On appeal from the Superior Court, Law Division, Somerset County.
O'Brien, Scalera and Keefe. The opinion of the court was delivered by O'Brien, J.A.D.
Cameron & Cameron, Inc. (Cameron), a developer, challenges conditions attached to a preliminary site plan approval granted by respondent Planning Board of the Township of Warren (Board). We reverse and remand.
Cameron owns Lot 11C in Block 322 on the Tax Map of Warren Township, which is triangular shaped and contains 1.18 acres. It is bounded on the north by Lot 11A, which has received preliminary site plan approval for the construction of a commercial office building known as the "Mark V" project. The premises are bounded on the east by Mountain Boulevard, a county road, and on the west by North Road, a township street. Cameron proposes to construct a small office building, a permitted use in the office/service zone in which the lot is located. The land to the northeast and south of the property is also zoned for office/service. The land to the west along North
Road is zoned residential. However, it is presently occupied by Bardy Farm, a busy retail nursery and produce market.
Cameron proposes to provide ingress to and egress from its property from North Road with no outlet to Mountain Boulevard, the same as the approved preliminary site plan for "Mark V." The existing North Road runs approximately one-half mile with a twenty-foot pavement where it abuts Cameron's property. Mimi Lane and Jessica Lane connect to North Road at its northerly end. These two lanes end in cul-de-sacs and have single-family residential homes and vacant land also zoned residential abutting them. All traffic leaving or entering North Road must pass the Cameron property on the east and the Bardy Farm on the west.
The Cameron development proposal calls for the installation of Belgian block curbing and storm drains and pipes along the full length of its property on the easterly side of North Road. Cameron also proposes to widen the paved portion of North Road, which will increase the overall pavement from twenty to thirty feet and will join the curb along the easterly side. The approval also requires installation of sidewalks along the full length of the Cameron property on the easterly side of North Road, to which Cameron does not object.
Preliminary site plan approval was granted by the Board subject to certain conditions. Cameron challenges paragraph 3e of the conditions in the Board's resolution which reads:
The plans shall be revised to the satisfaction of the Township Engineer in the following respects:
e. Cross-sections of North Road should be supplied and improvements including curb on the West side, two cross drains and a proper pavement crown and overlay should be shown.
In its brief, Cameron describes this condition as requiring it to
1) Repave the entire width of North Road from its intersection with Mountain Boulevard to the boundary line between the Cameron property and the Mark V property, approximately four hundred (400) feet of pavement;
2) Reconstruct the crown of North Road along the same distance;
3) Install curbing along the westerly side of North Road, i.e., along the approximately four hundred fifty (450) feet of the road which abuts the Bardy Farm property; and
4) Install two cross drains in the westerly side of the road to pick up and dispose of water run-off originating from the Bardy Farm property.
Cameron contends these improvements are "offsite" or "off-tract" improvements and not "on-tract" improvements as found by the Board. Thus, it contends the provisions of N.J.S.A. 40:55D-42 of the Municipal Land Use Law (MLUL) and section 15-15 of the Off-tract Improvements section of the Warren Township Land Development Ordinance are applicable and should have governed the Board's consideration of the issue.
Cameron's complaint in lieu of prerogative writs asserts that the conditions imposed are arbitrary and unreasonable and, if such improvements are necessitated or required by its proposed construction on its property, other property is benefitted and thus Cameron should only be obliged to pay its proportionate or pro rata share pursuant to N.J.S.A. 40:55D-42 and section 15-15 of the township ordinance.
In its resolution granting preliminary site plan approval, the Board found that Cameron's engineer
agreed with the Board that curbing on the westerly side [of North Road] would help to stabilize the pavement on that edge and that virtually all traffic from the site would use the westerly side of North Road. He also acknowledged that curbing helps ...