On appeal from Superior Court, Chancery Division, Essex County.
The Chancery Division Judge summarily determined that defendant Custodio Santos should be prohibited from building on Lot 38, Block 80A (which he purchased from defendant Township of West Orange) because building on the under-sized lot would violate a neighborhood scheme as defined in Blaine v. Ritger, 211 N.J. Super. 644 (App.Div.1986).
Plaintiffs Kenneth H. Englander and John Kazanjian are owners of property contiguous to Lot 38 which has a frontage of 50 feet and an area of 6,000 square feet. As discussed hereinafter, this lot came to be shown on a 1927 filed map as a street, and it was thereafter deeded to the Township of West Orange in 1932 for that purpose. Recorded restrictions on the property required that the lot have at least 75 foot frontage for any building to be erected. We are advised that the property is located in an R-5 residence zone. According to the township
zoning ordinance in that zone a 75 foot frontage and 10,000 square foot minimum lot size is required for a dwelling to be erected.
Santos appeals arguing that: (1) the Chancery Division judge did not have authority to enter judgment for the plaintiff; (2) the judge's decision was not based upon pleadings and affidavits of record; (3) the judge erred in finding that a neighborhood scheme existed which included a frontage restriction, and (4) even if a neighborhood scheme was intended, it does not meet the requirements of Blaine v. Ritger. At oral argument we pointed out that there appeared to have been a dedicated street involved and invited and received supplemental briefs regarding certain statutory provisions. Plaintiffs' verified complaint had raised the issue of the effect of a vacation of a paper street and the effect on claimed public easements.
It is undisputed that on October 25, 1927 West Orange approved the filing of a plat dated October 8, 1927 entitled "Map of Hutton Park West" (Hutton Park) by S.G. Supplee & Sons Company (Supplee) as owners of a tract that was to be subdivided into 31 lots (according to the plat) with frontage varying from 75 to 125 feet. This plat showed various streets including Lot 38, labeled "Jackson Place." The map was filed with the Register of Essex County on May 24, 1928.
The record discloses that on November 1, 1927 Supplee entered into an agreement with West Orange in which it approved the October 8, 1927 map and accepted "the dedication of the streets shown thereon." West Orange also agreed to improve the streets after Supplee agreed to place certain restrictions on the Hutton Park tract. Those restrictions included that the tract would not be subdivided into lots with less than 75 foot frontages; that the lots would not be used for any purpose other than one-family homes, and that houses would not be erected on any lot, other than angular and corner lots, with less than 75 foot frontage. Other restrictions dealt with required floor space, set back, minimum cost, roof, garage and
clothes poles requirements. These restrictions were to run with the land. During the following two years various lots were sold by Supplee. None of the deeds specifically included frontage requirements. Some, but not all, of the deeds included reference to the restrictions in the agreement between Supplee and West Orange.
On December 19, 1927 Supplee conveyed title to Lot 38 to Ruth L. Ross, subject to the restriction that nothing would be built on the lot unless additional frontage was acquired sufficient to conform to the 75 foot requirement referred to in the agreement between Supplee and West Orange. On August 6, 1932 Ross and her husband conveyed title to Lot 38 to West Orange. The deed stated that it was "for the purpose of dedicating the same as a public street." It also stated that it was subject to restrictions of record. For the past 50 some years Lot 38 has remained as a paper street and has been partially used as a driveway by the owners of the adjacent Englander's property (Lot 39, Block 80A).
The verified complaint and affidavits submitted by plaintiffs recited that during mid-1984 Kazanjian, owner of the adjacent lot on the other side of Lot 38 (Lot 37, Block 80A), was notified by West Orange that the municipality was interested in selling Lot 38. A West Orange official indicated that Englander and Kazanjian would receive an equal half of Lot 38 for $2,000 each. Although West Orange was not prepared to ...