# Brazer v. Borough of Mountainside

> Supreme Court of New Jersey · March 16, 1970 · 55 N.J. 456

URL: https://www.frixlaw.com/law-library/cases/9701405

## Case

- **Full name:** Saul Brazer and Gloria Brazer, His Wife, Plaintiffs-Appellants, v. Borough of Mountainside, in the County of Union, a Municipal Corporation, and the Planning Board of the Borough of Mountainside, in the County of Union, Defendants-Respondents
- **Court:** Supreme Court of New Jersey
- **Decided:** March 16, 1970
- **Citations:** 55 N.J. 456; 262 A.2d 857; 1970 N.J. LEXIS 161
- **Precedential status:** Published
- **Opinion:** Dissent by Haneman
- **Judges:** Hall, Haneman
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9701405

## Opinion text

Haneman, J.
(dissenting) I am in accord with my colleagues that “defendants may not condition subdivision approval upon a reservation of the right-of-way through the property for the proposed street extension * *
*472 I disagree with the balance of the conclusion that under the particular circumstances here involved, plaintiffs “have no right whatever to use the dead end of Camelot Court.” I have no doubt that in view of the factual setting, i. e., the approval of the construction of the Camelot Court cul-de-sac and the delineation on the master plan of an extension of Camelot Court across plaintiffs’ lands, that the Borough has the right to bar plaintiffs from any use of the dead end because such use might interfere with the future actual construction of said extension, or because if the proposed extension is constructed, it might destroy the plaintiffs’ abutment on Camelot Court as presently proposed. However, this right is not absolute and unlimited in time. The right exists only for a reasonable time to accord the municipality the opportunity to obtain an easement or title, either by voluntary act of plaintiffs or by condemnation.
Here, the municipality is in effect seeking to force the landowner to dedicate a street across his property without any compensation for the taking of said land, a result which the Borough is admittedly capable of accomplishing only by the fortuitous circumstance that plaintiffs desire to subdivide their plot.
Under the express language of the majority, plaintiffs are prevented not only from using Camelot Court for access to newly created lots under the proposed subdivision, but also from any use for access to their lot in its existing conformation. It is no answer to say that plaintiffs would not in any event have had the adjacent dead-end frontage except for its construction by the adjoining owner at the latter’s own expense. The fact remains that Camelot Court is a dedicated public street and plaintiffs are entitled to access to the same extent as other abutting owners who bore no portion of the cost. Access is being denied plaintiffs to force them to gratuitously dedicate part of their land for a public way. The municipality should not be permitted to coerce plaintiffs into acceding to an unconstitutional taking of private lands without consideration. I would, there *473 fore, deny plaintiffs’ application for a reasonable period of time sufficient to permit the municipality to purchase the proposed right-of-way. In the event of its inability to reach an agreement with plaintiffs as to price, I would deny the application for such further period of time as may be required to expeditiously complete condemnation proceedings for such acquisition. In the event that the Borough has not so obtained title by either method within a reasonable time, I would grant the subdivision approval. Further, I agree that if the acquisition of title or an easement for the extension is accomplished, plaintiffs must “improve and pave [the extension] * * * and arrange the subdivision in full recognition thereof,” as stated in the majority opinion, if they desire to subdivide with frontage on such extension.
For modification — Chief Justice Weintbaub and Justices Jacobs, Fbancis, Peoctob, Hall and Schettino — -6.
Dissenting in part — Justice Hanemait — 1.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9701405. Public record. Not legal advice.