Use Law, and therefore is not a “development regulation,” as defined by that Law.

A property owner sought to subdivide a tract of land into two building lots. It proposed that a portion of a road within its land “be vacated upon approval of the subdivision.” The planning board approved the subdivision and recommended that the municipality vacate a portion of the subject road. The municipality subsequently vacated the road which its engineer described as “an east/west drift road, which exists as a ‘prescriptive rights’ access easement across existing Tax Lot 65 as well as other adjoining lots. It provides access to landlocked lots to the northwest of the applicant’s lot from its beginning and ending points, which are from dedicated right-of-ways to the east and west.” A neighboring developer objected to the enactment of the vacation ordinance on the basis “that the vacation of that portion of [the road] on Lot 65 would produce no public benefit; that [the road that would service the subdivision] was not a public road; that the vacation of the portion of the [vacated road] described in [the ordinance] would be viewed as providing potential access for ‘land locked’ Lots 65 and 97; and that the adoption of [the ordinance] would constitute a taking without just compensation.” Notwithstanding the objection, the ordinance was adopted. The municipality’s mayor, in the discussion, claimed long term, detailed familiarity with the roads in question and pointed out that vacated road “was totally obstructed,” and vacating the road was environmentally sound.

The neighboring developer sought relief from the Law Division by asking that the ordinance be set aside on the basis that it was an “arbitrary, capricious and unreasonable action, and was otherwise contrary to the principles of planning and zoning as expressed in the Municipal Land Use Law.” The lower court refused to grant the relief and, on further appeal, the Appellate Division agreed.

In its affirmance, the Appellate Division rejected the neighboring developer’s argument that the municipal committee “was obligated to refer [the ordinance] to the Planning Board for review and comment.” The New Jersey statute cited by the neighboring developer as authority for its contention pertained “to the enactment of a ‘development regulation’ which is defined in N.J.S.A. 40:55D-4 as ‘a zoning ordinance, subdivision ordinance, official map ordinance or other municipal regulation of the use and development of land, or amended thereto and filed pursuant to [the Municipal Land Use Law].’” According to the Court, the vacation ordinance was enacted pursuant to a different statute, not the Municipal Land Use Law, and therefore was not a “development regulation” within the intendment of N.J.S.A. 40:55D-26a. Besides that, the Court thought that even if New Jersey statutes “were to be construed as requiring the referral of [the vacation ordinance] to the Planning Board,” or if the law governing amendment of an official map were applicable, the circumstances in this case would not have mandated referral. It ruled this way because “it was the Planning Board that specifically recommended vacating the applicable portion of [the road in question] and, subsequent to the adoption of [the ordinance], the Planning Board passed an amended resolution” concerning the application, again recommending the vacation, thereby ratifying the adoption of the vacation ordinance. As to the argument that the ordinance constituted “arbitrary, capricious and unreasonable action by the municipality and that it resulted in the landlocking” of some lots “thereby affecting [the neighboring developer’s] property, and otherwise lacked a proper public purpose,” the Appellate Division disagreed. It felt that it was “clear from the record that the enactment of the ordinance was supported by a valid public purpose as articulated by [the mayor], a member of both the Planning Board and the governing body, at the hearing on the ordinance.” Further, the record on appeal supported the conclusion reached by the lower court that the adoption of the ordinance “did not result in the landlocking of either lot.”


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