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Transportation Corridor Preservation: Summaries Of Recent Cases Interpreting And Applying Corridor Preservation And Official Map Legislation And Ordinances

May 2000

I. ACCESS MANAGEMENT

El Shaer v. Planning Board of the Township of Lawrence

592 A.2d 565 (N.J. App. Div. 1991)

Facts: El Shaer proposed to subdivide a 10.22 acre tract in Lawrence into 10 residential lots. The property is bordered by Route 206, Little Shabakunk Creek and Reeder Avenue. Part of the tract falls within the wetlands adjacent to the creek. Six of the proposed lots are subject to flood hazard. The plaintiff received permission from the state Department of Environmental Protection to fill portions of the lots affected by the flood hazard. Other problems with the proposed subdivision included intrusion into a proposed conservation easement.

The lots conformed to the bulk of the requirements of the zoning ordinance. Four of the lots front on Route 206, the rest form a cul-de-sac. The four lots on Route 206 will have driveway cuts directly into the highway. El Shaer obtained access from Department of Transportation for the driveways. The department concluded that there was not a concern that the development would have an adverse impact on the state highway.

The Planning Board of Lawrence denied El Shaer's application, citing the driveways' interference with traffic, the lots' flood problems and the entire development's effect on the environment. The Board went on to note that the developer failed to present alternate plans having less of an environmental impact to make the development more compliant with the town's Land Development Ordinance.

Holding: Although a state may have adopted a state-wide highway development access plan, it does not preempt a local planning board from basing its decisions on a local proposed subdivision's effect on a state highway and the resulting effects on the local traffic conditions.

Reasoning:

  1. The court began its examination of the board's disapproval by noting that the planning board can deny approval of a subdivision even if the subdivision complies with most of the development ordinance. The board may require more than is stipulated by the ordinance if the subdivision presents dangers to the general welfare. The court also held that the board must also protect the public and future owners of the property by requiring adequate road and drainage facilities.
  2. El Shaer argued that the Board cannot consider off-site conditions in denying subdivisions, such as the traffic on Route 206. The court did not consider this argument, noting that the planning board can consider potential adverse effects on the land, its contiguous property and traffic flow.
  3. El Shaer also argued that the board could not base its denial of the subdivision on the potential drainage problems or the accessibility issues of Route 206. The board found that the board's denial was properly based on both these issues and supported by sufficient evidence. The board's traffic expert did find that the development would not have a significant impact on Route 206, but because the developer did not respond to the board's request for an analysis on the gaps in traffic on the highway, it was justified in denying the subdivision.
  4. El Shaer's final argument centered around the New Jersey State Highway Access Management Act (HAMA) (N.J.S.A. 277:7-89 - 98). HAMA regulates access onto state highways. El Shaer argued that the HAMA preempts the planning board from making decisions on state highway access concerns. The court made short work of this argument, stating that because the developer did not apply for HAMA permits, the argument was moot. In fact, HAMA did not become law until after the planning board's decision.
  5. The court did consider the legislative intention of the HAMA, stating that the law focused on the impairment of state highways caused by unrestricted access and the public's right to a safe and efficient highway. The court held that the HAMA did not preclude coexistent municipal regulation addressing local traffic conditions.
  6. The court also noted that when the Municipal Land Use Law (N.J.S.A. 40:55D-38b(10)) was amended to require a subdivision ordinance to conform to the State's access management code, the Legislature did not eliminate a local planning board's authority to consider access to and from a site in the context of reviewing subdivision applications.
  7. Even when state highway access permits are granted, the board must be free to consider how many driveways will be permitted, their location and the overall effect to the circulation design of the proposed subdivision plan.
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II. IMPLEMENTATION OF CORRIDOR PRESERVATION LAWS

Nigro v. Planning Board of the Borough of Saddle River

Effect of official map act on subdivision
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:

  1. The court begins its analysis by defining "official map" from Basset and Williams's County Planning Enabling Act.
  2. New Jersey defines an official map as a tool of planning, not zoning.
  3. 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.
  4. The contemporary view, however, is that an official map is a land use control device and accords weight to its legal effect.
  5. 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.
  6. 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.
  7. The court then examines New Jersey Statute 40:55D-32:
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. Stringent compliance with the official map does not comport with the goal of municipal planning: promotion of the general welfare.
  13. The court finds that the road proposed by Nigro does not conflict with the skeleton of the borough's official map.
  14. 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.

E-470 Public Highway Authority v. 455 Company

Effect of official map reservation on condemnation damages
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:

  1. 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.
  2. In determining the value of land taken, consideration of factors arising from the very fact of condemnation.
  3. 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."

Mill Realty Associates v. Zoning Board of Review of the Town of Coventry

Exception from mapped street requirements
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:

  1. Although appearing on its official map of streets, the two streets at issue are not maintained by or improved by the town.
  2. No lots in the plat have been developed and are overgrown by heavy woodland.
  3. 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.
  4. 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.
  5. An exception must also allow access for firefighting, ambulances, and other emergency vehicles necessary for health and safety.
  6. Additionally, an exception may be denied if the exception would harm any future layout shown on the official map.
  7. 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.
  8. 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.

Batch v. Town of Chapel Hil

Denial of subdivision for failure to comply with thoroughfare plan
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:

  1. 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.
  2. The town had the authority to deny the subdivision application for this reason, and its resolution denying the subdivision application was not unconstitutionally vague.
  3. The court decided not to review the plaintiff's takings or other constitutional claims.

Bakody Homes and Development, Inc. v. City of Omaha

Negligent failure to inform developer of official map
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:

  1. 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.
  2. An issue not presented to or passed upon by the trial court is not an appropriate issue for consideration on appeal.
  3. 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.
  4. 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.

Lake City Corporation v. City of Mequon

Reliance on a comprehensive plan to reject a subdivision; relationship to official map
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:

  1. 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.
  2. 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.

In the Matter of Romaz Properties, Ltd. v. McGowan

Removal of property from official map
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:

  1. 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.
  2. The petition is granted on the law and the cause is remanded to the town board to remove the portion from the official map.
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III. TAKING PROBLEMS

Department of Transportation v. Weisenfeld

Corridor preservation map held not a per se taking
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).

  1. The state must pay for a taking in two situations:
  2. The state confiscates private property for common use under its power of eminent domain; or
  3. State regulates private property under its police power that it deprives owner of viable economic use.
  4. The takings inquiry is based on an owner's economic use of property.
  5. To constitute a taking, all or a substantial use of the property must be taken.
  6. 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:

  1. 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.
  2. All properties located within the maps of reservation are not per se taken.
  3. The question of whether or not a taking has occurred is based on the interference or deprivation of economic use.

Ward v. Bennett

Official map held a taking
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:

  1. 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.
  2. 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.

State ex rel. Secretary of the Department of Transportation v. Tavest, Inc.

Proposed highway corridor held not a taking
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:

  1. 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.
  2. During the relevant period of time, there were no restrictions upon the landowners' usage of the property nor had the state denied them anything.
  3. 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.
Updated: 09/05/2014
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