On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Petrella, Baime and Conley. The opinion of the court was delivered by Baime, J.A.D.
The Hillsborough Township Planning Board (Board) granted Bernardsville Association, Inc.'s (Bernardsville) application for preliminary and final site plan approval respecting a proposed shopping center upon the condition that the applicant relocate a right of way easement held by the adjacent property owners, John, Alfred and Mary Kline. The Klines instituted an action in lieu of prerogative writs, challenging the Board's authority to relocate the easement without their consent. The Law Division granted Bernardsville's motion for summary judgment, holding that the Board could compel relocation of the Klines' right of way notwithstanding their objections. The court found that the change required by the Board was minimal and that the Klines' right of way was essentially undisturbed. The Klines appeal, contending that a planning board is not empowered to compel relocation of an easement held by a property owner who is not an applicant. We agree and reverse.
Although the salient facts are not in dispute, our consideration of the issues has been hampered by a truncated and sketchy record and briefs that are largely uninformative regarding several key points. Bernardsville owns property fronting Route 206 which it intends to develop as a shopping center. The Klines own adjacent land to the rear of that of Bernardsville. Apparently, the Klines' property is essentially landlocked. While the facts are shrouded in mystery, it appears that in 1947 the Klines were granted an easement through an 18 foot wide parcel of land that extends from Route 206 between the northerly sideline of Bernardsville's property and the southerly sideline of an adjacent shopping center known as Nelson's Corner. Apparently, Bernardsville was granted the same right of way. The parties'
pleadings and briefs contain inconsistent statements concerning whether the Klines' easement encroaches upon Bernardsville's property, and if so, to what extent. In their briefs, all parties claim that ownership of the 18 foot wide strip is unknown. However, at various hearings before the Board, counsel for Bernardsville represented that the property is owned by Charles and Thomas Robertson. While not cited by any of the parties, our independent research has revealed a reported condemnation opinion which identifies the Robertsons as owners of the property upon which the easement is located. See Township of Hillsborough v. Robertson, 260 N.J. Super. 37, 614 A.2d 1374 (Law Div.1992).*fn1
On February 2, 1989, the Board granted Bernardsville's application for site plan approval. Among other things, the Board's resolution required installation of a traffic light on Route 206 at the northern end of Bernardsville's frontage to serve customers of the proposed development and those of the Nelson's Corner shopping center. Location of the traffic signal was designed to permit vehicles exiting the two shopping centers to proceed south along Route 206. At present, customers of the Nelson's Corner shopping center must exit on to a side street and travel to its intersection with Route 206. It is undisputed that installation of the traffic light would substantially improve traffic safety in the area.
However, the proposed location of the traffic signal necessarily affects the 18 foot wide right of way. A minor alteration of the
easement is required. The easement would run from essentially the same location at the rear of Bernardsville's property, but instead of its current meandering course, the Klines' right of way would be slightly altered. Specifically, the easement would be relocated to run to the proposed traffic signal. The Board's approval thus required Bernardsville to obtain an agreement with the Klines relocating the easement as proposed. Unfortunately, negotiations between Bernardsville and the Klines proved unavailing and Bernardsville found it necessary to request the Board to either vacate or modify the condition requiring relocation of the easement.
On May 4, 1989, the Board granted Bernardsville's application and modified the condition to require "the applicant . . . [to] construct a reasonable point of access for the existing driveway" of the Klines' property. Specifically, the Board directed Bernardsville to "provide a 50 . . . foot wide easement for the purpose of ingress or egress . . . [to and from the Klines' property] at a . . . [location] along the rear of the development . . . with a perpetual right . . . to use" the roadway for access to Route 206. Although the Board's resolution did not expressly nullify the Klines' existing easement, its net effect was to compel relocation of their right of way to funnel traffic to the proposed traffic signal on Route 206.
The Klines then commenced a prerogative writs action in which they asserted that the Board's resolution violated the Open Public Meetings Act ( N.J.S.A. 10:4-6). The Law Division set aside the Board's resolution on this basis. After providing proper notice to the public, however, the Board readopted the resolution, and the Klines instituted this action.
In its oral opinion sustaining the Board's condition, the Law Division relied upon opinions permitting the courts to relocate an easement where the modification is slight and the parties' rights are fully protected. We will discuss those decisions later in our opinion. We merely note here that the Law Division assumed a municipal planning board has the same ...