IMPLEMENTATION OF CORRIDOR PRESERVATION LAWS
Effect of official map act on subdivision
Nigro v. Planning Board of the Borough of Saddle River
584 A.2d 1350 (N.J. 1991)
Facts: This case examines the binding nature of a municipality's
official map on local planning board decisions concerning subdivision
approvals. Nigro bought ten acres of landlocked property in the Borough
of Saddle River. Nigro proposed an access road servicing the property
in order to develop it into single-family housing. The official map
of Saddle River showed no road on Nigro's property, but showed a proposed
street on adjoining property used for farming.
In March 1988, the borough's planning board denied Nigro's application
for preliminary approval of a major subdivision. The planning board
ruled that the application failed to conform with the intent of the
master plan and the proposed access street conflicted with the proposed
street of the master plan. The court used New Jersey Statute 40:55D-32
as its authority, stating that the official map shall be deemed conclusive
with respect to the location of streets, whether or not the streets
are improved, unimproved or in actual physical existence. The Law
Division reversed the planning board, stating that the noncompliance
with proposed streets does not amount to noncompliance with the official
map and that the denial of the application was arbitrary. This court
granted Nigro's petition for certification, in order to consider the
conclusiveness of an official map on the planning process.
Holding: An official map deserves substantial, but not absolute
deference in planning board decisions for subdivision approvals. The
official map should not be seen as immutable. The following factors
should be examined to determine if a proposal that is non-conforming
should be approved despite its conflict with the official map: 1)
No direct conflict with the official map; 2) No other alternatives;
3) The proposed change offers comparable planning to that which was
proposed originally; and 4) Modifications can be made to mitigate
any perceived problems.
Reasoning:
- The court begins its analysis by defining "official map"
from Basset and Williams's County Planning Enabling Act.
- New Jersey defines an official map as a tool of planning, not
zoning.
- The court then looks to the original definitions of official maps,
quoting the U.S. Supreme Court in Bauman v. Ross, stating
that official maps were originally regarded as mere descriptions
of future plans for public improvements.
- The contemporary view, however, is that an official map is a land
use control device and accords weight to its legal effect.
- Once an official map is adopted, it may be used to demonstrate
a municipality's determination of the location of streets, parks
and other municipal improvements.
- Although the official map is an official planning tool, its existence
does not prevent the platting of new streets, highways and parks
not part of the official map. So long as the proposed plat adds
streets, highways and parks which serve the overall purpose of the
community plan, the proposed plat may be approved.
- The court then examines New Jersey Statute 40:55D-32:
The official map shall be deemed conclusive with respect to
the location and width of streets and public drainage ways and
the location and extent of flood control basins and public areas,
whether or not such streets, ways, basins or areas are improved
or unimproved or in actual existence. Upon receiving an application
for development, the municipality may reserve for future public
use, the aforesaid streets, ways, basins, and areas in the manner
provided in [N.J.S.A. 40:55D-44.
- In evaluating the statute, the court looks to its case law on
the statute preceding this official map act. Lomarch Corp. v.
Mayor of Englewood, 237 A.2d 881 (N.J. 1968). In Lomarch,
the court upheld the official map statute, suggesting that a takings
violation can be avoided when the municipality compensates a landowner
whose property the municipality seeks to reserve for some public
purpose.
- The court then applied its analysis to the case at hand, stating
that a municipality may insist on substantial adherence to the planning
choices reflected in its official map, allowing deviations only
when reasonably justified by the particular conditions and circumstances.
- However, the court goes on to say that with respect to minor roadways,
the municipality should not insist on rigid compliance with its
official map.
- Stringent compliance with the official map does not comport with
the goal of municipal planning: promotion of the general welfare.
- The court finds that the road proposed by Nigro does not conflict
with the skeleton of the borough's official map.
- The court went on to say that when a proposed road directly conflicts
with a critical element of a town's planning, a planning board should
consider denying approval of the subdivision. However, where there
is no direct conflict, there are no other alternatives, the alternative
offers comparable planning to that which was proposed originally
and modifications can be made to mitigate any perceived problems,
the proposed change that conflicts with the official map must be
granted.
Effect of official map reservation on condemnation damages
E-470 Public Highway Authority v. 455 Company
983 P.2d 149 (Colo. Ct. App. 1999), cert. granted on other grounds,
1999 Colo. LEXIS 880 (Colo. Sept. 13, 1999)
Facts: The Authority initiated condemnation proceedings to
acquire property owned by landowner for use in the construction of
Highway E-470. The Authority and landowner subsequently entered into
a stipulation for possession of the property, leaving for trial the
issue of compensation for the property taken and damages to the remainder
of the property, which was to be bisected by the highway. The trial
court ordered that evidence of an annexation agreement between landowner
and Commerce City which reserved a right-of-way for the highway was
not admissible as a limitation on future use that would reduce the
damages award.
Holding: The trial court was affirmed.
Reasoning:
- Evidence of a reservation or encumbrance which diminishes a property's
value is admissible in a condemnation proceeding as relevant to
the property's fair market value.
- In determining the value of land taken, consideration of factors
arising from the very fact of condemnation.
- Landowner and Commerce City "entered into an annexation agreement
in 1989 which provided that landowner's property would be annexed
to Commerce City but that a right-of-way for the highway would "be
reserved for acquisition through condemnation by the E-470 Authority
. . . or the City." The reservation was for the same public
improvement Highway E-470 for which this condemnation proceeding
was instituted. It made a portion of landowner's property unavailable
for development, but contemplated that there would be compensation
for that limitation in the condemnation award. The reservation could
not be used to reduce the amount of compensation due landowner."
Exception from mapped street requirements
Mill Realty Associates v. Zoning Board of Review of the Town of
Coventry
721 A.2d 887 (R.I. 1998)
Facts: Mill Realty Associates asked for an exception from
standards prescribed for suitably improved road construction in Coventry
pursuant to town ordinances. The town zoning board denied the exception.
The exception sought was an exception permitted by local ordinances
for mapped streets, not the usual zoning exception. As authorized
by the state statute, the town ordinance provided that no building
permit shall be issued unless the building lot abuts a suitably improved
street which has been placed on an official map giving access to the
proposed structure.
Mill Realty's building lot abuts a mapped but unimproved street on
Coventry's official map of public streets. A town ordinance authorizes
the construction of gravel, oiled and subdivision roads. Mill Realty
had purchased a plat from the town of Coventry at a tax sale. The
plat in question was zoned for residential use for single-family dwellings.
The lot in question was undersized for a single-family home, and lacked
any frontage on an approved mapped street, and was in an isolated,
densely wooded area 1,600 feet away from the nearest accessible road
that could provide access. Mill Realty requested an exception to permit
the construction of a gravel private driveway extending some 1,600
in length on and along an unimproved paper street shown on its recorded
plat and also placed on the town's official map. The exception can
be granted if enforcement of a more stringent road standard would
"entail practical difficulty or unnecessary hardship" or
if "the circumstances of the case do not require the structure
to be related to a street." If either of these conditions is
met, the board then may "make reasonable exceptions" from
the road standard so long as the exception allows "adequate access
for firefighting equipment, ambulances and other emergency vehicles
necessary for the protection of health and safety, and . . . will
protect any future layout shown on the official map."
The exception request was heard at a public hearing and was denied
in part because the street was not publicly owned and because the
proposed road would not provide adequate access for fire fighting
and emergency equipment and because other owners along the street
would not be protected. Mill Realty appealed.
Holding: An exception to the official map requirements may
be granted by the town zoning commission if upholding the requirement
would entail practical difficulty or unnecessary hardship to the landowner.
However, if the exception would harm the future street layout as shown
on an official map, the exception denial will be upheld.
Reasoning:
- Although appearing on its official map of streets, the two streets
at issue are not maintained by or improved by the town.
- No lots in the plat have been developed and are overgrown by heavy
woodland.
- The requirement that Mill Realty construct a road to subdivision
standards, which is the highest grade of permitted town roadway,
is an abuse of discretion.
- The board must determine when first asked to make an exception
to the official map whether enforcement of the official map requirements
would create practical difficulty or unnecessary hardship.
- An exception must also allow access for firefighting, ambulances,
and other emergency vehicles necessary for health and safety.
- Additionally, an exception may be denied if the exception would
harm any future layout shown on the official map.
- Mill Realty's exception should have been granted on practical
difficulty grounds, allowing it to construct a minimal gravel road
as allowed by the town official map ordinance.
- The case was remanded to the zoning board to grant the exception,
but automatically approving the building permit unless the town
and the zoning board are satisfied that the building would be in
conformity with all zoning requirements.
Denial of subdivision for failure to comply with thoroughfare
plan
Batch v. Town of Chapel Hill
387 S.E.2d 655 (N.C. 1990)
Facts: The plaintiff purchased and later decided to subdivide
a property. After the purchase the two adopted a thoroughfare plan
which showed a limited access, two-lane highway passing through a
corner of the property. When the plaintiff refused to reserve land
for the highway, the town refused to approve the subdivision.
Holding: The town had the authority to deny the subdivision
application for this reason.
Reasoning:
- There was competent, material and substantial evidence before
the Town Council support its finding that subdivision application
failed to take into account present and future road plans as set
forth in the town's Thoroughfare Plan.
- The town had the authority to deny the subdivision application
for this reason, and its resolution denying the subdivision application
was not unconstitutionally vague.
- The court decided not to review the plaintiff's takings or other
constitutional claims.
Negligent failure to inform developer of official map
Bakody Homes and Development, Inc. v. City of Omaha
516 N.W.2d 244 (Neb. 1994)
Facts: Bakody Homes and Development sued the City of Omaha
and the state of Nebraska alleging that the city and state had negligently
failed to inform Bakody of the existence of a state corridor protection
plan on property Bakody was developing as a townhouse subdivision.
The trial court ruled in favor of the state and city.
In 1982, the state's Department of Roads established corridor protection
from 120th Street along West Dodge Road in Omaha. A corridor map showing
a 300-feet corridor was prepared by the department and submitted to
city officials.
In December 1982, Bakody entered into a purchase agreement for six
acres of land south of West Dodge at 153rd Street where it planned
to build 28 duplex townhomes on two cul-de- sacs, named Oakmount Townhomes.
Frank Bakody, the developer of Oakmount, checked with the city in
late 1982 or early 1983 regarding the feasibility of rezoning the
property to permit the building of the townhomes. Frank Bakody also
checked with a licensed land surveyor from a private land surveying
and engineering company.
In February 1983, Bakody filed a preliminary application for subdivision
with the City requesting the City's approval. Later in February, the
City's development review committee suggested that Bakody check with
the Department about the widening of West Dodge Road. A private land
surveyor checked with the Department to determine if an additional
right of way would be required by the state. The Department sent the
land surveyor three drawings for the state's right of way for West
Dodge Road in the area of the proposed subdivision as well as an aerial
photograph of the area. Nothing in the photographs indicated a corridor
plan.
The private land surveyor called the Department a second time, and
was advised that the state might need some of the platted common area
for a grading easement, and that there would be no permanent taking
of property. The surveyor did not ask about a corridor plan nor have
any knowledge of the existence of a corridor plan.
In May, the development review committee approved Bakody's final
application for the subdivision plan. In August, Bakody purchased
the property for $227,383. Bakody applied for and was issued several
building permits by the city's permit and inspection division. Bakody
commenced building and sold two townhomes, and started on four other
lots when the city issued a work stoppage in December 14, 1984. Four
other lots with building plans were not stopped.
In March 1985, the state released some lots from the stoppage order.
Bakody testified that at the point the state released the lots for
construction, he considered the project tainted and had begun negotiations
for sale of the property to a nearby church. On February 6, 1986,
Bakody sold the property to the church for $462,416, except for one
lot.
Bakody then sued the City, pursuant to the Political Subdivisions
Tort Claims Act, and the Department, pursuant to the State Tort Claims
Act. He alleged that the City, its director of city permits and inspection
and director of planning department were negligent in 1) approving
the plat when they knew of the corridor plan; 2) issuing a building
permit even though the director of city permits and inspections had
received a copy of the corridor map; 3) failing to give the Department
notice of Bakody's filing of a request for a building permit in violation
of Neb. Rev. Stat. § 39-1311.01; 4) failing to reasonably perform
ministerial duties in refusing to issue the building permit to Bakody
pursuant to the city's master plan; 5) failing to properly maintain
the master plan as required by the Omaha city code. He further alleged
that the state was negligent in failing to notify and accurately advise
Bakody of the corridor, in providing Bakody with an incorrect map
which did not reflect the proposed corridor, and in failing to ensure
that no building permits were issued for construction in the corridor
area.
The trial court held that the state had not violated any duty to
Bakody, that the city had breached a duty to Bakody by failing to
give the Department notice of the filing as required, but that there
was no taking of Bakody's land because Bakody had not presented a
correct measure of damages and evidence of the taking was speculative.
Holding: The Supreme Court held the state was not liable and
upheld the trial court on the takings claim.
Reasoning:
- Bakody did not plead in his complaint that the state breached
its duty to maintain an accurate corridor map so the state had not
violated any duty to the developer.
- An issue not presented to or passed upon by the trial court is
not an appropriate issue for consideration on appeal.
- The corridor plan material to Bakody's land became effective in
July 1974. Though the map was in existence, there is no identified
liability for the Department's failing to provide corridor maps
to Bakody when he specifically inquired about the right of way plans
for West Dodge Road.
- The Department provided Bakody and his representative the exact
information requested.
Bakody's admitted unfamiliarity with the law may not be made the
basis for imposing liability upon the State.
Reliance on a comprehensive plan to reject a subdivision; relationship
to official map
Lake City Corporation v. City of Mequon
558 N.W.2d 100 (Wis. 1997)
Facts: A developer sought an order requiring the city plan
commission to approve a preliminary plat. The city plan commission
had the authority to deny approval of a preliminary plat if it conflicted
with a master plan. In 1977, Land City Corporation purchased 59 acres
in Mequon, and in 1984 petitioned for a rezoning to allow duplex structures
on 16 acres, single family dwellings on 30 acres, and commercial development
on approximately ten acres. The city approved the rezoning. In 1992,
the City revised its master plan and zoning ordinance due to growth
in the city. In 1993, Land City asked for plat approval for 33 single-family
lots with 30,000 square feet each. The new city plan required 1.5
acres minimum lot size for single-family homes in this area. The city
relied on the plan to reject the plat because the lot sizes shown
on the plat did not meet the requirements of the amended plan. The
statute provides that a municipality may rely on a master plan that
is consistent with an official map to reject a subdivision plat.
Holding: The town properly relied on its master plan to reject
a subdivision plat.
Reasoning:
- The issue is the meaning of the statutory term "consistent."
A master plan is consistent with an official map if any common elements
contained in both the master plan and official map are not contradictory.
A master plan is also consistent with an official map even if the
master plan contains additional elements that the official map does
not.
- A city plan commission may rely on an element contained solely
in a master plan to reject plat approval even though that element
is not included in the official map.
Removal of property from official map
In the Matter of Romaz Properties, Ltd. v. McGowan
657 N.Y.S.2d 942 (App. Div. 1997)
Facts: The Town Board of the Town of Islip denied the application
of Romaz's predecessor-in-title to remove a portion of Arctic Avenue
from the official map of Islip. The town board also ruled that a portion
of Arctic Avenue beneath Sunrise Highway and Karshick Street was not
a street inside the official map.
Holding: An application to be removed from the official map
cannot be denied unless there is a rational basis to support the decision
of the town board.
Reasoning:
- Since the town board did not have substantial evidence that there
was no rational basis in the record for the findings of fact supporting
the decision of the town board, the denial of the application is
not valid.
- The petition is granted on the law and the cause is remanded to
the town board to remove the portion from the official map.
TAKING PROBLEMS
Corridor preservation map held not a per se taking
Department of Transportation v. Weisenfeld
617 So.2d 1071 (Fla. Ct. App. 1993)
Facts: The plaintiff alleged the filing of a map of reservation
by the Department of Transportation constituted a temporary regulatory
taking of his property entitled to compensation and moved for partial
summary judgment. The trial court found for plaintiff, but the appellate
court reversed.
Holding: The filing of a map of reservation is not a per
se taking of property. The landowner must prove, when viewed as a
whole, that the property's economic use is either substantially decreased
or taken away entirely to receive compensation.
Reasoning:
The court reversed the trial court's holding based on First English
Evangelical Lutheran Church of Glendale v. County of Los Angeles,
482 U.S. 304 (1987) and Joint Ventures v. Department of Transportation,
563 So.2d 622 (Fla. 1992).
- The state must pay for a taking in two situations:
- The state confiscates private property for common use under
its power of eminent domain; or
- State regulates private property under its police power that
it deprives owner of viable economic use.
- The takings inquiry is based on an owner's economic use of property.
- To constitute a taking, all or a substantial use of the property
must be taken.
- The status of the owner's property must be viewed as a whole.
Tampa-Hillsborough County Expressway Authority
640 So.2d 54 (Fla. 1994)
Facts: Tampa-Hillsborough County Expressway Authority filed
a map of reservation describing a corridor running north and south
in an area west of the Dale Mabry Highway. The map encompassed portions
of vacant property owned by AGWS corporation and Dundee Development
Group. In April 1990, the court declared parts of the statute unconstitutional,
eliminating the development restrictions created by the maps. Landowners
brought an inverse condemnation claim on grounds that the expressway
authority's filing of a map of reservation delineating a corridor
for road widening or road construction constituted a temporary taking
of land. The trial court granted the landowners a summary judgment.
The district court of appeal affirmed the judgment. The Supreme Court
held that the authority's filing of a reservation map did not constitute
a per se taking of property without just compensation.
The court asks: Are all landowners with property inside the
boundaries of invalidated maps of reservation under the Florida statutes
legally entitled to receive per se declarations of taking and jury
trials to determine just compensation?
Holding: It is the extent of deprivation of economic use,
which is the basis for a taking question. All properties located within
maps of reservation are not per se taken, the landowners must prove
that the map of reservation did effect a taking of its particular
property.
Reasoning:
- Florida statutes authorize the Department of Transportation and
any expressway authority to prepare and record maps of reservation,
delineating corridors of land to be used for road widening or construction
in the future.
- All properties located within the maps of reservation are not
per se taken.
- The question of whether or not a taking has occurred is based
on the interference or deprivation of economic use.
Official map held a taking
Ward v. Bennett
592 N.E.2d 787 (N.Y. 1995)
Facts: Landowners filed a proceeding to review a determination
by the zoning board denying their application for a permit to build
single family homes in the bed of a mapped but unopened and undeveloped
street. A state statute authorizes cities to adopt an official street
map that restricts the rights of property owners to build in a mapped
street. The map in this case was filed in 1944, and the landowner
purchased in 1966. The deed did not contain any express statement
that the petitioner's property could not be used for a single family
dwelling.
Holding: The application for a permit was properly denied
and the takings claim is ripe for review.
Reasoning:
- The Board assessed comments from several New York City agencies.
These agencies expressed concern that the proposed building would
adversely affect further development of the mapped street, including
the installation of sanitary and storm sewers, and grading and drainage
in the area. This evidence provides a substantial, rational basis
to support the Board's discretionary determination denying the Wards'
application for a building permit.
- The landowner's confiscation claim was ripe because there were
no further avenues of administrative relief.
On remand, 625 N.Y.S.2d 609 (App. Div. 1995), the Appellate Division
found that the official map restriction constituted a prima facie
categorical taking and remitted the matter to the trial court for
further proceedings. The court held that since the city had declared
all economically beneficial or productive uses of the land "off-limits,"
they must pay compensation.
Proposed highway corridor held not a taking
State ex rel. Secretary of the Department of Transportation v.
Tavest, Inc.
1995 Del. Super. LEXIS 95 (Del. Super. Ct. Feb. 6, 1995)
(Opinion not released for publication)
Facts: Plaintiffs owned land on both sides of a highway which
they planned to subdivide. They obtained approval to subdivide but
then learned the state was developing a Department Corridor Preservation
Program that contemplated the widening of the highway. Under Delaware
law, the state could not condemn land for the highway within the corridor,
but they did issue regulations for the corridor. Prior to the issuance
of the regulations, the landowners entered into a contract for a sale
of a part of their property to the state. They counterclaimed for
a de facto taking based on a claim that the state had taken their
land during the period of time before they agreed to the sale. Prior
to the sale, a letter from the state advised the plaintiffs that the
corridor program would make some of their lots unbuildable.
Holding: A de facto taking did not occur.
Reasoning:
- The corridor plan regulations placed restrictions on the use by
the landowner on their property. While the restrictions in the corridor
plan regulations amount to a substantial and direct interference
with the landowner's property, in the present case all negotiations
and the decision to enter into the agreement with the state occurred
prior to the adoption of the corridor regulations.
- During the relevant period of time, there were no restrictions
upon the landowners' usage of the property nor had the state denied
them anything.
- The letter from the state did not amount to a de facto taking
because no regulations were in effect at that time, and the letter
simply indicated which lots might be affected by the corridor program.
The identification by the state of the exact location of the highway
was in no way a present taking.
