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Kode Harbor Development Associates v. County of Atlantic

Decided: February 6, 1989.

KODE HARBOR DEVELOPMENT ASSOCIATES, A PARTNERSHIP, PLAINTIFF-RESPONDENT,
v.
COUNTY OF ATLANTIC, NEW JERSEY, THE DEPARTMENT OF REGIONAL PLANNING AND DEVELOPMENT, THE DIVISION OF PLANNING, DEFENDANTS-APPELLANTS



On appeal from Superior Court of New Jersey, Law Division, Atlantic County.

Deighan, Baime and D'Annunzio. The opinion of the court was delivered by Baime, J.A.D.

Baime

This appeal presents difficult questions of statutory construction relating to various sections of the County Planning Act (N.J.S.A. 40:27-1 et seq.). N.J.S.A. 40:27-6.6 empowers a county planning board to review a site plan where the property to be developed is located "along [a] county road[ ]." The same statute confers jurisdiction on a county planning board to review a site plan where the proposed development will affect "county drainage facilities as provided by subsection e [ N.J.S.A. 40:27-6.6e] of this section." The principal question presented by this appeal is whether a county planning board is authorized to review a site plan and require the developer to contribute to off-site road improvements where the property neither fronts on nor abuts a county road. An ancillary issue is whether a county planning board, whose jurisdiction rests solely on the basis that development of the property will affect county drainage facilities, may compel a developer to contribute to off-tract road improvements as a condition of site plan approval.

We hold that a county planning board may not assert jurisdiction on the basis that the development is situated "along [a] county road[ ]" under N.J.S.A. 40:27-6.6 unless the property actually abuts or fronts on a county road. In our view, the legislature did not intend to confer county-wide site plan review

jurisdiction on a county planning board in instances where the development is merely in close proximity to a county road. We are also satisfied that a county planning board is not statutorily authorized to require a developer to contribute to off-site road improvements where its jurisdiction is predicated solely on the ground that development of the property will affect county drainage facilities.

I.

This is an appeal by defendants Atlantic County and its Division of Planning (Division) from a declaratory judgment in favor of plaintiff Kode Harbor Development Associates. The salient facts are not in dispute, and need not be recounted at length because they are accurately and fully recited in the trial court's written opinion.

Plaintiff owns property which fronts on the south side of Cardiff Circle in Egg Harbor Township. The road upon which this property abuts is state highway U.S. 40 and 322, the Black Horse Pike, a road operated and maintained by the New Jersey Department of Transportation. The record reflects that U.S. 40 is a major east-west arterial highway which transverses the state from Delaware to Atlantic City. At the Cardiff Circle and for many miles on both the east and west sides of plaintiff's property it is a four-lane divided highway. The nearest county highway is Tilton Road (County Route 563), which is for most of its length a two-lane road. Where it merges with Route 40 at the Cardiff Circle it becomes part of the four-lane highway which extends from the circle to a point immediately west of the Garden State Parkway. At that point, Route 40 veers to the left and Tilton Road continues in an eastward direction to its terminus at Ventnor Avenue in Margate. The total length of Tilton Road is approximately ten miles.

It is to be emphasized that plaintiff's property is not actually on a county road, but instead borders Cardiff Circle where U.S. Route 40 and Tilton Road merge. As we have mentioned,

Cardiff Circle is owned and controlled by the State of New Jersey. Accordingly, although Tilton Road feeds into the circle and continues briefly (as part of Route 40) on the easterly side of the circle, plaintiff's site does not abut any portion of it. Stated differently, that portion of Tilton Road which "includes" the Cardiff Circle is a state road. The county portion of Tilton Road ends about 340 feet north of plaintiff's property and picks up again about 2,400 feet to the south.

Plaintiff intends to develop the site as a commercial shopping center. Because it includes more than one acre of impervious surface, plaintiff was required, as part of the approval process, to submit the site plan to the Division for its review. The Division's purported authority rests on N.J.S.A. 40:27-6.6 which, as we have noted, grants to county planning boards jurisdiction to review site plans for land development along county roads or where the development contains one acre or more of impervious surfaces which affects, either directly or indirectly, county drainage facilities.

Plaintiff's site plan anticipated utilization of a drainage ditch which runs behind the project and which is referred to as the "Maple Run" drainage. Although the details are not altogether clear, it would appear that utilization of that ditch will impact on an existing drainage pipe owned by the county and may require its enlargement. No proof was submitted to the trial court as to what the cost of that enlargement would be, and the Division made no assessment against plaintiff in that regard. It is clear, however, that the improvements which are anticipated as part of the Tilton Road Corridor Improvement Program, which we will describe shortly, do not include any improvement to this particular county culvert, nor do they relate in any way to plaintiff's drainage needs.

In any event, following its review of plaintiff's site plan, the Division conditionally approved the development, but required payment of $161,000 to Atlantic County for off-tract improvements to various county highways, otherwise known as the

Tilton Road Phase I Improvement Program or the Tilton Road Corridor Improvement Program. Because the validity of this condition is in dispute, we will describe the ...


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