SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5782-99T5
A-5965-99T5
HOWELL PROPERTIES, INC., a
New Jersey Corporation,
Plaintiff-Respondent,
v.
TOWNSHIP OF BRICK, COUNTY OF
OCEAN, STATE OF NEW JERSEY, a
Municipal Corporation of the
State of New Jersey, TOWNSHIP
COUNCIL OF THE TOWNSHIP OF BRICK,
TOWNSHIP OF HOWELL, COUNTY OF
MONMOUTH, STATE OF NEW JERSEY,
a Municipal Corporation of the
State of New Jersey, TOWNSHIP
COUNCIL OF THE TOWNSHIP OF HOWELL,
Defendants-Appellants,
and
THE PLANNING BOARD OF THE TOWNSHIP
OF HOWELL,
Defendant.
Argued December 17, 2001 - Decided
February 13, 2002
Before Judges Havey, Coburn and Weissbard.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-546-
99.
Scott W. Kenneally argued the cause for
appellants Township of Brick and Township
Council of the Township of Brick (Starkey,
Kelly, Blaney & White, attorneys; Charles E.
Starkey, of counsel; Mr. Kenneally, on the
brief).
Sandra DeSarno Hlatky argued the cause for
appellants Township of Howell and Township
Council of the Township of Howell (Schibell &
Mennie, attorneys; Richard D. Schibell, of
counsel; Ms. Hlatky, on the brief).
Stewart M. Hutt argued the cause for
respondent Howell Properties, Inc. (Hutt &
Shimanowitz, attorneys; Mr. Hutt, of counsel
and on the brief).
The opinion of the court was delivered by
HAVEY, P.J.A.D.
These back-to-back appeals, consolidated for the purpose of
this opinion, present a unique land-use issue. May
municipalities, in this case defendants Howell and Brick
Townships, vacate streets which extend to a proposed major
subdivision situated in adjoining Wall Township, the result of
which renders the property landlocked? The trial court granted
summary judgment to plaintiff Howell Properties, Inc., owner of
the subject property, declaring the vacation ordinances "null and
void." We affirm. We hold that adoption of the ordinances
constituted an unlawful exercise of defendants' legislative power
because the vacation of the streets do not serve the "public
interest." N.J.S.A. 40:67-19.
The essential facts are not in dispute. The subject
property, Block 977, Lots 5, 16 and 18, is located at the extreme
southern tip of Wall Township. It is bounded on the north by a
stream corridor of freshwater wetlands, on the east by the
boundary line between Wall and Howell, and on the south and
southwest by the Garden State Parkway right-of-way line and the
municipal boundary of Brick. The property is part of a larger
tract once owned by Laurel Manor Associates. In 1983, Howell
Township Planning Board approved a subdivision known as Laurel
Manor, Section 7, consisting of approximately fifty single-family
homes. The subdivision plan shows two roads with fifty feet
rights-of-way, Cherry Lane and Redbud Lane, ending at the Wall
Township line and connecting to the subject property, with the
notation "reserved for future road." Both streets are paved.
Brick approved a subdivision plan submitted by Laurel Manor
Associates in 1989 for a smaller development of single-family
homes. One of the subdivision's roadways, Maypink Lane, ends in
a paved cul-de-sac abutting Wall Township and plaintiff's
property. According to the subdivision map, Maypink Lane, having
a fifty foot right-of-way, actually extends to the border of
plaintiff's property. A notation on the subdivision plan states
that the cul-de-sac is a "temporary cul-de-sac easement to be
removed on extension of Maypink Lane." At the time the Brick and
Wall Township subdivisions were approved, Wall Township zoned the
subject property for single-family dwellings on two-acre lots,
allowing construction of only eighteen homes.
Laurel Manor Associates was one of several builders who
instituted exclusionary zoning litigation against Wall in 1987.
On September 12, 1990, Judge Serpentelli entered a consent
judgment in the Mount LaurelSee footnote 11 litigation which approved Wall
Township's fair share plan, the major components of which
consisted of four inclusionary developments with 264 affordable
units, and regional contribution agreements with Neptune and Long
Branch for 400 units. The judgment recited that Wall desired to
meet a part of its Mount Laurel obligation through voluntary
contributions from private developers, and toward that end Laurel
Manor Associates agreed to develop the subject property for 120
single-family dwellings at a density of three units per acre, and
to contribute $10,000 per unit toward Wall's affordable housing
trust fund, or a total contribution of $1,200,000. The concept
plan showed access to the property from Maypink Lane in Brick and
from Cherry Lane and Redbud Lane in Howell.
Plaintiff acquired the subject property in August 1995.
Wall Township agreed to rezone the property for approximately 180
single-family age-restricted dwellings (fifty-five years and
older) and in 1997 Wall adopted an amended zoning ordinance
creating the MLC-RAC-2 zone which provided for a density of 3.6
units per acre. No appeal from the amended ordinance was taken
by any interested party. In return, plaintiff agreed to
contribute $900,000 to Wall's affordable housing trust fund
($5000 per unit). On March 6, 1998, Judge Serpentelli entered an
amended consent judgment in the Mount Laurel case approving the
development of plaintiff's property at approximately three-and-a-
half units per acre in exchange for a contribution of $5000 per
unit.
Plaintiff's proposed subdivision application initially
called for access through Cherry and Redbud Lanes. Plaintiff
revised its plan during the lengthy Planning Board hearings to
include access from Maypink Lane in Brick. Several residents and
officials of Brick and Howell appeared and objected to the road
connections. Howell's engineer criticized the proposal for
several reasons, including the adverse impact the additional
traffic may have on the residential development around Cherry and
Rosebud Lanes.
On December 31, 1998, Brick adopted an ordinance vacating
the portion of Maypink Lane which abutted plaintiff's property.
Howell adopted an ordinance vacating the portions of Redbud Lane
and Cherry Lane which abutted plaintiff's property on February
16, 1999.
Plaintiff filed suit, demanding inter alia, that the
ordinances be declared invalid.See footnote 22 Thereafter, the Wall Planning
Board approved plaintiff's preliminary major subdivision,
conditioned upon plaintiff prevailing in its law suit to secure
access to the property through Howell and Brick.
In granting summary judgment to plaintiff, the trial court
held that defendants, as adjoining municipalities, had a duty to
facilitate plaintiff's development by providing vehicular access
because the development was a component of Wall Township's Mount
Laurel compliance plan. The court further determined that
"wholly aside" from defendants' Mount Laurel obligation to
facilitate, the vacation of the streets was unlawful because it
denied plaintiff "reasonable access to . . . public streets."
Before deciding the summary judgment motion, the trial court
carried the matter to give defendants an opportunity to present
evidence that there were alternate means of access available to
plaintiff other than the three streets in Howell and Brick.
Defendants did not present any such evidence. Consequently, we
cannot disagree with the trial court's factual conclusion that
plaintiff's property is essentially landlocked without access
through the three streets in question. A portion of the property
abuts the Garden State Parkway to which no access is afforded.
To the north the property is bounded by a stream corridor and
freshwater wetlands, over which access is not permitted.See footnote 33
The unique inter-municipal dispute before us, involving
landlocked property, implicates three competing principles. The
first is that a property owner has a right to reasonable access
to the public highway system. High Horizons Dev. Co. v. State,
Dep't of Transp.,
120 N.J. 40, 48-49 (1990); Lima & Sons, Inc. v.
Borough of Ramsey,
269 N.J. Super. 469, 477 (App. Div. 1994);
Mueller v. New Jersey Highway Auth.,
59 N.J. Super. 583, 595
(App. Div. 1960). "What constitutes reasonable access is
[ordinarily] a question of fact." Mueller, supra, 59 N.J. Super.
at 595. The reasonableness of a property owner's access "in turn
is dependent upon the use of the property and the expected
traffic flow." State, Comm'r of Transp. v. Nat. Amusements,
Inc.,
244 N.J. Super. 219, 225 (App. Div. 1990), certif. denied,
127 N.J. 327 (1991). This "reasonableness" standard is usually
implicated where the State denies an access permit or alters or
revokes an existing means of access to a public highway, and the
issue is whether the affected property owner is entitled to
compensation. See High Horizon Dev. Co., supra, 120 N.J. at 48-
49; State, Comm'r of Transp., supra, 244 N.J. Super. at 223-24.
No case has considered the reasonableness issue in the context
before us, where neighboring municipalities have landlocked
property by the vacation of streets.
The second principle implicated is a municipality's
unquestioned legislative authority to regulate property within
its boundary lines by the exercise of its power to zone. Bow &
Arrow Manor, Inc. v. Town of West Orange,
63 N.J. 335, 345
(1973). The exercise of that authority, of course, must advance
one of the purposes of the Municipal Land Use Law (MLUL),
N.J.S.A. 40:55D-2, Riggs v. Tp. Long Beach,
109 N.J. 601, 611
(1988), including consideration of the general welfare of
neighboring municipalities. N.J.S.A. 40:55D-2d.
The third principle is that any municipality may enact an
ordinance to vacate a public street. N.J.S.A. 40:67-19.
Whenever there shall have been a
dedication of lands as a public street or
highway or a public square or public place,
and the same has not been accepted or opened
by the municipality, and it shall appear to
the governing body that the public interest
will be better served by releasing those
lands or any part thereof from such
dedication, the governing body may by
ordinance release and extinguish the public
right arising from said dedication as to the
whole or any part of those lands, and
thereupon said lands or the part thereof so
released shall be effectually discharged
therefrom as though the dedication had not
taken place; but only after notice of the
intention of the governing body to consider
any such ordinance, and a hearing thereon,
shall have been given as provided in section
40:49-6 of this title concerning ordinances
for the vacation of streets.
[N.J.S.A. 40:67-19 (emphasis added).]
Plainly, the controlling criterion under the statute is whether
the vacation of the street will serve the "public interest."
Pyatt v. Mayor & Council of Dunellen,
9 N.J. 548, 553 (1952); see
also 11 McQuillin Municipal Corporations §30.185 (3rd Ed. 2000)
("In the vacation of streets the public interest and conveniences
is the prime consideration . . . ."). "To that inquiry whatever
is relevant for or against the proposed closing and bears upon
the public interest in the particular circumstances ordinarily
not only may, but should, be considered." Pyatt, supra, 9 N.J.
at 553. Our function is confined to a determination whether
factors other than the public interest and welfare have
influenced the governing body's legislative action. Ibid. While
the vacation ordinances, in another setting, might be a valid
exercise of municipal power, "they must be viewed in the light of
the present factual context, in order to ascertain the quality of
those acts." Palisades Properties, Inc. v. Brunetti,
44 N.J. 117, 132 (1965).
We are convinced that, in deciding what is in "the public
interest," courts should not confine themselves exclusively to
the parochial interest of the municipality invoking its power to
vacate. Opinions in the land-use context have emphasized the
obligation of a municipality to consider the welfare of the
region when the governing body exercises its legislative
authority. Southern Burlington Cty. N.A.A.C.P. v. Township of
Mount Laurel,
92 N.J. 158, 238 (1983) ("zoning in accordance with
regional considerations is not only permissible, it is
mandated"); Quinton v. Edison Park Dev. Corp.,
59 N.J. 571, 578
(1971); Urban Farms, Inc. v. Borough of Franklin Lakes,
179 N.J.
Super. 203, 213 (App. Div.), certif. denied,
87 N.J. 428 (1981).
"The insularity and parochialism of the Chinese wall theory of
municipal zoning has long since been discredited." Urban Farms,
Inc., supra, 179 N.J. Super. at 213. The MLUL itself recognizes
this principle, by providing that one purpose of zoning is "to
ensure that the development of individual municipalities does not
conflict with the development and general welfare of neighboring
municipalities . . . ." N.J.S.A. 40:55D-2d. Because zoning
powers are derived from the State's general authority, a zoning
decision "must consider the welfare of all the State's citizens,
not just the interests of the inhabitants in the particular
locality." Lusardi v. Curtis Point Prop. Owners Ass'n,
86 N.J. 217, 227 (1981) (citing Mount Laurel I, supra, 67 N.J. at 178).
We recognize that the municipal actions being challenged
here are not the adoption of zoning ordinances. However, zoning
considerations undergird this dispute, as defendants acknowledge
when they admit that they would not have vacated these streets
had Wall Township retained its large lot zoning under its prior
ordinance for plaintiff's tract. Indeed, the reason for the
action was the size of the development and extent of traffic it
would generate. In Mount Laurel II, supra, 92 N.J. at 208, the
Court noted that the "constitutional power to zone, delegated to
the municipalities subject to legislation, is but one portion of
the police power and, as such, must be exercised for the general
welfare," which includes accounting for regional needs. Since
"the general welfare" requires consideration of regional needs,
the phrase "public interest," used in N.J.S.A. 40:67-19, likewise
demands that a municipality look beyond its own borders in
determining whether its legislative act serves the "public
interest" in general.
No New Jersey case has addressed the question whether one
municipality may vacate existing streets in order to prevent a
development in an adjoining town from having access through that
municipality. However, other courts have addressed the issue.
In Yarrow First Assocs. v. Town of Clyde Hill,
403 P.2d 49 (Wash.
1965), the Washington Supreme Court invalidated the vacation of a
street as contrary to the public good when the proofs showed that
the municipality was attempting to advance its own interest at
the expense of the region. Plaintiff intended to build an
apartment building consisting of eighty-nine family units in the
municipality adjoining the defendant town. Plaintiff's only
access was by way of a street in a neighborhood which defendant
had zoned for single-family residential use. Defendant vacated a
portion of the street, thereby landlocking plaintiff's property.
Id. at 52.
The court reversed, concluding that the defendant closed the
street because nonresidents would use it "without paying taxes or
contributing to construction or maintenance . . . ." Ibid. The
court held that "[i]n closing a public street, the 'Public Use'
that must be considered is broader and more inclusive than the
mere use by abutting property owners." Id. at 53. The public
use doctrine "refers not alone to adjacent property owners, nor
to the inhabitants of a particular political subdivision, but to
the whole people." Ibid. Explained the court:
This case presents a prime example of
the difficulties engendered by one
municipality attempting to deny its neighbors
the use of its streets. In recent years,
numerous towns have developed around Lake
Washington. They have clustered together
with interlocking city lines. No doubt there
are numerous conflicting ordinances and
community interests. However, if each town
was permitted to close the streets to its
neighbors because they increased traffic flow
without paying taxes, or because they desired
to punish the adjoining town for having a
conflicting zoning ordinance, chaos would
result. Each town could be landlocked by its
neighbors. No traffic would move. Commerce
would die. The legal barriers, though
written on paper, would be as effective as if
constructed of concrete blocks. To state the
proposition is to refute it.See footnote 44
[Id. at 53-54.]
In contrast, a divided Ohio Supreme Court upheld the
vacation of the street which bordered on the defendant
municipality because "vacation . . . was necessary to prevent the
changing of quiet residential streets into thoroughfares between
[the two municipalities]." Eastland Woods v. City of Tallmadge,
443 N.E.2d 972, 974 (Ohio 1983). However, a dissenting opinion
examined what it perceived to be the real motive for vacating the
street, to prevent the construction of a development "for low
income families, subsidized by federal funds," which "would
include blacks as residents." Id. at 976 (Brown, J.,
dissenting). Citing Yarrow, supra, the dissent argued that
"vacation necessarily restricts the free flow of travel and is
thus against this state's public policy which favors unobstructed
passage along roads between communities." Id. at 977. "In a
case such as this where the vacation of a public street of one
municipality affects so vitally the essential right of the
citizens of the adjoining municipality, the legislating body must
balance the conflicting needs of each community." Ibid.
We find the discussion and holding in Yarrow persuasive.
Defendant Howell, in its appellate brief, states that Howell and
Brick vacated their streets:
[w]hen it became apparent that the Township
of Wall . . . was reaping all of the benefits
and none of the burdens from the adult
development which had no access to its roads
and would not be a burden to its schools yet
would yield both real property taxes and
payment into its affordable housing trust
fund was going to approve [plaintiff's]
development project, . . . .See footnote 55
We believe this observation to be too parochial a view. The fact
that Wall will receive funds to build affordable housing for the
poor and may enjoy a tax benefit by approving a senior citizen
development cannot reasonably be considered a valid basis to
landlock plaintiff's property.
Moreover, we must not lose sight of the fundamental premise
that the public use of streets is broader than the mere use by
residents of a single municipality. Although the Legislature
granted municipalities broad power to regulate their streets,
N.J.S.A. 40:67-1, that power does not include the right to
prohibit their use by nonresidents. Yarrow, supra, 403 P.
2d at
54. The obvious purpose of streets is use for travel by the
public "and this refers not alone to adjacent owners, . . . but
to the whole people." 11 McQuillin Municipal Corporations,
supra, §30.156 at 4-5. A municipality is not empowered to vest
in a particular area of a town "proprietary rights in the streets
superior to or exclusive of use by the general public." Id. at
5. The vacation ordinances adopted by defendants violate this
well-settled principle. The action cannot be deemed in "the
public interest" when the rights of plaintiff and other members
of the general public to use these streets are considered.
Further, the fact that the subject property is a component
of Wall Township's Mount Laurel compliance plan is significant.
As noted, the trial court held that, because plaintiff will be
contributing $5,000 per unit to Wall Township's affordable
housing trust fund, defendants had a duty under Mount Laurel to
facilitate the development by providing access to it.
After judgment was entered by the trial court, our court
decided Bi-County Dev. of Clinton, Inc. v. Borough of High
Bridge,
341 N.J. Super. 229, 231 (App. Div.), certif. granted,
___ N.J. ___ (2001) (holding that a developer that pays money
into a municipality's affordable housing fund in lieu of
constructing affordable units on the site does not have a right
to connect into the sewer system of an adjoining municipality).
The developer, Bi-County, was granted approval as part of a
settlement of a Mount Laurel case against Clinton Township to
construct 105 single-family units and a 10,000 square foot
commercial building on a 46.2 acre tract. In turn, Bi-County
agreed to pay into Clinton Township's affordable housing fund
$2,000 per unit. Id. at 231-32. Bi-County argued that the
adjoining municipality, the Borough of High Bridge, had an
obligation to permit it to connect into High Bridge's sewer
system in order to eliminate "undue cost generating practices"
that may prevent construction of its "inclusionary" Mount Laurel
development. Id. at 236. The court rejected the argument,
concluding that Bi-County was not entitled to relief "because it
does not plan to construct lower income housing." Id. at 237.
Defendants argue that the Bi-County decision compels a reversal
of the summary judgment order in plaintiff's favor. We do not
agree.
Bi-County is clearly distinguishable. First, denial of Bi-
County's right to connect into High Bridge's sewer system did not
prevent Bi-County from developing its tract. The developer had
alternative means of acquiring sewer service by connecting to the
Chester Township Municipal Sewerage Authority system. That plan,
however, required Bi-County to extend a sewer line along Route
31. The developer opted to avoid this cost by connecting to High
Bridge's system. Id. at 232-33. In this case, plaintiff has no
alternative means of access other than through defendants'
streets. Consequently, without the access, it cannot build its
development.
Second, in Bi-County, High Bridge was a passive actor in the
sense that it had taken no affirmative action to prevent Bi-
County's development; it simply wanted to reserve the use of its
system for its own residents. Id. at 231. The issue was whether
High Bridge had a duty to provide Bi-County with sewer service,
the result of which would permit the developer to reduce off-site
improvement costs and thus allow it to turn a greater profit.
Id. at 237. Here, unlike High Bridge, defendants acted
affirmatively by vacating the streets, thereby rendering
plaintiff's property landlocked. The question in our case, not
implicated in Bi-County, is whether such action served "the
public interest." N.J.S.A. 40:67-19.
Defendants' vacation ordinances essentially trump Wall
Township's reasonable efforts to satisfy its Mount Laurel
obligation by precluding development on a site deemed suitable
for plaintiff's proposal,See footnote 66 and which will serve a regional and
statewide interest by generating funds for the construction of
low-cost housing. "As compared with relatively random and rigid
set-aside zoning, development fees provide a more flexible and
comprehensive approach that will encourage the appropriate use
and development of land within a municipality to satisfy the
municipality's fair-share housing obligation." Holmdel Builders
Ass'n v. Tp. of Holmdel,
121 N.J. 550, 569-70 (1990) (citing
Mount Laurel II, supra, 92 N.J. at 214-15). Defendants' actions
clearly frustrate that regional and statewide interest. The
effect of the vacations is that defendants hold plaintiff and
Wall Township captive. They seek to dictate Wall's legislative
zoning choices by stating that they will reopen their streets if
Wall and plaintiff agree to reduce the density of plaintiff's
proposal to the two-acre lot zoning previously permitted, or to
some other density defendants consider acceptable. We do not
regard such action as a valid exercise of power under the
vacating statute.
Instead of landlocking plaintiff's property, defendants'
remedy was to challenge adoption by Wall of the amended zoning
ordinance placing plaintiff's site in the MLC-RAC-2 zone which
permitted a density of 3.6 units per gross acre. Defendants
clearly had standing to make such a challenge. See Home Builders
League of So. Jersey v. Tp. of Berlin,
81 N.J. 127, 131-35 (1979)
(recognizing the State's liberal approach to standing in zoning
cases and the MLUL's broad definition of "interested party"); see
also N.J.S.A. 40:55D-15a (requiring notice of adjoining
municipalities of hearing involving adoption of revision of a
development regulation). Defendants were on notice of both the
density provision and that traffic generated from an approved
development based on that density would probably require access
through the streets in the adjoining subdivision which had been
reserved by defendants for that very purpose.
In a proceeding challenging Wall's zoning amendment,
defendants could have raised the very argument they advanced as
justifying the landlocking of plaintiff's property; that the
permitted density was incompatible with the adjoining residential
subdivisions and, as such, was arbitrary, capricious and
unreasonable. See Sartoga v. Borough of West Paterson, ___ N.J.
Super. __ (App. Div. 2002) (slip op. at 6-8) (where adjoining
City challenged zoning ordinance permitting high-density Mount
Laurel development, which provided for extension of City's dead-
end street to allow access to the development, claiming the
zoning was in conflict with the policies of the MLUL). For
whatever reason, defendants chose not to appeal, and thus were
procedurally barred from challenging the ordinance. See R. 4:69-
6(a). Essentially, we view the vacating of the streets by
defendants as an attempt to avoid the procedural bar.See footnote 77 We
therefore conclude that the adoption of the vacation ordinances
constitute an invalid use of defendants' legislative power under
N.J.S.A. 40:67-19.
Brick also argues that plaintiff has no right to object to
the ordinances, even if the property would be landlocked as a
result of the vacation of the streets, because it is not an
"abutting" landowner. For this proposition, Brick relies upon
Good Deal of Ivy Hill, Inc. v. City of Newark,
32 N.J. 263
(1960), where the owner of commercial property in Maplewood,
adjoining Newark, objected to Newark's erection of a barricade at
the dead end of a street which terminated at the boundary of the
two municipalities. Id. at 265. The Court held that a
municipality has no duty to provide access to a road "for a
citizen of the adjoining community whose land is just beyond the
geographical limit." Id. at 267. The Court concluded that
plaintiff, the owner of the land in Maplewood, was not an
"abutting" owner entitled to access as a matter of right, in part
because the owner would have no standing to challenge the
vacation of the dead-end street "should Newark decide to do so."
Id. at 268-69. In so finding, the Court found "pertinent" the
fact that the dead-end street was "not necessary for purposes of
ingress and egress to and from plaintiff's premises, . . . even
as a matter of convenience[,]" id. at 269, because plaintiff had
access through streets in Maplewood. Id. at 266.
Significant to the matter before us, the Court in Good Deal
made the following observation:
[I]t must be kept in mind that we are not
dealing with a public street which connects
at the boundary line of Newark with a street
in Maplewood and so forms part of a traffic
communication system between the two
municipalities. In such a situation the
right of the governing body of either to
vacate or close off its street would be open
to serious question. Cf. City of Gary v.
Much,
180 Ind. 26,
101 N.E. 4 (Sup. Ct.
1913); Messinger v. City of Cincinnati,
supra. Nor are we considering a case where
Eastern Parkway [the dead-end street]
constitutes a way of necessity into
plaintiff's land . . . .
[Id. at 269 (emphasis added).]
Accordingly, the Court cautioned that its holding extended no
further than the case before it. Ibid. See also Brazer v.
Borough of Mountainside,
55 N.J. 456, 469 (1970) (there is no
"hard and fast rule" as to when a parcel abuts a public street;
"the result in each case is reached upon a consideration of the
particular circumstances involved, including among other things
intention, the physical situation, the manner of its creation and
the nature of the right asserted").
We do not hesitate to conclude that plaintiff is an
"abutting" landowner for purposes of this litigation. Unlike the
situation in Good Deal, involved here is a proposed street
network in plaintiff's subdivision designed to interconnect with
the three streets in question as part of a "traffic communication
system." Ibid. The streets in all three subdivisions have fifty
feet rights-of-way. As noted, the Howell subdivision plan shows
Cherry Lane and Redbud Lane connecting to plaintiff's property
with a notation "reserved for future road," and the Brick
subdivision provides that the Maypink Lane cul-de-sac is to be
"removed on extension of Maypink Lane" at the boundary of
plaintiff's property. Consequently, it cannot be disputed that
both defendant municipalities expected that the three streets
involved would be extended into plaintiff's tract in the future.
To hold that plaintiff is not an abutting property owner for the
purpose of challenging the vacating ordinances would obviously
cause an impractical if not absurd result.
Finally, Brick Township argued before the trial court that a
portion of the end of Maypink Lane, which connects with
plaintiff's property, is nothing more than an unpaved "paper
street," dedicated only for a "potential" right-of-way. Thus, it
argued, its governing body had an unqualified right to vacate
that portion of the street. That issue has not been raised or
briefed before us, and thus is deemed waived. See Tynan v.
Curzi,
332 N.J. Super. 267 (App. Div. 2000); and see Pressler,
Current N. J. Court Rules, comment on R. 2:6-2 (2002).
Affirmed.
Footnote: 1 1Southern Burlington Cty. N.A.A.C.P. v. Township of Mount Laurel, 67 N.J. 151, appeal dismissed and cert. denied, 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed.2d 28 (1975) (Mount Laurel I); Southern Burlington Cty. N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158 (1983) (Mount Laurel II). Footnote: 2 2In its complaint, plaintiff had also alleged inverse condemnation and violations of 42 U.S.C.A. §1983, RICO, the Federal Fair Housing Act, and the Americans With Disabilities Act. After the matter was removed to the federal court, it was remanded to the Law Division after plaintiff agreed to dismiss these claims. Footnote: 3 3Joseph Schistler, plaintiff's wetlands expert, testified before the Wall Planning Board that, in applying for an access permit with the Department of Environmental Protection, plaintiff must demonstrate that there are no other alternative means of access. He stated that it would "be almost impossible" to obtain such a permit in view of the availability of alternative means of access to the site through Howell and Brick. Footnote: 4 4Other courts have held that an ordinance or resolution vacating a public street may be set aside if it leaves a property owner landlocked, although the focus has been more on the injury suffered by the property owner than on the need for regional cooperation. See McPhillips v. Brodbeck, 266 So.2d 592, 596 (Ala. 1972) (vacating "dedicated streets is not lightly to be viewed when it deprives others, and especially abutting landowners, of their use"); Coe v. City of Albuquerque, 467 P.2d 27, 30 (N.M. 1970) (although "vacation of public streets is essentially a legislative function, the action must comply with constitutional guaranties that property cannot be taken without due process of law . . . ."). Footnote: 5 5It is unclear what "burdens" Howell is referring to, at least on the record before us. Footnote: 6 6In the Mount Laurel litigation, the appointed Master concluded that plaintiff's site was "suitable" for the construction of a high-density development. Footnote: 7 7Defendants also did not appeal from the Wall Township Planning Board's approval of plaintiff's preliminary and final subdivision applications. During that proceeding, officials and professionals from both municipalities appeared in opposition to the application. The Board, after receiving testimony and a traffic study from plaintiff's expert, concluded that no traffic or safety problem would exist in the neighboring communities as a result of the development of plaintiff's site.