On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-24-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Lihotz and Ashrafi.
In this zoning case, plaintiff landowner seeks to build one single-family house on a vacant twenty-four acre parcel, and it needs a variance because the property does not abut any road or street. The municipal zoning board granted a conditional variance in 2002. In 2007, however, it denied the same variance because, as a result of improvements to the nearby road, the proposed driveway now creates a hazard to passing traffic and emergency vehicles.
Plaintiff brought an action in lieu of prerogative writs challenging the board's 2007 denial and also an alternative claim of inverse condemnation of its property by land use regulation. Plaintiff now appeals from an order of the Law Division dated May 21, 2009, dismissing its complaint. We affirm dismissal of plaintiff's challenge to the zoning decision. Because the Law Division did not address inverse condemnation, we reverse dismissal of that claim and remand for further proceedings in the trial court.
The twenty-four acre parcel is located in Blairstown Township, Warren County, proximate to County Road 521, also known as Hope Road. At one time, the parcel was part of a 181-acre farm. In 1908, the Lackawanna Railroad purchased a portion of the farm and built tracks, isolating the subject parcel from the road. The remaining farmland was used for residential and farming purposes, with access to Hope Road over the railroad's land by means of an unpaved driveway about 800 feet long and about ten feet wide for most of its length. No formal easement for use of the driveway was granted or recorded. At some point, the State Department of Transportation (DOT) became the owner of the railroad property.
Plaintiff, The Last Frontier, Inc., now owns the twenty-four acre parcel. Although its proposal to build a single-family house would presumably comply with the zoning ordinances of the Township, a statutory provision in New Jersey's Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99, prohibits building on land that does not abut a street or road. N.J.S.A. 40:55D-35 states in part:
No permit for the erection of any building or structure shall be issued unless the lot abuts a street giving access to such proposed building or structure....
The essential purpose of the prohibition is to assure adequate access for emergency vehicles to protect public health and safety. See Kligman v. Lautman, 53 N.J. 517, 543 (1969).
A municipal planning or zoning board is authorized to make exceptions from the requirement of street or road abutment for hardship cases. N.J.S.A. 40:55D-36 provides in relevant part:
Where the enforcement of [N.J.S.A. 40:55D-35] would entail practical difficulty or unnecessary hardship... the board of adjustment may upon application or appeal, vary the application of [N.J.S.A. 40:55D-35] and direct the issuance of a permit subject to conditions that will provide adequate access for firefighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety....
This exception has come to be known as a planning variance.
In 2002, plaintiff applied to the Blairstown Township Zoning Board of Adjustment for such a planning variance under N.J.S.A. 40:55D-36 so that it could obtain a building permit. The Board conditionally approved the variance by resolution dated August 13, 2002. Condition five of the resolution required plaintiff to obtain a driveway access permit onto the county road from the Warren County Planning Board and also approval from the New Jersey DOT for access across the railroad property.
Plaintiff obtained county approval within a few months, but it was unable to obtain approval from the State DOT. It eventually resorted to litigation against the State, filing a complaint in 2004 for a declaratory judgment and injunctive relief to establish an easement. That litigation was settled with the State in May 2005, the DOT agreeing to grant the easement.
Between approval of the planning variance in 2002 and the easement from the DOT in 2005, Route 521 and a bridge immediately north of the driveway entrance were substantially renovated and improved. Route 521 became a divided roadway at the location of the proposed driveway so that vehicles entering or leaving the driveway cannot turn left. The driveway can now be lawfully entered and exited only by vehicles traveling in a southbound direction and only by means of a right turn. Before the improvements, only one vehicle at a time could cross the bridge, and the road contained a sharp, almost ninety-degree curve just north of the bridge. Vehicles were forced to slow down considerably or even stop when crossing the bridge near the driveway entrance. The improvements flattened the curve and widened the bridge to accommodate both directions of travel at the same time and at normal speeds. Vehicles are now likely to drive past the proposed driveway entrance at or above the forty-five mile-per-hour speed limit of Route 521.
In the summer of 2005, plaintiff notified the Board of Adjustment that it had fulfilled the conditions of the 2002 variance, and it applied to the Township construction office for a building permit. The Township engineer, Ted Rodman, wrote to plaintiff that the improvements to the road and bridge required re-evaluation and renewal of the County Planning Board's approval of the driveway. The County Planning Board later notified plaintiff that the permit issued in 2002 was still valid despite the improvements. However, plaintiff also learned from Township officials that the 2002 variance was only effective for one year and that plaintiff would have to re-apply to the Board of Adjustment for a variance.
On June 8, 2006, plaintiff filed an application with the Board for a variance extension or, alternatively, a new variance. The Board held hearings on five dates from November 2006 through September 2007. It then voted to deny plaintiff's application because of concerns for safety of ingress and egress at the driveway and access for fire trucks. It adopted a resolution dated December 11, 2007, denying plaintiff's application for a variance.
On January 9, 2008, plaintiff filed a three-count complaint against the Board in the Law Division. The first two counts asserted actions in lieu of prerogative writs challenging the Board's denial of the planning variance. The third count alleged inverse condemnation of plaintiff's land in that the zoning ...