On appeal from Superior Court of New Jersey, Chancery Division, Camden County, C-94-01.
Before Judges Havey, A. A. Rodriguez and Payne.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Cooper River Plaza East, LLC (Cooper River) appeals from the order of the Chancery Division, General Equity Part, granting summary judgment in favor of The Briad Group (Briad) on Cooper River's complaint seeking reversion of property located in the Township of Pennsauken as the result of alleged violations of deed restrictions placed on that and adjoining property. We affirm.
The facts of the matter are as follows: In 1967, the Bleznak family sold a small piece of property in Pannsauken designated as Block 6305, Lot 5, located at the southwest corner of Route 70 and McClellan Avenue, to Marlton Realty Corporation (Marlton). At the time of the sale, Marlton was the existing owner of a much larger piece of property designated as Block 6305, Lot 4, located on Route 70, directly to the west of Lot 5. A one-story commercial block building was situated on Lot 4. Lot 5 was purchased to permit access to Lot 4 from McClellan Avenue. The Bleznaks retained Lot 3, which was located south of Lot 5 on McClellan Avenue, but on the opposite or eastern side of the street. Lot 3 has no frontage on Route 70, and indeed is situated considerably south of that highway. An apartment building known as Cooper River Plaza East was constructed on Lot 3 in 1962. It is owned by plaintiff Cooper River, the principal shareholder of which is Alan Bleznak, an original grantor of Lot 5. Cooper River has succeeded to any rights previously held by the Bleznaks, as grantors, in connection with the deed to Lot 5. Briad, as a subsequent purchaser, has succeeded to the rights and obligations of Marlton, as grantee, in connection with that deed.
The deed to Lot 5 contains a number of restrictions, as follows:
(a) No structure is to be erected on the premises constituting the subject matter of this agreement [Lot 5].
(b) No structure is to be erected on the premises adjacent to the premises forming the subject matter of this deed [Lot 4] forward of the present building line of the building presently situate on said adjacent premises, and in this regard grantee certifies that it is the owner of the adjacent property situate generally northwesterly of the subject premises and that if called upon to do so by grantors herein, it will agree to the recordation of an instrument sufficient to cause this restriction to be effectual as to those premises.
(c) Grantee agrees there shall be no parking of motor vehicles upon the subject premises [Lot 5]. (d) Grantee agrees to do and perform within one year from the date of acquisition of title of the premises described herein, those things set forth in a Site Plan, Detail Plan and Planting Plan by John Rahenkamp & Associates, Inc., the landscape architects and site planners, dated October 17, 1966, and the specifications accompanying said plan dated October 25, 1966, which documents are incorporated herein by reference. *fn1 (e) Grantee agrees to perpetually maintain the plantings, shrubbery and other landscaping described therein or replacements thereof [on Lot 5].
The deed provides, additionally, that in the event of breach by the grantee of any of the deed's restrictions, conditions and covenants, Lot 5 would revert to the grantors or their successor in interest, upon proper application to a court of competent jurisdiction. The deed to Lot 5 was properly recorded, and its restrictions were reviewed in connection with a subsequent sale of the property to Briad, the holder of a Wendy's restaurant franchise.
On November 28, 2000, Pennsauken's Planning Board granted final site plan approval for the construction by Briad of a Wendy's restaurant on Lots 4 and 5, which were to be consolidated by deed. *fn2 In accordance with that plan, the restaurant itself would replace the commercial structure then existing on Lot 4, and parking was proposed for both lots. Existing driveways accessing Route 70 and McClellan Avenue would be utilized for two-way ingress and egress.
Lots 4 and 5 were sold by the prior owner, Verga Realty Corp., to Briad in April 2001. In connection with that sale, by letter dated May 15, 2001, Verga's attorney undertook to obtain from Cooper River a quitclaim deed removing restrictions contained in the deed to Lot 5 -- restrictions that had been discovered to exist shortly before the sale occurred. Thereafter, on May 17, 2001, following a telephone conversation between Marlene Laveman, General Counsel for Briad, and William Finlayson, Chief Operating Officer of The Bleznak Organization (another entity controlled by Allan Bleznak) *fn3 , Laveman enclosed a copy of the landscaping and lighting plan for the restaurant and noted that the Wendy's building would "be set back farther from McClellan than the current building." Soon thereafter, Cooper River referred the matter to counsel, who in a letter dated May 31 to Verga's attorney with copies to Laveman and Finlayson, stated that Cooper River had reviewed the site plan, which "shows proposed parking spaces located in the restricted area in violation of the Deed restriction." A suit to enforce the right of reversion contained in the deed was threatened unless agreement regarding the use of the area could be reached.
Communications between Laveman and Finlayson continued. By letter dated June 6, Laveman provided Finlayson with a full set of plans for the property and invited discussion, and on June 13, she sent a letter to him enclosing a picture of a completed Wendy's. A plan showing a reduction in parking within Lot 5 was provided by Laveman to Finlayson by letter dated June 20, 2001. Eventually, all parking was removed from that Lot. None of the communications between Cooper River and Briad, other than the letter of May 17, made any reference to building setbacks, and no objection to the placement of the Wendy's restaurant was voiced in exchanges between Laveman and Finlayson. The setback from Route 70 was never the subject of any communication between the parties.
Although Briad was not informed of the fact, at the time that construction of the Wendy's restaurant commenced in mid- June 2001, Cooper River determined that the restaurant on Lot 4 violated, to a minor degree, the setback requirements set forth in the deed to Lot 5, since a three-foot triangle at the entrance to the restaurant was constructed in front of the original building line facing Route 70. *fn4 On July 19, 2001, Cooper River filed suit against Briad *fn5 alleging its violation of the restrictions contained in paragraphs (b), (c) and (e) of the deed to Lot 5 and seeking reversion of that property. The complaint was served on Briad on August 2.
Construction on the restaurant, which had commenced on June 13, 2001, was substantially completed by the time of service of Cooper River's complaint, and the restaurant opened on September 11. Briad contends that the Route 70 setback could have been adjusted if Briad had been made aware of the alleged violation of the deed restriction when it was first observed by Cooper River to exist.
Briad's motion for summary judgment followed denial on August 16, 2001 of Cooper River's application for a temporary restraining order and a period of discovery in the matter. At the conclusion of the hearing on that motion, the trial judge held that the deed restriction limiting the setback of any structure built on Lot 4 was ambiguous and thus unenforceable, since the building line to which the restriction applied was unspecified. The judge also held that Cooper River's action was barred by laches. He did not discuss the issue of reversion as the result of violations of other deed restrictions relating to parking on and landscaping of Lot 5 since that issue was not raised by either party on motion for summary judgment. This latter issue was discussed only at the hearing on Cooper River's application for a temporary ...