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Huebscher v. Lebanon Township Planning Board

A-291-00T5 (N.J. Super. App. Div. 2001) (Unpublished)

ZONING; SUBDIVISIONS—In connection with a residential subdivision, the Residential Site Improvement Standards regulations may preempt municipal zoning requirements that certain private roads within a development must be upgraded.

The owner of a vacant parcel sought to subdivide her land into three lots. The parcel fronted along a private roadway that was used by approximately 14 other homeowners, all of whom had easement rights to access the private roadway. Because her property did not front on a public street, she sought approval of the subdivision under N.J.S. 40:55D-36 which “permits relief under such conditions as will provide adequate access for firefighting equipment, ambulances and other emergency vehicles.” Following a hearing, the municipal planning board denied the subdivision application and passed a resolution that the private road “would be unsafe and not provide adequate ingress and egress to all of the users.” The owner appealed to the Law Division. The Law Division recognized that the subdivision application did not meet the requirements of the municipal subdivision ordinance, and concluded that the board’s denial of the application was amply supported and not arbitrary, capricious or unreasonable. The owner appealed to the Appellate Division arguing that the municipal ordinance was preempted by the Residential Site Improvement Standards (RSIS), N.J.A.C. 5:21-1.10(a), and was therefore inapplicable. The Court began by reviewing the municipal subdivision ordinance. It found that the ordinance required that applicants proposing a subdivision on private roads improve those roads to Class III Common Driveway standards. An applicant also has to show that it has the right to improve the private roadway. Here, the Court concluded this particular applicant clearly did not have the right to improve the private roadway because she merely had an easement to access it. However, the Appellate Division then considered the applicant’s argument that the RSIS preempted the ordinance and that improvements to the private roadway were not required. It concurred with the applicant, and explained that the exception to the RSIS relied upon by the municipality (that private roadways used by more than one residence are not subject to the RSIS) only applied to private roadways used by more than one, but not more than four, residences. Here, the private roadway was used by at least fourteen residences and therefore the exception to the RSIS was inapplicable and the RSIS preempted the municipal ordinance.

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