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DOCKET NO. A-2630-05T22630-05T2












Submitted March 12, 2007 - Decided April 26, 2007

Before Judges Seltzer and King.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen

County, L-4613-05.

Stickel, Koenig & Sullivan, attorneys

for appellant (Stuart R. Koenig, on the brief).

Sills Cummis Epstein & Gross, attorneys

for respondent (Thomas Jay Hall, of counsel; Robert A. Kasuba, on the brief).

Somers & Malay, attorneys for intervenors-respondents (Janet B. Malay, of counsel; Daniel E. Somers, on the brief).


Defendant, Planning Board of the Borough of Saddle River, appeals from a December 16, 2005, Law Division judgment reversing defendant's denial of plaintiff's application for approval of a revised preliminary site plan with variances and granting those approvals. We affirm.

The property involved in the application comprises approximately twenty-three acres of which slightly more than one acre is located in Woodcliff Lake with the remainder in Saddle River. The property is bounded on the north by County Road and on the east by Chestnut Ridge Road, both of which are county roads. See N.J.S.A. 27:16-1 to -76. In 1999, a Mount Laurel suit was resolved by an agreement pursuant to which the property, now owned by plaintiff, was rezoned to permit a development of sixty-eight residential units in return for a financial contribution to be used for affordable housing. The ordinance rezoning the property provided that ingress and egress would be through Chestnut Ridge Road and that County Road was to serve exclusively for emergency vehicle access.

Consistent with the ordinance, plaintiff submitted a site plan providing ingress and egress on Chestnut Ridge Road across from the intersection of Glen Road. That application was granted. Nevertheless, it was conditioned, as required by N.J.S.A. 40:27-6.6, on approval by the Bergen County Planning Board. Apparently, as the result of disputes not clearly reflected by this record, all interested parties agreed to what has been referenced in the record as a "compromise" plan. This plan permitted a right-hand turn exit from the property onto Chestnut Ridge Road. The exit would be located in Woodcliff Lake but would be further south than Glen Road. An exit along County Road would be created in Saddle River permitting only a right hand turn onto County Road. This exit would be located between Harriet Way and Chestnut Ridge Road. This plan violated defendant's ordinance but was, nevertheless, approved in the form of an amendment to the original site plan. Apparently, defendant did not conceive that variances were necessary. Again, the plan approval was conditioned upon County Planning Board approval.

The County Planning Board approved the compromise plan in September 2003 with the proviso that an anticipated traffic study may require a "full access driveway opposite Harriet Way." The Woodcliff Lake Planning Board did not approve the plan and plaintiff instituted litigation to compel approval. While that suit was pending, the County Board conducted its traffic study and notified plaintiff that it had removed restrictions previously imposed on vehicles exiting from Harriett Drive. Accordingly, the Board directed plaintiff "to prepare revised drawings to reflect a full access driveway opposite Harriet Drive." Plaintiff modified its plans in accordance with that directive and obtained County Planning Board approval and a settlement of the Woodcliff Lake litigation.

Plaintiff then sought defendant's approval of the "full access driveway opposite Harriet Drive" required by the County. Defendant treated the application for revised preliminary site plan approval as requiring variances from the ordinance provisions respecting ingress to and egress from the property. Defendant considered both N.J.S.A. 40:55D-70c(1) and -70c(2) variances for the modified access onto County Road and a required variance from a buffer necessary to effectuate that modified access. The Board concluded that plaintiff, because it had not contested the County Planning Board's direction with respect to access along County Road, had failed to demonstrate the hardship necessary for a c(1) variance. The Board also found that plaintiff had failed to demonstrate that the purposes of the Municipal Land Use Law would be advanced by the proposal so that a c(2) variance was inappropriate.

Judge Jonathan N. Harris reviewed the record, affording to the Board's determination the presumption of validity to which it was entitled. See Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81-82 (2002); Lang v. Zoning Bd. of Adjustment of Borough of N. Caldwell, 160 N.J. 41, 58 (1999); Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 285 (1965). He recognized that the Board's decision could be reversed only if it were arbitrary, capricious, or unreasonable. See Booth v. Bd. of Adjustment of Twp. of Rockaway, 50 N.J. 302, 306 (1967); Kramer, supra, 45 N.J. at 296-97.

The judge concluded on the record before him that the direction from the County Planning Board respecting the access to and from County Road was sufficient to demonstrate the element of hardship if the variances were not granted. The judge also concluded that the determination of the County Planning Board that full access opposite Harriet Way was superior to other alternatives conclusively established the advancement of the zoning purposes, thus requiring a c(2) variance.

Our review of Judge Harris's decision requires us to evaluate the record utilizing the same standard applied by him. See Booth, supra, 50 N.J. at 306; Kramer, supra, 45 N.J. at 296-97. Viewed thusly, we agree with Judge Harris's analysis. Although defendant's determination is entitled to deference, that deference assumes defendant's use of the appropriate legal standard. Mahler v. Bd. of Adjustment of Borough of Fair Lawn, 94 N.J. Super. 173, 185-86 (App. Div. 1967), aff'd o.b., 55 N.J. 1 (1969).

Defendant's conclusion that plaintiff's failure to challenge the requirement of the County Board renders any hardship it suffers self-created fails to account for the County Planning Board's superior position. The County Planning Board has approval jurisdiction over any site plan involving county roads. N.J.S.A. 40:27-6.6 to -6.13. Judge Harris resolved this issue thusly:

I find, from the record . . . that there's only one legal conclusion that the board could reach and that is that the county planning board controls the manner and means of ingress and egress on county roads, including the manner of egress from this site onto County Road . . . and that the plaintiff was duty bound to subscribe to that view.

We agree with Judge Harris. There is no indication in this record that plaintiff attempted to avoid defendant's prior approval of ingress and egress respecting County Road or that it did anything other than accommodate the desires of the County Planning Board in the exercise of its superior jurisdiction. We are aware of no authority requiring plaintiff, as a condition for a finding of hardship, to litigate with the County Board or to appeal the findings of the County Board's professionals. Nor has defendant suggested any.

Indeed, the record discloses that defendant knew of the County Planning Board's determination and, despite the opportunity to do so, failed to challenge it. Once the County Planning Board requires, as a condition of its site plan approval, a specified access, the inability to provide that access constitutes the hardship necessary to support a variance. Our agreement with Judge Harris respecting defendant's failure to find evidential support for its denial of the c(1) variances makes it unnecessary for us to consider the alternative relief sought under c(2). We note, however, that defendant has not explained how a municipality, as opposed to a county, becomes vested with the ultimate responsibility to determine which traffic pattern on a county road best serves the purposes of the Municipal Land Use Law.

We add these comments with respect to the position of the intervenors. The intervenors objected to the variance application on the ground that it would require the "discharge of water into a storm drain system which eventually discharges" onto their property. The resolution denying plaintiff's variance application, eventually overturned by Judge Harris, was not based on that objection. Moreover, intervenors, although filing a brief, did not file a notice of appeal. Nevertheless, we have considered the argument. Given our finding that the variances were compelled by the County Planning Board, we conclude that intervenors' position has insufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed substantially for the reasons set forth by Judge Harris in his comprehensive oral opinion of December 1, 2005.


We infer that plaintiff's predecessor had instituted a "builder's remedy" suit, see Oakwood at Madison, Inc. v. Twp. of Madison, 72 N.J. 481, 550-51 (1977), to enforce the obligations imposed by S. Burlington County N.A.A.C.P. v. Twp. of Mount Laurel, 67 N.J. 151, cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975).

The record refers to this road interchangeably as Harriet Way and Harriet Drive.

The Board also found plaintiff had failed to demonstrate that the variance might be granted without substantial detriment to the public good or impairment of the intent of the zoning ordinance. On appeal, defendant does not challenge the judge's conclusion that this finding was unsupported by the record. The failure to brief the correctness of the judge's conclusion constitutes an abandonment of the issue. Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (2001).





April 26, 2007