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Carter Road Homeowner's Association, Inc.; S. Leonard Didonato On v. Lawrence Township Planning Board and Lawrence Township

August 9, 2011

CARTER ROAD HOMEOWNER'S ASSOCIATION, INC.; S. LEONARD DIDONATO ON BEHALF OF HIMSELF AND OTHER HOMEOWNERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
LAWRENCE TOWNSHIP PLANNING BOARD AND LAWRENCE TOWNSHIP, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. C-87-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 2, 2011

Before Judges Fuentes and Ashrafi.

Plaintiffs Carter Road Homeowner's Association, Inc., and S. Leonard DiDonato appeal from orders of the Chancery Division dismissing their complaint under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. We affirm.

Plaintiff Homeowner's Association is a not-for-profit corporation organized to represent the interests of residents who live on or own property near Carter Road in Lawrence Township. Plaintiff S. Leonard DiDonato is a resident and homeowner in the township and an officer of the Homeowner's Association. Plaintiffs filed this action to challenge a proposal by defendant Lawrence Township to lease property on Carter Road owned by the township for purposes of constructing cellular communications towers. Defendant Lawrence Township Planning Board is also named as a defendant because it granted "courtesy" approval of the township's proposal.

The relevant facts are not in dispute for purposes of the present appeal. In the late 1980s, E.R. Squibb & Sons, Inc., now known as Bristol-Myers Squibb, applied to the planning board for approvals to expand its existing research facility on property it owned in the township. On November 12, 1987, the planning board adopted Resolution 52-87, which granted Squibb "preliminary and final site plan and conditional use approval." A condition of the 1987 approval was that:

[Squibb] voluntarily agrees to dedicate to the Township of Lawrence a two-acre parcel of land along Carter Road between the southern property line and the northern driveway for an emergency services substation. A subdivision application with this two-acre dedication is to be submitted within one year.

Squibb subsequently applied for minor subdivision approval for the dedication of the two-acre Carter Road site to the township. On September 25, 1991, the planning board adopted Resolution 33-91 approving minor subdivision of the Carter Road site. In its findings of fact, the board stated that "[i]n accordance with Resolution 52-87 . . . the applicant voluntarily agreed to dedicate to the Township of Lawrence a two (2) acre parcel of land along Carter Road . . . for an emergency services substation."

By deed dated May 22, 1992, Squibb conveyed the Carter Road site to the township. Relevant to this litigation, the deed described the property as follows:

All that tract or parcel of land and premises, situate, lying, and being in the Township of Lawrence . . .

Being the same premises dedicated for emergency services in accordance with Resolution of Memorialization No. 33-91 adopted by the Lawrence Township on September 25, 1991.

In 1999, Verizon Wireless applied unsuccessfully to the township's zoning board of adjustment for a use variance and site plan approval for the construction of a cellular tower at property owned by Peterson's Nursery & Garden Market on State Highway 206, a site in an Environmental Protection Zoning District where wireless communications facilities are not a permitted use under the township's zoning ordinance. See Cellco P'ship v. Bd. of Adj. of Lawrence Twp., No. A-4696-00 (App. Div. June 19, 2002). Having failed in that effort, Verizon made inquiries of the township to determine whether the Carter Road site was a viable alternative location to build a communications tower. A letter dated December 17, 2003, from the Township Manager to counsel for Verizon stated:

I reviewed with Township Council your clients' interest in collocation of telecommunications equipment on the ...


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