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Estate of Katherine K. Neuberger v. Township of Middletown

Decided: March 2, 1987.


On appeal from Superior Court, Law Division, Monmouth County.

Michels, O'Brien and Landau. The opinion of the court was delivered by Landau, J.s.c. (temporarily assigned).


[215 NJSuper Page 377] This is an appeal by defendants Township of Middletown, Township Committee of the Township of Middletown, and the Landmarks Commission of the Township of Middletown (collectively Middletown) from a final judgment of the Law Division which declared invalid the Middletown "Landmarks Commission and Historical Preservation Ordinance," (Historic Ordinance) based upon the proofs and legal arguments presented in an action in lieu of prerogative writs. The action was commenced by plaintiff, Estate of Katherine K. Neuberger, Deceased (Estate) after certain property of the Estate was designated "historic" by the Landmarks Commission pursuant to the Historic Ordinance on October 11, 1984. We affirm the declaration of invalidity, but for reasons which vary from those expressed by the trial judge.


It is undisputed that Middletown adopted the Historic Ordinance on September 10, 1974, as amended by ordinance on November 23, 1982. Only the amended ordinance appears in the record.

Middletown was one of the pioneer municipalities which sought to recognize the desirability of taking steps to preserve historic districts and landmarks. As amended, the Historic Ordinance enunciated as its purpose:

[t]o promote the educational, cultural, economic and general welfare of the township: through the preservation of historic buildings and structures, and of places and districts of historic interest; through the development and maintenance of appropriate settings for such buildings, structures, places and districts; and through collateral activities to document and promote the public enjoyment of such buildings, structures, places and districts, which impart to residents and visitors alike a distinct aspect of the township and which serve as visible reminders of the historic and cultural heritage of the township, the state and the nation. (Section 16A-2)

A landmarks commission of seven members is established under the Historic Ordinance, with the following pertinent powers:

Review by Commission

The Landmarks Commission shall review buildings, places and structures within the township, individually and collectively, in regard to their merit in several categories:

Historic events associated therewith, their architectural merit, age, persons of note who owned, used or were otherwise associated therewith, and their significance in the development of the township, county, state or nation. (Section 16A-18)

" Historic" Designation by Commission

The Landmarks Commission shall designate as "Historic" those buildings, places and structures which in regard to the category set forth in Section 16A-18 hereof have merit of a degree warranting their preservation. Although the historic designation may be applied on the basis of merit in more than one category, it may also be applied on the basis of merit in any single category even when there is no demonstrated merit in any other category. The Historic designation shall apply both within and outside historic districts and shall be deemed to include the tax map lot(s) upon which the designated building, place or structure is located. (Emphasis supplied) (Section 16A-19)

After designation of a historic site by the Landmarks Commission, it is shown on a "Historical Map" of the township and

recorded in the county clerk's office "in the same manner as . . . [a] lien upon real property."

The Historic Ordinance also establishes a number of "historic districts" within the municipality which are required to be shown on the zoning map.

Once designated as a historic site, no material visible change in any building or structure thereon (including color of paint) may be made without a "certificate of appropriateness" procured from the Landmarks Commission under procedures set forth. Demolition is subject to stringent standards, but owners denied certificates are afforded a period of time to solicit "fair market price" offers from persons willing to preserve the structure and land, following which demolition is permitted if no such offer at a price reasonably related to fair market value has been received. Denials of such certificates are appealable to the township committee and to court. A $500 per day penalty is established for any violation of the ordinance.


By letter from the Landmarks Commission dated October 15, 1984, the "Historic" designation was conferred upon property known as "Property No. 332, Block 38, Lot 5, 628 Middletown -- Lincroft Road." The minutes of the Landmarks Commission meeting indicate that "Prop. # 332's complex of house and two barns," including "service access road to north of residence" was designated as "Historic Notable."*fn1 Plaintiff's brief indicates that the entire 65 acre farm, upon which sit a large farmhouse and various other buildings ...

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