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Baker Residential, L.P. v. Township of Washington

January 22, 2009

BAKER RESIDENTIAL, L.P., PLAINTIFF, AND WASHINGTON VENTURE, L.P., AND WASHINGTON STATION VENTURE, L.P., PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF WASHINGTON, WARREN WASHINGTON ASSOCIATES, INC. AND WASHINGTON BOROUGH PLANNING BOARD, DEFENDANTS-RESPONDENTS, AND NORFOLK SOUTHERN RAILROAD AND WASHINGTON BOROUGH, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, L-48-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 9, 2008

Before Judges Wefing, Yannotti and LeWinn.

Plaintiffs Washington Venture, L.P. and Washington Station Venture, L.P. appeal from an order entered by the Law Division on January 6, 2006, which affirmed the denial by the Borough of Washington Planning Board (Board) of an application for subdivision approval, and an order entered on March 3, 2006, denying their motion for reconsideration. Plaintiffs also appeal from an order entered on June 22, 2007, which rejected their challenge to the Township of Washington's (Township) ordinance vacating a portion of a dedicated roadway. For the reasons that follow, we affirm.

I.

Plaintiffs are the owners of 125.589 acres of vacant land in the Borough of Washington. In November 1999, Baker Residential, L.P. (Baker) entered into an agreement with plaintiffs to purchase the land for the purpose of constructing a housing development on a substantial portion of the site. On April 5, 2001, Baker filed an application with the Board for subdivision approval and certain variances so that it could build 117 detached single-family dwellings and 108 attached townhouses on the property.

The subject property lies to the north of a ridge line that is commonly referred to as Cemetery Hill. The property slopes downward from the ridge line to the north. The property's northern boundary abuts a working railroad track owned by the Norfolk Southern Railroad. The southern boundary of the property runs along the Borough's border with the Township.

A private roadway called Road F runs south from Route 57 through the Washington Gardens apartment complex and ends at the railroad tracks. Warren Washington Associates, Inc. (Warren Washington), the owner of Washington Gardens, has an easement that allows ingress and egress through the apartment complex to Route 57. Warren Washington also has an easement, dating back to 1864, allowing passage across the railroad tracks.

The property fronts upon Nunn Avenue, which is a dead-end Borough road that terminates at the northeast corner of the site in an area of wetlands. A Township road called Mill Pond Road runs north and south about one-fifth of a mile to the west of the property. Another road called Ridge Drive is located in the Township and ends just below the southern boundary of the property. Ridge Drive runs through a small subdivision of five homes to an intersection with Cemetery Hill Road.

While Baker's application for subdivision approval and variance relief was pending before the Board, Ordinance 01-17 was introduced in the Township to vacate a portion of Ridge Drive and thereby preclude access from the proposed development through the remainder of Ridge Drive in the Township. The Township Committee adopted the ordinance at a public meeting on December 18, 2001.

On September 9, 2002, the Board voted to deny Baker's application for subdivision approval. In a resolution dated October 14, 2002, the Board gave five reasons for denying the application: (1) Baker had not provided sufficient road access to the proposed development; (2) Baker's proposal did not comply with the conservation element of the Borough's master plan; (3) Baker failed to provide "adequate and acceptable methods" for solving the problems associated with "the steeply sloped nature" of the site; (4) Baker did not show that it was feasible to construct sidewalks across the northern side of Route 57; and (5) Baker had not provided a storm water management plan for the site that complied with the ordinance governing the management of surface water.

On January 25, 2002, plaintiffs commenced this action in the trial court. In their complaint, plaintiffs sought, among other things, a declaration that Ordinance 01-17 was invalid, and an order reversing the Board's denial of Baker's application for subdivision approval and variance relief.

The court filed a written opinion on January 6, 2006, in which it concluded that the Board's second, third, fourth and fifth reasons for denying the application were arbitrary and capricious. The court determined, however, that the Board's finding that there was insufficient road access to the property was not arbitrary or capricious. The court found that approval of the application conditioned on Baker's obtaining adequate road access to the site was not warranted under the circumstances. The court entered an order dated January 6, 2006, which affirmed the Board's decision to deny Baker's application.

Plaintiffs thereafter filed a motion for reconsideration of the court's January 6, 2006 order. On March 3, 2006, the court filed an opinion in which it reaffirmed its earlier determination. The court entered an ...


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