Town May Prohibit Use of Land Solely for Access to Abutting Parcel

The Appellate Division held that a town could prohibit a proposed road over property zoned for commercial and single family use when the road was intended solely to serve a multi-family use on an abutting parcel. In Matter of BBJ Associates LLC v. Zoning Board of Appeals of the Town of Kent, the applicant proposed a multi-family development on a parcel in the adjoining Town of Carmel but with the sole access to the property over a highway through another parcel in the Town of Kent which is not zoned for multi-family use.

The petitioner argued "the "entranceway" or "access road" was not a principal use, an accessory use, or a "driveway;" rather, it was an "infrastructure improvement" pursuant to Town of Kent Zoning Code former ยง 77-6(F)." On the basis of that interpretation, the petitioner claimed that the zoning board should be reversed.

While the matter was pending the Town amended its zoning ordinance to specifically address this issue and argued that the court should apply the rule which requires that in making its decision a court must apply the law as it exists on the date of the court's decision. The petitioner argued that the so called "special facts exception" should apply and the law in effect at the time of the application should be applied. The court noted that the special facts exception "may be applied if the municipality unduly delayed proceedings and acted in bad faith." However, the court declined to reach that issue.

Instead, the court upheld the zoning board based upon its interpretation of the law in effect at the time the zoning board rendered its decision. The court noted the zoning board had determined the improvement at issue was an infrastructure improvement and that part of its decision was not challenged. In addition, the zoning board determined such an improvement was not a permitted use.

The court explained that generally "[u]se of land in one zoning district for an access road to another zoning district is prohibited where the road would provide access to uses that would themselves be barred if they had been located in the first zoning district" but "this principle would not apply to a public way. The general rule is that the use of a public way is not restricted by local zoning regulations." However, "in the instant case, since the proposed road is not a mapped street and was never approved by the Town of Kent Planning Board, it cannot be considered a public way. Therefore, the proposed road is subject to local zoning regulations."

The court therefore concluded the decision of the zoning board was not arbitrary.