BARBARA J. HERTZ v. ROBERT ROSNER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3333-04T13333-04T1

BARBARA J. HERTZ,

Plaintiff-Appellant,

v.

BOROUGH OF LINCOLN PARK PLANNING

BOARD; BOROUGH OF LINCOLN PARK

GOVERNING BODY (MAYOR AND COUNCIL);

MONTVILLE TOWNSHIP COMMITTEE

(GOVERNING BODY); MONTVILLE

TOWNSHIP PLANNING BOARD; MORRIS

COUNTY BOARD OF CHOSEN FREEHOLDERS

and ROBERT AND MARGARET ROSNER,

Defendants-Respondents.

______________________________________

BARBARA J. HERTZ, A-0180-05T1

Plaintiff-Appellant,

v.

BOROUGH OF LINCOLN PARK GOVERNING

BODY (MAYOR AND COUNCIL); MONTVILLE

TOWNSHIP COMMITTEE (GOVERNING BODY);

and ROBERT and MARGARET ROSNER,

Defendants-Respondents.

_______________________________________

 

Argued October 11, 2006 - Decided October 30, 2006

Before Judges Skillman, Lisa and Grall.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket Nos. L-366-04 and L-3284-04.

Barbara J. Hertz, appellant, argued the cause pro se.

Brian D. Burns argued the cause for respondent Borough of Lincoln Park Planning Board in A-3333-04T1 (Burns & Schaffer, attorneys; Mr. Burns, on the brief).

David C. Dixon argued the cause for respondent Borough of Lincoln Park, Governing Body (Mayor and Council) in both appeals (Scangarella, Feeney & Dixon, attorneys; Mr. Dixon, on the brief).

James T. Bryce argued the cause for respondent Montville Township Committee, Governing Body in both appeals (Johnson, Murphy, Hubner, McKeon, Wubbenhorst, Bucco & Appelt, attorneys; Mr. Bryce, on the brief).

Michael Patrick Carroll argued the cause for respondent Montville Township Planning Board in A-3333-04T1.

Daniel W. O'Mullan argued the cause for respondent Morris County Board of Chosen Freeholders in A-3333-04T1 (Ronald Kevitz, Morris County Counsel, attorney).

Respondents Robert and Margaret Rosner did not file a brief.

PER CURIAM

Defendants Robert and Margaret Rosner own a lot, approximately three acres in size, which is bisected by the municipal boundary line between the Borough of Lincoln Park and the Township of Montville. The precise location of this boundary line is uncertain. The Rosners applied to both the Montville and Lincoln Park Planning Boards to subdivide their property into three lots, comprised of one lot with their existing residence and two vacant lots upon which they propose to build new single-family residences.

The Rosners' applications showed three different locations for the municipal boundary line bisecting their property: the first, derived from the Montville Township Tax Map, showed the majority of the property in Lincoln Park; the second, derived from Lincoln Park's Tax Map, showed the property split approximately in half by the boundary line; and the third, provided by the Rosners' engineer and land surveyor, placed the vast majority of the property in Montville. The boards accepted the location of the boundary line shown on the Lincoln Park municipal tax map. Using this line, the existing residence and most of the lot containing this residence is within Lincoln Park, and the two proposed new lots are located primarily in Montville.

In 2003, the two planning boards granted the Rosners' subdivision applications. The Montville Planning Board also granted the Rosners' application for various bulk variances, which became necessary when the Montville governing body increased the minimum lot size requirements in the area during the pendency of the subdivision application.

In 2004, after the planning boards had granted the subdivision approvals, the Montville and Lincoln Park governing bodies entered into an agreement and adopted resolutions pursuant to N.J.S.A. 40A:13-19 providing that Lincoln Park would assume "sole supervision for the provision of municipal services and taxing authority" for the lot on which the Rosners' existing house is located, and that Montville would assume such sole supervision over the two new lots created by the subdivision approvals.

Plaintiff Barbara Hertz owns an approximately fifteen-and-a-half acre lot in Lincoln Park that adjoins the Rosners' property. Plaintiff brought three separate actions challenging the actions of the Lincoln Park and Montville planning boards and governing bodies relating to the subdivision of the Rosners' property. Plaintiffs first action, filed shortly after the Lincoln Park Planning Board had granted subdivision approval and while the application to the Montville Planning Board was still pending, claimed that the planning boards lacked jurisdiction to act upon the Rosners' application until there had been a definitive determination of the boundary line between the two municipalities. The trial court rejected this claim and dismissed plaintiff's first complaint. Plaintiff did not appeal from the order memorializing this dismissal.

After both planning boards had granted subdivision approvals, plaintiff filed her second action, which again alleged that the planning boards lacked jurisdiction to grant the Rosners' applications for subdivision approval because there had been no definitive determination of the boundary line between the two municipalities. The second action also challenged the variances granted by the Montville Planning Board.

The trial court granted a series of motions for summary judgment filed by the defendant planning boards and governing bodies and dismissed plaintiffs' complaint. The court held that N.J.S.A. 40A:13-10 confers discretion upon the governing bodies of the affected municipalities and the county to decide whether to seek a determination of a municipal boundary line by "the appointment of commissioners to survey, ascertain and mark the boundaries" between the municipalities and that plaintiff could not compel the exercise of this discretion by mandamus. The court also held that the planning boards were not deprived of jurisdiction to act upon the Rosners' subdivision applications simply because there was some uncertainty concerning the precise location of the municipal boundary line. In addition, the court concluded that the Montville Planning Board's resolution granting the Rosners' application for bulk variances under N.J.S.A. 40:55D-70c(2) was not arbitrary, capricious and unreasonable. Plaintiff filed an appeal from the orders memorializing the dismissal of her second action, which was docketed as A-3333-04T1.

Plaintiffs' third action challenged the resolutions of the Montville and Lincoln Park governing bodies allocating supervision for the provision of municipal services and taxing authority regarding the three lots created by the subdivision approvals. Plaintiff claimed that in adopting these resolutions, the governing bodies had failed to comply with their statutory obligation under N.J.S.A. 40A:13-19 to determine the municipal boundary line. Plaintiff also claimed that municipalities may enter into an agreement under N.J.S.A. 40A:13-19 regarding the "sole supervision of the lands and buildings" on property located in two municipalities only if it is an established fact that the property is located in both municipalities and that there is a factual dispute as to whether the Rosners' property is located in both Montville and Lincoln Park.

By an oral opinion rendered on June 13, 2005, the trial court rejected plaintiff's argument that the governing bodies were required to determine the precise boundary line between the municipalities within the Rosners' property before they could enter into an agreement under N.J.S.A. 40A:13-19 and dismissed plaintiffs' third action. The court also found that even though its precise location is uncertain, the municipal boundary line bisects the Rosners' property. Plaintiff filed an appeal from the order memorializing the dismissal of her third action, which was docketed as A-180-05T1.

We now consolidate the A-3333-04T1 and A-180-05T1 appeals.

In the A-3333-04T1 appeal, plaintiff presents the following arguments:

I. COMPLAINT IN LIEU OF PREROGATIVE WRIT IS APPROPRIATE TO COMPEL MANDATORY DETERMINATION OF THE MUNICIPAL BOUNDARY.

II. MUNICIPAL FAILURES IN OBLIGATIONS TO DETERMINE THE ACTUAL LINE SHOULD HAVE PREVENTED A RESOLUTION IN THE ROSNER SUBDIVISION.

III. THE RELIEF SOUGHT BY PLAINTIFF IS AVAILABLE UNDER STATUTE N.J.S.A. 40A:13-17 WHICH INCLUDES N.J.S.A. 40A:13- 3 THROUGH 13-16.

IV. THE FAILURE TO TAX LAND IN THE "GORE" (BETWEEN MUNICIPAL TAX MAP BOUNDARY LINES) LIKEWISE PREVENTS ANNEXATION AND DE-ANNEXATION.

V. THE ADMINISTRATIVE RECORD EXCLUDED NECESSARY EVIDENCE AND THE PLANNING BOARD DID NOT CONDUCT AN ADEQUATE INQUIRY.

A. THE APPLICANT DID NOT PROVIDE ANY ADEQUATE EVIDENCE OF THE SURROUNDING AREA.

B. THE ROSNERS' MISREPRESENTATED THE IMPROPER ACTIONS OF THE LINCOLN PARK PLANNING BOARD.

C. MONTVILLE PLANNING BOARD FAILED TO INCLUDE THEIR OWN PROFESSIONS' RECOMMENDATIONS, OPINIONS AND EXPERIENCE.

D. THE PLANNING BOARD MEMBERS WERE TOTALLY UNFAMILIAR WITH THE AREA CIRCUMSTANCES.

E. THE MONTVILLE PLANNING BOARD RECORD DOES NOT SUPPORT THAT THE BOARD PROVIDED A FAIR REVIEW OF SUBDIVISION OBJECTORS.

VI. EVIDENCE IN THE RECORD DOES NOT SHOW MLUL OBJECTIVES WERE MET RESPECTING CRITERIA FOR ENHANCED BENEFITS OR THAT THE NEGATIVE CRITERIA WAS OVERCOME.

A. THE PLANNING BOARD FAILED TO REQUIRE COMPLIANCE WITH MLUL OBJECTIVES AS REQUIRED FOR THE C(2) VARIANCE.

B. POSITIVE CRITERIA WAS NOT SUPPORTED.

C. THE NEGATIVE CRITERIA WAS NOT OVERCOME: THERE WILL BE SUBSTANTIAL DETRIMENT TO ADJOINING PROPERTY INTERESTS.

VII. THE COURT BELOW ERRED BY GRANTING MOTIONS FOR SUMMARY JUDGMENT WHEN THERE WERE DISPUTED ISSUES BASED UPON CONFLICTING FACTS.

A. THE COURT BELOW FAILED TO UPHOLD THE MLUL OBJECTIVES AS REQUIRED FOR THE C(2).

B. THE COURT BELOW FAILED TO UPHOLD THE PROVISIONS FOR FREEHOLDERS TO DIRECT COMPLETION OF INCORPORATION DUE TO MUNICIPAL GOVERNMENT FAILURE.

VIII.THE LOWER COURT'S FAILURE TO CONSIDER THE PLANNING BOARD'S VIOLATIONS OF MLUL OBJECTIVES AND FURTHERMORE, ADDITIONAL RESOLUTIONS COMPLETED AFTER THE PRESENT PREROGATIVE WRIT (REQUIRING AN ADDITIONAL COMPLAINT) SHOULD HAVE RESULTED IN CONSOLIDATION OF COMPLAINTS OR VACATING THE RESOLUTIONS.

We reject these arguments and affirm the dismissal of plaintiff's second complaint substantially for the reasons set forth in Judge Bozonelis' comprehensive oral opinions of April 2, 2004, May 28, 2004, and January 7, 2005.

In the A-180-05T1 appeal, plaintiff presents the following arguments:

I. THE MUNICIPAL RESOLUTIONS' IMPROPERLY ATTRIBUTED "BIFURCATION" TO PROPERTY DESIGNATED TO BE ENTIRELY WITHIN MONTVILLE BY 1867 "AGREEMENT," PRECLUDES INVOKING STATUTE N.J.S.A. 40A:13-19.

II. MUNICIPAL RECORD OF HEARING MINUTES IS NOT AN EXHAUSTIVE FILE.

III. PRIOR ACTIONS BROUGHT BY THE PLAINTIFF AGAINST THE TOWNSHIP AND BOROUGH DID NOT DETERMINE THE PRESENT APPLICATION.

IV. THE ESTABLISHED MUNICIPAL BOUNDARY LINE IS PRE-REQUISITE FOR MUNICIPAL CORPORATION.

A. THE "OLD COUNTY AND TOWNSHIP ACT OF 1789" - Pat. 294, 295, and 1917 LAW WERE REPLACED BY N.J.S.A. 40A:13-17.

B. THE PRESENT MUNICIPAL TAX MAPS ARE UNRELIABLE AND NOT PROBATIVE TO ASSERT MUNICIPAL "BIFURCATION" AS REQUIRED TO BE PROVEN TO APPLY N.J.S.A. 40A:13-19.

C. RES JUDICATA PRECLUDES LINCOLN PARK AND MONTVILLE FROM RELIANCE ON TAX MAPS; THEREFORE, THEIR RESPECTIVE RESOLUTIONS ARE LIKEWISE VOID.

V. MUNICIPAL THE MUNICIPAL RESOLUTIONS, IMPROPERLY ATTRIBUTE A "BIFURCATION" TO PROPERTY WHICH WAS DESIGNATED TO BE EXCLUSIVELY AND ENTIRELY WITHIN MONTVILLE.

VI. THE LAW COURT ERRED BY NOT REQUIRING THE GOVERNING BODIES TO FULFILL STATUTORY OBLGIATIONS TO DETERMINE THE 1867 MUNICIPAL BOUNDARY LINE LOCATION BEFORE PERMITTING APPLICATION OF N.J.S.A. 40A:13-19.

VII. THE LOWER COURT ERRED BY FAILING TO INTERPRET RELEVANT STATUTES AND EXPLORE THEIR LEGISLATIVE INTENT.

VIII.THE LAW COURT ERRED BY GRANTING MUNICIPAL GOVERNING BODYS' MOTIONS FOR COMPLAINT DISMISSAL WHEN THERE WERE MATERIAL ISSUES IN DISPUTE.

We reject these arguments and affirm the dismissal of plaintiff's third complaint substantially for the reasons set forth in Judge Bozonelis' comprehensive oral opinion of June 13, 2005. We only add that the historical documents relied upon by plaintiff would not support a finding, contrary to the conclusions of the Hanson survey and the tax maps of both municipalities, that the boundary line between Montville and Lincoln Park does not bisect the Rosners' property.

Affirmed.

 

The Rosners did not actively participate in any of the actions.

(continued)

(continued)

11

A-3333-04T1

October 30, 2006