On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-546- 99.
Before Judges Havey, Coburn and Weissbard.
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
These back-to-back appeals, consolidated for the purpose of this opinion, present a unique land-use issue. May municipalities, in this case defendants Howell and Brick Townships, vacate streets which extend to a proposed major subdivision situated in adjoining Wall Township, the result of which renders the property landlocked? The trial court granted summary judgment to plaintiff Howell Properties, Inc., owner of the subject property, declaring the vacation ordinances "null and void." We affirm. We hold that adoption of the ordinances constituted an unlawful exercise of defendants' legislative power because the vacation of the streets do not serve the "public interest." N.J.S.A. 40:67-19.
The essential facts are not in dispute. The subject property, Block 977, Lots 5, 16 and 18, is located at the extreme southern tip of Wall Township. It is bounded on the north by a stream corridor of freshwater wetlands, on the east by the boundary line between Wall and Howell, and on the south and southwest by the Garden State Parkway right-of-way line and the municipal boundary of Brick. The property is part of a larger tract once owned by Laurel Manor Associates. In 1983, Howell Township Planning Board approved a subdivision known as Laurel Manor, Section 7, consisting of approximately fifty single-family homes. The subdivision plan shows two roads with fifty feet rights-of-way, Cherry Lane and Redbud Lane, ending at the Wall Township line and connecting to the subject property, with the notation "reserved for future road." Both streets are paved.
Brick approved a subdivision plan submitted by Laurel Manor Associates in 1989 for a smaller development of single-family homes. One of the subdivision's roadways, Maypink Lane, ends in a paved cul-de-sac abutting Wall Township and plaintiff's property. According to the subdivision map, Maypink Lane, having a fifty foot right-of-way, actually extends to the border of plaintiff's property. A notation on the subdivision plan states that the cul-de-sac is a "temporary cul-de-sac easement to be removed on extension of Maypink Lane." At the time the Brick and Wall Township subdivisions were approved, Wall Township zoned the subject property for single-family dwellings on two-acre lots, allowing construction of only eighteen homes.
Laurel Manor Associates was one of several builders who instituted exclusionary zoning litigation against Wall in 1987. On September 12, 1990, Judge Serpentelli entered a consent judgment in the Mount Laurel *fn1 litigation which approved Wall Township's fair share plan, the major components of which consisted of four inclusionary developments with 264 affordable units, and regional contribution agreements with Neptune and Long Branch for 400 units. The judgment recited that Wall desired to meet a part of its Mount Laurel obligation through voluntary contributions from private developers, and toward that end Laurel Manor Associates agreed to develop the subject property for 120 single-family dwellings at a density of three units per acre, and to contribute $10,000 per unit toward Wall's affordable housing trust fund, or a total contribution of $1,200,000. The concept plan showed access to the property from Maypink Lane in Brick and from Cherry Lane and Redbud Lane in Howell.
Plaintiff acquired the subject property in August 1995. Wall Township agreed to rezone the property for approximately 180 single-family age-restricted dwellings (fifty-five years and older) and in 1997 Wall adopted an amended zoning ordinance creating the MLC-RAC-2 zone which provided for a density of 3.6 units per acre. No appeal from the amended ordinance was taken by any interested party. In return, plaintiff agreed to contribute $900,000 to Wall's affordable housing trust fund ($5000 per unit). On March 6, 1998, Judge Serpentelli entered an amended consent judgment in the Mount Laurel case approving the development of plaintiff's property at approximately three-and-a- half units per acre in exchange for a contribution of $5000 per unit.
Plaintiff's proposed subdivision application initially called for access through Cherry and Redbud Lanes. Plaintiff revised its plan during the lengthy Planning Board hearings to include access from Maypink Lane in Brick. Several residents and officials of Brick and Howell appeared and objected to the road connections. Howell's engineer criticized the proposal for several reasons, including the adverse impact the additional traffic may have on the residential development around Cherry and Rosebud Lanes.
On December 31, 1998, Brick adopted an ordinance vacating the portion of Maypink Lane which abutted plaintiff's property. Howell adopted an ordinance vacating the portions of Redbud Lane and Cherry Lane which abutted plaintiff's property on February 16, 1999.
Plaintiff filed suit, demanding inter alia, that the ordinances be declared invalid.*fn2 Thereafter, the Wall Planning Board approved plaintiff's preliminary major subdivision, conditioned upon plaintiff prevailing in its law suit to secure access to the property through Howell and Brick.
In granting summary judgment to plaintiff, the trial court held that defendants, as adjoining municipalities, had a duty to facilitate plaintiff's development by providing vehicular access because the development was a component of Wall Township's Mount Laurel compliance plan. The court further determined that "wholly aside" from defendants' Mount Laurel obligation to facilitate, the vacation of the streets was unlawful because it denied plaintiff "reasonable access to . . . public streets."
Before deciding the summary judgment motion, the trial court carried the matter to give defendants an opportunity to present evidence that there were alternate means of access available to plaintiff other than the three streets in Howell and Brick. Defendants did not present any such evidence. Consequently, we cannot disagree with the trial court's factual conclusion that plaintiff's property is essentially landlocked without access through the three streets in question. A portion of the property abuts the Garden State Parkway to which no ...