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Sprout Development Co., LLC v. The Borough of Paramus

A-2180-05T1 (N.J. Super. App. Div. 2007) (Unpublished)

ZONING; SITE PLAN APPROVAL — The closing of a cross-access driveway cannot be characterized as a “minor improvement” since its effect on traffic flow would not be minor; therefore, to close a cross-access driveway requires site plan approval.

Two owners owned adjacent commercial properties in a certain municipality. One owner’s property had a driveway that allowed direct access to and from a major road. The owner without direct access to the major road proposed constructing a new retail building on his property. During the site plan approval process, he asked the adjacent owner with direct road access if he would permit the creation of a cross-access driveway between the two owners’ properties for commercial and pedestrian use, and the other owner agreed. The planning board approved the construction of the cross-access driveway, finding that it constituted a desirable development plan considering the future development of the property, and that the plan constituted an improvement in traffic safety. The two owners entered into a mutual access agreement. It had a provision whereby the agreement could be terminated by either party upon 180-days’ written notice.

After more than a decade of mutual use of the cross-access driveway, the owner without direct road access served the other owner with notice of termination of the mutual access agreement. The non-terminating owner filed a complaint seeking an order declaring the termination provision void. The terminating owner then obtained permits from the municipality for installation of an electric gate that would block the use of the cross-access driveway for commercial and pedestrian traffic. The other owner then filed a motion to invalidate the permits. The lower court granted summary judgment to the terminating owner, finding that the termination was valid, and it denied the other owner’s motion to invalidate the permits, finding that he had not exhausted his administrative remedies. The non-terminating owner filed a motion for reconsideration of the order denying his motion to invalidate the permits. The lower court denied the motion, finding that the permits were properly issued on the direction of the municipality’s engineer, pursuant to a local ordinance.

On appeal, the Appellate Division reversed the lower court’s decision, agreeing with the non-terminating owner’s contention that the lower court erred in denying his motion to invalidate the permits. The Court found that the non-terminating owner was not obligated to exhaust his administrative remedies before filing his complaint, because the issue involved a question of law and not of fact. The Court stated that when a party’s objection is based solely on a question of law, as in the interpretation of an ordinance, the party is not mandated to exhaust all administrative remedies before filing a complaint in the Law Division.

The Court also found that the municipality’s engineer was not authorized to exempt the terminating owner’s project from site plan approval. The lower court had, upon reconsideration of the motion to invalidate the permits, determined that site plan approval was not required under the municipal code, finding that the relevant ordinance gave the municipality’s engineer discretion to exempt the project from site plan approval. The Court explained that the ordinance stated that site plan approval is required to make any alterations to a site, with the only exceptions being minor alterations for maintenance, repairs, or correction of drainage problems, as determined by the municipality’s engineer. The engineer had exempted the closing of the cross-access driveway, determining that it was a minor alteration to the site. After explaining that courts have a responsibility to determine the intent of the legislature by examining statutory language, the Court held that the language of the ordinance was clear and unambiguous. Because the only exceptions to the site plan approval requirement stated in the ordinance were minor alterations for maintenance, repairs, or correction of drainage problems, the Court held that not all minor improvements were exempted from the requirement. It found that the installation of an electric gate that would terminate the use of a cross-access driveway did not fall into any of the exempted categories. Additionally, the Court found that the proposed alteration was not “minor,” since its effect on the traffic flow between the properties was not minor. Therefore, the Court reversed the lower court’s decision to deny the non-terminating owner’s motion to invalidate the permits obtained by the terminating owner.

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