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Busch v. Biggs

Decided: May 18, 1993.


On appeal from Superior Court, Law Division, Warren County.

Petrella, Long and Keefe. The opinion of the court was delivered by Long, J.A.D.


In 1970, plaintiffs, Adolphus L. Busch and his wife, Dolores R. Busch purchased two contiguous parcels of land in Washington Township, Warren County. In 1977, they initiated proceedings to subdivide the land. Subdivision never materialized however because plaintiffs' applications were not formalized.

In July, 1985, plaintiffs submitted a twenty-eight (28) lot development proposal for the land to the Washington Township Planning Board. The Board raised concerns regarding ". . . the type of road going up the hillside and the steepness of the lots and so forth." Additionally, the Board was concerned with the size of a

planned cul-de-sac. Subsequently, in November, 1985, a revised sketch plan was rejected as incomplete ". . . because it didn't have all of the detail engineering work on it." Nothing further was done to correct the deficiencies in this application.

At some point between November, 1985 and May, 1986, plaintiffs became aware that an adjoining parcel of land was being developed by SBF Partnership ("SBF"). Plaintiffs discovered that the road layout proposed by SBF ". . . came right up to [their] property . . ." thus affording them a method of simplifying the development of their plat. Armed with this information, in July or August, 1986, plaintiffs prepared a sketch plat of their land ". . . which showed a tie-in to [SBF's] road system." Plaintiffs submitted this "possible solution" to the Board. However, this was done without consulting SBF which objected to the tie-in. Thus, the Board never voted on the proffered solution.

Later, plaintiffs approached Tom Pfalth of SBF regarding the tie-in. SBF sought drainage easements over plaintiffs' property in exchange for the tie-in to SBF's roadway. Additionally, plaintiffs agreed not to submit a formal subdivision application until SBF received preliminary approval of its application. This was done to avoid having the Board require SBF to revise its road layout because the cul-de-sac proposed by plaintiffs, which would tie into SBF's road, would be too long. Although the agreement between plaintiffs and SBF was never reduced to writing, plaintiffs granted the drainage easement.

SBF received preliminary approval in October, 1986. Plaintiffs then submitted ". . . a full blown application [with] complete engineering details . . ." to the Board in or about November, 1986.

Defendant, Charles R. Biggs was employed as Township Engineer for Washington Township during the period in which plaintiffs sought to subdivide their property. As such, defendant had occasion to review plaintiffs' November, 1986 application. On November 18, 1986, he determined that the application was incomplete, noting in a check list the specific deficiencies.

Plaintiffs described the deficiencies as "relatively minor" and quickly remediable except for the requirement of road cross sections at intervals of fifty (50) feet. At the subsequent Planning Board hearing on November 19, 1986, plaintiffs' application was ruled incomplete. Plaintiffs later submitted revised drawings containing, among other things, the requisite road cross sections. At the subsequent December 17, 1986 Planning Board hearing, plaintiffs' revised application was ruled complete.

Plaintiffs had hoped to "grandfather" their application to avoid new zoning ordinances which became effective in January, 1987. To do so, plaintiffs' application had to be completed by November, 1986 so that a public hearing could take place in December, 1986, thereby preserving the "grandfather" strategy. Thus, after their application was deemed complete in December, 1986, plaintiff asked the Board for grandfather status. The request was denied. Consequently, plaintiffs had two viable alternatives: to proceed with the complete application in spite of the pending ordinance change and, if necessary, to seek a variance; or to withdraw the application. Ultimately, plaintiffs chose to withdraw the application based upon the advice of counsel. The withdrawal was voluntary, unconditional and without reservation.

In January, 1987 and in conformity with the newly enacted Washington Township ordinance, plaintiffs submitted a revised application to the Planning Board, reducing the number of lots on its subdivision plat from twenty-eight (28) to twenty-one (21). Meanwhile, SBF repudiated its oral agreement to tie plaintiffs' property into its roadway. In February, 1987, plaintiffs submitted another revised application reflecting, among other things, the loss of the tie-in to SBF's roadway. Additionally, the number of lots on plaintiffs' subdivision plat was reduced from twenty-one (21) to ten (10). On April 29, 1987, plaintiffs' application was denied by the Planning Board.

In June, 1987, plaintiffs filed an action in lieu of prerogative writs against the Planning Board, SBF, Washington Township and Warren County. The complaint expressly focused on the April 29,

1987 denial of plaintiffs' subdivision application. However, the complaint referred to prior events as well:

On numerous occasions, plaintiffs revised the said subdivision application in accordance with the requirements and suggestions of defendant, Planning Board, eventually reducing the number of proposed lots from 28 as originally submitted to 10 in the final application.

On February 8, 1988, in response to a motion by the Planning Board, partial summary judgment was entered in favor of the Board and Washington Township on a claim of inverse condemnation as well as all claims for compensatory and punitive damages. On October 14, 1988, the matter was remanded to the Planning Board for clarification of the reasons warranting denial of plaintiffs' application and for further consideration of the application.

Pursuant to the remand, Board hearings were held on December 28, 1988, January 19, 1989, March 30, 1989 and October 25, 1989. An expert in hydraulic and hydrolic studies reviewed plaintiffs' ten (10) lot proposal and testified at the hearings as to his findings. At the January 19, 1989 hearing, the Board advised plaintiffs of revisions to the ten (10) lot plan which would result in "favorable consideration" of the application by the Board. Subsequently, at the March 30, 1989 hearing, plaintiffs asked the Board to consider subdivision of the land into twenty (20) lots with two roads. In response, the Board gave plaintiffs the option of proceeding with the ten (10) lot plan or submitting a modified twenty (20) lot plan involving a looped road. Because plaintiffs could not create the requisite looped road, a final hearing on the ten (10) lot plan was held on October 25, 1989.

On November 29, 1989, the Board adopted a resolution memorializing the deficiencies in the last design of the ten (10) lot subdivision proposal as well as the deficiencies in the twenty (20) lot subdivision proposal of March, 1989. As to the (10) lot proposal, the Board stated:

1. The ten lot subdivision plan with only a lower road (sometimes referred to as the February, 1987 Plan) is unacceptable in its present form because of the following:

A. The driveways as designed do not have sufficient turning radii for emergency vehicles.

B. The stormwater management aspects of the plan need considerable additional detail and design revisions.

C. The plan creates flag lots, the overall lot design of which adversely affect other lots and the overall tract, contrary to Section 123-32.1 of the Zoning Ordinance.

D. Proposed Lot 19.12 which consists of 2.826 acres is unsuitable because it has a drainage easement for a detention basin over approximately one-third of its area and a 20 foot by 400 foot drainage swale easement nearly bi-secting its building envelope.

E. Proposed Lot 19.11 has no true street frontage, only frontage to the hammerhead cul-de-sac.

F. Proposed Lot 19.10 has its only frontage via a "flag stem" which has a length of approximately 1,100 feet. The flag stem is not to be utilized for access to the lot, but exists solely so that the lot in question can technically be called a flag lot. If the flag pole were used for access to this lot, a driveway over this route would be both costly and disruptive to other residents whose houses would lie in relatively close proximity to either side of the flag stem and would disrupt the flow of drainage.

G. Proposed Lot 19.08 fronts on the hammerhead cul-de-sac with only 35 feet of true street frontage.

H. Proposed Lot 19 is a flag lot with a proposed "flag stem" rising 60 feet over its 350 foot course for an average grade of approximately 17%. Satisfactory access is impossible over this flag stem.

I. There is an existing woodroad which runs roughly parallel to the course of Arbor Drive Extension and runs onto proposed Lot 19 from proposed Lot 19.04. The existence of this woodroad is ignored in the design of the subdivision.

J. The driveways as designed appear to meet the driveway ordinance as to slope, but can only do so by traversing various lots outside of the lot lines of those lots. The driveway to Lot 19 commences on Lot 19.05, crosses onto Lot 19 slightly north of the flag pole, then cuts back across the hillside re-entering Lot 19.05 and crossing the top of that lot until it re-enters Lot 19 at another switchback. It is approximately 1,500 feet long. A common driveway serves Lots 19.10 and 19.11 and enters Arbor Drive Extension somewhat east of the hammerhead. It is approximately 500 feet long. Another common drive serves Lots 19.09, 19.08, 19.07 and 19.06 and enters the northside of Arbor Drive Extension slightly east of the entrance of the ...

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