The Law

Gate Not Permitted by Ron Davis The days may be numbered for an electric gate that a New Jersey shopping center installed to block traffic to and from a neighboring shopping center. The two shopping centers, located in Paramus, are separated by a stream that at one time prevented access between the two properties. One of the shopping centers–Sprout Brook Center–has the advantage of being located on a busy highway. So the other shopping center’s owner decided to build a bridge across the stream to allow pedestrian and vehicular traffic to enter that property. The two shopping center owners therefore agreed in writing to construction of the bridge and its “cross-access driveway.” The local planning board then approved plans for the project, and construction of the bridge was soon completed and served both shopping centers for many years. In 2004, however, the owner of Sprout Brook Center received notice of termination of the bridge agreement. The competing shopping center had decided to install an electric gate that prevented both commercial and pedestrian traffic to pass between the two properties. Such installation required permits, however, but the local government engineer readily issued them. The owner of Sprout Brook Center protested that such termination of the access agreement and closure of the bridge must gain approval by the local planning board. But a New Jersey court disagreed with that argument, determining that the termination provision of the agreement was valid, as were the permits issued by the engineer to install the gate. Local law does in fact allow the engineer the discretion to approve such a project if judged simply a “minor alteration.” And the engineer had determined that the gate was just such a minor alteration. On appeal, a New Jersey appellate court overturned the lower court, explaining, “Only those minor alterations for ‘maintenance, repairs, or correction of drainage problems’ are exempted [from requiring the approval of the local planning board]. The installation of an electric gate that would effectively terminate the use of the cross-access driveway for commercial and pedestrian traffic, does not fall within any of the three exempted categories. If the local governing body intended to vest its engineer with broader discretion in exempting minor changes to a previously approved site plan, it could have so specified, but it did not.... We are satisfied that the elimination of one of two means of ingress and egress to and from the property warrants planning board approval.” (Sprout Development Co. v. Borough of Paramus, 2007 WL 93224 [N.J.Super.A.D.]) Decision: February 2007 Published: March 2007