JAMES SCOTT AND VICTORIA SCOTT v. WATSON DEVELOPMENT CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0782-04T5782-04T5

JAMES SCOTT AND VICTORIA SCOTT,

Plaintiffs-Respondents,

v.

WATSON DEVELOPMENT CORPORATION,

Defendant-Appellant.

_________________________________________

 

Argued March 22, 2006 - Decided April 5, 2006

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, C-23-04.

Patrick J. Madden argued the cause for appellant (Madden, Madden & Del Duca, attorneys; Mr. Madden, of counsel and on the brief).

Phil Muldoon argued the cause for respondents.

PER CURIAM

Defendant appeals a September 3, 2004, order requiring it to remove "trees and all structures, except the existing driveway" within an easement across its property that affords plaintiffs ingress and egress to their property. The order also enjoins defendant in the future from constructing "all structures except the existing driveway or installing trees" within the easement. Although labeled a "case management order," and further directing the parties to engage in arbitration over the dispute, the order, entered on the parties' cross-motions for summary judgment, grants plaintiffs' motion and would seem to be a final judgment. We reverse in short order as, contrary to the motion judge's initial statement in her oral decision that "I do not believe there's disagreement as to the fact," there are critical disputes of fact that cannot be resolved on cross-motions for summary judgment.

This is a dispute over an access easement granted by plaintiffs' predecessor-in-title to defendant. Before the motion judge were three certifications along with various documents. Two of the certifications were on behalf of plaintiffs. One of them, offered by plaintiff Victoria Scott, certified:

1. I am a plaintiff in the above entitled action. I am one of the owners together with my husband of the premises known as 7 Pine Ridge Court, Washington Township, Gloucester County, New Jersey.

2. My husband and I acquired the subject property from Karen D'Orazio by deed dated February 21, 2000, which deed is recorded in the office of the Clerk of Gloucester County in Deed Book 3088, page 263 & c.

3. The lot which we acquired (which was unimproved at the time) was part of a minor subdivision granted by the Washington Township Planning Board on October 19, 1999 which approval included a condition that Karen D'Orazio provide access for our lot as well as two adjoining properties onto Pine Ridge Court (formerly known as Helen Place Court) and to submit easements for such access to the Washington Township Planning Board for review and approval and recording.

4. Our property was located on a cul-de-sac designated as Helen Place Court, later named Pine Ridge Court, and did not have direct access to the cul-de-sac.

5. Subsequent to February 21, 2000, my husband and I constructed a two-story brick and frame dwelling on the subject premises as well as a driveway for ingress and egress to Pine Ridge Court.

6. The defendant, Watson Development Corporation, is the current owner and development of the premises known as Block 198, Lots 15 and 14.01, which is a 12-lot residential subdivision.

7. Watson Development Corporation acquired the subject premises from John Palladino.

8. Based upon the records of the Washington Township Planning Board, John Palladino applied for and obtained an approval for preliminary and final major subdivision with waivers and variances which approval was memorialized by Resolution No. 98-76 dated October 20, 1998. The resolution provided that the Board granted final major subdivision approval based upon the applicant's plans as submitted. The applicant's plans as submitted showed a driveway for the property adjoining the plaintiff on the opposite side of the location of the driveway as constructed by the defendant, Watson Development Corporation.

9. By letter dated October 14, 2002, a copy of which is attached hereto, the Planning Board engineer, Frank S. Morris, wrote to the Washington Township Planning Director with a copy to Mark Watson of Watson Development Corporation stating that the driveway to be constructed by the [defendant] was not in accordance with the plans and stated that the developer is required to provide a lot survey plan that shows a proposed driveway outside of the ingress/egress easement established for the resident at 7 Pine Ridge Court a/k/a Helen Place Court and the grading plan, which conforms with the approved plans.

10. Since October 2002, the plaintiff and its representatives have requested that Watson Development Corporation comply with the mandate of the Washington Township Planning Board approval to construct the driveway and any improvements outside of the ingress/egress easement which was created for the benefit of the plaintiffs. The Defendant has failed and refused to do so.

11. During the week of May 17, 2004, the defendant, Watson Development Corporation, began constructing the driveway and pillars within the easement area in question notwithstanding requests to refrain from doing so.

12. As a result of the fact that the defendant is constructing the driveway and the improvements within the easement area, we will be irreparably damaged in violation of the ingress and egress agreement which is for the benefit of our property.

The second affidavit, filed by plaintiffs' predecessor-in-title, Karen D'Orazio, certifies:

1. In October 1999, I was the owner of a tract of undeveloped ground in Washington Township, off of Hurffville-Grenloch Road known as Block 198, Lot 16.02 comprising 3.143 acres. At the time, Mark Watson, the owner of Watson Development Corporation, had acquired the property adjoining my property from John Palladino with the purpose of developing 11 residential lots on a road to be developed known at that time as Helen Place Court.

2. In order to provide sanitary sewer for the 11 lots to be developed, Mark Watson needed to obtain a sewer easement over the lands which I owned tying to the sewer connection on Hurffville-Grenloch Rd. There was no other feasible option for the required water and sewer for the 11-lot subdivision other than an easement over my property. In return for the water and sewer easement, I would obtain from Mr. Watson certain utility improvements within the easement area as well as the right of ingress and egress to the cul-de-sac from the properties which I owned adjoining the Watson subdivision. The easement areas in question for ingress and egress and for the sewer easement were identified on a subdivision plan previously approved by the Washington Township Planning Board under Resolution No. 98-96 granted to John Palladino, the predecessor in title to Mark Watson Development. It was understood and agreed by Mark Watson that he could not construct any structures or improvements of any kind within the area of the easement for ingress and egress. It was further understood that based upon the approved subdivision plan, the garage and driveway for the Watson lot 15.05 would be on the easterly side of the lot, not on the westerly side which adjoins the Scott property.

3. In order to implement this agreement with Mark Watson Development, a Sanitary Sewer Easement And Improvement Agreement was dated September 15, 1999 was executed and thereafter recorded in office of the Clerk of Gloucester County in Deed Book 3037, page 266. (a copy of said easement is attached hereto as Exhibit A). The easement agreement incorporated by reference the subdivision plans which had been previously approved by the Washington Township Planning Board on the application of John Palladino.

4. Thereafter, on October 19, 1999, I received approval from the Washington Township Planning Board for the subdivision of Lot 16.02 and 3 lots known as 16.02, 16.03 and 16.04 (Lot 16.04 was later sold to James and Victoria Scott). Because the lots did not have direct access to Helen Place Court, the Planning Board imposed a condition that ingress and egress easements would be required in order to provide access to all three lots onto Helen Place Court. The Watson subdivision plan fulfilled this requirement.

5. Based upon the matter subdivision approval, I negotiated the sale of lot 16.04 to James and Victoria Scott. They were advised by me that they had no frontage on a public street, however, unlimited access would be provided to Helen Place Court, a cul-de-sac, by an ingress and egress easement which as it was shown on the subdivision plan previously granted to John Palladino and which had been purchased by Watson Development. I advised the Scotts that based upon my agreement with Mark Watson of Watson Development, that there would be no structures or improvements of any type constructed by Mark Watson within the area of the easement for ingress and egress.

[Emphasis added.]

The written sewer easement referred to in this certification and entered into by D'Orazio as grantor and Watson Development Corporation as grantee, contains the following:

1.1 In accordance with the terms and conditions contained in this Easement Agreement, the Grantor hereby grants, conveys and transfers up to the Grantee, its successors and assigns, a 20 foot wide sanitary sewer easement across that portion of the Grantor's Property more particularly described on Exhibit A attached to and made a part of this Agreement (the "Permanent Easement Area").

2.1 It shall be the Grantee's responsibility to construct all sanitary sewer facilities in the Permanent Easement Area as required in accordance with the land use approvals for this Project.

3.1 The Grantor, its successors and assigns, shall construct no building, structure, nor shall it place any landscaping, equipment or impediment in the Permanent Easement Area which would impede the Grantee's use and enjoyment of this Easement.

. . . .

7.1 Grantee shall install the following improvements in order to accommodate the Grantor's development of the Grantor's Development:

7.1.1 Three stubs for sanitary sewer laterals.

7.1.2 Three stubs for waterlines.

7.1.3 Three stubs for electrical lines.

7.1.4 Three stubs for cable television lines.

7.1.5 Three stubs for natural gas lines.

7.1.6 Three stubs for telephone lines (The above collectively referred to as the "Utility Improvements").

7.2 The Utility Improvements shall be installed in the area identified as the "easement area" on the Plans, which area is immediately adjacent to the Grantee's Property. The parties acknowledge that the Utility Improvements are intended to be utilized by Grantor in order to service three-single family homes to be constructed by Grantor on the Grantor's Property.

. . . .

7.4 Grantee agrees to execute a separate easement agreement with Grantor after Grantee takes title to the Grantee's Property whereby Grantee grants unto Grantor and Grantor's successors and assigns a permanent easement across that portion of the Grantee's Property identified as the "easement area" on the Plans as may be necessary to accommodate the installation, maintenance, and repair of the utility improvements as well as for ingress and egress in and to the Grantor's Property from the Grantee's Property across the public street to be constructed by Grantee thereon in accordance with the Plans.

8. Any controversy or dispute arising under the terms of this Easement Agreement shall be submitted to binding arbitration on an expedited basis to an arbitrator mutually agreeable to the parties. If the parties are unable to agree on an arbitrator they shall apply to the American Arbitration Association for the appointment of an arbitrator. The arbitration shall be conducted in accordance with the commercial rules of arbitration of the American Arbitration Association. The party prevailing in such an arbitration shall, in addition to any other remedy afforded, be entitled to reimbursement for the cost of the arbitration, including but not limited to reasonable counsel fees. Either party shall have the right to enforce any arbitration award in accordance with the terms of N.J.S.A. 2A:24-1, et seq.

[Emphasis added.]

Pursuant to this agreement, D'Orazio gave defendant a twenty-foot wide permanent sanitary sewer easement across her lots and agreed not to construct any structure or place any "landscaping, equipment or impediment" in that easement. In return, defendant agreed to install utility improvements in an "easement area" "immediately adjacent to [it's] [p]roperty" and also agreed to provide D'Orazio with an easement over an "easement area" depicted on the subdivision plans for defendant's property. The use by D'Orazio and her successors of this easement area was "as may be necessary" for installation, maintenance and repair of the utility improvements and for access from D'Orazio's lots to the road. This "easement area" on defendant's property is distinct from defendant's sanitary sewer easement across D'Orazio's property. And, too, contrary to the factual assertions in plaintiff's certifications that defendant agreed not to construct anything in the "easement area" across its property, the only prohibition upon such construction that appears in the parties' written agreement relates to the sanitary sewer easement.

In any event, if there were any doubt as to summary judgment being an inappropriate vehicle for resolving the parties' dispute, the affidavit filed by Mark Watson makes that clear. He says in pertinent part:

1. I am the principal of Watson Development Corporation (WDC), the named defendant in the above captioned matter.

2. WDC is the owner of Block 198, Lot 15.05 (the "Watson Property") located in the Township of Washington, County of Gloucester, New Jersey and which is adjacent to plaintiff's property, which is shown on the municipal tax map as Block 198, Lot 16.04 (the "Scott Property").

3. WDC recently completed the construction of a driveway and two decorative pillars on the Watson Property as well as the installation of landscaping.

4. A portion of the driveway, decorative pillars and landscaping fall within an easement area granted partially for the benefit of the Scott Property to allow ingress and egress to and from the Scott Property and Helen Place Court also known as Pine Ridge Court.

5. While a portion of the improvements fall within the easement area, the improvements do not operate to interfere with ingress and egress to and from the Scott Property and Helen Place Court.

. . . .

9. At no time during the discussions surrounding the creation of the ingress and egress easement and sanitary sewer easement did I represent or agree not to construct structures or improvements within the ingress/egress easement area nor did I agree to construct the garage and driveway on the easterly side of the Watson Property.

10. It was never my understanding that I would be prohibited from making improvements in the area of the Watson Property encompassing the ingress/egress easement area.

11. It was my understanding that I would be permitted to construct improvements in the ingress/egress easement area provided such improvements did not interfere with the existing access to and from the D'Orazio Subdivision and Helen Place Court a/k/a Pine Ridge Court.

12. The construction of the improvements within the easement area has not affected the Scott's ability to access their property from Helen Place Court nor has it made their access more difficult or burdensome in any way.

[Emphasis added.]

That a dispute clearly exists over the extent and nature of the access easement over defendant's property is evident. None of the documents filed with the motion papers are definitive. While they show an area on defendant's property depicted as "easement area," they do not delineate the respective rights of the parties to and across that "easement area." It goes without saying, disputed facts cannot be resolved on conflicting certifications. Gilhooley v. County of Union, 164 N.J. 533, 545 (2000); Mackowski v. Mackowski, 317 N.J. Super. 8, 11-12 (App. Div. 1998); Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995); Fusco v. Fusco, 186 N.J. Super. 321, 327-29 (App. Div. 1982); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968).

The disputed facts are plainly material and preclude summary judgment. E.g., Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). To the extent plaintiffs rely upon communications from the Planning Board Engineer indicating defendant's location of its driveway within the area of the disputed easement was not as depicted on the approved plan, that is a matter for the Planning Board and has no bearing upon the parties' agreement as to the nature and extent of that easement.

"Where [as here, an] easement comes into being by way of an agreement . . . the 'universally accepted principle' is that 'the landowner may not, without the consent of the easement holder, unreasonably interfere with the latter's rights or change the character of the easement so as to make the use thereof significantly more difficult or burdensome.'" Kline v. Bernardsville Ass'n, Inc., 267 N.J. Super. 473, 478 (App. Div. 1993) (quoting Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 604 (1964)). See also Khalil v. Motwani, 376 N.J. Super. 496, 507-08 (App. Div. 2005). There is no dispute here that plaintiffs have an access easement over defendant's property in the depicted "easement area", both to get to their property as well as to service and maintain the utility improvements. That right is not being unreasonably interfered with. What additional rights plaintiffs may have in the easement area is hotly contested. Such a contest cannot be resolved on motion papers.

 
Reversed and remanded.

This second easement, which defendant gave to D'Orazio, was to be separately executed by defendant. Apparently that was never accomplished. The motion judge seems to have taken some umbrage at this but it really matters not as its terms are clearly set forth in the sanitary sewer easement agreement. The "easement area" itself is depicted on the approved plans filed in connection with defendant's subdivision application.

(continued)

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A-0782-04T5

April 5, 2006