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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...