January 11, 2008
RICHARD MAGLIONE, PLAINTIFF-APPELLANT,
LACEY TOWNSHIP BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3183-05PW.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 12, 2007
Before Judges Axelrad and Payne.
Plaintiff Richard Maglione appeals from a May 18, 2006 order of the Law Division, affirming with modification the conditions imposed by the Lacey Township Board of Adjustment (Board) on the approval of his building permit for the construction of a single family residence on a lot fronting an unimproved street. Appellant contends the Board's decision was arbitrary, capricious, and unreasonable in that there was no rational nexus between the off-site improvements to the gravel roadway and the proposed construction, and the Law Division erred when it sustained the conditional approval. Appellant seeks a reversal of the order and a remand to the Board with instructions to issue the building permit without any conditions. We are not persuaded by his assertions of error and affirm.
Appellant is the owner of consolidated vacant lots identified as Lots 29, 30, 31, 32, and 33 in Block 1189 on the Lacey Township Tax Map. In July 2004, appellant submitted an application to the Board for a building permit and variance for construction of a single family residence. The property has 140 feet of frontage and access through Earie Way, an approximately 20 foot-wide gravel roadway constructed in l995 to serve a residence owned by the Brices that was located directly across the street from appellant's site. As a condition of the variance and building permit approval, the Brices previously had been required to grade and gravel 330 feet of Earie Way and construct a turn-around at its end.
Appellant sought relief from the requirements of N.J.S.A. 40:55D-35, which provides that "[n]o permit for the erection of any building or structure shall be issued unless the lot abuts a street giving access to such building or structure," and further provides that in order to satisfy this requirement, a condition may be imposed to the permit "assur[ing]" such "suitable improvement" in accordance with "standards and specifications for road improvements approved by the governing body." He relied on N.J.S.A. 40:55D-36, which allows appeals to the board of adjustment where satisfaction of the statutory requirement "would entail practical difficulty or unnecessary hardship" and provides that in such circumstances the board may "direct the issuance of a permit subject to conditions that will provide adequate access for firefighting equipment" and other emergency vehicles and "that will protect any future street layout."
Appellant stated his purchase price was $42,000 and he believed the fair market value of the proposed 2700 square foot dwelling would be $320,000. His planner, George VanSant, testified and presented a report that the cost to construct a fully-improved street in accordance with the township standards was about $67,000. Appellant also submitted letters from various public safety entities purportedly indicating that emergency vehicles and equipment could access his property using the existing partially improved road. He argued it would thus be an unnecessary hardship to improve the roadway to township standards. He proposed no improvements to the gravel road, however, relying instead on the improvements made by the Brices ten years prior.
Michael Geller, the board's engineer, opined that limited road upgrades and improvements short of compliance with the township road standards could achieve the objective of providing safe ingress and egress for emergency vehicles and facilitate future street improvements. He proposed the following improvements using the existing 24 foot road width determined by VanSant and a length of 330 feet: (1) preparing and grading roadway and supplementing with gravel at a cost of $1320; (2) right of way stabilization at a cost of $1295; and (3) installation of a bituminous base course at a cost of $8800, for a total of $11,415. With 20% contingencies of $2283, a 5% inspection fee, and a 120% performance bond, the total cost of the project was estimated at $16,437.60. The Board denied the application, finding appellant failed to meet economic hardship requirements, but noted he would most likely qualify for waivers of the township street standards and that the board engineer's proposed recommendation would be favorably considered.
Appellants filed an action in lieu of prerogative writs to contest the Board's decision. In a written opinion dated June 27, 2005, Judge Marlene Lynch Ford stated:
I do not agree that the Board's prior action in approving the Brice application somehow deprives it of the opportunity to impose reasonable conditions upon an approval of the subject appeal. The existing gravel roadway has been held to satisfy the fire, emergency, police and public safety concerns of the Township, in the past. Whether it presently affords adequate ingress and egress to the Brice and to plaintiff's property for emergency vehicles is an issue the Board may consider on remand. The board may also consider whether the existing gravel roadway continues to be adequate, or whether reasonable improvements to the roadway should be engrafted upon the existing roadway. The record does not address the need to upgrade or maintain the existing roadway since the Township insisted upon a complete renovation of the gravel roadway. The property owner was steadfast in his refusal to do any improvements. While there exists  a tremendous gap between the two positions, clearly, it would be inequitable to impose upon a solitary property owner the cost of the entire 330 feet of roadway improvements.
I am therefore remanding this matter back to the Board for reconsideration consistent with this decision. The applicant or the Board may supplement the record with additional facts about the current condition of the road; whether or not it is presently able to sustain the emergency vehicular traffic, whether there is adequate turnaround space; whether the roadway has deteriorated. The Board may attach reasonable conditions to its approval, including a pro rata contribution to the cost of necessary road improvements.
[T]he effect of this Board's denial is to impose upon the applicant the obligation to install off tract improvements in the absence of any demonstration of a rational nexus to the property in question. However, a reasonably related contribution to these improvements, as determined by a supplementation of the record to address this issue, would not run afoul of this Court's opinion or of the case law developed in this context.
On remand, Geller commented about ruts in the gravel, vegetation growth on the outside edges of the road reducing its width to about sixteen feet, and the inadequate turnaround dimensions. There was significant discussion about the township's l997 ordinance pertaining to the improvement of unimproved streets that disapproves gravel roads, as well as the requirements imposed by the board on other applicants to improve road surfaces, install drainage, and improve street lighting. Appellant's engineer, Charles Rush, testified that the gravel base was solid though thinning in areas and proposed, as a compromise by the applicant, to place a two-inch overlay of gravel over the existing roadway and improve the cul-de-sac at the end of the roadway so it had a fifty-foot diameter and an eight-inch depth of gravel. Rush did not submit a proposed plan or supply a cost estimate for these improvements. In response to a question by the Board's engineer, Rush acknowledged that "there's no question that bituminous . . . is better than gravel" and paving "obviously will wear longer, last longer and maintain easier."
One of the Board members noted that appellant was also seeking relief from the thirty foot road width and waivers from the curbing, sidewalk, and lighting improvements required by Township ordinance for individual residential lots. The members considered the ten years passage of time from the initial roadway improvements and the current standards disfavoring the use of gravel roadway surfaces. They noted the benefits of paving over gravel, i.e. that it is cleaner, more durable, easier to maintain, and restricts destruction by snowplows. They further considered the municipal road and other design requirements and uniform residential site improvement standards (RSIS), N.J.A.C. 5:21-1.1 to -8.1, in terms of emergency access and future street layout. The Board determined not to require an eighty-foot diameter paved cul-de-sac in accordance with the RSIS so as not to impose an onerous off-site burden on appellant, viewing the turnaround as temporary because the road would eventually be extended. It concluded, however, that it was essential under all the circumstances to require a bituminous base for the entire length of Earie Road. The Board found that its engineer's original estimate of limited improvements totaling approximately $16,400 would provide for stability of the existing roadway and avoid any hardship to appellant, and was a reasonable cost associated with appellant's single-family residence. Accordingly, on September 7, 2005, the Board adopted a Resolution granting appellant's application subject to his improving Earie Way with a "minimum of 24 foot width of three inch bituminous stabilized base course with a 50 foot turnaround consisting of eight inches of R-blend stone/gravel" in quantities set forth in Geller's October 24, 2004 review letter.
Appellant filed another prerogative writs action. Appellant argued he demonstrated hardship and the Board failed to make the threshold determination that Earie Way was not safe for emergency access in its gravel condition, and misinterpreted the scope of the remand as simply permitting the imposition of a cost on appellant for the off-site improvements. Appellant's counsel acknowledged that the "basic crux of the issue" was that it was unfair to require his client, whose property only fronted l40 feet of Earie Road, to pay $8800 for the bituminous base for the entire 330 foot length of the road.
The court was satisfied the record supported the board's decision to attach the asphalt paving and turnaround graveling conditions to appellant's building permit. In consideration of the nexus between appellant's construction and the off-site improvements, however, the trial court modified the Board's condition and reduced appellant's contribution to one-half of the paving cost of Earie Road, i.e., 12 feet wide by 330 feet, estimated at $4400. This appeal ensued.
Appellant continues to argue the Board abused its discretion by failing to consider the adequacy of emergency vehicle access with regard to the existing condition of the roadway and contends there was no evidence to support the Board's conclusion that a road improvement was necessary at all. Appellant further contends the court erroneously sustained the Board's imposition on him of the full cost of off-site road improvements without the requisite rational nexus. We disagree.
Appellant concedes his property does not abut an improved street as required by N.J.S.A. 40:55D-35. N.J.S.A. 40:55D-35 and -36 expressly permit a municipality to condition the issuance of a building permit on an applicant's contribution to necessary off-site improvements that bear a rational nexus to the needs created by and benefits conferred upon him. Vrabel v. Mayor and Council of the Bor. of Sayreville, 253 N.J. Super. 109, 115, 117 (App. Div. 1992). Appellant was unrealistic to expect that he could piggyback upon the minimal improvements made to the roadway by the Brices ten years prior and not have to make any monetary contribution as a condition for obtaining his building permit. His construction equipment alone would cause wear-and-tear on the gravel roadway, as would the increased traffic resulting from the construction and occupancy of the proposed 2700 square foot dwelling.
Contrary to appellant's assertion, there was substantial evidence in the record that road improvements were necessary to the ten-year-old gravel road that had become rutted, eroded in spots, and shrunk in width because of vegetation growth, and to the gravel turnaround that only had about a thirty-four foot diameter that was inadequate for emergency vehicles. The Board's engineer proposed limited improvements in scope and cost to the roadway and turnaround that would satisfy township requirements for safety and future street layout. Considering the township's l997 road improvement ordinance and the stability and durability of bituminous paving, we are satisfied the Board acted reasonably in adopting its engineer's recommendation that Earie Road should be paved.
Under the circumstances of this case, the court neither abused its discretion nor misapplied the law in concluding the Board appropriately conditioned its approval of appellant's building permit on the contribution to these necessary off-site improvements. Under the modified judgment, appellant is only responsible for the paving cost of his side of the street up to the turnaround, not for the full cost of the off-site improvements. As appellant's property fronts Earie Way, he clearly benefits from the improvement of the roadway. In light of the necessity of a turnaround for emergency vehicles to access appellant's property, and the nominal cost involved in paving his side of the street for the additional l90 feet to reach the turnaround, we are satisfied the improvements and costs imposed by the court bore a rational nexus to appellant's proposed construction.
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