Deer Valley Realty, Inc. v. Montgomery Township Planning Board

A-1658-98T2 (N.J. Super. App. Div. 1999) (Unpublished)
  • Opinion Date: October 5, 1999

ZONING; DRIVEWAYS—A pathway, in the nature of a driveway that connects internal portions of a property, is a driveway, and setback requirements for driveways, rather than for structures, apply to it.

A golf course owner applied to the municipal planning board for minor site plan approvals to construct a path for transporting maintenance vehicles and golf carts to and from its golf course. An adjacent property owner objected to the application. The board approved the application. In an appeal to the courts, a neighbor argued that the path constituted a structure under the municipality’s land development ordinance and such a structure required a thirty foot setback. Under the ordinance, a driveway requires only a ten foot setback. Consequently, if the proposed path was a structure, a variance would have been required. The lower court held that a “structure is defined in the ordinance as a combination of materials to form construction for occupancy, use or ornamentation. And I guess you’re relying on use, a combination of materials to form construction for use.” Having said that, the lower court held that no one would seriously think of an ordinance that includes a provision for a driveway as meaning to apply the definition of structure to that driveway. Apparently, the issue was that the proposed path did not link any part of the golf course to a public road. To the lower court, however, the path looked like a driveway and didn’t look like a structure. Consequently, it felt that it was a fair interpretation of the statute to treat the proposed roadway as a driveway as opposed to an accessory structure. The Appellate Division agreed.