On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-399-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Stern, Collester and C.S. Fisher.
Plaintiff Michael McCaffrey is the owner of property on Lakeview Lane in the Township of Union; his lot is encumbered by a fifty-foot wide easement dedicated for "future road extension." Defendants David and Cynthia Case own adjoining property.
In an application for a minor subdivision that was filed with the planning board, defendants ultimately took the position that a variance would not be needed because the new lot would be on the road extension referred to in the easement over plaintiff's property. While defendants were pursuing this application, plaintiff filed a complaint seeking a declaratory judgment that the easement was unenforceable. Soon thereafter, the planning board granted minor subdivision approval, and plaintiff amended his complaint to add an action in lieu of prerogative writs against the planning board and the township. Various issues relating to the enforceability of the easement and the actions taken by the planning board were briefed, and the argument of counsel was heard by Judge Peter A. Buchsbaum. In his comprehensive oral decision of August 28, 2006, Judge Buchsbaum concluded that the easement was enforceable and that the planning board's approval of the minor subdivision was not arbitrary, capricious or unreasonable; he also discharged the notice of lis pendens wrongfully filed by plaintiff on defendants' property.
In this appeal, plaintiff argues that:
I. THE COURT SHOULD NOT HAVE INCLUDED IN ITS JUDGMENT A DECLARATION THAT THERE WAS NO LEGAL BASIS FOR FILING THE LIS PENDENS.
II. THE PLANNING BOARD'S APPROVAL OF THE SUBDIVISION WAS ULTRA VIRES, ARBITRARY, CAPRICIOUS AND UNREASONABLE BECAUSE THE PROPOSED NEW LOT DOES NOT HAVE ACCESS TO AN EXISTING ROAD AND THE SUBDIVISION SHOULD NOT HAVE BEEN APPROVED.
III. THE PLANNING BOARD'S APPROVAL OF THE SUBDIVISION WAS ULTRA VIRES, ARBITRARY, CAPRICIOUS AND UNREASONABLE BECAUSE THE BOARD DID NOT SEE OR CONSIDER DETAILS OF THE PROPOSED NEW ROADWAY.
IV. THE PLANNING BOARD'S APPROVAL OF THE SUBDIVISION WAS ULTRA VIRES, ARBITRARY, CAPRICIOUS AND UNREASONABLE BECAUSE THE BOARD APPROVED A SUBDIVISION IN VIOLATION OF ORDINANCE.
V. THE COURT SHOULD HAVE DECLARED THE DRIVEWAY MAINTENANCE AGREEMENT VOID OR VOIDABLE.
We reject these arguments and affirm substantially for the reasons set forth by Judge Buchsbaum in his thorough ...