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Howell Properties2/13/2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 17, 2001
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 Laurel 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 appea
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