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181 Inc. v. Salem County Planning Board

Decided: January 9, 1975.

181 INCORPORATED, A CORPORATION OF NEW JERSEY, OAKFORD W. ACTON, JR. AND LAWRENCE W. POINT, PLAINTIFFS,
v.
THE SALEM COUNTY PLANNING BOARD AND THE BOARD OF FREEHOLDERS OF THE COUNTY OF SALEM, DEFENDANTS



Miller, J.c.c., Temporarily Assigned.

Miller

[133 NJSuper Page 352] Plaintiff challenges, as unconstitutional, actions of the Salem County Planning Board compelling it to dedicate to the county a

portion of land, owned by it, bordering upon a county road, as a condition precedent to approval by the county of a site plan submitted for the construction of a law office. While such compulsory taking without monetary compensation was held constitutional in Harris v. Salem County Planning Board, 123 N.J. Super. 304 (App. Div. 1973) certification denied 64 N.J. 152 (1973) -- but see Battaglia v. Wayne Tp. Planning Board, 98 N.J. Super. 194 (App. Div. 1967) -- the present case is apparently the first one to arise wherein a full record has been made. It tests whether the actions of these defendants are justified by that case. For the reasons set forth herein, they are not and a reversal is required.

Plaintiff is the owner of a tract of land in Woodstown, Salem County. The tract abuts on Elm Street (County Road 40) and on U.S. 40 and is irregular in shape. Following its purchase in December 1971 plaintiff applied to the Salem County Planning Board for site plan approval. The site plan review committee recommended approval subject, among other things, to the dedication of 8.25' along its border on Elm Street to be used for a proposed widening of Elm Street from 49.5' to 66' pursuant to the official map. The time of such widening is indefinite.

Plaintiff appealed the decision of the site plan review committee to the county planning board. The board affirmed the decision of its committee over plaintiff's timely objection that such required dedication constituted unconstitutional taking of private property for public use without just compensation. Appeal was next taken to the board of freeholders, which body affirmed the planning board.

A complaint in lieu of prerogative writs was thereafter filed by plaintiff and a motion for summary judgment was heard by Judge Gruccio who, by a letter opinion, remanded the matter for hearing and compilation of a record before the planning board. This letter states, among other matters:

In conducting said hearing, the court calls your attention to the Rational Nexus Rule and to the fact that there is serious doubt in

the court's mind as to the constitutionality of banking land without reasonable prospect of use.

Rehearings were held before the planning board and before the board of freeholders. Both reaffirmed their earlier decisions. Plaintiff now renews its application for summary judgment in this court.

The first legal issue presented is whether N.J.S.A. 40:27-6.6(b), which empowers a county board of freeholders to compel dedication of additional rights of way before approving site plans for land development along county roads, may be reconciled with the constitutional proscriptions against the taking of private property for public use without just compensation. N.J. Const. (1947), Art. IV, ยง VII, par. 3. In the light of Harris it is clear that constitutional power to require such dedication exists, leaving for decision the constitutionality of the actions of the county in attempting to exercise that power. To understand why they are not valid it is necessary to analyze them in the light of principles laid down in Harris.

Harris held that the requirement of dedication under N.J.S.A. 40:27-6.2(b) is constitutional whenever there is a demonstrable "rational nexus " between the amount of land so dedicated and "the needs created by and benefits conferred upon the subdivision." Harris, supra, 123 N.J. Super. at 307. Although Harris involved a minor subdivision and the instant case a site plan approval, the two are in pari materia, involving comparable sections of the same statute, N.J.S.A. 40:27-6.2(b) (Harris) and N.J.S.A. 40:27-6.6(b) (the instant case). The constitutionality of the County Planning Act generally (N.J.S.A. 40:27-1 et seq.) was held to rest upon the same legal principles as the Municipal Planning Act, N.J.S.A. 40:55-1.1 et seq. It is from the cases construing parallel provisions in the Municipal Planning Act that the "rational nexus " test is drawn. Having so held, the court remanded Harris to the planning board for a full administrative hearing to determine

"whether the requested minor subdivision justifies the compelled dedication, or whether the county be relegated to a possible future condemnation." Harris, supra at 309.

It is significant that Judge Gruccio not only indicated that he had some doubts concerning the validity of the practice of "banking land," as he called ...


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