SUBURBAN REAL ESTATE DEVELOPMENT CORPORATION v. EDISON TOWNSHIP PLANNING BOARD

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2688-04T1

SUBURBAN REAL ESTATE
DEVELOPMENT CORPORATION,

Plaintiff-Respondent,

v.

EDISON TOWNSHIP PLANNING
BOARD,

Defendant-Appellant.

_______________________________________

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December 16, 2005

Argued December 5, 2005 Decided

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5757-04.

Clifford N. Kuhn, Jr. argued the cause for appellant.

Bernard H. Shihar argued the cause for respondent (Convery, Convery & Shihar, attorneys; Mr. Shihar, on the brief).

 
PER CURIAM
The Edison Township Planning Board (Board) appeals from a judgment entered December 23, 2004 reversing the Board's decision to deny an application by plaintiff Real Estate Development Corporation for preliminary and final subdivision approval respecting lots 31, 32 and 33 in block 1100 on the Edison Township tax map. The Board argues that the judge erred in setting aside its determination. We disagree and affirm substantially for the reasons stated by Judge Edward J. Ryan in his thorough and comprehensive written opinion dated December 23, 2004. We add the following.
Plaintiff's property is situated on the corner of Vineyard Road and Johnstone Street. Plaintiff filed an application in February 2004 to build single family homes on eleven lots. Seven of the lots would have access to a cul-de-sac. Three lots would have access to Vineyard Road and one lot would front onto Johnson Street. Although the Board found that plaintiff's plan met all of the requirements of the RB Zone and no variances are required, the Board rejected the application.
In its resolution dated July 19, 2004, the Board stated that Vineyard Road is a heavily traveled roadway and, over the years, traffic on that road has increased substantially. The Board stated that the homes constructed by defendant on Vineyard Road would allow for two cars in the driveway. The Board found that the homeowners probably would access the road by backing their vehicles out into traffic. The resolution stated:
Board members indicated that it appeared to them that this was an overuse of the property given that a portion of the property was located on Vineyard Road which is a heavily traveled roadway and that a design could be approved which would involve less building lots without any of the homes accessing Vineyard Road.

Defendant filed an action in lieu of prerogative writs in the Law Division, Middlesex County, seeking reversal of the Board's decision. Judge Ryan heard argument on the matter and filed his written opinion. The judge correctly concluded that the Board had overstepped its authority in denying defendant's application because a planning board does not have the power to prohibit a permitted use merely because it is of the view that a proposed development is an "overuse" of property.
A "planning board's authority in reviewing a site plan application is limited to determining whether the plan conforms with the municipality's zoning and site plan ordinances." Sartoga v. Borough of W. Paterson, 346 N.J. Super. 569, 581 (App. Div.), certif. denied, 172 N.J. 357 (2002) (citing W.L. Goodfellows & Co. of Turnersville, Inc. v. Washington Township Planning Bd., 345 N.J. Super. 109, 116 (App. Div. 2001) and Shim v. Washington Township Planning Bd., 298 N.J. Super. 395, 411 (App. Div. 1997)). A planning board does not have authority to prohibit a use otherwise permitted by the municipality in its zoning and site plan ordinances. Id. at 582 (citing PRB Enters., Inc. v. South Brunswick Planning Bd., 105 N.J. 1, 7 (1987)). As the judge properly determined, here the Board erred in denying defendant's application that met the Township's zoning and site plan requirements.
Moreover, the judge correctly determined that the Board erred in concluding that the proposed development would result in excessive traffic on Vineyard Road. The Board's finding is contrary to the well established principle that a planning board does not have authority to deny a development application because of off-site traffic conditions. Dunkin' Donuts of N.J., Inc. v. Twp. of North Brunswick, 193 N.J. Super. 513, 515 (App. Div. 1984). The "authority to prohibit or limit uses generating traffic onto already congested streets or streets with a high rate of accidents is an exercise of the zoning power vested in the municipal governing body." Ibid. (citing N.J.S.A. 40:55D-2 and N.J.S.A. 40:55D-62).
In addition, the judge correctly found that there was no basis in the evidence for the Board's assumption that homeowners with lots fronting upon Vineyard Road would impede the flow of traffic by backing out of their driveways into the road. Defendant's engineer designed the homes to include turn-around driveways. There was no evidence that homeowners would fail to use the turn-around driveways. There was no evidence that homeowners would have difficulty backing out of their driveways. Furthermore, there was no traffic study to support the Board's perceived traffic safety concerns.
As Judge Ryan found, the Board's view that the proposed development would adversely affect traffic on Vineyard Road was based on speculation. A decision of a planning board is presumed valid and should not be set aside unless it is arbitrary, capricious or unreasonable. Pullen v. Tp. of South Plainfield, 291 N.J. Super. 1, 6 (App. Div. 1996)(citing Davis Enterprises v. Karpf, 105 N.J. 476, 485 (1987)). Even so, deference is not warranted when, as in this case, the decision is based on a factual determination that lacks sufficient support in the evidence. Id. at 7.
The Board argues, however, that the proposed development did not comply with the Township's design standards pertaining to "heavily traveled arterial roads." The Board's contention is flatly inconsistent with the explicit finding in its resolution that defendant's proposed development met "all of the Township Zoning requirements." At no point in the proceeding did the Board or a member of its staff assert that the proposed development violated any of the municipality's ordinances.
The Board now claims that one of its members suggested at the hearing that the lots with access to Vineyard Road should front onto the cul-de-sac but this suggestion was not made in order to ensure compliance with the Township's design standards. The suggestion was made for aesthetic purposes. We therefore reject the Board's assertion that defendant's proposed development did not conform to the design standards in the Township's ordinance.

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Affirmed.

A-2688-04T1