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The Last Frontier, Inc. v. Blairstown Township Zoning Board of Adjustment

A-5205-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING — An applicant’s suit against a non-related public entity does not toll the effective time period for a variance that may have been granted and, consequently, the applicant must reapply for a variance if that time period has expired.

A landowner sought to build a single-family house on a vacant twenty-four acre parcel. The parcel was separated from a county road by railroad tracks. Access to the road over the railroad tracks could be accomplished by using an 800 foot long unpaved driveway. No easement for use of the driveway had ever been granted or recorded and the New Jersey Department of Transportation (DOT) owned the railroad property.

Under New Jersey’s Municipal Land Use Law (MLUL), no building may be placed on land that does not abut a street or road. This is to ensure adequate access for emergency vehicles. As a result, the landowner sought an exceptional hardship variance from the municipal board of adjustment. The board of adjustment granted the variance under a specific condition that the landowner obtain approval from the DOT for access across the railroad property. The landowner obtained this permission, but only after filing suit against the State and coming to an agreement three years after the variance was first granted.

In the meantime, the county road was substantially renovated and improved where it met the unpaved driveway. What previously was a two lane road feeding into a one lane bridge north of the driveway became a divided roadway. Where cars once slowed to a crawl just north of the driveway, and where a driver could turn left or right on the county road from the driveway, now cars were passing the driveway at normal speeds of 45 MPH and cars could only turn to the right from the driveway. After acquiring the easement over the tracks, the landowner filed for a variance extension or a new variance. The board, based upon the change of the county road and its personal experience regarding the changes, voted to deny the variance because of general safety concerns and the need for emergency vehicle access from and to the driveway. The landowner filed suit to challenge the denial. The lower court concluded the evidence supported the board’s finding to deny the variance on the grounds that to grant the variance would create a traffic hazard. The landowner appealed.

The Appellate Division affirmed the zoning board’s decision. The Court held that the landowner’s suit against the DOT did not toll the effective time period for the variance, which under the municipality’s code was one year unless an owner secured a construction permit and began construction in accordance with the variance approval. Therefore, the landowner was required to re-apply for a variance.

As to the board’s denial, the Court could not conclude that it was arbitrary, capricious or unreasonable. It found the board could appropriately consider traffic safety at the development site in declining to grant the application, and had the discretion to evaluate evidence, including board members’ adequately recorded personal experiences with the changes to the county road at the site, and conclude ingress and egress would present safety risks.

The landowner had also sought money damages claiming the board’s denial of the variance resulted in an inverse condemnation of the property by the zoning regulations, such that the landowner was deprived of all or substantially all of the beneficial use of its property. As the lower court did not address this claim, the Appellate Division remanded the question for consideration of this issue.

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