Cameron & Cameron, Inc. v. Planning Bd. of Tp. of Warren, Somerset County

• Decision Date: 05 August 1991
• Citation: 250 N.J.Super. 296,593 A.2d 1250
• Parties: CAMERON & CAMERON, INC., A New Jersey Corporation, Plaintiff-Appellant, v. The PLANNING BOARD OF the TOWNSHIP OF WARREN, SOMERSET COUNTY, New Jersey, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 296

250 N.J.Super. 296

593 A.2d 1250

CAMERON & CAMERON, INC., A New Jersey Corporation, Plaintiff-Appellant, v. The PLANNING BOARD OF the TOWNSHIP OF WARREN, SOMERSET COUNTY, New Jersey, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued June 11, 1991.

Decided Aug. 5, 1991.

Joseph E. Murray, for plaintiff-appellant (Murray, MacNeill & Tafaro, attorneys; Joseph E. Murray, of counsel; Jonathan E. Drill and Jay B. Bohn, on the brief), Basking Ridge.

John C. Phillips, for defendant-respondent (Buttermore, Mullen, Jeremiah & Phillips, attorneys; John C. Phillips, of counsel; John C. Phillips and Laura N. Anderson, on the brief), Westfield.

Before Judges O'BRIEN, SCALERA and KEEFE.

The opinion of the court was delivered by

O'BRIEN, J.A.D.

Cameron & Cameron, Inc. (Cameron), a developer, challenges conditions attached to a preliminary site plan approval granted by respondent Planning Board of the Township of Warren (Board). We reverse and remand.

Cameron owns Lot 11C in Block 322 on the Tax Map of Warren Township, which is triangular shaped and contains 1.18 acres. It is bounded on the north by Lot 11A, which has received preliminary site plan approval for the construction of a commercial office building known as the "Mark V" project. The premises are bounded on the east by Mountain Boulevard, a county road, and on the west by North Road, a township street. Cameron proposes to construct a small office building, a permitted use in the office/service zone in which the lot is located. The land to the northeast and south of the property is also zoned for office/service. The land to the west along North Road is zoned residential. However, it is presently occupied by Bardy Farm, a busy retail nursery and produce market.

Cameron proposes to provide ingress to and egress from its property from North Road with no outlet to Mountain Boulevard, the same as the approved preliminary site plan for "Mark V." The existing North Road runs approximately one-half mile with a twenty-foot pavement where it abuts Cameron's property. Mimi Lane and Jessica Lane connect to North Road at its northerly end. These two lanes end in cul-de-sacs and have single-family residential homes and vacant land also zoned residential abutting them. All traffic leaving or entering North Road must pass the Cameron property on the east and the Bardy Farm on the west.

The Cameron development proposal calls for the installation of Belgian block curbing and storm drains and pipes along the full length of its property on the easterly side of North Road. Cameron also proposes to widen the paved portion of North Road, which will increase the overall pavement from twenty to thirty feet and will join the curb along the easterly side. The approval also requires installation of sidewalks along the full length of the Cameron property on the easterly side of North Road, to which Cameron does not object.

Preliminary site plan approval was granted by the Board subject to certain conditions. Cameron challenges paragraph 3e of the conditions in the Board's resolution which reads:

The plans shall be revised to the satisfaction of the Township Engineer in the following respects:

....

e. Cross-sections of North Road should be supplied and improvements including curb on the West side, two cross drains and a proper pavement crown and overlay should be shown.

In its brief, Cameron describes this condition as requiring it to

1) Repave the entire width of North Road from its intersection with Mountain Boulevard to the boundary line between the Cameron property and the Mark V property, approximately four hundred (400) feet of pavement;

2) Reconstruct the crown of North Road along the same distance 3) Install curbing along the westerly side of North Road, i.e., along the approximately four hundred fifty (450) feet of the road which abuts the Bardy Farm property; and

4) Install two cross drains in the westerly side of the road to pick up and dispose of water run-off originating from the Bardy Farm property.

Cameron contends these improvements are "offsite" or "off-tract" improvements and not "on-tract" improvements as found by the Board. Thus, it contends the provisions of N.J.S.A. 40:55D-42 of the Municipal Land Use Law (MLUL) and section 15-15 of the Off-tract Improvements section of the Warren Township Land Development Ordinance are applicable and should have governed the Board's consideration of the issue.

Cameron's complaint in lieu of prerogative writs asserts that the conditions imposed are arbitrary and unreasonable and, if such improvements are necessitated or required by its proposed construction on its property, other property is benefitted and thus Cameron should only be obliged to pay its proportionate or pro rata share pursuant to N.J.S.A. 40:55D-42 and section 15-15 of the township ordinance.

In its resolution granting preliminary site plan approval, the Board found that Cameron's engineer

agreed with the Board that curbing on the westerly side [of North Road] would help to stabilize the pavement on that edge and that virtually all traffic from the site would use the westerly side of North Road. He also acknowledged that curbing helps to control traffic and prevent damage to lands abutting the road.

The Board further found,

The dispute between the Board and the Applicant relates to the curbing on the western edge of the road, catch basins and cross drains, and the extent of pavement required. The Board finds that the Applicant's proposal to pave to the middle of the road will create a dangerous condition. Based upon the input of the Township Engineer, the Board concludes that a proper crown on the East side and the related paving will alter the current drainage pattern which the Board finds from the testimony and the members' own observation currently crosses the road in several places. Changing this pattern will result in a flow of water along the western edge of the road. To control this flow, it is necessary to install curbing and drainage.

The Board also concludes, based upon the advice of its attorney, that these improvements are on[-]tract improvements being on a portion of the right-of-way adjacent to the site.

Lastly, the Board concludes that the cost of the improvements of curbing and drainage are not unreasonable given the nature of the application, it being an office facility in a prime location and this project appearing to generate significantly more traffic than currently exists on North Road (which is a residential road with no outlet). Since the Applicant must extend any new paving significantly past the center line of the existing road to create a proper crown and safe condition on the easterly side, any additional pavement is negligible.

Based upon this premise, the Board imposed the condition about which Cameron complains.

After a hearing on October 5, 1990, the Law Division found sufficient credible evidence to support the Board's determination that the improvements in question are required and necessitated by the development proposed by Cameron. The order for judgment specifically concludes:

IT IS FURTHER ORDERED AND DETERMINED that the improvements in question are "on-tract" improvements the cost of which are not subject to apportionment under either the municipal ordinances or the provisions of the Municipal Land Use Law.

The court dismissed Cameron's complaint and it appeals.

In reaching his conclusion, the trial judge acknowledged the existence of a dispute between Cameron and the Board as to whether Cameron's proposed improvements to the east side of North Road would result in a sheet flow of water to the west side of North Road in front of Bardy Farms. Cameron's engineer had testified that

The water--as you can see the contours--the roadway is crowned at the top and then starts crowing across. So without physically--you know, watching the water flow on a rainstorm I think most of it is contained on the westerly side. There could be to some degree some water flowing across--sheet draining across the roadway to our side. If that happens, naturally it's there to be collected by the storm drain.

The Board's attorney pointed to other sections of the transcript of the hearing before the Board on October 23, 1989, to support its contention that the addition of seven to ten feet of paving on the east side of North Road, coupled with the installation of curbing and drainage facilities, would in some way result in water, presently flowing from west to east to flow from east to west, thereby requiring the improvements to the west side of North Road upon which preliminary site plan approval was conditioned.

The trial judge found that the record "is minimally adequate to support the Board's determination regarding the water flow and traffic conditions; that therefore it is entitled to a presumption of validity." While our reading of the transcript does not support that finding, we will accept for purposes of our decision that we are bound by the Board's decision on that issue, albeit it has only "minimal support" in the record.

In our view, the significant finding by the trial judge in support of his decision that N.J.S.A. 40:55D-42 and section 15-15 of the Township ordinance are inapplicable is that the improvements are

on-tract improvements, on-site improvements, ... and ... the language in Amato supports the conclusion that these are not off-tract improvements.

In reaching this conclusion the trial judge relied upon our decision in Amato v. Randolph Tp. Planning Bd., 188 N.J.Super. 439, 457 A.2d 1188 (App.Div.1982). We disagree with the trial judge's conclusion.

The initial question is whether the improvements Cameron is required to make on the westerly side of North Road are "on-tract" or "on-site" as the Board found on the advice of its counsel and as the trial judge found. That finding forms the predicate for the trial judge's conclusion that the apportionment provisions...