DANIEL WORTS v. GLORIA C. DITTMAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4625-06T24625-06T2

DANIEL WORTS and BARBARA WORTS,

Plaintiffs-Appellants,

v.

GLORIA C. DITTMAR, ANCHU

ASSOCIATES, AT&T, TOWNSHIP

OF DENVILLE, TOWNSHIP OF

DENVILLE WATER DEPARTMENT,

DAVID A. VALVANO, 19 ELCOCK

AVENUE, INC., STEVEN KOVACS,

MARIA KOVACS, MARIANNE SASHENOSKY,

BIBLE FELLOWSHIP CHURCH, INC.,

and MARGARET A. SULLIVAN,

Defendants-Respondents.

_________________________________________________________

 

Argued September 8, 2008 - Decided

Before Judges Carchman, R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, C-98-04.

Mark J. Brancato argued the cause for appellants (McHugh & Brancato, LLP, attorneys; Mr. Brancato, on the brief).

Fred Semrau argued the cause for the respondents Township of Denville and Township of Denville Water Department (Dorsey & Semrau, attorneys; Carolyn M. McGuire, on the brief).

Richard J. Clemack argued the cause for respondent 19 Elcock Ave., Inc.

Stephen N. Severud argued the cause for respondents Steven Kovacs and Maria Kovacs.

Wilf Law Firm, LLP, attorneys for respondent AMCHU Associates (Melissa B. Popkin, on the brief).

Nusbaum, Stein, Goldstein, Bronstein & Kron, attorneys for respondent Gloria C. Dittmar, join in the briefs of all other respondents.

PER CURIAM

Plaintiffs Daniel and Barbara Worts, contract purchasers of property abutting Crystal Drive in Denville, appeal from orders dated March 5, 2007, denying their motion for summary judgment and granting the cross-motions for summary judgment filed on behalf of defendants, including the Township of Denville and Township of Denville Water Department, 19 Elcock Avenue, Inc. and Steven and Maria Kovacs. Plaintiffs sought quiet title and a declaration recognizing an easement across the property of certain defendants to afford plaintiffs access to Diamond Spring Road via a "traveled roadway" now known as Mary Avenue.

With respect to the claim against the Township defendants, plaintiffs sought an order declaring that Mary Avenue is a public roadway and that their property along Crystal Drive abuts an improved roadway. Consistent with such a declaration, they also sought an order directing the Township and its public departments and agencies to accept their application for a construction permit without the requirement of variances related to access or the satisfaction of the requirement that the premises abut an improved roadway.

The Township building official rejected the Worts's application for a building permit on the ground that the property did not meet the requirements of N.J.S.A. 40:55D-35 and -36, and the Township defendants refused to grant a variance to overturn the rejection by the building official. Pursuant to the pertinent statutory provisions, the property was found not to abut a street giving access to the proposed building or structure in that it is situated on a roadway that was neither dedicated or accepted as a public roadway. Moreover, the referenced Mary Avenue was determined to be a private right of way that traverses private property, as to which plaintiffs failed to establish an easement or other right of access. We have considered the arguments raised by plaintiffs in their attempt to compel the issuance of a building permit, and for substantially the reasons articulated by Judge Catherine M. Langlois in the well-reasoned written statement of reasons issued in connection with the four orders dated March 5, 2007, we affirm.

As noted above, plaintiffs are contract purchasers of Lots 97-99, Block 60207 in Denville, commonly known as 31-35 Crystal Drive ("the property" or "plaintiffs' property"). Plaintiffs applied to the Township to construct a single-family dwelling on the property, which is undeveloped pristine forest. Walter Stefanacci, the Township's Zoning Officer, denied plaintiffs' application on February 27, 2002, reasoning, that "a building or structure must be related to a street. Crystal Drive is unimproved." Stefanacci added that a building permit could not be issued unless the Board of Adjustment were to grant an "E" variance. Plaintiffs then sought a variance from the Board of Adjustment ("the Board"), but the Board refused to hear plaintiffs' request because plaintiffs were not able to demonstrate a right to access the traveled roadway to get to Crystal Drive and because plaintiffs' application was incomplete. Eventually, plaintiffs' application was dismissed by the Township without prejudice.

The only access to the subject property is via a traveled roadway which connects to Diamond Spring Road. The traveled roadway was paved by the Township "in the manner that a simple driveway would be paved," rather than in the manner that the Township would typically surface an improved street. The Township paved the traveled roadway after originally having put gravel on it to provide a safer driving surface for the handful of local residents using the street. Defendants Steven and Maria Kovacs, through whose property the traveled roadway runs, objected to its paving. Like Crystal Drive, the traveled roadway is plowed and occasionally maintained by the Township.

At the end of the traveled roadway, where it intersects with Diamond Spring Road, is a street sign designating the traveled roadway as "Mary Avenue." However, the traveled roadway is not identified on the Township Tax Map as "Mary Avenue." On the Tax Map, it is identified only as "Traveled Roadway." Mary Avenue, an unimproved paper street on the Township Tax Map, runs parallel to the traveled roadway from its inception at Crystal Drive before turning north toward Muriel Hepner Park. The traveled roadway continues west before intersecting with Diamond Spring Road. It passes through nine different lots, including the properties of defendant AMCHU Associates ("AMCHU") (block 60305, lot 5); defendant AT&T (block 60305, lot 10); defendant 19 Elcock Avenue, Inc. ("Elcock") (block 60305, lots 24 and 29); and defendants Steven and Maria Kovacs (block 60305, lot 34). These lots, along with many others, were once owned by Mary Wright.

In 1907, Wright bought from Daniel Dickerson two parcels of land totaling approximately forty-one acres. The conveyance consisted of a 38.21-acre tract, which included "lots fronting on Crystal Drive, Wright Avenue, Sunnyside Avenue and the southerly side of Mary Avenue," and a 2.92-acre tract, which "include[d] the lots fronting on the easterly side of Mary Avenue." The 2.92-acre tract, which presently consists of lots 6, 11, and part of lot 2 on block 60305, received the benefit of "a right of way twenty-five feet in width now used on the north side of the Morris Canal and leading from the property conveyed . . . to the road leading from Denville to Boonton," which is presently known as Diamond Spring Road. Robert P. Tank, of Heritage Abstract Company, stated in his report that the 38.21-acre tract did not receive the benefit of this right of way, which "is designated on the filed map as Dickerson Avenue which runs along the northerly side of the Morris Canal and extends to Diamond Spring Road."

In 1913, Wright sold a portion of her land to Gotham Homes Corporation, including the same "right of way" language as the 1907 conveyance. Following the 1913 land transfer, several paper streets, none of which are dedicated as public roadways, were created: Crystal Drive, Sunnyside Avenue, Wright Avenue, Dickerson Avenue, and Mary Avenue.

On January 27, 2004, Richard V. Larson, of Glen Eagle Title Agency, Inc., prepared an expert report on behalf of plaintiffs. He noted that plaintiffs' property was part of the 2.92-acre tract acquired by Wright in 1907, which, unlike the 38.21-acre tract, received the benefit of a right of way. According to Larson, in 1913, Wright sold a portion of this property to Gotham Homes, together with a right of way. Wright retained a portion of the property, which included lot 97, now owned by plaintiffs, along with a right of way. Larson opined that, "[a]s the individual parcels were sold off[,] an easement by necessity (implication) was created leading to the right of way on to Diamond Spring Road." He stated "an easement by implication exists over the 'traveled roadway'" through lots 5, 10, 18, 24, 29, and 34 on blocks 60207 and 60305, as well as lot 32, block 60101. In a February 14, 2004 letter, Larson concluded that Wright, in 1913, conveyed block 60305, lot 18, along with other lots along the traveled roadway, with the intention of utilizing the right of way for ingress and egress between the property she retained and Diamond Spring Road.

In the instant matter, Albert Szolossi, the owner of the property located at 61 Crystal Drive, certified that he has "always accessed [his] home by traveling upon Mary Road," the traveled roadway. He also stated that the owner of the Halenko property, located directly south of plaintiffs' property, at block 60207, lots 95-96, also uses the traveled roadway to access his home.

John Leonard testified at his deposition that since approximately 1946, he resided full-time in the Cedar Lake area of Denville, which is northwest of plaintiffs' property, and he had spent summers there previously. Leonard recalled that from approximately 1940 until 1950, he walked down the traveled roadway to go to Peer's Store, which was located at the intersection of Dickerson Avenue and Diamond Spring Road. Leonard was not alone in using that traveled roadway, as "[a] lot of people walked" along it during the 1940s. Leonard insisted he knew only one person who drove along the traveled roadway, as it was unpaved and there were rocks sticking up in the roadway, making it better suited for foot travel. At its narrowest point, the traveled roadway was about four-feet wide.

In this appeal, as they did in the motions for summary judgment in the Law Division, plaintiffs contend that their complaint was improperly dismissed because they do, in fact, have a legal right to access the traveled roadway in order to travel to and from their property. Their argument continues, the Township should not have denied their application because they are able to lawfully access an improved public road.

That argument was rejected by the Law Division for good and sufficient reasons. As Judge Langlois summarized: "plaintiffs have not proved by clear and convincing evidence that an easement, along the currently traveled Mary Avenue, was expressly reserved or granted in the Wright transfer of 1907, or to Gotham Homes in 1913." Nor have plaintiffs "proved that any implied easement was intended because there is express design otherwise and because there is insufficient proof that the right-of-way referred to in deeds -- or by common usage -- was that used at the time of the transfer."

Findings by the trial judge are considered binding on appeal when supported by adequate substantial and credible evidence. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We are satisfied there is adequate substantial and credible evidence to support the findings of Judge Langlois. Moreover, the judge's legal conclusions are sound. Plaintiffs failed to establish that they had an easement affording them access to Diamond Spring Road.

There are four types of easements: (1) easement by necessity; (2) quasi-easement by implication; (3) express easement; and (4) easement by prescription. Leach v. Anderl, 218 N.J. Super. 18, 24 (App. Div. 1987). Plaintiffs, in their brief, appear to contend that they have the benefit of either an express easement or a quasi-easement by implication. An express easement is created by grant, and "the language of such a grant is controlling." Id. at 28. Plaintiffs, whose land was once owned by Wright, contend that they are entitled to use of the right of way acquired by Wright in 1907 from Dickerson. That right of way was described in the 1907 deed as being "twenty-five feet in width now used on the north side of the Morris Canal and leading from the property conveyed as described above, to the road leading from Denville to Boonton." Plaintiffs aver that the right of way described in the 1907 deed is the same as the traveled roadway depicted on the Township Tax Map.

The trial court concluded, however, on substantial credible evidence, that the current traveled roadway is not the same as the right of way included in the 1907 deed. The right of way identified in the deed was "on the north side of the Morris Canal" and twenty-five feet in width. The traveled roadway runs along the north side of the Morris Canal only between Diamond Spring Road and the bend in Mary Avenue, before proceeding north, away from the canal, and eventually running perpendicular to the canal. Furthermore, the traveled roadway was not twenty-five feet in width, as Leonard testified that it was as narrow as four-feet wide at points. Since the right of way described in the 1907 deed is not the traveled roadway that plaintiffs seek to access, they do not have a legal right to access the traveled roadway by virtue of an express easement. Moreover, the property-owner defendants, through whose property the traveled road passes, have not granted an easement to plaintiffs.

Plaintiffs also contend that they are entitled to benefit from an easement by implication. A finding of an easement by implication is based on the severance of once-unified property, where a part of the land had, prior to severance, been used to benefit another part. Cale v. Wanamaker, 121 N.J. Super. 142, 146 (Ch. Div. 1972). Such an easement may be found where the use of such is apparent, continuous, permanent, and reasonably necessary for the enjoyment of the dominant land. Leach, supra, 218 N.J. Super. at 26. These elements must be found to have been in existence at the time of the severance of the land. Cale, supra, 121 N.J. Super. at 146; see also Ghen v. Piasecki, 172 N.J. Super. 35, 43 (App. Div. 1980). The subject property is pristine forest, not used over the last thirty years by anyone.

In the instant case, there is simply no evidence in the record that shows that Wright's use of the asserted easement was apparent, continuous, permanent, and necessary at the time she sold the land on which the easement is located to Gotham Homes in 1913. There is no marking on the 1913 map of the Gotham Homes property indicating the existence of an easement across the Gotham Homes property. There is similarly no indication of any pathway or easement route on Wright's own map of her property as of 1907. Leonard's deposition testimony only goes as far back as the 1940s, and thus cannot be considered in determining the nature of the use of the land at the time of the 1913 severance. Though the deeds (from Dickerson to Wright and from Wright to Gotham Homes) state that the referenced easement was "now used," the referenced easement was not the traveled roadway now at issue. Plaintiffs simply have not established that an express easement or an easement by implication exists over the properties of Kovacs, Elcock, AT&T, and AMCHU.

Public land use bodies are "allowed wide latitude in their delegated discretion" due to "their peculiar knowledge of local conditions." Jock v. Zoning Bd. of Adj., 184 N.J. 562, 597 (2005). Only where such a body's action is arbitrary, capricious or unreasonable will a court intervene and substitute its judgment for that of the body. Phillips v. Bd. of Adj. of Westfield, 44 N.J. Super. 491, 500 (App. Div.), certif. denied, 24 N.J. 465 (1957). Similar judicial deference is not afforded,

however, where questions of law bear upon the body's decision. Bubis v. Kassin, 184 N.J. 612, 627 (2005).

Pursuant to N.J.S.A. 40:55D-35,

No permit for the erection of any building or structure shall be issued unless the lot abuts a street giving access to such proposed building or structure. Such street shall have been duly placed on the official map or shall be (1) an existing State, county or municipal street or highway, or (2) a street shown upon a plan approved by the planning board, or (3) a street on a plat duly filed in the office of the county recording officer prior to the passage of an ordinance under this act or any prior law which required prior approval of plats by the governing body or other authorized body. Before any such permit shall be issued, (1) such street shall have been certified to be suitably improved to the satisfaction of the governing body, or such suitable improvement shall have been assured by means of a performance guarantee, in accordance with standards and specifications for road improvements approved by the governing body, as adequate in respect to the public health, safety and general welfare of the special circumstance of the particular street and, (2) it shall have been established that the proposed access conforms with the standards of the State highway access management code adopted by the Commissioner of Transportation under section 3 of the "State Highway Access Management Act," P.L. 1989, c. 32 (C. 27:7-91), in the case of a State highway, with the standards of any access management code adopted by the county under R.S. 27:16-1 in the case of a county road or highway, and with the standards of any municipal access management code adopted under R.S. 40:67-1 in the case of a municipal street or highway.

[Emphasis added.]

This requirement is intended to "assure adequate access to every structure for emergency vehicles necessary to protect health and safety." Kligman v. Lautman, 53 N.J. 517, 523 (1969). However,

[w]here the enforcement of [N.J.S.A. 40:55D-35] would entail practical difficulty or unnecessary hardship, . . . the board of adjustment may upon application or appeal, vary the application of [N.J.S.A. 40:55D-35] and direct the issuance of a permit subject to conditions that will provide adequate access for firefighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety.

[N.J.S.A. 40:55D-36 (emphasis added).]

The Legislature's use of the word "may" in N.J.S.A. 40:55D-36 indicates that the decision to relieve an applicant from N.J.S.A. 40:55D-35 is in the Board of Adjustment's discretion.

In the instant case, plaintiffs' application for a building permit was denied by the Township Zoning Officer because plaintiffs' lot did not abut an improved street and their subsequent application for a variance was denied by the Board without a hearing for the same reason, in addition to plaintiffs' application being "incomplete." Plaintiffs, in their appellate brief, contend that the Zoning Officer's denial of a building permit, rather than the Board's refusal to hold a hearing, was arbitrary and capricious. It is undisputed, however, that plaintiffs' property does not abut an improved street. It abuts Crystal Drive, which is paved but unimproved.

 
Additionally, plaintiffs have established no right of access to Diamond Spring Road by way of the traveled roadway, which is similarly unimproved. The Zoning Officer, therefore, properly denied plaintiffs' application for a building permit. Moreover, and while the Board may have exercised its discretion to direct the issuance of a building permit subject to conditions, there is nothing in the record of this case to support a claim that the Board abused its discretion. Hence, the Law Division properly refused to overturn the Board's exercise of discretion, and we affirm.

Affirmed.

The four orders respectively (a) deny plaintiffs' motion for summary judgment; (b) grant the Township defendants' motion for summary judgment; (c) dismiss plaintiffs' complaint and the counterclaims of 19 Elcock Avenue, Inc.; and (d) grant summary judgment in favor of the Kovacs and deny the Kovacs' request for fees.

The traveled roadway bisects lots 34 (Kovacs), 29 (Elcock), 24 (Elcock), and 18 before running along the north side of the Morris Canal.

It should be noted that this is in conflict with Tank's report, which states that the 2.92-acre tract consists of lots 6, 11, and part of lot 2 on block 60305, of which plaintiffs' property is not a part.

(continued)

(continued)

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A-4625-06T2

September 9, 2009