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Levin Properties, L.P. v. Nouvelle Associates

April 2, 2009


On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket Nos. L-401-06 and L-521-06.

Per curiam.


Argued October 28, 2008

Before Judges Winkelstein, Fuentes and Chambers.

Defendant Centre Street Properties L.L.C., is the owner of a track of land located at 25 Centre Street in the Township of Sparta. This land is part of a shopping center, and contained a movie theater that has since been demolished. With Centre Street Properties's authorization, defendant Nouvelle Associates, L.L.C. ("Nouvelle"), applied to the Planning Board of the Township of Sparta to develop the movie theater lot. If approved, the project would require a number of "c" variances*fn1, including one for parking. As a means of ameliorating the parking problem presented by the proposed expansion, Nouvelle argued for the Board to recognize the manner in which the center's parking spaces have been historically shared by all of the businesses located within the shopping center.

Plaintiff, Levin Properties L.P. ("Levin"), is the owner of another commercial property located within the shopping center. Levin opposed Nouvelle's application arguing that a restrictive covenant in its deed prohibits other establishments in the shopping center from using the parking spaces attributable to its property.

The Planning Board granted Nouvelle's application. Although declining to determine the legal relationship and property rights of the various occupants of the shopping center, the Board found that "the historical use of the parking lot by all of the patrons of all of the uses within the Center is common and has existed for perhaps as long as fifty to sixty years."

Levin appealed the Board's decision to the Law Division in an action in lieu of prerogative writs. After hearing the arguments of counsel and reviewing the record developed by the parties, the trial court upheld the Planning Board's decision.

The court found that: (1) historically, all of the various commercial establishments have shared the shopping center's open parking lot in common; and (2) the common grantor of the parties' lots created a "neighborhood scheme" wherein reciprocal parking easements were established in favor of all lot owners. Levin now appeals, arguing that the trial court erred in applying common law principles derived from the law of easements to nullify the restrictive covenant rights conferred to it by the original grantor, as reflected in its deed of title. Levin argues that the Planning Board's action granting Nouvelle's application was arbitrary, capricious and unreasonable, because without access to Levin's parking spaces, Nouvelle is not entitled to the required parking variance.

We reject these arguments and affirm. We are satisfied that the various deeds issued by the common grantor conveying the shopping center's lots reveal the intent to establish reciprocal parking easements to be enjoyed by all lot owners. The restrictive language in Levin's deed appearing to grant Levin an exclusive access to a certain parking area is subordinate to, and otherwise superseded by, the neighborhood scheme created by the common grantor. There is thus ample evidence in the record supporting the Planning Board's approval of the parking variance.


The shopping center property at issue here is located on Woodport Road/Route 181 in the downtown area of Sparta. St. Cloud Building Corporation ("St. Cloud") owned the property as a one ten-acre parcel until the early 1950s. Beginning in 1950, St. Cloud subdivided the property and began selling it as separate parcels for commercial use. The subdivision created twelve numbered lots, ranging from lot 16 through 27 of Block 13.01 on the tax map. At that time, the majority of the lots were undeveloped. Lot 21, however, contained a movie house known as the Sparta Theatre.

A. Title History

St. Cloud sold three of the original ten lots in the early 1950s. These three title transfers were memorialized as follows: (1) deed dated November 20, 1950, Lot 24 to Fred H. and Elsie Gammelin; (2) deed dated December 9, 1952, Lot 26 to William and Stephen Muller; and (3) deed dated April 20, 1954, Lot 16 to John E. Herbison. All three deeds contained the following provision:

3. The right and permission is hereby given to the Grantees, their heirs, executors, administrators, heirs and assigns, their friends, customers, agents and any person desiring to come to said premises so occupied, owned or used, or otherwise, to have the full right and privilege of using any of the parking areas, roadways, curbs or sidewalks now in use and being or hereafter constructed on the lands hereinbefore described, provided, however, that such privilege of user shall not in any way be permitted to interfere with the primary right of the Grantor and St. Cloud Amusement Corp., their successors and assigns, to the use of said facilities in connection with the operation of Sparta Theatre and, provided further, that Grantor and St. Cloud Amusement Corp., their successors and assigns, shall be entitled to establish reasonable rules and regulations for the use of said facilities and any and all parties who may own, lease or be entitled to the possession of said hereinbefore described lands shall be obliged to conform to said rules and regulations which shall, as well, be binding upon their employees, licensees and invitees.

By deed dated February 12, 1957, St. Cloud sold Lots 22 and 23 to Phillip J. Levin. This deed, however, contains the following provision, specifically labeled as "restrictive covenants to run with the land."

1. The right and permission is hereby given to [Levin], his heirs and assigns, his friends, customers, agents and invitees, to have the full right and privilege of using any of the parking areas, roadways, curbs or sidewalks now in use and being hereinafter constructed on the lands retained by the Grantor, provided, however, that such privilege of user shall not in any way be permitted to interfere with the primary right of the Grantor and St. Cloud Amusement Corp., their successors and assigns, to the use of said facilities in connection with the operation of Sparta Theatre.

2. Such property shall not be used at any time for or any improvement be erected thereon lending itself to the conduct of an amusement enterprise which shall in any way be competitive with the operation of said Sparta Theatre and the operation of said theatre shall be deemed to include the presentation of motion pictures, vaudeville, entertainments by performers and bands of all character and presentation of televised events, pictures and performances of all kinds.

3. Upon erection or construction of any improvement on any such property, the party in possession thereof shall be obligated to reimburse the St. Cloud Amusement Corp., its successors and assigns, for its proportionate share of the cost of maintaining and repairing the parking area, roads, curbs, sidewalks, street and parking area lighting equipment and decorative plazas and likewise, the cost of cutting grass, removing snow and ice and providing street and parking area lighting. . . . The amount to be expended, the character of the work to be done and the necessity for such work in any of the categories above described, shall consist of reasonable repairs and maintenance only, and shall be completely within the control and determination of St. Cloud Amusement Corp., its successors and assigns, and they will have no obligation or duty to consult with or obtain the approval of any of said parties in possession as a condition to the imposition of liability on such parties pursuant to the requirements thereof.

6. [Levin] herein expressly agrees to keep the entire second course (a line 180.42 feet in length) free and open at all times, and agrees not to erect a fence, barrier or other obstruction along the same. The Grantor herein hereby also covenants and agrees that it, in turn, will not construct, erect or maintain any fence, barrier or other obstruction along its side of the said boundary line.

The purpose of this covenant is to keep the said boundary line open to permit the free flow of traffic between the above described lands and remaining lands of Grantor. It is distinctly understood, however, that this restriction is not intended, nor shall the same be construed, as a reservation by the Grantor of any right to park its vehicles or the vehicles of its successors, assigns, tenants, customers, agents or invitees, o[n] any part of the above described lands. (Emphasis added.)

Levin first developed the property by erecting an Acme Super Market. According to Levin, the site currently contains a CVS Pharmacy, a pizza restaurant, a home furnishings store, and 100 appurtenant parking spaces.

After Levin acquired title to his property, St. Cloud sold the remaining lots to three individuals. In April and June 1960, St. Cloud transferred Lots 19 and 20 to Sussex Lanes, for the purposes of developing a bowling alley. These deeds contained the identical language with respect to the use of the parking area reflected in the three deeds executed and filed in the 1950's. St. Cloud retained Lot 21, the Sparta Theatre lot. In January 1972, St. Cloud sold Lot 21 to Eagle Properties. This deed did not contain the specific easement language. The deed simply states that the lot was "subject to rights granted to others and mentioned in the various instruments." Centre Street Properties was the owner of the theatre lot by the time the Nouvelle application came before the Sparta Planning Board.

B. Nouvelle's Application to the Sparta Planning Board

With the consent of Centre Street Properties, Nouvelle filed an application for preliminary and final site plan approval with the Sparta Planning Board as part of a plan to redevelop the Sparta Theatre lot. Nouvelle sought approval to replace the existing two-cinema Sparta Theatre with a structure that would include: (1) a new "tri-plex" movie theater; (2) a Panera Bread restaurant and a Rita's Ice Cream stand; and (3) second floor rentable office space.

If approved, the project would require certain bulk "c" variances, specifically: (1) front, rear, and side yard setbacks; (2) parking; (3) placement of a retaining wall; (4) maximum percentage of impervious coverage; and (5) placement of signage. With respect to parking, Nouvelle acknowledged that under the Sparta ordinance, the project would need to provide a total of 170 parking spaces.

In an effort to address the municipal parking requirement, Nouvelle proposed to maintain the existing eighty parking spaces. The non-theatre uses (Panera Bread, Rita's, and office space) would require parking during normal daytime business hours; the Sparta Theatre would utilize the same parking spaces during its hours of operation in the early evening and late night hours. Thus, taking advantage of the absence of a temporal overlap in the operation of these distinct businesses, Nouvelle argued that the uses were complimentary, allowing for a shared parking scheme.

The Planning Board heard Nouvelle's application at public meetings held on April 19 and May 3, 2006. At the May 3, 2006 hearing, the Planning Board heard from Gordon Meth, Nouvelle's traffic and parking expert. In both a written report and through his testimony, Meth acknowledged that all existing uses in the entire Sparta Theatre plaza would require 605 parking spaces under the Sparta ordinance. At that time, however, the Plaza had only 373 parking spaces. Moreover, Nouvelle's proposed project would increase this shortfall by thirty spaces, making the overall parking requirement 635 spaces. Meth calculated the existing parking demand by observing the number of parking spots used at various times during the week. He determined that, in May 2006, the highest utilization of the shopping mall's parking facilities occurred at Friday 6:30 p.m., when 63% of the existing 373 parking spaces were occupied. Meth next calculated the projected utilization of parking spaces by Nouvelle's proposed use of the theatre property.

Using a method of calculation known as the "85th percentile," (designed to over-estimate the probable parking demand thereby creating a "worst case scenario") Meth opined that the highest average demand for parking would be on Fridays at 6:30 p.m., when 90% (334 out of 373 spaces) of the available parking would be utilized. Using the "85th percentile" method, Meth determined that the "worst case scenario" (Friday 6:30 p.m.) would require 101% of the available parking. This left a deficit of four parking spaces (377 spaces needed; 373 existed). Based on these findings, Meth concluded that a parking variance for the Theatre Plaza can be granted without creating a significant parking deficiency.

The Planning Board granted Nouvelle's application and variances in a resolution dated June 7, 2006. In so doing, the Board made the following findings:

[T]he ordinance requires a total of 140*fn2 parking spaces for these uses and therefore, the Applicant is seeking a variance to allow the proposed uses with the existing parking arrangements that currently exist in the center, but with a revision to increase by re-striping the 80 parking spaces on Center Street to allow 88 parking spaces after the re-striping. The Applicant's attorney indicated at the May 3, 2006 meeting that it is [his] legal opinion that the parking arrangements at the Theatre Center parking lots are shared parking arrangements created initially by deeds in the 1950s and 1960s and that the property owners with property in the Center, including the Theater are authorized to cross the lands of others within the Center and to park on the same. . . .

The Applicant's Professional Planner, Mr. Dykstra testified that the proposed use and parking would be consistent with the shared parking and combination of uses recommend[ed] in the Sparta Town Center Master Plan provisions. He also opined that the uses and shared parking will be compatible with the other nearby uses. It was his opinion that grants of the variances would benefit the purposes of zoning and that the benefits would outweigh the detriments.

5. The owner of Levin Management of adjacent lot 22, adjacent to the Theatre building and lot, contends through its attorney, Bruce Samuels, Esq., that its rights to its parking lot are exclusive to others.

6. The Board Attorney confirmed that the Board has no jurisdiction to determine the real property interests and legal relationships between the parties and that only the Superior Court can make determinations as to the legal rights of the property owners within the shopping Center to park on each other's lots. The Board finds that the historical use of the parking lot by all of the patrons of all of the uses within the Center is common and has existed for perhaps as long as fifty to sixty years. . . .

The Board finds that it would be appropriate to observe the experience with the proposed uses prior to the implementation of any additional parking spaces, in view of the historically open nature of parking at the Theatre Center and the ability of the public to consistently find sufficient parking in the existing parking lots. The Board further finds that the proposed mixture of uses on lot 21 will work well with the shared parking nature of the existing Theatre Center, as well as the shared parking goals and objectives of the Municipal Master Plan and Town Center Plan and ordinances.

After the Board adopted the resolution granting the site plan application, Nouvelle met with Levin to discuss his concerns about patrons of the redeveloped Sparta Theatre complex parking on Levin's property. In an attempt to allay Levin's concerns, Nouvelle modified the internal design of the proposed new Sparta Theatre complex by repositioning the main entrance to the theater and Panera Bread to the front of the building, on the other side from Levin's property. This would discourage theater patrons from parking in Levin's spaces. To make these modifications possible, Nouvelle shifted the building's position on the lot.

These changes slightly altered the site's required parking under the Sparta ordinance. Specifically, the number of required spaces increased from 170 to 175. Thus, in an amended application before the Planning Board, Nouvelle proposed a reconfiguration ...

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