On appeal from the Tax Court of New Jersey.
King, Gruccio and D'Annunzio. The opinion of the court was delivered by: Gruccio, J.A.D.
[224 NJSuper Page 343] Plaintiff Trustees of Llewellyn Park appeals a judgment of the Tax Court of New Jersey denying a reduction on the tax assessments for the tax year 1984 on 59 acres owned by plaintiff in Llewellyn Park, West Orange, New Jersey. Plaintiff
and defendant Township of West Orange filed a stipulation of facts on June 23, 1986, and, thereafter, the tax court judge issued a written opinion on February 6, 1987.
Llewellyn Park is, in essence, a planned community development open only to the residential owners and their guests. The area which is the subject of this appeal is more than 35 acres of private parkland held for the exclusive interest of the surrounding residential owners in Llewellyn Park. The park was created by deed on February 28, 1857. When residences located in the park are bought and sold, sellers and buyers are subject to and take into account the terms of the deed. No discount was taken of the assessments of the residential properties in the park to reflect the apportioned value of the park properties.
Plaintiff contends that the subject properties are the servient estates for an easement appurtenant running in favor of the owners of residential properties within the (so-called) Llewellyn Park. Plaintiff further argues that the "burdening" of the subject properties with this so-called easement encumbers them to such an extent as to render them valueless. Moreover, whatever value they do have should be apportioned among the owners of the dominant estate, i.e., the owners of residential property. Plaintiff claims the provisions of the deed support the position that the assessments on plaintiff's property should be eliminated or reduced to a nominal value. Defendant claims the property should be assessed at full value.
The relevant part of the deed provides:
[The trustees of the property] . . . shall and will, forever hereafter, suffer and permit the said Llewellyn Park, and its appurtenances with its several roads or avenues, and ways or rights of way, as laid down on the said map, to be freely, and at all times, used and enjoyed, as a place of resort and recreation, . . . [by the residential property owners in the park].
[Residential property owners in the park shall be permitted] to pass . . . at all times, and for all purposes, either on foot, or with horses, cattle or carriages, over and through the said Llewellyn Park, by means of its several roads or avenues, and ways as laid down on the said map.
In 1984 defendant conducted a revaluation of all Township property. The properties subject to this appeal were assigned per-acre values ranging from $4,048 to in excess of $45,000, averaging approximately $9,000 per acre. The assessments of the private residences in the park for 1984 are based on true value. We note there was a condemnation of a parcel of land in connection with the construction of an interstate highway.
Plaintiff contends that the restrictions in the deed create an easement appurtenant burdening the common properties. "An easement appurtenant is created when an owner of one parcel of property (the servient estate) gives rights regarding that property to the owner of an adjacent property (the dominant estate). It enhances the value of the dominant estate and cannot exist separate from the land itself." Village of Ridgewood v. Bolger Foundation, 104 N.J. 337, 340, 517 A.2d 135 (1986). Plaintiff thus submits that the restriction in the deed transfers rights regarding the use and alienation of the common properties and therefore creates an easement.
All property in the park is sold subject to and in accordance with the rights set forth in the deed. The deed rights pass with the dominant estate. A purchaser of a residential property in the park simultaneously receives a proportionate interest in the park properties.
Defendant's position is much more simply put; the restriction merely creates a private right in the park enjoyed by the residential property owners. If any or all of the common areas are sold, the properties will no longer be subject to the use restriction binding plaintiff and ...