On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-000167-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...