AARON FRIEDMAN and ZEESY FRIEDMAN v. MTR VENTURES, LLC and NEW JERSEY AMERICAN WATER COMPANY and ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF LAKEWOOD IN THE COUNTY OF OCEAN NEW JERSEY and STEWART TITLE GUARANTY COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

AARON FRIEDMAN and

ZEESY FRIEDMAN,

Plaintiffs-Respondents,

v.

MTR VENTURES, LLC,

Defendant-Appellant,

and

NEW JERSEY AMERICAN WATER COMPANY

and ZONING BOARD OF ADJUSTMENT

OF THE TOWNSHIP OF LAKEWOOD IN

THE COUNTY OF OCEAN, NEW JERSEY,

Defendants,

and

STEWART TITLE GUARANTY

COMPANY,

Third-Party Defendant-Respondent.

____________________________________________

February 9, 2016

 

Before Judges Alvarez, Haas and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-111-12.

Steven Pfeffer argued the cause for appellant (Levin, Shea & Pfeffer, P.A., attorneys; Mr. Pfeffer, on the brief).

Michele R. Donato argued the cause for respondents Aaron and Zeesy Friedman.

Michael D. Mezzacca argued the cause for respondent Stewart Title Guaranty Company (Hartlaub, Dotten & Mezzacca, P.C., attorneys; Mr. Mezzacca, of counsel and on the brief).

PER CURIAM

Defendant MTR Ventures, LLC (MTR) appeals from the Law Division's August 7, 2014 order granting summary judgment to plaintiffs Aaron and Zeesy Freidman, and to defendant Stewart Title Guaranty Company (STGC). The order also determined an "easement over [plaintiffs'] property . . . to be strictly a utility easement in accordance with the recorded easement by New Jersey American Water Company [(NJAWC)] with no right of vehicular or pedestrian access for [L]ot 16[,]" a parcel of property owned by MTR.1 We affirm.

I.

We derive the following facts from the evidence submitted by the parties in support of their cross-motions for summary judgment.2 In 2002, MTR sought preliminary and final subdivision approval from the Lakewood Township Planning Board (Planning Board) for a proposed housing development3 on property MTR owned in the Township. This property included Lots 18.12 and 18.13 which, together with other lots, comprised "a double cul-de-sac that runs east to west." The Township owned Lot 16, an undersized, undeveloped parcel directly to the south of Lot 18.12. Lot 16 was also contiguous to Lot 18.13. "Lot 16 had no street frontage[,]" but Lots 18.12 and 18.13 each had access to the cul-de-sac.

Around this time, Township planning experts and MTR's attorney suggested the possibility that the Township sell Lot 16 to MTR so it could be incorporated into the Rose Park Crescent subdivision. Because the proposed development would leave Lot 16 landlocked, the parties also "discussed the need for [the Township and NJAWC to have] access to Lot 16, in the event that MTR did not acquire and consolidate Lot 16 with an adjoining lot."

MTR did not purchase Lot 16 at that time. After litigation concerning the project, MTR granted the Township and NJAWC an easement over Lot 18.12 as a concession to the Township for approving the Rose Park Crescent subdivision. A "final plat"4 for the subdivision "indicate[d] a twenty foot wide (20') 'access and utility easement to [NJAWC] and [the] Township' running over Lot 18.12 and connecting the Township's stranded undersized lot, Lot 16, to the cul-de-sac." As drawn "on the plat, the easement follow[ed] the southern border of Lot 18.12, extending twenty feet into Lot 18.12." The parties did not provide any further description of the easement and MTR never recorded it.

In May 2004, the Township decided to solicit bids from parties interested in purchasing Lot 16, and it adopted an ordinance initiating the bidding process. The ordinance required that the bidders own property contiguous to Lot 16 and that the successful bidder consolidate Lot 16 "with the premises they presently own which are contiguous to" Lot 16. The ordinance also advised prospective bidders that "[n]o variances shall be requested and/or permitted for this real property."

MTR submitted the only bid and, in July 2004, the Township passed a resolution approving the sale of Lot 16 to MTR. The resolution also "required [MTR] to consolidate Lot 16 with another lot owned by MTR, Lot 18.13[,] and prohibited variances for Lot 16." On September 29, 2004, the Township and MTR consummated the sale. The parties included a restrictive covenant in the deed prohibiting future variances for Lot 16. This restrictive covenant provided

[MTR] hereby agrees that [Lot 16 is] undersized and do[es] not comply with the Zoning Ordinances of the Township of Lakewood. Accordingly, [MTR] agrees that the premises herein are to be consolidated with the premises they presently own which are contiguous to the property as set forth herein. No variances shall be requested and/or permitted for this property.

MTR recorded the deed on December 6, 2004. However, it never recorded a deed consolidating Lot 16 with Lot 18.13.

MTR later sold Lot 18.12 to a developer. On May 11, 2006, that developer sold Lot 18.12 to plaintiffs. The property description in the deed referred to the final plat which, as stated above, depicted the access and utility easement to NJAWC and Lakewood Township. However, the developer did not otherwise reference the easement in the deed. At the time plaintiffs purchased Lot 18.12, "the curb and sidewalk around the cul-de-sac were completed. There was no curb cut or evidence of any access point along the portion of [plaintiffs'] property that MTR [would subsequently] claim to be an access easement" between the cul-de-sac and Lot 16. The twenty-foot strip ran "across [plaintiffs'] side yard which [was] landscaped and bordered by a fence." Sewer and water lines had been installed underground in the easement area.

Although the 2004 deed for Lot 16 contained a restrictive covenant clearly prohibiting MTR from seeking a variance for this property, MTR applied to the Zoning Board for a use variance. MTR did not advise the Zoning Board of the deed restriction during the application process. MTR's "application proposed to consolidate Lot[s] 16 and 18.13 'into a single tract and then subdivide the tract into eight proposed lots . . . .'" The "eight new lots would accommodate six townhouses as well as a parking lot and common area." This common area was described as a "tot lot" or playground. Under this proposal, Lot 16 would also be used for the backyards of the townhouses. None of these homes would be landlocked.

MTR then amended its application. The new application sought "final and major subdivision approval with variance relief and proposed to build two duplex units and a detached single-family residence on the combined-and-subdivided Lots 16 and 18.13." The proposal stated that the single-family residence would be constructed on "Lot 16.01," which would be comprised of Lot 16 and a small portion of Lot 18.12. Although slightly larger than Lot 16 had been, this new lot was still undersized and could not proceed without a variance.

Because MTR was going to build the duplex units immediately adjacent to Lot 16.01 where the single-family home would be built, Lot 16.01 and that home were now landlocked. However, MTR advised the Zoning Board that it would build a "driveway [for the single-family home] over plaintiffs' side yard" in the twenty-foot area comprising the easement previously granted to NJAWC and the Township.

On July 11, 2011, the Zoning Board issued a resolution approving MTR's application. When plaintiffs learned of MTR's plans, it filed a complaint against MTR, NJAWC, and the Zoning Board seeking to set aside the variance relief granted to MTR. Plaintiffs also sought a declaration that the easement NJAWC and the Township obtained on what became their property was a utility easement that did not permit MTR to construct a driveway through their side yard. One of the defendants filed a third-party complaint against STGC, which had provided title insurance to plaintiffs regarding their purchase of the property from the developer in 2006.

STGC filed a motion for summary judgment, arguing that the variance relief the Zoning Board granted MTR was prohibited under the restrictive covenant in the 2004 deed for Lot 16. Plaintiffs joined in this motion. MTR filed a cross-motion for summary judgment, and the Zoning Board filed a motion to dismiss plaintiffs' complaint.

Following oral argument, Judge Grasso found there was "no genuine issue of material fact" concerning the matters at issue in this appeal. On October 22, 2013, the judge issued a very thorough written opinion granting STGC's and plaintiffs' motions for summary judgment and "reversing and setting aside with prejudice the variance approval" set forth in the Zoning Board's July 11, 2011 resolution. In finding that the restrictive covenant prohibited the Zoning Board from granting variance relief, the judge stated

To find that the Board acted without authority, the court need only determine: (1) whether the Board violated the restrictive covenant; and (2) whether the [Township's] governing body imposed the restrictive covenant for the public's benefit.

Here, the record establishes that the Board violated the restrictive covenant by granting the variance. By its plain language, the restrictive covenant forbids both MTR from requesting variances for the property and the Board from granting one. It follows that MTR violated the restrictive covenant by requesting a variance for Lot 16. The Board violated the restrictive covenant by granting the variance. There is no representation nor does the record support a finding that the Zoning Board was advised of the deed restriction against variance relief. The court concludes the Board acted without this knowledge.

The judge continued

Furthermore, the record establishes that the [Township] imposed the restrictive covenant on Lot 16 for the public's benefit. The [o]rdinance recites that [the Township] sold Lot 16 only on condition that the successful bidder consolidate it with adjoining property. The July 8, 2004 resolution also evinces a legitimate Township concern regarding the undersized lot. The court finds [that] the Township deed restriction [w]as a presumptively valid action to further a public interest in preserving its zoning scheme and the avoidance of the development of undersized properties. The court finds that the Board acted without authority when it granted MTR's variance despite the restrictive covenant in the [d]eed prohibiting variances.

Therefore, the judge "reversed and set aside" the July 11, 2011 resolution. The judge denied MTR's motion for summary judgment and the Zoning Board's motion to dismiss. The judge did not address the issue of the scope of the "access and utility easement." On January 23, 2014, Judge Grasso issued an order memorializing his conclusions.

On February 4, 2014, STGC sent a copy of Judge Grasso's order to the Township. Two days later, STGC learned that, on May 30, 2013, shortly before the parties' motions were filed, MTR asked the Township to pass a resolution removing the restrictive covenant from the 2004 deed. MTR did not apprise the court, STGC, or plaintiffs of this request. MTR also failed to advise the Township of the pending motions or of Judge Grasso's October 22, 2013 decision. On December 5, 2013, the Township issued a resolution amending the 2004 deed to remove the restrictive covenant. However, the Township had not yet filed an amended deed.

On March 15, 2014, plaintiffs sent a letter to the Township, demanding that the Township rescind the resolution. On April 8, 2014, an MTR official sent an e-mail to plaintiffs, asking that they remove their fence because it was "blocking the entrance to [MTR's] property[.]"

When the Township did not respond, STGC filed a second motion for summary judgment. In this motion, STGC sought an order specifically stating that MTR's "subdivision of [L]ot 16 into [Lot] 16.01 is reversed and set aside; and" a declaration that "[n]o 'access easement' exists over [plaintiffs'] property . . . , only a utility easement." Plaintiffs supported this motion, and also sought to amend their complaint to add the Township as a defendant and raise additional claims. On June 3, 2014, the Township sent a copy of a May 8, 2014 resolution to STGC and plaintiffs. The May 8 resolution rescinded the December 5, 2013 resolution, thereby leaving the 2004 restrictive covenant in place on Lot 16.

MTR filed a cross-motion to vacate Judge Grasso's January 23, 2014 order and for summary judgment. The judge treated the pleading as a motion for reconsideration.

In support of its motion for a declaration that the easement on Lot 18.12 was a utility easement that did not permit MTR to build a driveway in plaintiffs' side yard, STGC submitted a "deed of easement and right of way" that plaintiffs and NJAWC had executed to clarify "the scope and nature of the access and utility easement" drawn on the final plat. In pertinent part, the deed stated the easement had been granted

for the purpose of installing, laying, operating, maintaining, inspecting, removing, repairing, renewing, replacing, relaying and adding to from time to time pipe or pipes, with necessary fittings, appurtenances and attached facilities, including laterals and connections (hereinafter collectively "Water and Sewer Mains") for the transmission and distribution of water, as well as sewer service

STGC also submitted a certification prepared by Robert Damoci, the Superintendent of NJAWC. Among other things, Damoci certified

In May 2012, [MTR] requested a stake-out of utilities in connection with their proposed development of duplex housing . . . designated as [Lot 16] ("MTR Duplex Property"). There is a 15-foot-wide easement on the MTR Duplex Property. Adjoining on the property of [plaintiffs, NJAWC] has a 20-foot-wide [e]asement for water and sewer utilities and access to those utilities. There is no written recorded document accompanying the [e]asement. The [e]asement contained water and sewer lines.

. . . I was not involved in the creation of the [e]asement on [plaintiffs'] property, but I know from reviewing the subdivision plat that it was noted on the plans for the Rose Park Crescent subdivision in which [plaintiffs'] property is located as a utility easement. It is customary for such utility easements to contain a right of access to maintain and replace the infrastructure and the note on the plans provides for that access.

. . . In some communities, NJAWC also provides sewer service and [the Township] is one of those municipalities. There is also a sewer line in the 20-foot-[e]asement on [plaintiff's] property . . . . It is my opinion that the 20-foot [e]asement on [plaintiffs'] property, as well as the 15-foot easement that continues through the MTR Duplex Property, were intended to provide water and sewer service to the Rose Park Crescent subdivision and to some [additional] houses . . . that did not have sewers.

Damoci also stated that NJAWC had accessed the utility easement "to cap off the water line on [plaintiffs'] property," and to confirm that sewer lines were also located underground. Damoci certified that "[a] standard form of utility easement provides for [NJAWC] to maintain utility infrastructure as well as to gain access to that infrastructure for repairs, maintenance[,] and replacement." MTR did not present any certification of its own contradicting Damoci's statement that the easement was merely a "utility easement."

Following oral argument, Judge Grasso issued another lengthy written opinion on July 17, 2014, granting STGC's motion for summary judgment; denying MTR's motion for reconsideration; and denying plaintiffs' motion to add the Township as a defendant. The judge determined that his January 23, 2014 order invalidating the Zoning's Board grant of variance relief to MTR also voided the Board's grant of subdivision relief. The judge reiterated that, because there was a restrictive covenant barring any variance relief, the Zoning Board lacked the "authority to grant subdivision and variance relief." Therefore, the judge granted STGC's motion for summary judgment on this issue, and denied MTR's motion for reconsideration.5

Turning to the question of the easement, Judge Grasso noted that MTR's argument that it retained an easement permitting it to "access" and build a driveway through plaintiffs' property was based solely on the notation on the final plat that there was a twenty-foot easement to NJAWC and the Township on Lot 18.12. However, the judge found "that the notation on the plat purporting to create an access and utility easement in favor of [NJAWC] and [the] Township reflects very little of the intent of the parties." Thus, in accordance with well-recognized precedents cited in his opinion, the judge examined "the circumstances behind the grant of the easement" in order "to determine the parties' intent regarding the nature and scope of easement[.]"

The judge reviewed the history of Lot 16. The judge found that the property "was an undeveloped, undersized, and stranded lot" and the Township never "intended to construct any structure on Lot 16, or otherwise put Lot 16 to any other use." Thus, the Township did not need a driveway to run over Lot 18.12 to its property. It simply needed a means for its employees to maintain Lot 16 while the Township owned it. The judge found that the Township's "always intended to sell Lot 16 so it could be consolidated with a contiguous lot" that had street access. The Township accomplished this goal when it sold Lot 16 to MTR, which was required to consolidate the property with Lot 18.13, which had access to the cul-de-sac. Therefore, the judge determined that the Township had no need for permanent access to Lot 16 through plaintiffs' property at the time it obtained the easement in 2004.

As for NJAWC, the judge found that Damoci's uncontradicted certification clearly established that the easement was for the placement of underground sewer and water lines that would service homes on the cul-de-sac and some additional nearby houses. The easement also enabled NJAWC to access, service, maintain, and replace these lines as necessary.

Finally, the judge noted that MTR failed to "submit[] any evidence that it acquired an access easement to Lot 16 at the same time as it acquired Lot 16." MTR also did not "point[] to [any]thing in the deed to Lot 16 conveying a separate right of access to Lot 16 that exists independently of the utility easement."

As Judge Grasso cogently explained

Viewing these undisputed facts in a light most favorable to MTR's position, the court finds that the easement running across plaintiffs' property was not intended to accommodate a driveway running to Lot 16. The court must view the grant of the access easement in the context of Lot 16 being an undersized, undeveloped lot that the Township intended to sell and consolidate with a contiguous property. The evidence in this record establishes that the utility easement that encumbers plaintiffs' property was intended only for permanent access to the water and sewer lines and not permanent access to Lot 16. Stated differently, the court finds that no reasonable, fair reading of this record would suggest that the parties contemplated a driveway over the easement. MTR cannot now claim a property interest greater than the one that was created in 2004. Simply put, this is a utility easement and nothing more.

On August 7, 2014, the judge entered an order memorializing his rulings. This appeal followed.

II.

On appeal, MTR raises the following contention

[MTR] GRANTED AN ACCESS EASEMENT GIVING LAKEWOOD TOWNSHIP ACCESS TO LOT 16 (THEN OWNED BY THE TOWNSHIP) VIA THE ROSE PARK CRESCENT CUL-DE-SAC AS A CONCESSION FOR THE SUBDIVISION APPROVAL OF ROSE PART CRESCENT, WHICH ACCESS EASEMENT IS STILL IN EXISTENCE.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Townsend v. Pierre, 221 N.J.36, 59 (2015). "Summary judgment must be granted if 'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show . . . there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment . . . as a matter of law.'" Town of Kearny v. Brandt, 214 N.J.76, 91 (2013) (quoting R.4:46-2(c)).

Thus, we consider, as the trial judge did, whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. (quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Nicholas v. Mynster, 213 N.J.463, 478 (2013).

We have considered MTR's contention in light of the record and applicable legal principles and conclude that it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that Judge Grasso properly granted summary judgment to STGC, and affirm substantially for the reasons expressed in his October 22, 2013, and July 17, 2014 written opinions. However, we make the following brief comments.

"Questions concerning the extent of the rights conveyed by an easement require a determination of the intent of the parties as expressed through the instrument creating the easement, read as a whole in light of the surrounding circumstances." Rosen v. Keeler, 411 N.J. Super. 439, 451 (App. Div. 2010) (citing Poblette v. Towne of Historic Smithville Cmty. Ass'n, Inc., 355 N.J. Super. 55, 63 (App. Div. 2002)). "[W]hen the intent of the parties is evident from an examination of the instrument, and the language is unambiguous, the terms of the instrument govern." Ibid. (alteration in original) (quoting Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957)).

However, when the language of the grant of the easement is ambiguous, "the surrounding circumstances, including the physical conditions . . . of the servient tenement[] and the requirements of the grantee, play a significant role in the determination of the controlling intent." Khalil v. Motwani, 376 N.J. Super. 496, 503 (App. Div. 2005) (quoting Hyland, supra, 44 N.J. Super. at 187). In determining what the parties intended, "there are no limits on the kinds of combinations of servitude benefits that can be created," and "the full range of possibilities should be kept in mind." Id. at 501 (quoting Restatement (Third) of Property: Servitudes 2.6, comment c (2000)).

In determining the parties' intent, courts should construe any ambiguity in the easement "most strongly against the grantor." Hyland, supra, 44 N.J. Super. at 187. In addition, it is well established "that the servient tenement is not to be subjected to a greater burden than the parties contemplated at the time the easement was created." Am. Reiter Co. v. Dinallo, 53 N.J. Super. 388, 393 (App. Div. 1959) (citing Leasehold Estates, Inc. v. Fulbro Holding Co., 47 N.J. Super. 534, 553 (App. Div. 1957)).

Applying these principles here, we discern no basis for disturbing Judge Grasso's conclusion that the easement across plaintiffs' side yard was "strictly a utility easement in accordance with the recorded easement by [NJAWC] with no right of vehicular or pedestrian access for [L]ot 16[.]" The only description of the easement on Lot 18.12 was a notation on a final plat prepared in 2002 that there was a twenty-foot "access and utility easement to [NJAWC] and Lakewood Township" on the property. Because this meager and ambiguous reference was insufficient to determine the parties' intent, Judge Grasso properly considered the underlying circumstances of the grant in determining the parties' intent.

The Township never needed a permanent roadway leading from the street through Lot 18.12 to Lot 16. It simply needed to be able to access its property from time to time in order to maintain it. Once the Township sold Lot 16 to MTR, the property was no longer landlocked because MTR promised to consolidate it with Lot 18.13, which had street access through the cul-de-sac. Thus, the record amply supports Judge Grasso's conclusion that the parties never intended a permanent "access easement" that would permit the construction of a driveway after MTR proposed to once again "strand" its newly-configured Lot 16.1.

Instead, as subsequently reflected in detail in the easement deed recorded by NJAWC and plaintiffs, the easement was plainly a "utility easement" that permitted the installation of underground water and sewer pipes so that NJAWC could provide service to plaintiffs and other residents on the cul-de-sac and nearby properties. In his uncontradicted certification, Damoci confirmed that "[i]t is customary for such utility easements to contain a right of access to maintain and replace the infrastructure and the note on the plans provides for that access." MTR presented no certifications or other evidence to rebut STGC's proofs on the scope of the easement. Therefore, Judge Grasso appropriately concluded that it was a utility easement that did not permit the construction of a driveway through plaintiffs' side yard.

Affirmed.

1 MTR's notice of appeal indicated that MTR was also appealing from a January 23, 2014 order and a related portion of the August 7, 2014 order that both invalidated a variance defendant Lakewood Zoning Board of Adjustment (Zoning Board) granted to MTR to develop Lot 16. However, MTR stated in Point II of its appellate brief that it was "not appealing that portion of the underlying decision vacating the variance" and it did not brief the issue. Therefore, this issue has been abandoned. Grubb v. Borough of Hightstown, 353 N.J. Super. 333, 342 n.1 (App. Div. 2002) (explaining that an issue raised in notice of appeal but not briefed is abandoned).

2 Contrary to the requirements of Rule 2:6-1(a)(1), MTR's appendix does not contain the pleadings, specifically plaintiffs' complaint, any answers filed by the defendants, and the third-party complaint filed against STGC. The parties' briefs also do not contain complete procedural histories as required by Rule 2:6-2(a)(3). Therefore, in summarizing the procedural history, we rely upon the detailed written opinions rendered by Judge Vincent J. Grasso.

3 The project was known as the Rose Park Crescent Cul-De-Sac.

4 A civil engineering firm drew the plat on March 19, 2002, and it was filed on May 24, 2004.

5 As noted above, MTR has abandoned any challenge to the orders invalidating the July 11, 2011 resolution. The judge also denied plaintiffs' motion to file an amended complaint. That order is not at issue in this appeal.