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Hertz v. Borough of Lincoln Park Planning Board

October 30, 2006

BARBARA J. HERTZ, PLAINTIFF-APPELLANT,
v.
BOROUGH OF LINCOLN PARK PLANNING BOARD; BOROUGH OF LINCOLN PARK GOVERNING BODY (MAYOR AND COUNCIL); MONTVILLE TOWNSHIP COMMITTEE (GOVERNING BODY); MONTVILLE TOWNSHIP PLANNING BOARD; MORRIS COUNTY BOARD OF CHOSEN FREEHOLDERS AND ROBERT AND MARGARET ROSNER, DEFENDANTS-RESPONDENTS.
BARBARA J. HERTZ, PLAINTIFF-APPELLANT,
v.
BOROUGH OF LINCOLN PARK GOVERNING BODY (MAYOR AND COUNCIL); MONTVILLE TOWNSHIP COMMITTEE (GOVERNING BODY); AND ROBERT AND MARGARET ROSNER, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket Nos. L-366-04 and L-3284-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 11, 2006

Before Judges Skillman, Lisa and Grall.

Defendants Robert and Margaret Rosner own a lot, approximately three acres in size, which is bisected by the municipal boundary line between the Borough of Lincoln Park and the Township of Montville. The precise location of this boundary line is uncertain. The Rosners applied to both the Montville and Lincoln Park Planning Boards to subdivide their property into three lots, comprised of one lot with their existing residence and two vacant lots upon which they propose to build new single-family residences.

The Rosners' applications showed three different locations for the municipal boundary line bisecting their property: the first, derived from the Montville Township Tax Map, showed the majority of the property in Lincoln Park; the second, derived from Lincoln Park's Tax Map, showed the property split approximately in half by the boundary line; and the third, provided by the Rosners' engineer and land surveyor, placed the vast majority of the property in Montville. The boards accepted the location of the boundary line shown on the Lincoln Park municipal tax map. Using this line, the existing residence and most of the lot containing this residence is within Lincoln Park, and the two proposed new lots are located primarily in Montville.

In 2003, the two planning boards granted the Rosners' subdivision applications. The Montville Planning Board also granted the Rosners' application for various bulk variances, which became necessary when the Montville governing body increased the minimum lot size requirements in the area during the pendency of the subdivision application.

In 2004, after the planning boards had granted the subdivision approvals, the Montville and Lincoln Park governing bodies entered into an agreement and adopted resolutions pursuant to N.J.S.A. 40A:13-19 providing that Lincoln Park would assume "sole supervision for the provision of municipal services and taxing authority" for the lot on which the Rosners' existing house is located, and that Montville would assume such sole supervision over the two new lots created by the subdivision approvals.

Plaintiff Barbara Hertz owns an approximately fifteen-and- a-half acre lot in Lincoln Park that adjoins the Rosners' property. Plaintiff brought three separate actions challenging the actions of the Lincoln Park and Montville planning boards and governing bodies relating to the subdivision of the Rosners' property. Plaintiffs first action, filed shortly after the Lincoln Park Planning Board had granted subdivision approval and while the application to the Montville Planning Board was still pending, claimed that the planning boards lacked jurisdiction to act upon the Rosners' application until there had been a definitive determination of the boundary line between the two municipalities. The trial court rejected this claim and dismissed plaintiff's first complaint. Plaintiff did not appeal from the order memorializing this dismissal.

After both planning boards had granted subdivision approvals, plaintiff filed her second action, which again alleged that the planning boards lacked jurisdiction to grant the Rosners' applications for subdivision approval because there had been no definitive determination of the boundary line between the two municipalities. The second action also challenged the variances granted by the Montville Planning Board.

The trial court granted a series of motions for summary judgment filed by the defendant planning boards and governing bodies and dismissed plaintiffs' complaint.*fn1 The court held that N.J.S.A. 40A:13-10 confers discretion upon the governing bodies of the affected municipalities and the county to decide whether to seek a determination of a municipal boundary line by "the appointment of commissioners to survey, ascertain and mark the boundaries" between the municipalities and that plaintiff could not compel the exercise of this discretion by mandamus. The court also held that the planning boards were not deprived of jurisdiction to act upon the Rosners' subdivision applications simply because there was some uncertainty concerning the precise location of the municipal boundary line. In addition, the court concluded that the Montville Planning Board's resolution granting the Rosners' application for bulk variances under N.J.S.A. 40:55D-70c(2) was not arbitrary, capricious and unreasonable. Plaintiff filed an appeal from the orders memorializing the dismissal of her second action, which was docketed as A-3333-04T1.

Plaintiffs' third action challenged the resolutions of the Montville and Lincoln Park governing bodies allocating supervision for the provision of municipal services and taxing authority regarding the three lots created by the subdivision approvals. Plaintiff claimed that in adopting these resolutions, the governing bodies had failed to comply with their statutory obligation under N.J.S.A. 40A:13-19 to determine the municipal boundary line. Plaintiff also claimed that municipalities may enter into an agreement under N.J.S.A. 40A:13-19 regarding the "sole supervision of the lands and buildings" on property located in two municipalities only if it is an established fact that the property is located in both municipalities and that there is a factual dispute as to whether the Rosners' property is located in both Montville and Lincoln Park.

By an oral opinion rendered on June 13, 2005, the trial court rejected plaintiff's argument that the governing bodies were required to determine the precise boundary line between the municipalities within the Rosners' property before they could enter into an agreement under N.J.S.A. 40A:13-19 and dismissed plaintiffs' third action. The court also found that even though its precise location is uncertain, the municipal boundary line bisects the Rosners' property. Plaintiff filed an appeal from the order memorializing the dismissal of her third action, which was docketed as A-180-05T1.

We now consolidate the A-3333-04T1 and A-180-05T1 appeals. In the A-3333-04T1 appeal, plaintiff ...


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