TMD OF CHESTER, LLC v. ASDAL DEVELOPMENT, LLC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2782-05T22782-05T2

TMD OF CHESTER, LLC,

Plaintiff-Appellant,

v.

ASDAL DEVELOPMENT, LLC,

Defendant/Counterclaimant-

Respondent.

_____________________________________

 

Argued November 9, 2006 - Decided November 28, 2006

Before Judges Collester and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1574-03.

Michael Patrick Carroll argued the cause for appellant.

John H. Suminski argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Suminski, of counsel; Michelle S. Hydrusko, on the brief).

PER CURIAM

This appeal involves the terms and conditions of a drainage easement granted in 1987. Plaintiff TMD of Chester, LLC ("TMD") and defendant Asdal Development, LLC ("Asdal") own contiguous lots in Chester Borough. Asdal owns Block 4.01, Lot 38 ("Lot 38") and TMD owns Block 4.01, Lot 37 ("Lot 37"). Lot 37, which is rectangular in shape, abuts Lot 38 on both its north and west sides. TMD acquired Lot 37 in December 2000. It uses the building on Lot 37 as a real estate office.

Long before TMD and Adsal purchased their respective properties, both lots were owned by a husband and wife, Faramarz and Barbara Dastgheib. In 1986 and 1987, the Dastgheibs submitted a series of development applications to the Chester Zoning Board of Adjustment ("the Board"). The Dastgheibs proposed a two-phase site development plan, in which an existing residence on Lot 37 would be converted to office space. The plan also included the construction of additional office space on Lot 37 as well as townhomes on Lot 38.

As a result of the Dastgheibs' applications, the Board issued a series of five resolutions. The resolutions, considered as whole, granted the Dastgheibs site plan approval, subdivision approval, and a use variance for their development plans. These approvals were subject to certain express conditions.

One such condition required the Dastgheibs to obtain approval of a stormwater management plan for the two parcels within twelve months of the Board's resolution dated June 9, 1987. The Board also required the Dastgheibs, if they proceeded with development on Lot 38, to build an approved stormwater facility in the rear of the property, designated on the site plan as "Alternate B", within fourteen months. The June 9, 1987 resolution further stated that if such approval for a stormwater plan was not obtained within the ensuing twelve months, then another alternate plan for a detention basin ("Alternate A") had to be submitted to the Board within the same twelve-month period. If approved, such a basin would have to be built within fourteen months.

In connection with these detailed conditions, the Board also required that the Dastgheibs prepare and record an easement benefiting Lot 37 and burdening Lot 38 for the purpose of the future construction and maintenance of a detention basin. The two alternate locations for such an above-ground basin on Lot 38 are clearly delineated on sheet 8 of the site plan.

Subsequently, the Dastgheibs, in their capacity as owners of Lot 38, granted to Lot 37, that Lot's successors in title and/or assigns:

a perpetual Easement, privilege and authority from time to time, to enter without notice upon the property described above as Lot 38, Block 4, to install, extend, operate, alter, rebuild, redesign, replace, relocate, repair, remove, and perpetually maintain, upon, under, across and along a section of land on said Lot 38, Block 4, a detention basin described in accordance with the specifications which are entitled "Storm Water Management Plan," dated May 22, 1987, prepared by Professional Planning and Engineering Corporation, which is part of a Site Plan approved by the Chester Borough Board of Adjustment on June 9, 1987 (said specifications being incorporated into this Easement by reference).

[Emphasis added.]

The easement was granted for a nominal one dollar in consideration. It was duly recorded on September 21, 1987 in Deed Book 2969, Page 770 with the Morris County Clerk.

Eventually, the Dastgheibs abandoned the project, and the development plan was never implemented. No applications for the construction of a drainage basin were presented to the Borough, and no approvals or permits for such a basin ever issued. Neither of the two alternative drainage basins shown on Sheet 8 was ever built.

After paving the driveway on Lot 37 and having concerns that stormwater runoff from its lot would be impeded by a landscape berm Asdal had recently added to Lot 38, TMD filed a complaint in June 2003 against Asdal. The complaint alleged that Asdal was interfering with the "use and enjoyment of TMD's premises in that [the berm] restricts the natural flow of storm water runoff from TMD's premises." TMD further alleged that the creation of the landscape berm was in contradiction to the easement conveyed in 1987. Among other things, TMD sought monetary damages. Asdal denied any wrongful action in its answer to the complaint. Moreover, Asdal filed a counterclaim seeking to have the easement declared null and void, as the easement was directly conditioned upon the Dastgheibs' never-implemented development plans and had therefore expired.

Subsequently, TMD voluntarily dismissed its complaint, apparently because it could not presently demonstrate any actual damages or impediments to stormwater runoff from its lot. The dismissal left for trial the counterclaim issue of the continued validity of the easement. TMD contended that stormwater runoff from Lot 37 had been flowing into a long-standing subsurface well on Lot 38 constructed by the prior owners, and that Asdal was obligated to allow TMD the continued use of that underground facility.

TMD and Asdal elected to try the case on the basis of written submissions without live testimony. The proceedings were conducted before the Hon. B. Theodore Bozonelis in November 2005. After reviewing the record and hearing the oral arguments of counsel for both parties, Judge Bozonelis ruled in favor of Asdal on its counterclaim and declared the easement null and void. In a comprehensive oral opinion, the judge found "clear evidence of abandonment" of the easement, and determined that the easement "should now not burden the development of [L]ot 38 in that regard, some 15 or 16 years later with respect to, to the use of the property on [L]ot 38."

TMD appeals, principally contending that the record is insufficient to support the elements of abandonment. In particular, TMD emphasizes that the underground drainage system which has persisted on Lot 38 is indicative of a lack of intent to abandon the easement, which by its terms was perpetual in nature.

We have fully considered the points raised on appeal and the record as a whole. Having done so, we affirm the judgment below, substantially for the reasons expressed in Judge Bozonelis' oral opinion dated November 3, 2005. We add only a few comments.

Our law has long recognized that "[t]he extent of [an] easement created by a conveyance is fixed by the conveyance." Eggleston v. Fox, 96 N.J. Super. 142, 147 (App. Div. 1967) (citing Restatement of Property 482 (1944)). Such an easement "expires by its own specific limitation" when the designated use associated with it is abandoned. Ibid.

As Judge Bozonelis correctly recognized, the easement conveyed from Lot 38 to Lot 37 in 1987 was expressly conditioned on the terms of the Borough's site plan resolutions. Those resolutions, and the related plans and specifications, manifestly required the prior landowners to follow through with the construction of an above-ground detention basin, either "Alternate A" or "Alternate B" as shown on Sheet 8, within fourteen months. Indisputably, that was never accomplished. The failure to adhere to those conditions makes the easement unenforceable.

TMD argues that Asdal was obligated to prove more than such patent non-compliance with the terms of the conveyance, and additionally show a subjective intention to abandon the easement. Even if proof of such subjective intent were necessary, a proposition that we consider questionable in circumstances such as these where the express terms of the easement were never fulfilled, we are satisfied that the failure of the Dastgheibs to build either drainage basin Alternate A or Alternate B comprises ample circumstantial proof of such intent.

The Dastgheibs never returned to the municipality to obtain work permits or other specific approvals for the construction of an above-ground drainage basin within the prescribed fourteen-month deadline. The below-ground drainage system they apparently maintained instead on Lot 38 was flatly inconsistent with the express terms of the easement and was never approved by the municipality. The prior owners' actions and inactions amount to behavior "tantamount to an abandonment and an intention to abandon." Freedman v. Lieberman, 2 N.J. Super. 537, 544 (Ch. Div. 1949). A subsequent purchaser such as TMD, or a title company on its behalf, could have inspected the public records and the property itself, and thus ascertained the Dastgheibs' utter failure to adhere to the unambiguous conditions imposed by the Board in 1987.

In sum, we are satisfied that there is more than substantial evidence in the record to support the trial judge's finding of "clear evidence of abandonment" and his conclusion that the easement is thereby null and void. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-484 (1974).

Affirmed.

 

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A-2782-05T2

November 28, 2006