On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, C-98-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Sabatino.
Plaintiffs Daniel and Barbara Worts, contract purchasers of property abutting Crystal Drive in Denville, appeal from orders dated March 5, 2007, denying their motion for summary judgment and granting the cross-motions for summary judgment filed on behalf of defendants, including the Township of Denville and Township of Denville Water Department, 19 Elcock Avenue, Inc. and Steven and Maria Kovacs. Plaintiffs sought quiet title and a declaration recognizing an easement across the property of certain defendants to afford plaintiffs access to Diamond Spring Road via a "traveled roadway" now known as Mary Avenue.
With respect to the claim against the Township defendants, plaintiffs sought an order declaring that Mary Avenue is a public roadway and that their property along Crystal Drive abuts an improved roadway. Consistent with such a declaration, they also sought an order directing the Township and its public departments and agencies to accept their application for a construction permit without the requirement of variances related to access or the satisfaction of the requirement that the premises abut an improved roadway.
The Township building official rejected the Worts's application for a building permit on the ground that the property did not meet the requirements of N.J.S.A. 40:55D-35 and -36, and the Township defendants refused to grant a variance to overturn the rejection by the building official. Pursuant to the pertinent statutory provisions, the property was found not to abut a street giving access to the proposed building or structure in that it is situated on a roadway that was neither dedicated or accepted as a public roadway. Moreover, the referenced Mary Avenue was determined to be a private right of way that traverses private property, as to which plaintiffs failed to establish an easement or other right of access. We have considered the arguments raised by plaintiffs in their attempt to compel the issuance of a building permit, and for substantially the reasons articulated by Judge Catherine M. Langlois in the well-reasoned written statement of reasons issued in connection with the four orders dated March 5, 2007, we affirm.*fn1
As noted above, plaintiffs are contract purchasers of Lots 97-99, Block 60207 in Denville, commonly known as 31-35 Crystal Drive ("the property" or "plaintiffs' property"). Plaintiffs applied to the Township to construct a single-family dwelling on the property, which is undeveloped pristine forest. Walter Stefanacci, the Township's Zoning Officer, denied plaintiffs' application on February 27, 2002, reasoning, that "a building or structure must be related to a street. Crystal Drive is unimproved." Stefanacci added that a building permit could not be issued unless the Board of Adjustment were to grant an "E" variance. Plaintiffs then sought a variance from the Board of Adjustment ("the Board"), but the Board refused to hear plaintiffs' request because plaintiffs were not able to demonstrate a right to access the traveled roadway to get to Crystal Drive and because plaintiffs' application was incomplete. Eventually, plaintiffs' application was dismissed by the Township without prejudice.
The only access to the subject property is via a traveled roadway which connects to Diamond Spring Road. The traveled roadway was paved by the Township "in the manner that a simple driveway would be paved," rather than in the manner that the Township would typically surface an improved street. The Township paved the traveled roadway after originally having put gravel on it to provide a safer driving surface for the handful of local residents using the street. Defendants Steven and Maria Kovacs, through whose property the traveled roadway runs, objected to its paving. Like Crystal Drive, the traveled roadway is plowed and occasionally maintained by the Township.
At the end of the traveled roadway, where it intersects with Diamond Spring Road, is a street sign designating the traveled roadway as "Mary Avenue." However, the traveled roadway is not identified on the Township Tax Map as "Mary Avenue." On the Tax Map, it is identified only as "Traveled Roadway." Mary Avenue, an unimproved paper street on the Township Tax Map, runs parallel to the traveled roadway from its inception at Crystal Drive before turning north toward Muriel Hepner Park. The traveled roadway continues west before intersecting with Diamond Spring Road. It passes through nine different lots, including the properties of defendant AMCHU Associates ("AMCHU") (block 60305, lot 5); defendant AT&T (block 60305, lot 10); defendant 19 Elcock Avenue, Inc. ("Elcock") (block 60305, lots 24 and 29); and defendants Steven and Maria Kovacs (block 60305, lot 34).*fn2 These lots, along with many others, were once owned by Mary Wright.
In 1907, Wright bought from Daniel Dickerson two parcels of land totaling approximately forty-one acres. The conveyance consisted of a 38.21-acre tract, which included "lots fronting on Crystal Drive, Wright Avenue, Sunnyside Avenue and the southerly side of Mary Avenue," and a 2.92-acre tract, which "include[d] the lots fronting on the easterly side of Mary Avenue." The 2.92-acre tract, which presently consists of lots 6, 11, and part of lot 2 on block 60305, received the benefit of "a right of way twenty-five feet in width now used on the north side of the Morris Canal and leading from the property conveyed... to the road leading from Denville to Boonton," which is presently known as Diamond Spring Road. Robert P. Tank, of Heritage Abstract Company, stated in his report that the 38.21-acre tract did not receive the benefit of this right of way, which "is designated on the filed map as Dickerson Avenue which runs along the northerly side of the Morris Canal and extends to Diamond Spring Road."
In 1913, Wright sold a portion of her land to Gotham Homes Corporation, including the same "right of way" language as the 1907 conveyance. Following the 1913 land transfer, several paper streets, none of which are dedicated as public roadways, were created: Crystal Drive, Sunnyside Avenue, Wright Avenue, Dickerson Avenue, and Mary Avenue.
On January 27, 2004, Richard V. Larson, of Glen Eagle Title Agency, Inc., prepared an expert report on behalf of plaintiffs. He noted that plaintiffs' property was part of the 2.92-acre tract acquired by Wright in 1907, which, unlike the 38.21-acre tract, received the benefit of a right of way.*fn3 According to Larson, in 1913, Wright sold a portion of this property to Gotham Homes, together with a right of way. Wright retained a portion of the property, which included lot 97, now owned by plaintiffs, along with a right of way. Larson opined that, "[a]s the individual parcels were sold off[,] an easement by necessity (implication) was created leading to the right of way on to Diamond Spring Road." He stated "an easement by implication exists over the 'traveled roadway'" through lots 5, 10, 18, 24, 29, and 34 on blocks 60207 and 60305, as well as lot 32, block 60101. In a February 14, 2004 letter, Larson concluded that Wright, in 1913, conveyed block 60305, lot 18, along with other lots along the traveled roadway, with the intention of utilizing the right of way for ingress and egress between the property she retained and Diamond Spring Road.
In the instant matter, Albert Szolossi, the owner of the property located at 61 Crystal Drive, certified that he has "always accessed [his] home by traveling upon Mary Road," the traveled roadway. He also stated that the owner of the Halenko property, located directly south of plaintiffs' property, ...