BAKER RESIDENTIAL, L.P. v. TOWNSHIP OF WASHINGTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5816-06T15816-06T1

BAKER RESIDENTIAL, L.P.,

Plaintiff,

and

WASHINGTON VENTURE, L.P.,

and WASHINGTON STATION

VENTURE, L.P.,

Plaintiffs-Appellants,

v.

TOWNSHIP OF WASHINGTON,

WARREN WASHINGTON ASSOCIATES,

INC. and WASHINGTON BOROUGH

PLANNING BOARD,

Defendants-Respondents,

and

NORFOLK SOUTHERN RAILROAD and

WASHINGTON BOROUGH,

Defendants.

_______________________________________

 

Argued December 9, 2008 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, L-48-02.

John J. Bonelli argued the cause for appellants (Porzio, Bromberg & Newman, P.C., attorneys; Douglas R. Henshaw, of counsel; Mr. Bonelli, on the brief).

Edward J. Glynn argued the cause for respondent Township of Washington (Winegar, Wilhelm, Glynn & Roemersma, attorneys; Mr. Glynn, of counsel; Kristine M. L. Blake, on the brief).

Stuart C. Ours argued the cause for respondent Washington Borough Planning Board.

Respondent Warren Washington Associates has not filed a brief.

PER CURIAM

Plaintiffs Washington Venture, L.P. and Washington Station Venture, L.P. appeal from an order entered by the Law Division on January 6, 2006, which affirmed the denial by the Borough of Washington Planning Board (Board) of an application for subdivision approval, and an order entered on March 3, 2006, denying their motion for reconsideration. Plaintiffs also appeal from an order entered on June 22, 2007, which rejected their challenge to the Township of Washington's (Township) ordinance vacating a portion of a dedicated roadway. For the reasons that follow, we affirm.

I.

Plaintiffs are the owners of 125.589 acres of vacant land in the Borough of Washington. In November 1999, Baker Residential, L.P. (Baker) entered into an agreement with plaintiffs to purchase the land for the purpose of constructing a housing development on a substantial portion of the site. On April 5, 2001, Baker filed an application with the Board for subdivision approval and certain variances so that it could build 117 detached single-family dwellings and 108 attached townhouses on the property.

The subject property lies to the north of a ridge line that is commonly referred to as Cemetery Hill. The property slopes downward from the ridge line to the north. The property's northern boundary abuts a working railroad track owned by the Norfolk Southern Railroad. The southern boundary of the property runs along the Borough's border with the Township.

A private roadway called Road F runs south from Route 57 through the Washington Gardens apartment complex and ends at the railroad tracks. Warren Washington Associates, Inc. (Warren Washington), the owner of Washington Gardens, has an easement that allows ingress and egress through the apartment complex to Route 57. Warren Washington also has an easement, dating back to 1864, allowing passage across the railroad tracks.

The property fronts upon Nunn Avenue, which is a dead-end Borough road that terminates at the northeast corner of the site in an area of wetlands. A Township road called Mill Pond Road runs north and south about one-fifth of a mile to the west of the property. Another road called Ridge Drive is located in the Township and ends just below the southern boundary of the property. Ridge Drive runs through a small subdivision of five homes to an intersection with Cemetery Hill Road.

While Baker's application for subdivision approval and variance relief was pending before the Board, Ordinance 01-17 was introduced in the Township to vacate a portion of Ridge Drive and thereby preclude access from the proposed development through the remainder of Ridge Drive in the Township. The Township Committee adopted the ordinance at a public meeting on December 18, 2001.

On September 9, 2002, the Board voted to deny Baker's application for subdivision approval. In a resolution dated October 14, 2002, the Board gave five reasons for denying the application: (1) Baker had not provided sufficient road access to the proposed development; (2) Baker's proposal did not comply with the conservation element of the Borough's master plan; (3) Baker failed to provide "adequate and acceptable methods" for solving the problems associated with "the steeply sloped nature" of the site; (4) Baker did not show that it was feasible to construct sidewalks across the northern side of Route 57; and (5) Baker had not provided a storm water management plan for the site that complied with the ordinance governing the management of surface water.

On January 25, 2002, plaintiffs commenced this action in the trial court. In their complaint, plaintiffs sought, among other things, a declaration that Ordinance 01-17 was invalid, and an order reversing the Board's denial of Baker's application for subdivision approval and variance relief.

The court filed a written opinion on January 6, 2006, in which it concluded that the Board's second, third, fourth and fifth reasons for denying the application were arbitrary and capricious. The court determined, however, that the Board's finding that there was insufficient road access to the property was not arbitrary or capricious. The court found that approval of the application conditioned on Baker's obtaining adequate road access to the site was not warranted under the circumstances. The court entered an order dated January 6, 2006, which affirmed the Board's decision to deny Baker's application.

Plaintiffs thereafter filed a motion for reconsideration of the court's January 6, 2006 order. On March 3, 2006, the court filed an opinion in which it reaffirmed its earlier determination. The court entered an order dated March 3, 2006, denying plaintiffs' motion.

On June 22, 2007, the court filed a written opinion addressing plaintiffs' contention that Ordinance 01-17 is unlawful, arbitrary, capricious and unreasonable. The court found that the Township had established that allowing access to Ridge Drive would create a public safety hazard, and the Township had not improperly denied access to the subdivision because there were other possible means of ingress and egress. The court entered an order dated June 22, 2007, affirming the ordinance. This appeal followed.

Plaintiffs raise the following arguments for our consideration:

POINT I

THE TRIAL COURT'S DECISION TO AFFIRM WASHINGTON TOWNSHIP'S VACATION OF RIDGE DRIVE WAS ERRONEOUS.

POINT II

THE TRIAL COURT ERRED [BY] AFFIRMING THE PLANNING BOARD'S DENIAL OF THE DEVELOPMENT APPLICATION FOR INSUFFICIENT SITE ACCESS.

A. The Holding of W.L. Goodfellows and Company of Turnersville, Inc. v. Washington Township Planning Board was a Binding Legal Precedent on the Trial Court.

B. The Holding in Norian v. Planning Board of the Borough of Alpine is a Persuasive Secondary Authority.

POINT III

THE TRIAL COURT ERRED IN REMANDING THE MATTER TO THE PLANNING BOARD TO CONSIDER ADDITIONAL TESTIMONY FROM AN OBJECTOR'S ENGINEER, A NON-PARTY.

POINT IV

THE TRIAL COURT ERRED [BY] REFUSING TO CONSIDER PLAINTIFFS['] ARGUMENT THAT THE APPLICANT WAS ENTITLED TO JUDGMENT GRANTING ITS APPLICATION FOR VARIANCES.

POINT V

THE PLANNING BOARD WRONGFULLY DENIED THE APPLICATION FOR PRELIMINARY MAJOR SUBDIVISION AND SITE PLAN APPROVAL, [AND] THEREFORE PLANTIFFS' RIGHTS VESTED PURSUANT TO [N.J.S.A.] 40:55D-49 AND THE SUBSEQUENT ORDINANCE TO REZONE THE PROPERTY SHOULD NOT APPLY.

II.

We turn first to plaintiffs' contention that the trial court erred by affirming the Township's vacation of a portion of Ridge Drive. Plaintiffs contend that the Township's decision to vacate the roadway was unlawful, arbitrary, capricious and unreasonable because the Township failed to provide a justification for its action. Plaintiffs further contend that vacation of the roadway was an unlawful abuse by the Township of its delegated powers because it was intended to frustrate the development of the subject property.

We find no merit in these contentions and affirm the trial court's order rejecting plaintiffs' challenge to Ordinance 01-17 substantially for the reasons stated by the court in its written opinion dated June 22, 2007. R. 2:11-3(e)(1)(A) and (E). We add the following comments.

As the trial court pointed out in its decision, the controlling statute is N.J.S.A. 40:67-19, which provides that:

[w]henever there shall have been a dedication of lands as a public street or highway or a public square or public place, and the same has not been accepted or opened by the municipality, and it shall appear to the governing body that the public interest will be better served by releasing those lands or any part thereof from such dedication, the governing body may by ordinance release and extinguish the public right arising from said dedication as to the whole or any part of those lands, and thereupon said lands or the part thereof so released shall be effectually discharged therefrom as though the dedication had not taken place; but only after notice of the intention of the governing body to consider any such ordinance, and a hearing thereon, shall have been given as provided in [N.J.S.A.] 40:49-6 . . . concerning ordinances for the vacation of streets.

Judicial review of a decision to vacate a dedicated street "is confined largely to ascertaining whether factors other than such as bear upon the public welfare influenced the action in a manner which vitiates it." Pyatt v. Mayor and Council of Dunnellen, 9 N.J. 548, 553 (1952). When reviewing a decision to vacate a public street, we are not concerned with the policy or wisdom of the action, but whether the determination is "founded upon considerations confined to the service of the public interest." Ibid. Unless the objecting party shows that the municipality's action was "'tainted with fraud, or palpably not in the service of the public interest, or otherwise a clear perversion of power,'" the courts should not intervene. Id. at 554 (quoting Con Realty Co. v. Ellenstein, 125 N.J.L. 196 (Sup. Ct. 1940)).

Plaintiffs contend that the Township failed to articulate sufficient reasons for its enactment of Ordinance 01-17. It is well established, however, that an ordinance is entitled to a presumption of validity and will not be set aside "'if any state of facts may reasonably be conceived to justify'" its enactment. Cramer Hill Residents Ass'n, Inc. v. Primas, 395 N.J. Super. 1, 15 (App. Div. 2007) (quoting Quick Check Food Stores v. Springfield Twp., 83 N.J. 438, 447 (1980)). We are convinced that, contrary to plaintiffs' assertions, there is sufficient evidence to support the Township's determination that vacation of a portion of Ridge Drive was in the public interest.

The record shows that, at present, only five homes have access to Ridge Drive in the Township. It is undisputed that, if residents of the proposed development are given access to Ridge Drive, there will be a substantial increase in the number of vehicles using that road. Statements by members of the public who appeared at the Township's public hearing on December 18, 2001, indicated that the intersection of Ridge Drive and Cemetery Hill Road is hazardous and an increase in traffic from the development will significantly exacerbate the hazards to motorists at the intersection. Thus, the record supports the Township's determination that vacation of the portion of Ridge Drive was based on valid public safety concerns.

Plaintiffs further contend that the Township's action should be set aside because the Residential Site Improvement Standards (RSIS), N.J.A.C. 5:21-1.1 to -7.9, require Baker to provide at least two means of access to the development. Plaintiffs assert that Nunn Avenue and Mill Pond Road are not feasible alternatives. Plaintiffs maintain that, by denying access through Ridge Drive, the Township has precluded Baker from complying with the RSIS and effectively barred it from constructing the development.

In support of these arguments, plaintiffs rely upon Howell Props., Inc. v. Twp. of Brick, 347 N.J. Super. 573 (App. Div.), certif. denied, 174 N.J. 192 (2002). In that case, two municipalities vacated streets that extended to a proposed subdivision in an adjoining municipality. Id. at 575. The vacation of the public streets rendered the property landlocked and effectively barred the construction of housing intended to address the adjoining municipality's obligation to provide an opportunity for the construction of low and moderate income housing as required by S. Burlington Cty. N.A.A.C.P. v. Twp. of Mount Laurel, 67 N.J. 151, cert. denied and appeal dismissed, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975), and S. Burlington Cty. N.A.A.C.P. v. Twp. of Mount Laurel, 92 N.J. 158 (1983). Id. at 576-77.

We concluded that the "public interest" under N.J.S.A. 40:67-19 cannot be confined exclusively "to the parochial interest of the municipality invoking its power to vacate." Id. at 581. We stated that the power conferred upon municipalities to regulate their own streets "does not include the right to prohibit their use by nonresidents." Id. at 584 (citing Yarrow First Assocs. V. Town of Clyde Hill, 403 P.2d 49, 54 (Wash. 1965). We also stated that it was significant that the municipalities had, by vacating their streets, effectively precluded the adjacent municipality from satisfying its Mount Laurel obligation and, in doing so, "clearly frustrate[d] that regional and statewide interest." Id. at 586.

We are convinced that plaintiffs' reliance upon Howell is misplaced. Here, Baker's proposed development is not intended to address the Borough's Mount Laurel obligation. Thus, the statewide and regional interests that were so significant in Howell are not present in this case. Moreover, unlike the plaintiff in Howell, plaintiffs' lack of sufficient access is not solely due to the vacation of the portion of Ridge Drive in the Township. Rather, the lack of sufficient access is also the result of Baker's failure to secure access to the property through Mill Pond Road and the Washington Gardens apartment complex.

III.

We turn to plaintiffs' appeal from the trial court's January 6, 2006 order affirming the denial of Baker's application for subdivision approval, and the court's March 3, 2006 order denying plaintiffs' motion for reconsideration.

Plaintiffs argue that the trial court erred by finding that the Board properly denied Baker's application. Plaintiffs contend that Baker had essentially two means of access to the site: Ridge Drive to the south and the route over the railroad tracks and through Washington Gardens.

Plaintiffs acknowledge that their ability to use Ridge Drive to the south is subject to their challenge to Ordinance 01-17, a challenge we have rejected. Plaintiffs also acknowledge that access over the railroad tracks and through the apartment complex is subject to two easements: the easement allowing passage over the tracks and the easement allowing access from the apartments to Route 57. Plaintiffs contend that the Board should have approved the site plan application, conditioned upon Baker's obtaining the required off-site easements.

We reject these arguments and affirm the orders at issue substantially for the reasons stated by the trial court in its written opinions dated January 6, 2006 and March 3, 2006. R. 2:11-3(e)(1)(A) and (E). We add the following.

Plaintiffs contend that our decision in W.L. Goodfellows & Co. of Turnersville v. Washington Twp. Planning Bd., 345 N.J. Super. 109 (App. Div. 2001), required the Board to grant Baker conditional subdivision approval. In that case, the planning board denied site plan approval for a restaurant because the applicant had not secured a drainage easement as shown in its plan. Id. at 111-13. The board's engineer confirmed that the applicant's drainage plan met the requirements of the township's ordinance, although it was not the preferred method. Id. at 114. Moreover, the applicant's attorney advised the board that discussions were ongoing to obtain the easement but it was not yet a "'done deal.'" Ibid. We reversed the trial court's order affirming the denial of the application. We ordered the board to grant the application, conditioned upon acquisition of the required easement. Id. at 118.

In our judgment, plaintiffs' reliance upon W.L. Goodfellows is misplaced. That case involved the plan for a single restaurant, whereas this matter involves the construction of a housing development with more than 200 residences. Moreover, in W.L. Goodfellows, the applicant's drainage plans met the requirements of the township's ordinance and negotiations were ongoing for the required easement. In this case, the owner of Washington Gardens has made clear that it is adamantly opposed to granting access through the complex. Furthermore, there are significant barriers to using the easement over the railroad tracks, specifically approval of a grade crossing by the railroad and the New Jersey Department of Transportation. See N.J.S.A. 48:2-28 and N.J.S.A. 27:1A-62.

Thus, the trial court correctly found that W.L. Goodfellows did not require conditional subdivision approval of Baker's application. In our view, it was not arbitrary, capricious or unreasonable for the Board to deny the application because Baker had not established sufficient road access to the proposed development and there are significant barriers to such access.

In their appeal from the order affirming the Board's action, plaintiffs raise three additional points. They contend that the trial court erred by remanding the matter to the Board for consideration of additional testimony with regard to the Baker's stormwater management plan. They argue that the court erred by failing to consider their contention that it was entitled to judgment granting its application for certain variances. They additionally contend that, because the Board had wrongfully denied the application for subdivision and site plan approval, it has vested rights pursuant to N.J.S.A. 40:55D-49 and a subsequently enacted ordinance rezoning the property should not apply. In view of our determination affirming the Board's decision to deny Baker's application, these issues are moot.

Affirmed.

 

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A-5816-06T1

January 22, 2009