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Bedewi v. Cedar Lake Property Owners

September 5, 2007

MOHAMED BEDEWI AND CAROL BEDEWI, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
CEDAR LAKE PROPERTY OWNERS, INC., DEFENDANT-RESPONDENT, AND TOWNSHIP OF DENVILLE, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1919-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 6, 2007

Before Judges Stern, A. A. Rodríguez and Sabatino.

Mohamed Bedewi and Carol Bedewi ("Mohamed" and "Carol" when referenced individually, collectively "plaintiffs") are husband and wife, appealing from the August 26, 2005 judgment, which dismissed with prejudice their complaint, as well as counterclaim filed by defendant, Cedar Lake Property Owners, Inc. (Association). Plaintiffs sought to set aside a conservation easement that they had granted to the Township of Denville (Township). We affirm substantially for the reasons expressed by Judge Robert Brennan in his August 26, 2005 written opinion, concluding that his findings of fact are adequately supported by the evidence.

These are the salient facts. In 1997, plaintiffs entered into a contract to purchase a vacant eleven-acre lot in the Township. Plaintiffs had to apply for a variance to develop their property because it was bordered by two unimproved roads, Cedar Lake North Road and Vans Drive. In December 1997, plaintiffs filed an application to subdivide the property, but because this was considered a major subdivision, which would be too difficult to gain approval, they withdrew the application.

In March 1998, plaintiffs filed an application for a variance to build on a substandard road because they wanted to build a residence on the property. Following public hearings, the Board denied the application, finding that plaintiffs had failed to prove that the proposed roads were adequate and that "the ownership of the private road network was somewhat vague." The Board explained that plaintiffs' application did not offer to make any improvements to the roadways to allow the roads to accommodate police and other emergency vehicles.

Plaintiffs purchased the property, although they had not obtained the variance to build a residence on it. They filed a third variance application to develop the property. The Township's planner, Stephen M. Lydon, sent a memo noting that the "property greatly exceeds the zone requirements." Also, the planner noted that storm water from the property would collect in a swale on the side of the proposed driveway. The planner also recommended that plaintiffs provide the Board with a letter from the Department of Environment Protection (DEP) approving the wetland delineation. The Association confirmed that it would allow plaintiffs to use all access easements to roads as long as plaintiffs became paid-up members. The Association manages the property of Cedar Lake Park where plaintiffs' land is located. The Association has the power to grant easements to certain streets on the land and to administer, develop and improve the property.

The Board noted that a variance would be necessary due to the height of the retaining walls. At a subsequent Board meeting, plaintiffs' engineer testified. Michael Phillips, an attorney who represented "a number of property owners affected by this [application]" questioned the engineer about a number of issues including steep slopes, absence of the requisite letter from DEP and other issues with the property.

On April 19, 1997, Mohamed contacted the Association's president to arrange a meeting to discuss a possible agreement limiting development of the property. After this meeting, a lawyer for the Association sent a letter to plaintiffs memorializing their conversation, noting that "[a] conservation easement will be created covering the entire property." At a third hearing on this variance application, the Association submitted that plaintiffs would enter into a conservation easement and they would grant plaintiffs an easement.

On June 4, 1999, another agreement was reached between plaintiffs and the Association. The agreement grants plaintiffs an easement to traverse Little Bear Road, a paper street. The Association also agreed not to appeal any decision by the Board granting approval of plaintiffs' development plan. Plaintiffs agreed to join the Association and noted their agreement to convey to the Township a conservation easement. The Association would have standing to enforce this conservation agreement.

Three days later, the Board approved plaintiffs' application for a variance to build on their property. In the resolution it was noted that plaintiffs "agreed to a conservation easement to limit future development and access to their property." It continued, "[t]he parameters of said conservation easement will be to limit the areas of disturbance on-site to the proposed areas where infrastructure is being built in a reasonable perimeter around same while providing the sites['] only access through the proposed driveway."

Three years later, plaintiffs filed an application for a permit and variance to construct a barn on their property. The Association objected to the application. The Board denied the application. Plaintiffs sent an open letter to their neighbors, urging them to question the Board's decisions on certain issues. In the letter, they addressed the conservation easement, but did not claim they signed it under duress.

Plaintiffs filed a complaint pursuant to the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62, against the Association and Township seeking a declaration that the conservation easement is null and void because it was given under duress. Plaintiffs also sought compensatory and punitive damages. The Association answered the complaint ...


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