On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1909-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Baxter and Koblitz.
Plaintiff appeals from a trial court order granting summary judgment to defendant Cleary. After reviewing the record in light of the contentions advanced on appeal, we reverse that order and remand this matter to the trial court for further proceedings.
The matter has a complex factual background that must be set forth in order to understand the procedural steps that led to this appeal.
In 1994, plaintiff's predecessor, Beacon Road Associates, L.L.C. ("Beacon Road"), submitted an application to the Marlboro Township Planning Board to develop a parcel of land it owned in the Township's R-80 residential zone. The minimum lot size in that zone is 80,000 square feet, with a minimum street frontage of 250 feet. Beacon Road's property was identified as Lots 10 and 20, both of which fronted on Beacon Hill Road. It proposed to construct a street, Haven Way, running between Lots 10 and 20, from Beacon Hill Road and ending in a cul-de-sac. It further proposed to subdivide Lots 10 and 20 into separate building lots. This litigation involves the proposed subdivision of Lot 20, specifically subdivided lots 20.08 and 20.09.
Lot 20.08 was a five-acre parcel, clearly satisfying the minimum lot size of 80,000 square feet. Beacon Road needed a variance for this lot, however, because the plans as drawn gave it only a fifty-foot frontage on Haven Way. Absent that long, narrow driveway, Lot 20.08 would be a landlocked parcel. Such a configuration is referred to as a "flag lot" and we shall, in the balance of this opinion, refer to Lot 20.08 as the Flag Lot. The following diagram depicts the approved plan.
Lot 20.07 Haven Way Beacon Hill Road Lot 20.09 Lot 20.10 Lot 20.11 Flag Lot 20.08 ( 2 Lot 20.12
The Planning Board was concerned that Beacon Road might return in the future and seek to further subdivide the Flag Lot, an eventuality that was possible under Marlboro's zoning ordinance. Beacon Road assured the Board that it had no intention to seek a further subdivision in the future, and it agreed to include a deed restriction preventing such an occurrence. In June 1995, the Planning Board approved Beacon Road's application, subject to the condition that this Flag Lot "contain a deed restriction . . . restricting future subdivision based upon the variances granted for this lot."
Before proceeding with its proposed development, Beacon Road returned to the Planning Board in 1997 seeking approval of a revised plan to take advantage of the option of cluster zoning that was available under the Township's ordinances. The revised plan provided for smaller lot sizes but more open spaces. These revised plans, however, made no change with respect to the Flag Lot; it retained its flag configuration. In connection with this 1997 application, Beacon Road assured the Board that it would still agree to a deed restriction for this lot preventing any future subdivision of it. In June 1997, the Planning Board approved this revised cluster application, again conditioned upon a deed restriction for the Flag Lot "restricting future subdivision based upon the variances previously granted for this lot." Beacon Road, however, neglected to record such a deed restriction.
In August 1997, two months after the Board approved the revised plans, Beacon Road sold its interest in this project to plaintiff American Dream at Marlboro, L.L.C. ("American Dream"). American Dream had actual knowledge of the Board's resolutions and that approval of the proposed development had been contingent upon a deed restriction for the Flag Lot. In September, plaintiff entered into a Developer's Agreement with the Township to build homes on the approved subdivision. In that agreement, plaintiff expressly agreed to develop the Flag Lot in accordance with the earlier restriction. Paragraph 4 of the agreement states:
It is the express intention of the parties to incorporate into this Agreement all of the conditions and requirements set forth in all Resolutions of approval adopted to date by the Marlboro Township Planning Board concerning the subject property, as may be amended.
Further, paragraph 10 stated that plaintiff would comply with all conditions and requirements contained in ...