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Aldrich v. Schwartz

Decided: July 7, 1992.

JOHN F. ALDRICH, PLAINTIFF-RESPONDENT,
v.
LEONARD E. SCHWARTZ, CORRINE F. SCHWARTZ, M. DEAN KINSEY, AND KATHERINE KINSEY, DEFENDANTS-APPELLANTS. AND TOWNSHIP OF LONG BEACH, LONG BEACH TOWNSHIP PLANNING BOARD, RICHARD R. HAWRYLO, ALEXANDRA HAWRYLO, AND COMMONWEALTH LAND TITLE INSURANCE COMPANY, AND LONG BEACH TOWNSHIP CONSTRUCTION AND ZONING OFFICE, AND RON PINGARO, LONG BEACH TOWNSHIP CONSTRUCTION OFFICIAL, AND SEAN DEVITT, LONG BEACH TOWNSHIP ZONING OFFICIAL, AND MARYLOUISE DESIMONE AND ESTATE OF ANTHONY J. DESIMONE, DEFENDANTS, V. RICHARD R. HAWRYLO AND ALEXANDRA HAWRYLO, THIRD-PARTY PLAINTIFFS, V. (ESTATE OF) ANTHONY J. DESIMONE AND MARYLOUISE DESIMONE, AND ESTATE OF ALICE SUTTER, THIRD-PARTY DEFENDANTS



On appeal from the Superior Court, Chancery Division, General Equity, Ocean County.

R.s. Cohen, Arnold M. Stein, and Kestin. The opinion of the court was delivered by R.s. Cohen, J.A.D.

Cohen

The opinion of the court was delivered by

R.S. COHEN, J.A.D.

In 1969, the Long Beach Township Planning Board approved a three-lot subdivision of a parcel fronting on Long Beach Boulevard and running east to the Atlantic Ocean. As part of the subdivision process, the Board of Adjustment granted a variance reducing from 20 feet to 15 feet the minimum width of part of an easement for access from the Boulevard to the two

interior lots. The variance was granted subject to conditions, one of which required the southerly 45 feet of the new ocean-front lot to remain open and free of structures.

When plaintiff bought the ocean-front lot in 1989, he was unaware of the restriction on building within the southerly 45 feet. We hold that plaintiff is nevertheless bound by the restriction, but also that plaintiff may apply to the Board of Adjustment and/or to the Law Division for relief. We therefore reverse the summary judgment granted to plaintiff by the Chancery Division Judge.

Alice B. Sutter owned Parcel 29 in the North Beach section of Long Beach Township. She and her late husband bought the property in 1949. It is in a narrow section of Long Beach Island, an eighteen-mile long sand-bar barrier island with a single road, Long Beach Boulevard, running its length. To the east is the Atlantic Ocean. To the west is Barnegat Bay.*fn1

Parcel 29 was rectangular. It was 100 feet wide on the Boulevard and on the ocean beach. Its east-to-west sidelines were 462 feet long to the high water line of the ocean, with the easterly 142 feet consisting of dunes and beach. The Sutter house fronted on the Boulevard.

In 1969, Mrs. Sutter applied for a subdivision to divide her land into three lots. She would retain her house on the new Lot 1, which would be 100 feet wide on the Boulevard and 120 feet deep. Lot 2 would be 100 feet by 100 feet. Lot 3 would be 100 feet wide by 242 feet deep. Lot 3 would be nearest the ocean, and would include the 142 feet of dunes and beach, which would be subject to use by all three lots or to conveyance to the Township for public use.

The Township zoning ordinance permitted beach-to-boulevard strips like Mrs. Sutter's to be subdivided without creation of

public access streets to the interior lots. Instead, it prescribed a 20-foot wide easement running from the Boulevard to the ocean-front lot. In this case, the easement would be 220 feet long, and would run over the southerly 20 feet of Lots 1 and 2, to the western line of Lot 3, where it would end. At that point, a five-foot walkway would continue to the beach.

There was a problem. Mrs. Sutter's house was less than 18 feet from her southerly sideline, and she therefore did not have room for the necessary easement. Everything else was in order, however, so the Planning Board approved the subdivision of Parcel 29, subject to the grant of a variance by the Board of Adjustment to permit a narrow easement.*fn2

The variance application and resolution granting it concerned the entire Parcel 29. The Board of Adjustment granted a variance permitting reduction of the easement width from 20 to 15 feet for the first 75 feet easterly from the Boulevard past the Sutter house. For its remaining 145 feet, the easement resumed the required width of ...


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