May 1, 2007
ROBERT KOWITSKI, PLAINTIFF-RESPONDENT,
EDISON TOWNSHIP PLANNING BOARD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-2614-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 17, 2007
Before Judges Axelrad and R.B. Coleman.
Defendant Edison Township Planning Board appeals from an order of February 24, 2006, in this action in lieu of prerogative writs, striking the condition imposed in the resolution approving the plaintiff's minor subdivision, which provided that plaintiff "not have a driveway from proposed lot B exiting on Edgewood Road." The court found that plaintiff had stipulated to this condition under duress following a motion by the Board to bar his application under the doctrine of res judicata and that he was severely curtailed in all attempts to argue against the application of the doctrine. The court further found the Board's improper utilization of res judicata, as well as its imposition of an impermissible condition, were clearly arbitrary, caprcious and unreasonable.
On appeal, the Board contends:
THE TRIAL COURT ERRED WHEN IT DID NOT REMAND THE MATTER TO THE BOARD FOR A PUBLIC HEARING.
A. The court should have remanded the matter so the Board could take testimony and develop a factual record.
B. The court should have remanded the matter for the Board to reconsider the application in light of the Middlesex County Planning Board's denial of plaintiff's site plan application.
C. Remanding the matter to the Board would not have been an exercise in futility.
THE TRIAL COURT ERRED WHEN IT STRUCK THE DRIVEWAY EASEMENT CONDITION FROM THE BOARD'S DECISION.
THE TRIAL COURT MADE ERRONEOUS FINDINGS OF FACT THAT WARRANT REVERSAL.
We have considered these contentions in light of the record and applicable principles of law, and we reject them. We affirm substantially for the reasons set forth by Judge Edward Ryan in his comprehensive written decision incorporated in the order. We add the following brief comments.
Plaintiff's property has frontage on both Edgewood Road, a municipal road, and Plainfield Road, a county road. The original two-lot subdivision application required a lot frontage variance for proposed Lot B because the Edison Township zoning ordinance requires 75 feet of lot frontage and the lot maintained only 20 feet of frontage on Edgewood Road, although it maintained a conforming lot frontage of 124 feet on Plainfield Road. Both proposed houses had driveway access, five feet from each other, onto Edgewood Road. The Board denied the application, indicating in its resolution that plaintiff "could subdivide the property into two conforming building lots with proposed Lot B having frontage only on Plainfield Road, thereby not requiring any variances."
The applicant promptly returned with a second application for a two lot subdivision, which did not require any variances and which followed the Board's recommendation and addressed the Board's concerns. The second plan reconfigured the lots and modified the lot sizes. The location of the proposed single family dwelling on Lot A was relocated so as to be at an angle to both Edgewood Road and Plainfield Road and the proposed single family dwelling on Lot B was relocated twenty feet closer to Plainfield Road. The driveway on Lot A was relocated to the easterly side of the property, creating a distance of at least sixty-five feet from the driveway servicing Lot B. Two mature trees on Lot A, which were to be removed, would now be spared. Lot B no longer had frontage on Edgewood Road but only had frontage on Plainfield Road, and accessed Edgewood Road by a proposed easement across Lot A. The Township planner's report indicated he had no recommendations or objections to approving the application. Yet, the Board "suggested" further modification of plaintiff's application to remove access of Lot B's driveway onto Edgewood Road and have it access onto Plainfield Road.
As noted by Judge Ryan, the land development ordinance of the Township did not contain any standard setting forth the minimum distance between residential driveways, nor did the planner raise any safety or other concerns with having both driveways access Edgewood Road. We agree with the trial judge's assessment of the record that "the motivation of the Board in raising the issue of res judicata was to compel a condition on the application which could not be imposed under the Edison Land Development Ordinance" without affording plaintiff a meaningful hearing on the applicability of res judicata. We are further satisfied there were sufficient differences between the two applications such that res judicata would not have been a bar to plaintiff's second application. Cox, New Jersey Zoning and Land Use Administration, § 28-3.1 at 626 (2007).
If a Board imposes an unreasonable condition on a grant of approval, that condition may be stricken without striking the entire underlying approval. See Berninger v. Bd. of Adjustment of Midland Park, 254 N.J. Super. 401, 405 (App. Div. 1991). Here, the Board did not have the power to impose the driveway condition on its approval of plaintiff's second application. Moreover, the condition it imposed was unreasonable in light of the prevailing circumstances. Under New Jersey law, the general requirements relating to conditions imposed on a grant of an approval are: the condition must (1) not offend against any provision of the zoning ordinance; (2) not require illegal conduct on the part of the permittee; (3) be in the public interest; (4) be reasonably calculated to achieve some legitimate objective of the zoning ordinance; and (5) not be unnecessarily burdensome to the land owner. [Orloski v. Planning Board of Ship Bottom, 226 N.J. Super. 666, 672 (Law Div. 1988), aff'd o.b., 234 N.J. Super. 1 (App. Div. 1989)].
As noted by Judge Ryan, there was no showing of any public interest which was advanced by the imposition of the condition concerning access to Lot B. On the contrary, eliminating access through Edgewood Road, the municipal road, would require access onto Plainfield Road, a county roadway more heavily traveled, which would increase the possibility for accidents and injury. That safety concern was the reason for the county planning board's April 12, 2005 denial of plaintiff's application for site plan approval with access solely onto Plainfield Road from Lot B, as required by Board's conditional approval.
The record amply supports the trial court's determination that the Board's imposition of the "no driveway on Edgewood Road" condition on plaintiff's subdivision application was arbitrary, capricious and unreasonable. The court properly exercised its discretion in striking this condition as the Board presented no justifiable basis for remand of plaintiff's application for further consideration.
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