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Stephen M. Lamanna and Lila D. Lamanna v. Russell Charles Swan and Benjie Swan and Zoning Board of Adjustment of

July 20, 2012

STEPHEN M. LAMANNA AND LILA D. LAMANNA, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
RUSSELL CHARLES SWAN AND BENJIE SWAN AND ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MIDDLE, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-724-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 12, 2012

Before Judges Sabatino, Ashrafi, and Fasciale.

Victoria A. Steffen, attorney for respondent/cross-appellant Zoning Board of Adjustment of the Township of Middle, on the statement in lieu of brief and joins in the brief of Russell Charles Swan and Benjie Swan as to the cross-appeal only.

This appeal and cross-appeal involve a host of easement and land use issues relating to contiguous properties in Middle Township. Plaintiffs Stephen and Lila Lamanna ("the Lamannas") appeal from the trial court's ruling that the owners of an adjoining lot, defendants Russell and Benjie Swan ("the Swans"), had proven at trial the right to a prescriptive easement for residential use over a roadway on the Lamannas' property. The Swans, in turn, cross-appeal from the trial court's denial of their right to use that prescriptive easement for commercial purposes, specifically, for a laboratory on the Swans' property that extracts blood from horseshoe crabs for medical use. In addition, the Swans cross-appeal from the trial court's separate decision reversing a use variance granted to them by the Middle Township Zoning Board ("the Zoning Board") to operate the laboratory and to combine two principal uses, residential and commercial, on one lot.

For the reasons that follow, we affirm the trial court's rulings on the easement issues, albeit for slightly different reasons based upon intensity-of-use considerations. However, we reverse the trial court's nullification of the variances that were granted to the Swans by the Zoning Board.

I.

Although the appeals before us stem from separate proceedings on the easement and land use issues, we describe the overlapping facts and procedural history together.

The Subject Properties

The properties at issue are located in the Highs Beach section of Middle Township in Cape May County. The Lamannas own Block 148, Lot 6, which is a 35.5 acre parcel. That narrow property is approximately 300 to 400 feet wide and 3/4 of a mile long. Lot 6 is bordered to the east by Route 47, also known as Delsea Drive; to the west by Bay Avenue; to the south by the Swans' property; and to the north by Highs Beach Road, a road that runs east to west from Route 47 to Bay Avenue.

Most of Lot 6 consists of woodlands. However, the Lamannas own a dwelling, a two-story barn, and accessory structures on the easterly portion of Lot 6, near Route 47. There is also a cottage on the westerly portion of the tract.

The Swans own Block 148, Lot 7.02, directly to the south of the Lamannas' Lot 6. Lot 7.02 is bordered by Route 47 and a small tract (Block 148, Lot 7.01) to the east; Delaware Bay to the west; the Lamannas' property to the north; and Block 149, Lot 1 to the south. Lot 7.02 is a narrow parcel, similar in shape and size to the Lamannas' property. The improvements on Lot 7.02 are located on the westerly portion of the tract. The remainder of Lot 7.02 is primarily woodlands. The parcel has a number of isolated wetland areas.*fn1

Highs Beach Road, a public road, runs from Route 47 west, just north of the Lamannas' Lot 6. The road intersects with Bay Avenue, also a public street. Bay Avenue then runs due south along the westerly side of the Lamannas' lot.

The Lamannas claim that Bay Avenue ends before the southerly terminus of their lot. At that location, according to the Lamannas, there is a twelve-foot-wide right of way, which they refer to as their "driveway."*fn2 It is this stretch of road, as to which the Swans claimed a right of access by way of a prescriptive easement. If such an easement were recognized, the Swans would gain access for Lot 7.02 through the disputed right of way to Bay Avenue and then to Route 47.

Bay Avenue ranges in width from about seventeen to twenty-five feet. Where it runs along the Lamannas' property, Bay Avenue is composed of dirt, sand, and shells. The road was graded by the Township in the 1970s. Both Bay Avenue and Highs Beach Road were dedicated to the Township as public roads in 1948 as part of a subdivision.

The parties and the trial judge all proceeded under the assumption that Bay Avenue ended at some point before the Swans' property line and that the Swans, therefore, required an easement to gain access to Bay Avenue from Lot 7.02.*fn3 The Zoning Board operated under the same assumption that Bay Avenue did not reach Lot 7.02, as reflected by its resolution granting the Swans relief from the provisions of N.J.S.A. 40:55D-35. That statute forbids the granting of a permit for the erection of any building or structure "unless the lot abuts a street giving access to such proposed building or structure." Thus, the Board apparently likewise viewed Lot 7.02 as being, in essence, landlocked.*fn4

The Chain of Title and Historical Uses of the Properties

The relevant proofs concerning the chain of title to these properties and the properties' prior uses were as follows. Lot 6 was apparently established by way of a deed from Franklin Hoffman to Rebecca Camp in 1891. In the 1920s, the Camp family operated a horseshoe crab fertilizer factory on the site. Rebecca Camp conveyed the property to the State in 1931.

Lot 7 was conveyed to the Erricson family in 1921. In 1935, Lot 7 was subdivided into two thirty-five-acre lots, with the tracts given reciprocal easements. However, the easements stopped at what was described as the "Camp line," the dividing line between Lots 6 and 7.

Russell Conover, who had lived in the Township for eighty-six years, testified that a King Crab factory had operated on the Swans' lot in the 1930s and 1940s. He further testified that an oyster or crab shucking house was thereafter located on Lot 6. Conover accessed that site through Bay Avenue. He never observed a gate on Bay Avenue.

Gus and Julia Luciano purchased Lot 6 in 1946. They started a business renting out small beach cottages along the dunes. Gus Luciano also constructed a fishing pier on the bay side of the lot. The Lucianos' house was situated at the other end of the property, near Route 47.

In June 1950, Norman Jeffries leased a portion of Lot 6 from the Lucianos. He later assigned the lease to his company, East Point Oyster. The lease stated that Jeffries "shall at all times have free and unobstructed access to the demised premises from the public roads adjacent to the lands of the [Lucianos]."

In December 1950, East Point Oyster purchased Lot 7 from the Erricson family. Jeffries then constructed an oyster shucking house, an office building, and a small house on the westerly portion of the lot. The shucking house apparently employed several year-round employees.

Charles Cubbler, who lived on Bay Avenue just north of Highs Beach Road in the summers from 1945 to 1957 and continued to visit the area on weekends thereafter, testified that Bay Avenue was used sparingly until the shucking house was built in 1951. After that time, Cubbler recalled that various trucks used the road to access Lot 7. However, according to Cubbler, most of the trucks used Gus's Beach Road.

Joseph Hollinger, who spent summers in Highs Beach from 1955 to 1960, testified that in 1955 the Lucianos blocked off Bay Avenue with a chain because of a dispute with Jeffries.

Jeffries removed the chain, which led to an altercation with Julia Luciano. As a result, Julia Luciano was apparently charged with assault. The assault matter was heard in municipal court, and Ms. Luciano was fined and was ordered to remove the obstruction. Hollinger never saw Bay Avenue blocked off thereafter.

An oyster blight took place in the late 1950s, resulting in the shucking operation changing its primary operation to clams. The shucking house eventually ceased operations following two major storms -- one in 1960 and another in March 1962.

In 1963, William Lambert purchased Lot 7 from Jeffries. Lambert's son testified that when he went with his parents to visit Lot 7, he saw no people or signs of activity.

According to Cubbler's testimony, in the 1960s, after the shucking house had ceased operations, he noticed people living on the site. He recalled that the site generally remained occupied thereafter. Cubbler observed cars traveling in and out of Lot 7 in the 1970s. He also recalled seeing a metal gate on Bay Avenue at some point, but he did not remember it ever being closed.

Walter Canzonier, who worked for Rutgers University, testified that he collected shells for research on the bay side of Lots 6 and 7 after the shucking house had been destroyed until 1965 or 1966. Canzonier used Bay Avenue to access the properties, and he did not recall seeing any gates. Douglas Stanford, who lived in the area from 1950 to 1969, similarly testified that he never saw a gate or other obstruction on Bay Avenue.

John Mathis, who used to swim near the bay from about 1969 until the early 1980s, testified that he saw cars and other activity on Lot 7 "occasionally." He recalled very little traffic coming from Gus's Beach Road onto Route 47 because the road was flooded a great deal of the time.

David Webb, who fished in the bay off Bay Avenue during the summer, testified that he saw cars coming to and from Lot 7 from the time he started fishing in 1964 until the time he stopped in the late 1970s. Webb also claimed that there were people living on Lot 7 the majority of each summer. However, Glen Stites, who had lived on Highs Beach Road since 1970, testified that he did not recall anyone living on Lot 7 when he moved in.

Lambert sold Lot 7 to Cape Bay Homes, Inc., whose principal was Ernest Schleusener, in 1970. Cape Bay filed an application for a variance to construct a planned unit development in 1971. However, the Zoning Board denied that application. Nonetheless, a house was constructed on Lot 7 around that time.

Lot 7 was subdivided in 1974 to create Lot 7.01, a one-acre parcel along Route 47. Lot 7 was redesignated as Lot 7.02, which is now owned by the Swans.

In 1983, Schleusener purchased Lot 7.02. Schleusener hired another individual to manage the property. Both Cape Bay and Schleusener rented the lot while they owned it. The Motter family lived on Lot 7.02 in the mid to late 1970s. Thereafter, the McPherson family apparently lived there in the late 1970s and early 1980s. From about 1981 to 1986, the Chase family lived there. Witnesses testified that members of the Chase family were apparently selling drugs out of the house. Sidney Chase testified that he was never told that he could not use Bay Avenue to get to and from his house, nor did he ever see any gate or chain blocking the road.

Janice Ablett, who began spending summers in Highs Beach in 1948, testified that trucks would come to the shucking house by both Bay Avenue and Gus's Beach Road. She recalled traffic going to and from Lot 7 from 1955 through the 1970s. She further recalled there being traffic in the area in the late 1970s and early 1980s, after the shucking operation had closed, because of the drug dealing apparently taking place on the site. Ablett stated that there was a gate on Bay Avenue during that time, but that it was never closed.

Gena Murray, who lived in Highs Beach in the 1970s and 1980s, testified that Gus's Beach Road became more difficult to use by the early 1980s because it was "grown over." Murray did not remember there being a gate on Bay Avenue near Lot 7.

Craig Coles, who visited Highs Beach in the summers starting in 1945, similarly testified that, after the Motters moved out of Lot 7, certain "druggies" moved in. Coles recalled seeing a gate on Bay Avenue blocking access to Lot 7 for a short period of time in the late 1980s or l990s.

The Lamannas' 1984 Purchase of Lot 6 and Ensuing Events

The Lamannas purchased Lot 6 in 1984. Lila Lamanna testified that a title search at the time of the purchase reflected that there were no easements benefiting Lot 7.02. Stephen Lamanna similarly testified that no one informed him that Lot 7.02 had an access easement over their property.

At about the same time as the Lamannas' purchase, Rose Hearon was hired to manage Lot 7.02 for Schleusener. Hearon stated that a young couple, apparently the Chases, were living on the property at the time. The Chases left in 1984 after reportedly being arrested for distribution of drugs. Hearon rented Lot 7.02 intermittently for several years thereafter. Access to the property, including trash collection, was always from Bay Avenue.

In 1986, an application to subdivide Lot 7.02 was denied by the Township Planning Board. The application sought to subdivide a two-acre lot at the bay end of the property, containing the house.

In late 1987, the Lamannas had a cottage moved to the westerly portion of Lot 6. The cottage was about twenty feet off Bay Avenue, and it sat near the midway point of the property line.

According to Mr. Lamanna, as a result of problems with trespassing and garbage dumping, he and his wife decided to erect a gate at the Route 47 entrance to Gus's Beach Road in 1986. Mrs. Lamanna testified that she and her husband put up another gate on Bay Avenue in the summer of 1989 because Bay Avenue and their driveway looked the same, and they wanted to establish a dividing line. She maintained that they kept the gate closed.

Hearon acknowledged that the Lamannas put a gate across Bay Avenue in the late 1980s, but stated that she would move it out of the way to access Lot 7.02. Hearon denied having any conversations with the Lamannas about the gate or asking them for permission to use the driveway.

The Start of the Horseshoe Crab Blood Extraction Operations and Other Events

In September 1989, Hearon rented Lot 7.02 to James Finn, who used it to collect and bleed horseshoe crabs through a company named Finn-Tech. The operation was year-round. The blood from the crabs was then used to formulate the product limulus amoebocyte lysate ("LAL"), a substance with medical uses.*fn5

The Lamannas contended that they gave Finn a key to the gate. Mrs. Lamanna maintained that persons entering Lot 7.02, including Finn and, eventually, the Swans, had used the driveway only with the Lamannas' permission. Mr. Lamanna similarly testified that he gave Finn permission to use the driveway on a limited and temporary basis.

Defendant Mrs. Swan began working for Finn in September 1989. She accessed Lot 7.02 by way of Bay Avenue, as, she claimed, did most visitors and deliveries. However, some people used Gus's Beach Road to access the site.

At some point between 1989 and 1991, Mrs. Swan saw a gate on Bay Avenue about 150 feet from Highs Beach Road. She testified that, for about a year, the gate was opened and closed regularly. After that year, the gate was always left open.

During that time, Mrs. Swan contended that no one told her she could not use plaintiffs' driveway to access Lot 7.02.

Finn died in May 1991. Mrs. Swan then took over operation of the lab, which was renamed Limuli Laboratories.

The Swans' 1992 Purchase of Lot 7.02 and the Ensuing Dispute Over Access and the Driveway

The Swans ultimately purchased Lot 7.02 from the Schleusener's estate in July 1992. The Swans used the property both as a residence and for the commercial lab operation.

Mrs. Lamanna testified that after Finn died, Mrs. Swan asked for permission to use the driveway. Mrs. Swan allegedly told Mrs. Lamanna that the Swans would construct their own driveway as soon as possible. Mrs. Lamanna contended that Mrs. Swan acknowledged that she would not be permitted to use the driveway "forever." Mrs. Lamanna further testified that at some point the Swans put a "cable" across Gus's Beach Road near Bay Avenue. The Swans removed the cable after the Lamannas complained.

In her own testimony, Mrs. Swan denied ever asking the Lamannas for permission to use the driveway or thanking them for giving such permission. Mrs. Swan further testified that neither Finn nor Hearon told her that use of the road was permissive. She stated that a gate had been placed there only to prevent garbage dumping on Gus's Beach Road. She maintained that the Lamannas stopped closing the gate in 1993.

Mr. Swan similarly testified that he always believed that the driveway was a public road. According to Mr. Swan, he maintained Bay Avenue by pouring clamshells on the road and by fixing potholes, doing so without telling the Lamannas. Mr. Swan contended that he used to close the gate that the Lamannas had placed on the driveway when he and ...


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