Is a Developer Responsible for Offsite Traffic?

When presenting an application before a Planning Board, one of the issues which a Board may seek to delve into is the impact a proposed development will have on the off-site traf c conditions. However, as is often misinterpreted, this does not give a Planning Board the authority to deny an application based on its impact on off-site traf c conditions. It is a function of the zoning powers bestowed upon the governing body, not a reviewing board, to analyze traf c considerations. Since only permitted uses are within a Planning Board’s jurisdiction, it is assumed off-site traf c patterns were already considered when the zone was created.

So when it comes to traf c considerations, what can a Planning Board consider? Two instructive cases are Dunkin Donuts of New Jersey, Inc. v. Township of North Brunswick Planning Board, 193 N.J. Super 513, 515 (App. Div. 1984) and Lionel’s Appliance Center, Inc. v. Citta 156 N.J. Super 257, 269 (Law Div. 1978). These two cases reiterate that a Planning Board does not have authority to deny a site plan application because of off-site traf c conditions. However, there are certain traffic considerations which can be the basis for a Planning Board’s denial.

Ingress and Egress Should Be Considered

A Planning Board may consider off-site traf c ow and safety in reviewing proposals for vehicular ingress to and egress from a site. In layman’s terms, the Planning Board can deny a site plan application if the ingress and egress propose unsafe vehicular circulation. In addition, if a Traffic Improvement District Ordinance is in place, a Planning Board may condition site plan approval upon a contribution to necessary off-street improvements pursuant to N.J.S.A. 40:55D-42. That statute states that an applicant will only be required to pay their pro-rata share of the cost of providing only reasonable street improvements necessitated or required by a development’s construction or improvements. While N.J.S.A. 40:55D-42 permits a municipality to impose certain off-tract contributions, by ordinance, the municipality may only demand those contributions for improvements necessary as a direct consequence of the particular development. It is a violation of the Municipal Land Use Law to require an applicant to contribute anything more than that which is a direct consequence of their development.

Discussing traffic implications with a Planning Board can be a very touchy situation. This is especially true in a situation where the development is taking place on a very busy thoroughfare. Many times, a Planning Board will be concerned about the impact the development will have on an already congested road. Applicants sometimes voluntarily offer to make certain offsite improvements such as a traf c light near the site. However, unless the traf c light or other improvements are required for safe access to or from the new site, these improvements cannot be required.


Andrew S. Kohut is a Partner at Wells, Jaworski & Liebman who practices in the Land Use and Real Estate ar

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