The developer of a New Jersey Home Owners Association (HOA) secured township approval of a development plan by which single family affordable housing apartments would be constructed along public streets.  Thereafter, this developer obtained approval from the township to change the community into an active affordable senior housing community.  Notwithstanding the change to a 55 and over community, the roads remained designated as public since no amended site plan or revised developer’s agreement was made, filed or recorded.  This developer did amend its subdivision and site plan to include a gatehouse with gate arm control devices at the over 55 community’s main and rear entrances.  The developer advised the township at the planning stage that the roads would be public and, although there would be controlled access into the community, the public would not be denied access.  The developer noted in the Public Offering Statement that all streets would be municipal roads to be owned and maintained by the township, and the developer made no representations as to the public’s right of access.  Despite both the township’s approval of this, and the developer’s completion of the roads and the community, the township refused to accept the roads for dedication, i.e., make the roads public.  More specifically, the township advised the senior affordable housing community that so long as the gatehouse and gate arms were present, it would never accept the roads for dedication.

The common interest community association, together with the developer, sued the township seeking an order compelling the township to accept the roads for dedication.  In challenging the township, the association relied upon the township resolutions, the memos of township-hired professionals and minutes of various township meetings that related to the community’s creation and township approval.  During the planning stage, township officials had even commented how this controlled access would be helpful to stem public attempts ‘cut through’ the community to access the high school or avoid traffic lights.   The court ruled that the association’s maintenance of these gate arm control devices and retention of the gatehouse still constitutes ‘public access’, and the court accepted the association’s contemplation of a surveillance system intended to capture the license plates of vehicles entering the community.  In the end, the judge ordered the township to accept the roads for dedication.