On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5608-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2010
Before Judges Fuentes, Gilroy and Ashrafi.
Plaintiff Valleybrook Country Club, LLC, sought a declaratory judgment that a deed restriction does not apply to its golf course property. It now appeals from a final judgment and earlier orders of the Law Division dismissing its cause of action. We affirm.
Plaintiff purchased the golf course in 2000. In 1987, its predecessors in title had obtained approvals from the Gloucester Township Planning Board for residential development of approximately 255 acres comprising an existing twenty-seven-hole golf course and surrounding lands. In lieu of utilizing the entire acreage to build the full number of single-family homes possible under existing zoning regulations, the predecessors and their developer proposed cluster development of townhouses and condominiums at the same density, thus permanently preserving an eighteen-hole golf course on the land.
In November 1987, plaintiff's predecessors executed and recorded a deed to themselves giving a metes and bounds description of the golf course and stating:
The Property shall be restricted in use to an 18-hol[e] minimum par 70 golf course except for accessory and incidental uses such as a clubhouse, with or without eating facilities, maintenance buildings and a pro shop.
The deed included additional language expressing the intent of the restriction:
The purpose of those covenants is to protect the anticipations of the Township of Gloucester and the common grantees of the grantor in continuation of a golf course use as part of an overall scheme of development for the property herein restricted, with contiguous lands.
Because in 1987 the proposed subdivision of the land was still under review, the Planning Board agreed to a provision in the deed permitting, if necessary, future adjustment of the boundary lines of the restricted golf course property. That provision stated:
The above restrictions are unalterable; provided, however, that it is recognized that the exact outer boundaries of the 18- hole golf course may be subject to minor adjustments in the future as the surrounding property is subject to final subdivision.
The Township and the Grantor, its successors, heirs and assigns, shall enter into appropriate agreements in the future after final boundaries of the Golf Course are set as a result of final subdivision approvals in order to insure that the restrictive covenants set forth herein continuously control the boundaries of the Golf Course.
In reliance upon the developer's proposal and the deed restriction executed by the owners of the land, the Planning Board approved the subdivision and site plan, and 1,076 townhouse and condominium units were built and sold. A public offering statement, issued in accordance with the Planned Real Estate Development Disclosure Act, N.J.S.A. 45:22A-21, expressly notified potential buyers that the golf course would be permanently preserved. The owners of the 1,076 residential units now comprise six homeowners' associations named as defendants in this litigation.
In 2006, plaintiff filed a complaint for a declaratory judgment voiding the deed restriction and ruling that plaintiff is not prohibited from building more residential units on approximately five acres within the golf course property that are currently used as a driving range. At the time of the Planning Board action in 1987, a driving range existed at a different location on the golf course. It was moved to its current site during construction of the residential units so that it would be farther away from them.
Plaintiff's complaint alleged in two counts that the deed restriction did not apply to the driving range and that it is unenforceable because it does not precisely describe the boundaries of the restricted golf course property.
While the case was pending, plaintiff conducted a survey and determined that twenty-four of the 1,076 completed residential units encroach upon the metes and bounds of the restricted golf course property. Plaintiff amended its complaint to add a third count alleging abandonment of the deed restriction because of residential uses within the boundaries, and also because the property has been used for prohibited purposes over ...