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Howell Properties2/13/2002
ld 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. [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:
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, . . . .
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, ยง30.156 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)
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