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Muscarelle v. Zoning Board of Adjustment of the Borough of Paramus

A-2700-98T3, (N.J. Super. App. Div. 1999) (Unpublished)

ZONING; VARIANCES; TAKINGS—As long as reasonable access to a public road is available, denying site plan approval because an applicant’s particular access proposal is unsafe, does not constitute an unconstitutional taking.

The contract purchaser of a small, irregularly shaped tract of land sought a use variance for retail use and also sought approval of a site plan. The zoning board “denied site plan approval essentially because the proposed point of ingress and egress, a currently utilized driveway on an adjacent property occupied by two stores, . , was already congested and unsafe because it is located on Route 17 a very short distance north of a busy exit ramp from the Garden State Parkway onto Route 17.” The record reflected that the site was well known to residents and the members of the zoning board as well as to the motoring public, as a familiar area of extreme traffic congestion. There was evidence in the record showing that the zoning board was concerned with the points of ingress and egress for the properties in that area dating back almost 15 years. The applicant introduced a traffic expert, engineer and architect to address the ingress and egress issues, but the zoning board concluded that the existing access point for the adjacent site would not safely handle the increased traffic from the proposed development. The lower court held that the zoning board was at liberty to disregard the testimony of the applicant’s proffered experts and to rely on its own experience and knowledge. The Appellate Division agreed, holding that there was nothing arbitrary or capricious about the zoning board’s denial of the application. It found that the board’s findings were supported by sufficient credible evidence in the record. The applicant also contended that denial of its application was a taking without just compensation because, in effect, it prohibited any means of access between the site and an adjacent public roadway. It added that the board’s ruling violated New Jersey statutes by eliminating the only feasible access to a public road without providing for such just compensation. The zoning board countered that the applicant was not denied all access to a roadway because only its particular plan was denied. It further contended that the applicant could modify its application and present other alternatives for use of the property. Further, the board claimed that the applicant’s right of access to the roadways remained the same after its decision as it did prior to the application. The Court found that the applicant presently had no permitted direct access to Route 17 from its land due to the tract’s particular shape and its proximity to the Parkway exit ramp. It also found, however, that access was available to Route 17 over a non-exclusive easement previously negotiated with an adjacent property owner. Although, by statute, a property owner is entitled to reasonable access to the public roadway system, the Court found that this particular applicant could be denied its particular choice of access to the highway if granting the particular access would be detrimental to public safety. “So long as reasonable access remains, the diminution of access per se is not compensable.” In pointing out that the applicant could submit another site plan addressing the valid safety concerns of the zoning board, the Court gave the following note of caution. If the applicant “files a new site plan application, a denial based merely upon an inability to obtain access to the site from any of the surrounding secondary roads, might not be appropriate.”


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