Skip to main content

Sherman v. Holmdel Township Planning Board

A-5858-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; FLAG LOTS; HARDSHIP — There are hardship exceptions to the New Jersey statute that prevents building structures on a property without access to a municipality county road, such as appropriate access for emergency vehicles on an official map or on a master plan of streets or where the municipality allows development of flag lot properties if access is provided.

A buyer sought to purchase an undeveloped lot in a residential zone and construct a single family home. The lot was landlocked, irregularly shaped, and heavily wooded with steep slopes. The buyer negotiated with an adjacent property owner (whose property fronted a municipal road) for an easement for a driveway. At a planning board hearing for the buyer’s application for subdivision approval and other necessary variances, experts for the buyer presented the plan for construction of a driveway and for the easement. Those experts also addressed matters such as emergency access, drainage, water access, vegetation, and the property’s landscaping. Municipal officials voiced concerns about the easement plan and about the planned removal of woodlands from the property. The board denied the buyer’s application, finding that the proposed driveway was too narrow, and that the driveway was too close to another adjacent property. The board also treated the proposed lot as a flag lot, meaning an otherwise landlocked lot with a road extension leading to the street. It stated that such an unusual request was not favored. The board also noted concerns from neighbors over the effect that approval of the buyer’s application would have had on the lot’s existing plants and wildlife.

The buyer sued the municipality and the board, arguing that the municipality was responsible for the lot having been landlocked, that the proposed single family home was a permitted use, and that flag lots were permitted by the municipal zoning code. The buyer also argued that the board’s denial was arbitrary and capricious and that the board misapplied the law. The lower court found that the board’s decision was arbitrary, capricious, and unreasonable because other than for the driveway easement, the plan largely conformed to zoning ordinances, and there would have been no substantial detriment to the surrounding properties. It also noted the municipality’s actions over the years and found that the municipality’s prohibition of access to the property constituted a taking. As a result, the board’s decision was reversed by the lower court.

On appeal, the Appellate Division noted that there were hardship exceptions to the statute which prevented the building of any structure on a property that had no access to a municipal or county road. One such exception allows building if access for emergency vehicles is created and official map or on a master plan of streets in the municipality. The Court also noted that the exception allowed municipalities to permit the development of landlocked properties if road access was provided, but municipalities are not required to approve of such development. It held that the lower court’s decision regarding a taking of the property had not been fully established on the record and that the lower court relied on the exceptions without consideration of other statutes regarding land use. On the other hand, it found that the planned house substantially conformed to the municipal code. Thus, it reversed the lower court’s decision and remanded the matter to the board for a determination that was to include a specific finding of the buyer’s application according to the exceptions to the statute. The Court also directed the buyer to present historical documents explaining how the property became landlocked. Its decision allowed for either party to challenge the board’s revised decision before the lower court.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •