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Worts v. Dittmar

A-4625-06T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; ROADWAYS — New Jersey’s requirement that developed properties connect to an improved roadway is intended to protect health and safety by requiring adequate access to every structure for emergency vehicles and although a municipality may grant a variance for this requirement, a land use board has discretion in deciding whether to approve such a variance.

Property owners applied for a building permit to construct a single-family dwelling on property that had previously been a pristine forest. The property had not been used by anyone over the prior thirty years. The application was denied because the property did not meet the applicable statutory requirement that it abut an improved roadway. The applicants also were denied a variance by the zoning board. The applicants wanted to establish access to a public roadway by way of a private road over private property. The private roadway was paved in the manner that a simple roadway would be paved, not as the municipality would surface an improved street. It was as narrow as four-feet wide in some sections. In addition, the applicants provided no evidence that they had an easement or other right of access to the private road. Although the subject property and the area where the private roadway was located were at one time part of a larger parcel, there were no deeds expressly reserving an easement area for the applicant’s parcel even though one of the prior deeds referred to a twenty-five foot right of way in the vicinity of the private roadway. The property owners sued to compel the issuance of a building permit and to declare the private roadway a “public roadway.” This would have permitted their property to be considered as abutting an improved roadway.

The Chancery Division rejected the applicants’ claims. It found that the only access to the subject property was by way of the private roadway connecting to an improved roadway. The lower court also found that the applicants failed to prove by clear and convincing evidence that there was an easement along the private roadway, was expressly reserved or granted or implied. Thus, it ruled that the applicants’ property did not abut an improved roadway. The applicants appealed, claiming they were able to lawfully access an improved public road by way of the private roadway.

The Appellate Division affirmed. It agreed with the lower court that the property owners never established that they had either an express or implied easement affording them access to a public roadway. The Court held that the currently traveled roadway was not the same roadway as that in the deeded right of the applicant’s predecessor’s deed. Moreover, the Court found no express grant of an easement to the applicants. The Court also rejected the applicants’ arguments that the easement was implied, holding: (a) the easement had not been in existence at the time of the severance of the land (and thus was not an easement by implication) since the subject property had not been used for over thirty years; and (b) there was no evidence that the asserted easement was apparent, continuous, permanent, and necessary to create an easement by necessity.

As to the municipality’s rejection of the applicants’ permit and variance requests, the Court held that the applicable statute requires that property abut a street or obtain a variance from that requirement. The statute’s purpose was intended to protect health and safety by requiring adequate access to every structure for emergency vehicles. Although a municipality may grant a variance from this requirement, a board has discretion in deciding to approve such a variance. The Court ruled, in this case, that both the zoning officer and the board had both denied the application because the property did not abut a public street. It did not believe their actions were arbitrary or capricious since there was nothing in the record to support a claim that there was any abuse of discretion.


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