EUGENE MORI v. HARTZ MOUNTAIN INDUSTRIES, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5783-03T55783-03T5

EUGENE MORI,

Plaintiff-Appellant,

v.

HARTZ MOUNTAIN INDUSTRIES, INC.,

Defendant-Respondent.

___________________________________

 

Argued September 14, 2005 - Decided

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, No. L-2009-03.

Todd M. Sahner argued the cause for appellant

(Marcus, Brody, Ford, Kessler & Sahner,

attorneys; Mr. Sahner, on the brief).

D. Mark Leonard argued the cause for respondent

(Horowitz, Rubino & Patton, attorneys; Joseph M.

Aronds, of counsel and on the brief).

PER CURIAM

In April 2003 plaintiff filed a declaratory judgment action seeking a declaration that, as the owner of property adjoining lands owned by defendant Hartz Mountain Industries, Inc., he was entitled to connect to roadways located on Hartz's property and that he did not have to reimburse Hartz for some of the costs it had incurred in years past constructing those roads in conjunction with developing its land. Plaintiff has appealed from the trial court's order granting Hartz's motion for summary judgment. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff owns a tract of land located in Secaucus and North Bergen, within the area subject to the jurisdiction of the New Jersey Meadowlands Commission ("NJMC"). Plaintiff acquired this land following the death of his father in 1975, a time at which the NJMC was known as the Hackensack Meadowlands Development Commission ("HMDC"). Throughout the course of this opinion, we shall, for ease of reference, simply use the term "Commission" when referring to this body.

Hartz acquired the balance of the land owned by plaintiff's father from the executor of his estate and commenced to develop the property in the early 1980's. The land owned by Hartz now contains office buildings, stores and hotels, linked by an extensive road system that Hartz constructed, which, in turn, connects with the adjoining public streets.

Plaintiff's land, on the other hand, remains undeveloped. The tract, comprising nearly one hundred thirty-six acres, is shaped like an inverted L. At the end of the long leg of the L, the property has seven hundred sixteen feet of frontage on Paterson Plank Road. Cromakill Creek runs through the property in a north-south direction and much of the land on both sides of the creek is undevelopable wetlands. The uplands portion of the tract, containing developable land, is located at the short leg of the L and abuts the New Jersey Turnpike. Property developed by Hartz abuts the uplands portion of plaintiff's land and runs along the long leg of the L.

At each stage of its development activities, Hartz was required to obtain approval of its development plans from the Commission. From the very beginning, the Commission noted, in approving Hartz's requests for variances, its intent that plaintiff and Hartz cooperate in their development efforts. In a letter dated March 2, 2001, the Commission addressed the question whether

Hartz [] is required to make the principal roads within [its] Harmon Meadows Development open for general public use. In particular, must Hartz allow the connection of Park Place (within Harmon Meadows) to an extension of Park Place (which would be built by neighboring property owner Mori) so that the extended Park Place could serve as a through road to West Side Avenue? In a similar vein, must Hartz allow for the public use of Plaza Drive as part of an enlarged common means of ingress and egress to Paterson Plank Road for both Hartz' Harmon Meadow[] Development and the proposed development on the Mori tract?

The Commission answered both these questions in the affirmative. It expressed its view that "Hartz is firmly obligated, based upon the premises and conditions stated in the [Commission's] approvals for the Harmon Meadows Development, to allow for the general public use of the . . . roads and their connection to the Mori tract. . . ." According to the Commission's letter:

It is our position that the 1980's approvals for the Harmon Meadow Development require that Park Place and its extension via Plaza Drive to Paterson Plank Road be open to the general public and serve as part of an interconnected roadway plan extending to West Side Avenue and as a common means of ingress and egress by both Mori and Hartz to Paterson Plank Road.

In 2001 the Commission had before it applications for variances both to develop an additional portion of the Hartz property as well as plaintiff's land, plaintiff having signed a contract with a developer known as Star Heller. On September 28, 2001, the Commission's chief engineer wrote separately to Hartz and to Star Heller, indicating conditional approval of the respective applications. The letter directed to Star Heller stated:

The 1980's approvals for the Harmon Meadow Development require that Park Place and the extension via Plaza Drive to Paterson Plank Road be open to the general public and serve as part of an interconnected roadway plan extending to West Side Avenue and as a common means of ingress and egress by both Mori and Hartz to Paterson Plank Road. . . . As you are aware this Office is concurrently reviewing an application for similar development . . . referenced herein as Hartz . . . The property owner's acknowledgement and acceptance of these conditions relative to traffic and the need for interconnected roads servicing both tracts shall be memorialized in a Developer's Agreement between the parties (Mori and Hartz) and the NJMC.

The letter directed to Hartz contained virtually identical language.

Hartz, as an adjoining property owner, filed an appeal of the conditional approval given to the Star Heller project. Although it had never previously challenged the Commission's earlier statements as to Hartz's obligations to permit plaintiff to connect to its road system in developing his land, Hartz included that among the numerous grounds it asserted in support of its position the Commission improperly approved the Star Heller project.

Eventually, in January 2003, the Commission revoked the zoning certificate it had previously issued for the Star Heller project, concluding that the application that had been submitted had failed to demonstrate that the State had released all the riparian claims it might have to this site. Plaintiff, in turn, appealed this revocation. Plaintiff and the Commission settled that appeal in May 2003 by affording plaintiff more time to address this issue. The record before us does not indicate whether plaintiff has, to date, obtained a resolution of the riparian question.

On April 17, 2003, the Commission approved Hartz's application for proposed on-site improvements to the parcel it wished to develop. In granting that approval, the Commission noted that although Hartz was obligated to permit plaintiff's property to connect with Park Place, it had "no obligations pursuant to this condition until a 'ready, willing and able' owner/developer of the Mori property requests the commencement of negotiations regarding the Park Place Connection."

On April 11, 2003, several days prior to the issuance of the Hartz approval, plaintiff filed the declaratory judgment action at issue in this appeal. As we noted earlier in this opinion, plaintiff sought to have the trial court declare his entitlement to connect to the existing Hartz roadway system and to do so without contributing to the cost of construction of those roads. Plaintiff asserted two grounds to support his clamed right of connection: the prior declarations by the Commission and that he held an easement by necessity.

In connection with this action, plaintiff served an engineering report prepared by George Cascino who had previously served as the Commission's chief engineer. Within his report, Mr. Cascino expressed the opinion that the only way to achieve access to the developable portion of plaintiff's property was either through connection with the Hartz roadway or by constructing a bridge across Cromakill Creek. According to Mr. Cascino, environmental considerations made the latter a virtual impossibility.

The trial court issued a letter opinion in which it declined to rule upon plaintiff's first two claims, finding those to be within the jurisdiction of the Commission. It ruled as a matter of law that plaintiff did not possess an easement by necessity and granted summary judgment, dismissing plaintiff's complaint. On appeal, plaintiff contends that he was entitled to the declaratory judgment relief he sought and that the trial court erred in finding he did not have an easement by necessity. We reject all of plaintiff's contentions and affirm.

We are satisfied the trial court correctly declined to give plaintiff the declaratory relief he sought. The land in question is subject to the jurisdiction of the Commission, which is vested with the statutory power "to review and regulate plans for any subdivision or development within the [Meadowlands] district," N.J.S.A. 13:17-6(r), and "to adopt and enforce codes and standards" for such development. N.J.S.A. 13:17-6(i). "A plaintiff may not seek relief in the trial court when the Legislature has vested exclusive primary jurisdiction in an agency." Town of Kearny v. Hackensack Meadowlands Dev. Comm'n, 344 N.J. Super. 55, 60 (App. Div. 2001). A declaratory judgment action is not a substitute for required agency approval. Mutschler v. Dep't of Envtl. Prot., 337 N.J. Super. 1 (App. Div.), certif. denied, 168 N.J. 292.

The judgment that plaintiff sought, moreover, would not have provided him with effective relief. Plaintiff had not defined the route he sought to use and had not provided the traffic studies required by N.J.A.C. 19:4-4.13. He did not have in hand Commission approval for a development proposal, and he would thus still have had to return to the Commission for approval of specific plans and connections.

We are further satisfied that the trial court correctly concluded that plaintiff is not entitled to invoke the doctrine of easement by necessity, which "arises by operation of law where an owner of land conveys to another an inner portion thereof, which is entirely surrounded by lands owned by the conveyor." Leach v. Anderl, 218 N.J. Super. 18, 25 (App. Div. 1987) (citations omitted). It is undisputed that plaintiff's property has more than seven hundred feet of frontage on Paterson Plank Road; by definition it cannot be considered landlocked. Difficulty in obtaining access to the upland portion of the tract is not the equivalent of the parcel being landlocked.

Because plaintiff was not entitled to the declaratory relief he sought, the judgment under review is affirmed.

 

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9

A-5783-03T5

October 6, 2005