There's a little puzzle question in the comments here, right at the end

Daily Development for Thursday, May 9, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

MUNICIPAL LAW; STREETS; VACATION: A court may invalidate the vacation of a street as contrary to the public good when a municipality is attempting to advance its own interest at the expense of the region's interests.

Howell Properties, Inc. v. Township of Brick, A347 N.J. Super. 573, 791 A.2d 228 (App. Div. 2002).

This case dealt with the issue as to whether municipalities may "vacate streets which extend to a proposed major subdivision situated in [an adjoining municipality], the result of which renders the property landlocked?"

Here, the property in questionwas located at the extreme southern tip of a municipality. Its subdivision plan showed two roads with fifty foot rights-of-way, ending at the municipal boundary and connecting to the property, with the notation "reserved for future road." Both streets were paved. A revised site plan was filed to include access from a road in a neighboring municipality.

Several residents and officials of two neighboring municipalities appeared and objected to the road connections. They "criticized the proposal for several reasons, including the adverse impact the additional traffic may have [had] on the residential development around" the two originally designated access roads. Then, each neighboring municipality vacated portions of the three roads that abutted the developer's property.

The developer sued, demanding that the ordinances be declared invalid.

The municipality within which the project was located approved the developer's major subdivision, conditioned upon the developer "prevailing in its law suit to secure access to the property through" the neighboring municipalities.

The Court identified three competing principles in this inter-municipal dispute involving landlocked property. "The first is that a property owner has a right to reasonable access to the public highway system." The determination of reasonable access is a question of fact and reasonableness is, "in turn [] dependent upon the use of a property and the expected traffic flow." "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." That authority, however, must advance one of the purposes of the Municipal Land Use Law, "including consideration of the general welfare of neighboring municipalities." The third principal "is that any municipality may enact an ordinance to vacate a public street." Nonetheless, the controlling criterion "is whether the vacation of the street will serve the 'public interest.'"

The Court was 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." The Court reviewed a number of out-of-state cases. It found particularly persuasive a Washington Supreme Court ruling that "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." Here, the Court believed that the two municipalities that had vacated their streets did so because the municipality within which the property was located "was reaping all of the benefits and none of the burdens." The Court felt that the two municipalities were adopting "too parochial a view." The fact that the municipality within which the property was located would receive funds "to build affordable housing for the poor and may enjoy a tax benefit by approving a senior citizen development [could not] reasonably be considered a valid basis to landlock [the developer's] property."

Further, the Court refused to "lose sight of the fundamental premise that the public use of streets is broader than the mere use by residents of a single municipality." While municipalities have the power to regulate their streets, "that power does not include the right to prohibit their use by nonresidents." The Court was also cognizant that the property was a component of a Mount Laurel "fair share" compliance plan. If the vacation ordinances were upheld, they would essentially trump a municipality's "reasonable efforts to satisfy its Mount Laurel obligation by precluding development on a site deemed suitable for [the developer's] proposal ... and which [would] serve a regional and statewide interest by generating funds for the construction of low cost housing."

The Appellate Division pointed out that instead of landlocking the property, the aggrieved municipalities had the remedy of challenging adoption by the neighboring municipality of an amended zoning ordinance that essentially permitted increased density on the subject property. Lastly, the two municipalities attempted to argue that the developer was not an abutting property owner for purposes of challenging the vacating ordinances because it was not a citizen of either of the two municipalities that had vacated the roads. That attempt was rejected by the Court.

Comment: New Jersey, of course, is probably the most aggressive jurisdiction in the land on the question of "fair share" responsibilities of communities to adopt zoning laws that permit access to a wide spectrum of land uses. But, even though this case arose in the context of such a matter, it certainly presents issues that could arise in other contexts as well. The editor has never seen a case concluding that a city has a kind of "good faith and fair dealing" duty toward other communities with regard to street closures. Of course, the editor wasn't looking very hard, either. This case may be a useful one to put in a file where it can be retrieved when needed.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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