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Acp Burlington, LLC v. Burlington Holdings


August 10, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-000167-05.

Per curiam.


Argued: November 10, 2011 -

Before Judges Cuff, Waugh, and St. John.

Defendant Burlington Holdings, LLC (Burlington) appeals from an order granting plaintiff ACP Burlington, LLC (ACP) summary judgment in a quiet title action. In resolving this appeal, we consider whether ACP's attempt to extinguish a right of way over its property by an adjacent property owner may proceed as a quiet title action or must commence before the planning board, which imposed the right of way as a condition of site plan approval. We hold that ACP should have applied in the first instance to the local planning board to eliminate that condition. We, therefore, reverse the order granting summary judgment to ACP.

In November 1972, R & A Fagan, Burlington's predecessor-in-title, owned Block 116, Lot 1-A (now Lot 1.01 or the Fagan-Burlington Lot) in Burlington Township, Burlington County. Calvey Properties Corporation, Harvin Property Group, and Calvin Bell (collectively, Calvey), ACP's predecessors-in-title, owned Block 116, Lot 2 (the Calvey-ACP Lot), adjacent to and south of the Fagan-Burlington Lot. Both lots abut Burlington-Mount Holly Road/Route 541 and share a lot line.

Calvey sought to construct a K-Mart store and Fagan sought to construct a Robert Hall clothing store. On November 28, 1972, both appeared before the Township of Burlington Council (Council) in a proceeding to approve a variance recommendation by the board of adjustment. During this meeting, the Council expressed its concerns about an increase in traffic on Route 541 attributable to these retail uses. The Council suggested the predecessors-in-title of ACP and Burlington should install and share mutual ingress and egress with a traffic signal controlling left-hand turns out of the shopping center. Calvey offered to pay for costs to install the signal, including engineering and construction costs. Later in the meeting, Fagan stated it would "be willing to share a common egress, and ingress, with [Calvey] - if that would be agreeable to them" in addition to sharing the costs of installing the signal.*fn1

On March 19, 1973, Calvey appeared before the Burlington Township Planning Board (Planning Board) seeking approval of the proposed site plan for the K-Mart store. During the meeting, the Planning Board reiterated the Council's "number two condition [to the development] . . . that [Calvey] guarantee that the Robert Hall Shopping Center will have access to the signalized entrance and exit." Although Calvey had discussed that possibility with Fagan, Calvey explained Fagan "would rather have [its] own entrance because [Calvey and Fagan] are competitive to start with." Nonetheless, Calvey stated:

With respect to the traffic plan that we have submitted to you on behalf of Mr. Bell [the president of Calvey] we have met with the principals of the adjacent property where they propose a similar retail establishment and we have then, and we do now, officially offer the availability of the access point into and through [Fagan's] property for installation shown on the plan.

It being clearly understood that the proposal made here with respect to the traffic is done for the basic benefit of the proposed shopping center and that should a signal be approved by the County and the State that the cost of that signalized installation shall be borne by Calvey in conjunction with the other developing entities, should they elect to use it. . . . Our arrangement with others would be subject to private agreements. . . .

[B]ut if we are able to obtain [a traffic light] we will undertake the cost of doing it . . . with or without the Robert Hall.

In response to Calvey's offer, a member of the Planning Board stated: "I guess that's the only thing we can require of you, that you do what you say you're going to do and make it available to [Fagan]."

Calvey again appeared before the Planning Board on April 16, 1973, to discuss the proposed development of its property. During the meeting, Calvey read the Council's letter into the record which approved Calvey's site plan conditioned on, among other things, Calvey "provid[ing] a means of allowing ingress and egress to the adjacent property along the northernly [sic] property line to any proposed development." Calvey then read its answer into the record:

We will deliver an access license agreement in form as annexed hereto to enable the owner of the property adjacent on the north to our property to gain access to [Route 541] . . . .

We will comply with all items . . . of the Burlington County Planning Board letter on or prior to the issuance of the building construction permit.

Towards the end of the meeting, Calvey requested the Planning Board approve the site plan, "subject to the traffic plan proposed and approved by the Burlington County." For such approval, Calvey was prepared to seek approval by the State and undertake the cost and construction of the proposed signalization, "whether or not the Robert Hall Group either proceeds or does not proceed, and in addition thereto [it] would and have made available to them a proposed signalization for either them or whomever eventually develops the property." Towards the end of the meeting, the Planning Board again expressed its concern about a common entrance for the adjacent developments, to which Calvey agreed and stated it would provide a copy of the License Agreement which contained such rights.

The Planning Board approved Calvey's application by resolution dated May 21, 1973. It conditioned the approval on, among other things, the construction of the common entranceway and signalization:

Left turns for both ingress and egress will be via an entranceway on the northern boundary of the property, which entranceway shall be a joint entranceway with the adjacent property. This entranceway shall and must be signalized by means of a traffic light. The Board notes that this demand is also made by the Burlington County Planning Board in their letters of April 12, 1973, April 2, 1973, March 30, 1973, February 26, 1972, etcetera. The Board finds that this is the most important consideration perhaps in the development of this property. Construction can and shall not be undertaken without a signalized entrance and exit drive providing for left turns in and out of this and the adjacent property. . . .

[The site] is hereby approved subject to the conditions summarized below and as set forth in more detailed form above as part of this Resolution:

(1) There shall be no left turn ingress or egress fro[m] the property without signalization. Said signalization shall be located to serve the adjacent property to the north and placed on a common boundary line between the properties. There shall be no construction unless and until the light is installed or proof satisfactory to the Mayor and Council is given that said light will be installed prior to issuance of a certificate of occupancy.

On June 27, 1973, Calvin Bell, on behalf of Calvey, executed an agreement in favor of the Board of Chosen Freeholders of the County of Burlington, in which it "covenant[ed] and agree[d] . . . to perform certain work" including to: Provide means of permitting ingress and egress to the adjacent land (Lot 1A, Block 116, Sheet 16 of Burlington Township Tax Map) along the northerly property line of the lands of the undersigned (Lot 2, Block 116, Sheet 16 of Burlington Township Tax Map), all as more fully set forth in a certain License Agreement therefor, dated the date hereof.

The agreement was recorded as a "Road Easement," in Book 1852, Page 1059, on June 30, 1973.*fn2

Also on June 27, 1973, Calvey executed a License Agreement in favor of Robert Hall Clothes, Inc. "or any other operator of a similar type of retail business" for use of the ingress and egress. The License Agreement contained a termination date of June 30, 1976, if the Fagan-Burlington Lot was not used for a similar retail purpose by that date. An attached map designated the ingress and egress as an "easement." The License Agreement was not recorded.

The Robert Hall clothing store was never constructed on the adjacent property, which remains undeveloped. The K-Mart opened in 1974; the driveway accessing Route 541 was constructed and a traffic signal was installed. The K-Mart closed in 2009.

On October 20, 2005, ACP filed a one-count quiet title action against defendant Burlington. ACP sought an order declaring and adjudging its property not encumbered by any easement, license, or right of access in favor of Burlington. Burlington filed an answer and counterclaim in which it alleged:

(1) ACP's property was burdened by an easement and right of way benefiting defendant's adjacent property, and (2) it has a prescriptive easement.

In response to cross-motions for summary judgment, the General Equity judge granted summary judgment in favor of ACP. The motion judge stated he had examined the transcripts of the 1972-73 hearings and did not find that a right of access by defendant over ACP's property was the most important or even a significant condition of site plan approval. He found a traffic signal on the county road to control access to the two properties was the "most important consideration." Furthermore, the motion judge held the License Agreement was a parol license, revocable at ACP's will. Furthermore, the judge found that neither Burlington's predecessor-in-title nor any other "benefactor" availed itself of the License Agreement by the date it expired; therefore, the License Agreement "by its own terms, was revoked" and is not enforceable. The motion judge also rejected the argument that "filing of a map and deed of dedication and then proceeding to build an access road and signalization constitute[d] a waiver of ACP's right to revoke the license described in the License Agreement."

In reaching this conclusion, the motion judge examined not only the written agreement prepared by ACP's predecessor-in-title but also the record of the site plan approval. Although the judge recognized that the site plan approval carried several conditions, in the end the judge relied almost exclusively on the written agreement. In doing so, the judge discounted the relationship between the agreement and the site plan approval and vacated a condition imposed in that very approval.

This court applies the same standard as the motion judge in its review of an order granting summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The motion "court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Here, the issue before the motion judge went beyond the legal effect of language of a written agreement. The motion judge also had to consider his authority to excise a condition of a prior land use approval.

A planning board or board of adjustment is vested with the authority to approve a site plan or a variance subject to conditions. Meridian Hosps. Corp. v. Borough of Point Pleasant, 325 N.J. Super. 490, 504 (App. Div. 1999), certif. denied, 163 N.J. 80 (2000). These conditions are often development-specific to mitigate specific concerns generated by a proposed project. Ibid. Conditions must be reasonably designed to address the specific concern generated by the proposed development and must advance a legitimate land use purpose. Ibid.; Berninger v. Bd. of Adjustment, 254 N.J. Super. 401, 405 (App. Div.), aff'd o.b. 127 N.J. 226 (1992). Conditions relating to access, including obtaining a permit to gain access to a state or county road, are common. For example, N.J.S.A. 27:7-89 to -98 governs access to state highways, and the board of chosen freeholders has the authority to approve development proposals along a county road, N.J.S.A. 40:27-6.1 to -6.11. A planning board may also require an applicant to attempt to relocate an easement on property of an adjoining property owner, although the planning board cannot affect the rights of an adjoining property owner not before the board. See Tennis Club Assocs. v. Planning Bd. of Teaneck, 262 N.J. Super. 422, 433 (App. Div. 1993) (holding planning board cannot obligate applicant to acquire another's property needed for off-site improvements). Here, of course, the adjoining property owner, Burlington's predecessor-in-title, was before the Planning Board, and its proposed development plan presented similar ingress and egress concerns as its neighbor. Moreover, a planning board has the power to enforce its conditions to a site plan approval against a successor-in-interest to the extent the successor utilizes the development in accordance with the site approval. See River Vale Planning Bd. v. E & R Office Interiors, Inc., 241 N.J. Super. 391, 394-95 (App. Div. 1990); see also Toll Bros., supra, 194 N.J. at 242 ("A municipality's authority to plan and zone and, in so doing, to impose conditions on a developer, is a delegation of police power." ).

In E & R Office Interiors, supra, the planning board sought to enforce the conditions to the predecessor's site plan approval against the defendants, the predecessor- and successor-in-interest. 241 N.J. Super. at 394. The defendants argued the board could not enforce the conditions because the development was abandoned and the successor did not reap the benefits of the approval. Id. at 397. This court held the municipality had three options to enforce its authority over the site plan approval: (1) "rescind the site plan approval in its entirety"; (2) "impose those conditions on any occupier of the land who seeks to obtain the benefit of the site plan approval"; and (3) "reasonably enforce its ordinances to the extent any violations exist or may occur." Id. at 400. The municipality's power to enforce the conditions, however, exists "only if the developer proceed[s] with the project contemplated by the application and approval." Ibid. The court found, because the defendants had abandoned the predecessor's plans, the successor was not bound by the conditions nor barred from submitting a new development application under the doctrine of res judicata. Id. at 400-01.

Correspondingly, the Supreme Court has held the Municipal Land Use Law (MLUL) "explicitly codifies the right of a party to request a change in the conditions of approval in N.J.S.A. 40:55D-12(a), which requires public notice and hearing 'for modification or elimination of a significant condition or conditions in a memorializing resolution[].'" Toll Bros., supra, 194 N.J. at 246-47 (quoting N.J.S.A. 40:55D-12(a)). This application should also be made to the local planning authority or its successor, which granted the initial approval. Ibid.; Allied Realty, Ltd. v. Borough of Upper Saddle River, 221 N.J. Super. 407, 414 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988).

Aldrich v. Schwartz, 258 N.J. Super. 300, 302-03 (App. Div. 1992), illustrates the continuing vitality of a condition imposed on a variance or site plan approval and the remedies available to excise the condition. The board of adjustment granted the predecessor-in-interest a variance with several conditions to the subdivision plan. Ibid. The predecessor-in-interest failed to file or record the subdivision plan; however, the planning board and the board of adjustment had recorded its decision and actions. Id. at 305. The successor-in-interest, unaware of the conditions at the time of purchase, filed a multi-count complaint in the Chancery Division, seeking, among other things, quiet title and invalidation of the restriction. Id. at 305-06. The judge granted summary judgment in favor of the plaintiff because he was a bona fide purchaser without notice. Id. at 306.

On appeal, this court reversed and remanded, holding the conditions on the variance were binding on the subsequent owner, regardless of notice. Id. at 307-08. We explained, however, the successor maintained three other means of relief. First, "[a]n innocent buyer may seek re[s]cission or fraud damages from a seller who knew but concealed the existence of a variance condition." Id. at 310. Second, the buyer may "seek a judgment declaring that the condition was invalid when it was imposed and attached to the variance." Ibid. Third, a buyer may "apply for a variance to the Board of Adjustment, seeking cancellation of the variance condition on grounds cognizable under N.J.S.A. 40:55D-70c(1) and (2)" which set forth the board of adjustment's powers to hear appeals and requests for interpretations of its decision, respectively. Id. at 311.

Here, the condition, whether a license, easement or right of way, is a constituent part of the site plan approval. The motion judge found the right of way was not "the 'most important consideration' for the development of the property"; therefore, he was not required to engage in the analysis required by N.J.S.A. 40:55D-12(a) to eliminate or modify a condition. However, nothing in N.J.S.A. 40:55D-12(a) requires a condition to be the "most important consideration" for it to continue to burden the property and the successors-in-title. Instead, N.J.S.A. 40:55D-12(a) only requires the condition be "significant."

The record of the 1972 variance approval clearly reflects the importance of a mutual ingress and egress. For example, during the November 28, 1972 meeting, the Council stated its "number two condition [was] that [Calvey] guarantee that the Robert Hall Shopping Center will have access to the signalized entrance and exit." Again, during a meeting on April 16, 1973, the Planning Board imposed several conditions on the site plan approval, including requiring Calvey to "provide a means of allowing ingress and egress to the adjacent property along the northernly [sic] property line to any proposed development." (emphasis added). The Planning Board later memorialized this condition in its Resolution, stating the "entranceway shall be a joint entranceway with the adjacent property," and the signalization "shall be located to serve the adjacent property to the north and placed on a common boundary line between the properties." In addition, Calvey recorded an agreement, confirming it would permit ingress and egress to the adjacent Burlington Property along its northerly property line.

The Planning Board had the power to impose such a condition on the applicant. Violation of this condition may affect the continued viability of the site plan approval. Calvey completed development of the Calvey-ACP Lot by 1974; therefore, ACP has reaped the benefits of its predecessor's site plan approval and is bound by the Board's imposed conditions. ACP's means of redress in this instance is an application to modify or excise the condition on notice as required by the MLUL including notice to the county. The motion judge should have declined jurisdiction in this instance and instructed ACP to petition the Planning Board for a modification or excision of the condition, pursuant to N.J.S.A. 40:55D-12(a).

We, therefore, reverse the September 10, 2010 order granting summary judgment to ACP.


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