ROBERT BARAN et al. v. TOWNSHIP OF PLUMSTED, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1497-04T31497-04T3

ROBERT BARAN and ELIZABETH

DOMBROSKI,

Plaintiffs-Appellants,

v.

TOWNSHIP OF PLUMSTED, OCEAN

COUNTY, NEW JERSEY; and PLUMSTED

TOWNSHIP COMMITTEE,

Defendants-Respondents.

 

Argued: November 10, 2005 - Decided:

Before Judges Stern, Fall and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Number OCN-L-2504-03PW.

Michelle Lebovitz Lamar argued the cause for appellants (Hartsough Kenny & Chase, attorneys; Ms. Lamar, on the brief).

Michael J. Gilmore argued the cause for respondents (Gilmore & Monahan, attorneys; David R. Leahy, on the brief).

PER CURIAM

In this action in lieu of prerogative writs, plaintiffs Robert Baran and Elizabeth Dombroski appeal from an order entered on October 14, 2004, granting judgment in favor of defendants Township of Plumsted and Plumsted Township Committee, dismissing their complaint challenging the validity and application of certain ordinances enacted by the governing body of the Township. We affirm.

Plaintiffs are owners of Block 43, Lot 64, as shown on the Plumsted Township Tax Map, a parcel containing approximately 18.48 acres; their property borders, to the northeast for approximately 1192.67 feet along Ocean County Route 539. Zion Road, shown on the Tax Map as an undedicated traveled way, is located within the lot lines of plaintiffs' property, from Hill Lane, beginning at the southwesterly corner of plaintiff's property, and then running in a general southeasterly direction within the southerly property line of plaintiff's property. A portion of Zion Road fronts on Lots 69 and 70, Block 43, located to the south of Lot 64, and is paved; the remaining portion of Zion Road which is a sand or earth roadway traverses, in a general southwesterly direction, through a portion of Lot 64, near, but not bordering on, Block 43, Lot 97. Zion Road then turns in a general southerly direction and runs, from Lot 64, into and through Block 43, Lot 65.

Success Road, which runs in a general east-west direction, is shown on the Township's Tax Map as a traveled sand or earth roadway that intersects, inter alia, Block 43, Lots 97 and 65, which parcels are adjacent to, and south of, plaintiffs' property. Success Road intersects that portion of Zion Road that is located within Lot 65.

On May 19, 2003, the Plumsted Township Planning Board considered the application of Elmer and Lina Goldman to subdivide Block 43, Lot 65 an approximately 10.14 acre parcel into two building lots of approximately 5.1 acres each. The Goldmans proposed that a portion of Success Road but not all that traverses Lot 65 be vacated upon approval of the subdivision. A report from the Planning Board Engineer dated April 28, 2003, presented at the May 19 meeting, noted that Lot 65

is adjacent to a recently approved subdivision known as Success Acres, which is currently under construction. The Final Plat for Success Acres is about to be filed with the County and until such time the [Goldmans'] property does not have street frontage and is accessed via prescriptive easement rights over numerous adjacent lots via drift roads. If the Board looks favorable on the [subdivision of Lot 65] any approvals granted should be conditioned upon the filing of the Final Plat for Success Acres. Our review of this application is based on the filing of said map and that the Township has yet to accept the roadway that fronts along the [Goldmans'] property.

The property [Lot 65] is located at the northerly terminus of Success Road (about to be filed). . . .

At the meeting, the Planning Board Engineer explained that the easterly proposed lot in the subdivision "will have a street frontage of 50 feet[,]" and that "[t]he westerly proposed lot will have 94.88 feet [frontage], whereas 150 [feet] is required." Elmer Goldman testified at the hearing, stating he proposed no changes with respect to Zion Road as it presently existed.

Plaintiff Robert Baran, owner of Lot 64, expressed concern that the effect of the proposed vacation of a portion of Success Road on Lot 65 would be to landlock Lot 97, also owned by the Goldmans, because the only access to Lot 97 would be, at its northerly terminus, across Lot 64 onto Zion Road. Mr. Baran also raised other issues concerning his potential liability for any accidents or injuries that might occur on that portion of Zion Road that is located within the boundaries of his property.

The Planning Board approved the Goldmans' subdivision application in accordance with the recommendations contained in the April 28, 2003 letter of the Board Engineer, and recommended that the Township vacate a portion of Success Road within Lot 65, from its intersection with Zion Road, in an easterly direction, until it intersects the southerly property line of Lot 65.

On June 2, 2004, the Planning Board passed a formal resolution approving the Goldman subdivision with respect to Lot 65. The Board found that Lot 65 "is traversed by 2 prescriptive rights access easements which travel both north and south [Zion Road] and east and west [Success Road] across the property[.]" One of the conditions of approval required that "neither the applicant or [its] successor in title shall in any way limit access through Zion Road and that such access must remain free and clear at all times[.]" The Board also concluded that the subdivision "can be granted without substantial detriment to the public good and without being inconsistent with the intent and purpose of the Township's Master Plan and Zoning Ordinance[.]"

Ordinance No. 03-16, which vacated, as per the Planning Board's recommendation, the subject portion of Success Road within Lot 65, was introduced and passed on first reading at the June 23, 2003 meeting of the Plumsted Township Committee; the final reading of the ordinance was scheduled for July 14, 2003.

In a letter to the Township Committee dated July 9, 2003, the Township Engineer reviewed Ordinance No. 03-16, and stated in pertinent part:

Success Road is an east/west drift road, which exists as a "prescriptive rights" access easement across existing Tax Lot 65 as well as other adjoining lots. It provides access to landlocked lots to the northwest of the applicant's lot from its beginning and ending points, which are from dedicated right-of-ways to the east and west. Also traversing the property in a north/south direction is another drift road (also "prescriptive rights") known as Zion Road. Zion Road also provides access to landlocked lots.

The applicant is requesting that the Committee vacate a portion of Success Road (approximately 625 ft.[)] that runs through Tax Lot 65 from the "Success Acres" development to Zion Road in the applicant's lot. "Success Acres" is currently under construction and the Final Plat is about to be filed. The applicant is also proposing to dedicate a 30 ft. wide roadway easement along Zion Road, which runs through his property. A small portion of Success Road will remain as "prescriptive rights" from Zion Road to the lots['] northwesterly corner.

By letter from plaintiffs' counsel to the Township Committee dated July 11, 2003, plaintiffs objected to the enactment of Ordinance No. 03-16, on the bases that the vacation of that portion of Success Road on Lot 65 would produce no public benefit; that Zion Road was not a public road; that the vacation of that portion of Success Road described in Ordinance No. 03-16 would be viewed as providing potential access for "land locked" Lots 65 and 97; and that the adoption of Ordinance No. 03-16 would constitute a taking without just compensation. Although plaintiffs' contentions were considered, the governing body unanimously adopted the subject ordinance. In so doing, Mayor Ronald S. Dancer stated, in pertinent part:

[W]hen you look at it as to why this is in the public's interest, it should also be on the record here for the Township. . . . [T]he Planning Board looked at it from an environmental perspective. We have a situation where this particular land area and lot is in what we call the Lakewood Preservation targeted area. It's an environmentally sensitive area. There are two roads, both Zion and Success Road, that traverse this particular lot. The Planning Board felt that it was in the public's interest to environmentally protect the Township's designated preservation area by looking at the two roads and determining which of the two roads would present the least amount of expense to the Township if there were to ever be in the future, . . . improvements. That was an easy observation because most of the Planning Board members went out to the site and looked at it. Zion Road, you can drive from its access point off of [Route] 539. You can drive all the way through over to [Route] 528 and come out by the Oak Road Trailer Park.

However, on Success Road, when you get to the portion that we're looking at here tonight to vacate, it was totally obstructed, could not drive. We had to get out of our vehicles, actually walk through the limbs and trees and so on and so forth that were on this section of the road. So, that was a fairly easy call as far as which of the two roads would be, from an economical perspective, least expensive to the Township.

Environmentally, when the applicant was before the Board, the Planning Board did discuss with the applicant about rerouting Success Road on his property around the perimeter, and so it continues to exit [onto] a place where we call North Success Road. While the applicant expressed a willingness to do that, if it meant his approval, the Planning Board and, in particular, the Environmental Commission member of [the Board,] Miguel Garces[,] brought up that why would we want to clear-cut the beautiful stand of trees to have a road around the perimeter of the property when, in fact, you could utilize an existing road that will exit on the same road, which is Lakewood Road, only 800 foot westerly. So, that was a unanimous consensus by the Planning Board that, in fact, given the environmental constraints, we would not require the applicant to construct a new portion of Success Road by clear-cutting trees.

As a matter of fact, the Board went a step further and required of the applicant what we call conservation easements around the perimeter so that, in fact, in the future, none of those trees would be disturbed at all, no disturbance on the existing vegetation.

That looks at it from an environmental perspective, an economic perspective, and obviously a public safety perspective for the ingress/egress for the access of any emergency vehicles coming in that area. The Zion Road was the road that would have the least amount of obstructions for public safety.

In reply to counsel for plaintiffs' expressed concern that enactment of Ordinance No. 03-16 would impact on their property because Zion Road was not a road, but rather "a private piece of property," Mayor Dancer stated, in relevant part:

[Y]our client was at the public hearing . . . at the Planning Board, and he did address issues about Zion Road and the liability of going with the owner of the property. . . . I just wanted to mention to you that, pursuant to the statute, N.J.S.A. 40:67-23.1, the Township has adopted, by ordinance, in compliance with that statute, and I'll just read that to you when you said it wasn't a public road: "The Mayor and Township Committee of the Township of Plumsted do hereby authorize the provision of services listed to the following unimproved and unacceptable roads and streets within the Township of Plumsted where the travel is sufficient to warrant such expenditures [and] services, including, but not limited to," and then we give a list of roads. Both Zion Road and Success Road are listed in the ordinance.

It goes on to say that, "No person shall deny the general public, nor the Township of Plumsted or its duly authorized vendor of road services the right to continued access and travel upon such roads which have been traveled upon by the general public for twenty (20) years or more."

Again, as you're probably aware, under the prescriptive easements rights of the State of New Jersey, these roads, in fact, have been traveled upon with uninterrupted service for more than the twenty-year period. So, there are prescriptive easement rights upon both roads and . . . in accordance with the applicable statute that we can, and have, provided certain services to these roads to keep them open to the public. . . .

On August 29, 2003, plaintiffs filed a three-count complaint in Lieu of Prerogative Writs against the Township and Township Committee, alleging that the enactment of Ordinance No. 03-16 constituted arbitrary, capricious and unreasonable action, and was otherwise contrary to the principles of planning and zoning as expressed in the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -129, and should be declared invalid (count one); that 57-15 of the Township Code, which authorizes the provision of municipal services to unimproved and unacceptable roads and streets, including Zion Road, should be declared inapplicable to that portion of Zion Road as it traverses plaintiffs' property (count two); and that the vacating of a portion of Success Road by Ordinance No. 03-16, which had the result of landlocking Lots 97 and 65 in Block 43, constituted a partial taking of plaintiffs' property by inverse condemnation, for which taking they should be compensated (count three).

After a period of discovery, the matter was scheduled for a hearing on August 30, 2004. The parties submitted trial briefs and other materials. Among the pre-trial submissions by defendants were two certifications. In a certification dated May 10, 2004, John J. Mallon, the Township and Planning Board Engineer, stated that Lot 65, or the subdivided Lots 65.01 and 65.02, were not landlocked by the passage of the Goldman subdivision by the Planning Board, or by the enactment of Ordinance No. 03-16. Mr. Mallon noted that the subdivision provided for access by separate driveways onto Success Road, and that Success Road had been improved as part of the development of Success Acres, adjacent to Block 63, Lot 65. Mr. Mallon stated that even if the Success Acres plat is not filed, there is direct access onto Success Road, which leads to Lakewood Road. Mr. Mallon also certified:

5. The vacation of the small portion of Success Road within the former Block 43, Lot 65 does not landlock Block 43, Lot 97. Rather, three (3) means of access to that lot still exist. First, the lot has access from Zion Road in Block 43, Lot 64. Second, Lot 97 could be accessed from Success Road running from Devon Street and Hill Lane. Third, Lot 97 could be accessed from the portion of Success Road within Lot 97 itself. (See attached recent tax map which shows means of access).

In his certification dated May 17, 2005, Mayor Dancer certified:

1. I have been Mayor of Plumsted Township for approximately fourteen (14) years and I have resided in the Township my entire life. I will be 55 years old as of May 31, 2004.

2. During my tenure as Mayor, the Township has provided municipal services on Zion and Success Road. Upon resident request, the Township has hired County personnel to grade the roads to ensure continued access and safety of use by residents. In addition, the Township has cleared encroaching trees to ensure continued access by residents, and particularly emergency vehicles such as ambulances and fire trucks.

3. For as long as I remember, the general public has utilized Zion Road to access the areas involved in this litigation. I can specifically recall traveling this road as a teenager during hunting season with family and friends.

4. I view of the above, I can personally certify that Zion Road has been considered a general public access roadway for at least 45 years. This continued use by the public is reflected in Ordinance 57-15.

5. Simply, Zion Road has always been considered a public access roadway for as long any long-time residents can remember. I spoke with former Mayor Charles Horner on May 11, 2004 and he personally attested to such public use for well over sixty (60) years. In fact, Mayor Horner recalled a previous court case in which the public use of Zion Road was upheld by the Court.

The matter was heard in the Law Division Judge Marlene Lynch Ford on August 30, 2004; the judge reserved decision. Supplemental letter briefs, as permitted by the court, were filed. On October 5, 2004, the judge placed her decision on the record, granting judgment in favor of defendants on counts one and two, and dismissing plaintiffs' inverse condemnation claim in count three, without prejudice, as premature. In so ruling, the judge stated, in pertinent part:

First of all, the street vacation ordinance in question is not the type of ordinance that requires referral to the Planning Board, as argued by the plaintiffs. And I agree that the plaintiffs have misconstrued N.J.S.A. 40:55D-62a. . . . [A] a street vacation ordinance does not affect the zoning or the master plan and, therefore, it is not required to be approved by the Township Planning Board. So, that aspect of the plaintiffs' argument must fail.

Secondly, the vacation of Success Road, which was done in order to accommodate a minor subdivision of the Goldman tract and which a condition of approval of the minor subdivision, is clearly within the discretion of the Township. The effect of the . . . vacation of Success Road did not landlock the property in question. Access is still available to the property through an unimproved public right-of-way known as Zion Road.

The Township has articulated reasons for the action it took, among them being that it would be more convenient and cost effective for the Township to vacate Success Road as opposed to Zion Road, that it would address certain environmental considerations including the preservation of an attractive stand of trees, that Zion Road was preferable to Success Road in terms of its use by emergency and other vehicles for access to the surrounding properties.

I'm also satisfied that Zion Road is a public right-of-way and that there was a prescriptive right of public access created by . . . use of the roadway in question of a period in excess of 20 years continuous.

As long as the Township articulates reasons that are reasonable on their face, then the court must conclude that their action, which is afforded great deference, was not unreasonable, arbitrary or capricious. That the Township has articulated facially reasonable reasons for the action that it took, one may differ with the judgment in that regard, . . . or argue that there might have been a better alternative available to the Township, [but that's] not a basis for upsetting the governmental action of the Township of Plumsted in this regard.

The issue of whether or not the vacation of Success Road creates an inverse condemnation of the property in question, . . . is premature. For purposes of the entire controversy doctrine that claim is noted as raised, but not considered by this court and it will be dismissed without prejudice.

At the time of this application, plaintiffs' property, as I understand it, is vacant and the proposed use of the property is agricultural. Whether or not the plaintiffs may be able to establish a prima facie case of inverse taking is subject to the actual use to which the property will be dedicated and whether or not the use of the property . . . will, in effect, be restricted by the governmental action. Thereafter, at this point in time, this claim is premature and speculative at best.

And I agree that . . . the challenge to Ordinance 57-15, even if it is properly before the court -- and there were certain procedural issues that were raised -- is untimely. The ordinance was adopted in 1994. There's been no action challenging the ordinance in question since that point in time and, therefore, even if that issue is properly before the court, it is not timely in terms of its general challenge to the ordinance and the authority of the Township to adopt that ordinance.

An order memorializing the rulings of the court, dismissing counts one and two of the complaint with prejudice, and dismissing count three, without prejudice, as premature was issued on October 14, 2004.

On appeal, plaintiffs present the following arguments for our consideration:

POINT I

THE LOWER COURT MADE AN ERROR OF LAW WHEN IT HELD THAT A PRESCRIPTIVE EASEMENT WAS CREATED AFTER A PERIOD OF TWENTY YEARS.

POINT II

IN LIGHT OF THE RANDOLPH DECISION, THE LOWER COURT'S PRESERVATION OF PLAINTIFFS' EMINENT DOMAIN CLAIM IS NULLIFIED.

POINT III

JUDGE FORD'S FINDING THAT PLAINTIFFS' CHALLENGE TO ORDINANCE 57-11 WAS UNTIMELY DOES NOT COMPORT WITH NEW JERSEY LAW, AND WAS UNSUPPORTED BY ANY FINDINGS OF FACT AND CONCLUSIONS OF LAW IN HER DECISION.

POINT IV

JUDGE FORD'S DECISION FAILS TO IDENTITY THE REQUISITE PUBLIC INTEREST IN PERMITTING THE VACATION OF SUCCESS ROAD, AS REQUIRED BY N.J.S.A. 40:67-19.

POINT V

JUDGE FORD IN HER ORAL DECISION MISCONSTRUED THE BASIS OF PLAINTIFFS' ARGUMENT THAT DEFENDANT TOWNSHIP COMMITTEE SHOULD HAVE REFERRED ORDINANCE 03-16 TO THE LAND USE BOARD.

We begin our analysis of these issues with the proposition that this action in lieu of prerogative writs was commenced by plaintiffs to challenge the adoption of Ordinance No. 03-16 by the Plumsted Township Committee on both procedural and substantive grounds.

Procedurally, plaintiffs argue that prior to considering the adoption of Ordinance No. 03-16, the Township Committee was obligated to refer that ordinance to the Planning Board for review and comment. We disagree.

N.J.S.A. 40:55D-26a, cited by plaintiffs as authority for this contention, pertains to the enactment of a "development regulation," which is defined in N.J.S.A. 40:55D-4 as "a zoning ordinance, subdivision ordinance, official map ordinance or other municipal regulation of the use and development of land, or amendment thereto adopted and filed pursuant to [the Municipal Land Use Law]." Ordinance No. 03-16 was enacted pursuant to the authority contained in N.J.S.A. 40:67-19, was not thereby enacted pursuant to the Municipal Land Use Law, and is not a "development regulation" within the intendment of N.J.S.A. 40:55D-26a.

Moreover, even if N.J.S.A. 40:55D-26a were to be construed as requiring the referral of Ordinance No. 03-16 to the Planning Board, or if the provisions of N.J.S.A. 40:55D-32 (requiring referral to the planning board of proposed ordinances adopting or amending an official map) were applicable, these circumstances would not mandate referral. See Ferreira v. City of Asbury Park, 237 N.J. Super. 142, 161-62 (App. Div.) (holding that referral of an ordinance amending the official map of the municipality was not required where the planning board had previously recommended adoption of the ordinance and where the planning board, subsequent to adoption of the ordinance, ratified the action that required vacating the street), certif. denied, 121 N.J. 627 (1989). Here, it was the Planning Board that specifically recommended vacating the applicable portion of Success Road and, subsequent to the adoption of Ordinance No. 03-16, the Planning Board passed an amended resolution on March 15, 2004 concerning the Goldman application, again recommending the vacation, thereby ratifying the adoption of Ordinance No. 03-16.

Substantively, plaintiffs argue that the enactment of Ordinance No. 03-16 constituted arbitrary, capricious and unreasonable action by the municipality in that it resulted in the landlocking of Lots 97 and 65 in Block 43, thereby affecting their property, and otherwise lacked a proper public purpose. We disagree.

It is clear from the record that the enactment of the ordinance was supported by a valid public purpose, as articulated by Mayor Dancer, a member of both the Planning Board and the governing body, at the hearing on the ordinance. See Medical Ctr. at Princeton v. Township of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 214 (App. Div. 2001) (holding that the judicial presumption in favor of the validity of legislation "makes courts ready to 'impute a proper governmental purpose or interest as the object to be served by the enactment, and, if need be, infer an adequate factual basis to support' it" (quoting Bell v. Township of Stafford, 110 N.J. 384, 394 (1988))); Manzo v. Mayor and Township Council of Township of Marlboro, 365 N.J. Super. 186, 192 (Law Div. 2002) (noting that a reviewing court must assume that the reasons expressed for adoption of an ordinance were proper).

The record on appeal also fully supports the conclusion reached by Judge Ford that the adoption of Ordinance No. 03-16 did not result in the landlocking of either Lot 65 (or subdivided Lots 65.01 and 65.02) or Lot 97. The reports and testimony of Township and Planning Board Engineer Mallon noted there was access to those lots over existing roadways. It is also significant that Mayor Dancer stated that, when inspecting that portion of Success Road within Lot 65 proposed for the vacation, "it was totally obstructed[.]" Therefore, the act of vacating an impassable portion of Success Road an undedicated sand or earth road similar to Zion Road could have no affect on the issues of whether Lots 97 or 65 were landlocked or whether they were public easements or rights-of-way.

In our view, because there were no changes proposed by passage of the Goldman subdivision or by the enactment of Ordinance No. 03-16, with respect to Zion Road, it was not necessary for the court to adjudicate the issues of whether a prescriptive public easement or right-or-way has been established on Zion Road, or whether Ordinance No. 94-11 (amending 57-15 of the Township Code) validly included Zion Road as an unimproved and unaccepted roadway to which municipal services would be provided. Those issues were not relevant to a determination of the validity of the challenged governmental action the enactment of Ordinance No. 03-16. Accordingly, we find no need to address the issues raised in Points I or II of plaintiffs' brief, as they are not relevant to our determination that Ordinance No. 03-16 was validly enacted.

 
Affirmed.

Stated differently, the owner of Lot 97 cannot reach, from the northerly portion of Lot 97, Zion Road without traveling briefly over a portion of Lot 64.

A subsequent resolution passed by the Planning Board at its March 15, 2004 meeting amended the resolution of approval to permit issuance of building permits on the two lots created by the subdivision even though the final plat for Success Acres had yet to be filed.

The ordinance referred to by Mayor Dancer is Ordinance No. 94-11, adopted in 1994, and codified as an amendment to 57-15 of the Plumsted Township Code.

The record on appeal does not reflect whether Plumsted Township has adopted an "official map" pursuant to N.J.S.A. 40:55D-32. Portions of the "tax map," which is different from the official map, see Brazer v. Borough of Mountainside, 55 N.J. 456, 463, n. 3 (1970), are contained in the record. Thereby, it is questionable as to whether the referral provisions contained in N.J.S.A. 40:55D-32 were even applicable.

(continued)

(continued)

20

A-1497-04T3

December 19, 2005