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Jesse Rosenblum v. Joseph Miele

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 4, 2011

JESSE ROSENBLUM, PLAINTIFF-APPELLANT,
v.
JOSEPH MIELE, GLORIA MIELE, BOROUGH OF CLOSTER, AND MIELE SANITATION CO., DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-306-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 6, 2010 - Decided Before Judges Fuentes and Ashrafi.

In 1990, defendants Joseph and Gloria Miele purchased a tract of land adjacent to their business, the Miele Sanitation Company, from defendant the Borough of Closter ("the Borough"). The deed conveying title to the Mieles contained certain restrictions on the use of the property.

In 2008, plaintiff brought legal action against all of the named defendants seeking a judicial declaration that the Mieles had violated the deed restrictions, thus triggering a reversionary clause that returned title to the property to the Borough. The matter was tried as a bench trial before the Chancery Division, General Equity Part. After hearing from the witnesses called by plaintiff, the trial court entered judgment in favor of defendants and dismissed plaintiff's complaint.

Plaintiff now appeals, arguing that the court erred by not finding that Miele Sanitation violated the covenants in the deed requiring it to remove an office trailer from its property and prohibiting the placement of compactors or other forms of solid waste activities. We are not persuaded by plaintiff's arguments and affirm substantially for the reasons expressed by the trial judge. We gather the following facts from the evidence presented at trial.

I

The minutes of a regular meeting of the Council of the Borough of Closter ("the Council") conducted on May 25, 1988, reflect that Joseph Miele expressed an interest through his attorney in acquiring a strip of land owned by the Borough measuring approximately 50 x 350 feet and adjacent to the property where Miele Sanitation and its recycling facility were located. The parties thereafter engaged in negotiations concerning certain matters the Borough wanted addressed as part of its decision to sell this tract of land to Miele*fn1 .

By letter dated June 20, 1988, the Borough's attorney James

A. Farber wrote to the Mayor and the Council to memorialize certain discussions he had had with Miele's attorney concerning the sale of the land. Specifically, Farber indicated that the deed to Miele would contain restrictions that the premises would be used for an office and garage and other uses permitted by the Borough Zoning Ordinances, but specifically prohibiting compactors, bailers [sic] or other facilities with which solid waste activities are conducted. In addition, the deed would have a reverter clause so that if the owner of the property, including any successors to Mr. Miele, were to violate the restrictions, the property would automatically revert to the Borough of Closter.

The trailer, which is presently located on Miele's existing property, would be removed and Miele would agree that no solid waste activity will be conducted on the portion of the property where the trailer now sits.

Farber suggested that the Council discuss the matter at its next meeting.

The record before the trial court also included a letter signed by Miele and addressed to his "fellow residents" of the Borough.*fn2 Through this letter, Miele sought "to refute the mis-statements [sic], distortions and outright lies" contained in certain "bulletins published by Jesse Rosenblum," concerning Miele's purchase of the tract of land. Among the statements set forth in this letter, Miele made the following representation concerning the trailer that was then situated on a section of the land occupied by Miele Sanitation:

The trailer on the property I presently own on Railroad Avenue which is used as an office, would have to be removed and the area it now occupies would have to remain vacant.

On May 24, 1989, the Mayor and the Council passed a resolution authorizing the sale of the strip of land in question and inviting those interested to submit bids under the procedures established by the resolution and pursuant to the Local Lands and Buildings Law, N.J.S.A. 40A:12-1 to -17.1. The resolution conditioned the sale of the land by requiring that the deed conveying title: (1) limit the use of the property to "uses permitted by the Borough Zoning Ordinance"; (2) specifically prohibit "compactors, balers or other facilities with which solid waste activities are conducted"; and (3) ensure the enforcement of these restrictions through a clause that would automatically revert title of the property to the Borough if the owner or his or her successors or assigns violate these restrictions.

Of particular relevance to our discussion, the resolution also included the following restriction, clearly intended to apply to Miele:

The successful bidder, if a contiguous property owner, [as Miele was] must remove any and all trailers presently located on said contiguous property with the further restriction that upon the removal of said trailers, solid waste activity shall not be conducted upon the portion of the land vacated by said trailer; removal of the trailers*fn3 must be done within a reasonable time of the issuance of a certificate of occupancy for an approximately ten thousand (10,000) square foot structure that it is anticipated may be built upon the property conveyed herewith[.] (Emphasis added.)

On March 7, 1990, Miele appeared before the Closter Planning Board to obtain a subdivision, permitting the Borough to sell the tract of land in question. The minutes of this meeting reflect Miele's counsel's representations before the Board:

[Miele's attorney] said that if the application is approved, the applicants would then file an application for site plan approval, because it is the desire of his clients to build. At least a portion of the building would be erected on the portion fronting on Railroad Avenue, being acquired from the municipality. . . . If all of the approvals are granted, the existing trailer would be removed, as well as a work shop, which now exists on portions of Lots 18 and 19.

By deed dated October 10, 1990, the Borough conveyed to the Mieles the strip of land in contention, now known as Lot 3.01. The deed contained the following restrictive covenants:

THIS DEED and the grant herein is subject to a restrictive covenant that so long as the property is used only for those purposes that are permitted and set forth as permitted in the Zoning ordinances of the parts." The Council agreed and thereafter formally approved the clarification and replaced "trailers" with the word "trailer" in the singular.

Borough of Closter and more specifically the property may not be used for the placement or operation of compactors or balers for recycling, or other facilities with which solid waste activities are conducted. This shall not preclude conducting business, office or garage services attendant to the business. This restriction shall only be held to apply to the property conveyed herein, and in the event of merger of properties shall not effect the use of the land presently owned by the Grantee, to wit: Block 46, [Lots] 18 and 19.

THIS DEED and the grant herein is further subject to the restrictive covenant that the office trailer presently located on Block 46, Lot 18 shall be removed permanently within a reasonable time and not replaced and further that the land vacated by said trailer shall not be used in any manner for the conduct of solid waste activities. The restriction contained herein shall not prohibit the use of the portion of the property where the office trailer had been located from use for the purposes of ingress, egress and parking. Reasonable time as set forth herein shall mean a reasonable time, not exceeding sixty

(60) days after the issuance of a Certificate of Occupancy by the Borough Construction Code Official for the proposed approximately ten thousand (10,000) square foot structure to be built upon the land conveyed herein.

IT IS further agreed by the Grantee that each of the two restrictions contained in this instrument shall, as between the parties to this instrument, their heirs, successors and assigns, be deemed to be and construed to be express conditions subsequent, upon each of which the conveyance is made. If Grantee shall neglect or fail to perform or act in a manner contrary and not comply strictly with said restrictions on Grantee's part, or any of them, then the property conveyed herein shall automatically revert back to the Grantor without any necessity of re-entry.

THE CONVEYANCE herein is further subject to all other terms and conditions set forth in Ordinance #1989-580 awarding the sale to Grantee herein and the resolution authorizing and establishing the sale. (Emphasis added.)

On August 14, 2008, plaintiff filed a complaint against the Borough and the Miele defendants seeking enforcement of the deed's reversionary clause. Plaintiff alleged that Miele had violated the restrictive covenants by failing to remove the office trailer and by placing and operating compactors on the property. The case was tried without a jury before the General Equity Judge.

II

In addition to his own testimony, plaintiff called as witnesses Sofia Hayman, the current Mayor of Closter; Everett T. Rogan, the Mayor at the time the Borough sold Lot 3.01 to Miele and Closter's current municipal attorney; Joseph Miele; George Cascino, a professional engineer and planner employed by Miele; and Leonard Sinowitz, the Borough's current Zoning Officer. Defendants did not call any witnesses. After considering the testimony presented as well as 184 pages of documents and diagrams, the court issued an oral opinion addressing the two central questions of the case: (1) Miele's failure to remove the office trailer and replace it with a 10,000 square foot office building; and (2) whether Miele's current use of the property violated the Borough's zoning ordinance.

With respect to the trailer, it is undisputed that Miele did not remove the trailer nor build the 10,000 square foot office building. The trailer remains in the same location it was in 1990 when Miele acquired Lot 3.01, and presumably serves the same function it served at that time.

Plaintiff argued before the trial court that the restrictive covenant in the deed obligated Miele to remove the office trailer within a reasonable time after acquiring Lot 3.01 and to replace it with the 10,000 square foot building. The judge rejected this argument based on the text of the covenant which defines "reasonable time" as "not exceeding sixty (60) days after the issuance of a Certificate of Occupancy by the Borough Construction Code Official for the proposed approximately ten thousand (10,000) square foot structure to be built upon the land conveyed herein." (Emphasis added.)

The judge explained her ruling as follows:

So the building that this paragraph anticipates was never built. I find that it is a condition precedent to the removal of the trailer, and therefore it was not necessary for Mr. Miele to remove the trailer from the adjoining property, and I have in mind that this is a industrial zone, and whatever blight one might argue that trailers have on a town, in this area, with the trucks and the concrete debris and the waste management facility, the fact that there is a trailer or two is not in my view, nor apparently in the view of the town, in any way disrupting the town or the sightliness or the enjoyment of its citizens.

So it does not surprise me that the town would read this restriction really to say that when an office building is built on this piece of property that was conveyed, then there wouldn't be any need for the trailers, so the trailer will go, but since there was no office building built, then the trailer can stay until and unless one is built, and that is the strict definition, that is the strict reading of this paragraph, . . . because in general the policy of this state is to allow people who own property to do what they wish with that property, as long as they conform to the prevailing codes that exist for everybody else. But any deed restriction that is on one piece of property alone, is to be read narrowly and strictly, because it's not favored that property is sold with restrictions.

So I don't see any reason, any equitable reason, or other reason to read that in our less strict manner.

The trial judge next addressed whether Miele's current use of the property, including the land used by Miele Sanitation before acquiring Lot 3.01, violated any municipal zoning laws. Specifically, plaintiff's argument focused on the restrictive covenant that prohibits "the placement or operation of compactors or balers for recycling, or other facilities with which solid waste activities are conducted."

As noted by the judge, plaintiff argued that Miele violated this restriction by permitting garbage trucks that have "compacting capabilities" to park on the property. The judge rejected this argument by distinguishing a garbage truck with compacting capabilities from a conventional compacter. Relying on the testimony of the Borough's Zoning Officer, whom the court characterized as an expert witness, the judge did not find any evidence that the property was being used in a manner not permitted by the local zoning laws. Any deviation from such laws caused by the placement of a "grappler" on the back of the property was "de minimis."

Our standard of review of a court's decision following a bench trial is well-settled. The judge's factual findings should be upheld if they are supported by sufficient credible evidence in the record. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009). This approach expressly prohibits us from engaging in an independent assessment of the evidence as if we were the court of first instance. State v. Locurto, 157 N.J. 463, 471 (1999). We do not owe the trial court such deference, however, when we review the court's legal conclusions. Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

Before we review the court's legal analysis, we reaffirm that our State's common law disfavors restrictive covenants because such restrictions burden the alienability of property. Cooper River Plaza E., LLC v. The Briad Grp., 359 N.J. Super. 518, 526 (2003). Restrictive covenants are thus strictly construed and will be enforced only when the right to restrict is made manifest in clear, unambiguous language. Ibid.

Here, the trial judge concluded that the restrictive covenant relating to the office trailer did not require the removal of the trailer until after the much-discussed replacement office structure was built. Because the text of the covenant supports this legal conclusion, and given the Borough's position in support of this judicial construction, we discern no legal basis to substitute our judgment for that of the trial court. This judgment is supported by the clear text of the covenant, and the record of negotiations leading to the sale of the property. Upholding the trial court's ruling is also consistent with the principles disfavoring a strict enforceability of restrictive covenants.

We affirm the court's ruling concerning whether the current use of the property violates prevailing municipal zoning regulations substantially for the reasons expressed by the trial judge. The record clearly supports the judge's characterization of the placement of grapplers on the Miele property as de minimis. There had been no State or municipal prosecution against the Mieles associated with the placement of these machines, and here again the Borough did not consider this episode severe enough to warrant the extreme remedy of reversion.

Affirmed.


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