CARTER ROAD HOMEOWNER'S ASSOCIATION, INC. v. LAWRENCE TOWNSHIP PLANNING BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4156-09T3

CARTER ROAD HOMEOWNER'S

ASSOCIATION, INC.; S. LEONARD

DiDONATO on behalf of himself

and other homeowners similarly

situated,

Plaintiffs-Appellants,

v.

LAWRENCE TOWNSHIP PLANNING

BOARD and LAWRENCE TOWNSHIP,

Defendants-Respondents.

______________________________________

Argued March 2, 2011 Decided August 9, 2011

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. C-87-09.

Bruce I. Afran argued the cause for appellant.

David M. Roskos argued the cause for respondents (Sterns & Weinroth, attorneys for respondent Lawrence Township Planning Board, Mr. Roskos and Jennifer L. Cordes,

on the joint brief).

Nerwinski, Dember & Fox, LLC, attorneys for respondent Lawrence Township (Kevin P. Nerwinski, on the joint brief).

PER CURIAM

Plaintiffs Carter Road Homeowner's Association, Inc., and S. Leonard DiDonato appeal from orders of the Chancery Division dismissing their complaint under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. We affirm.

Plaintiff Homeowner's Association is a not-for-profit corporation organized to represent the interests of residents who live on or own property near Carter Road in Lawrence Township. Plaintiff S. Leonard DiDonato is a resident and homeowner in the township and an officer of the Homeowner's Association. Plaintiffs filed this action to challenge a proposal by defendant Lawrence Township to lease property on Carter Road owned by the township for purposes of constructing cellular communications towers. Defendant Lawrence Township Planning Board is also named as a defendant because it granted "courtesy" approval of the township's proposal.

The relevant facts are not in dispute for purposes of the present appeal. In the late 1980s, E.R. Squibb & Sons, Inc., now known as Bristol-Myers Squibb, applied to the planning board for approvals to expand its existing research facility on property it owned in the township. On November 12, 1987, the planning board adopted Resolution 52-87, which granted Squibb "preliminary and final site plan and conditional use approval." A condition of the 1987 approval was that:

[Squibb] voluntarily agrees to dedicate to the Township of Lawrence a two-acre parcel of land along Carter Road between the southern property line and the northern driveway for an emergency services substation. A subdivision application with this two-acre dedication is to be submitted within one year.

Squibb subsequently applied for minor subdivision approval for the dedication of the two-acre Carter Road site to the township. On September 25, 1991, the planning board adopted Resolution 33-91 approving minor subdivision of the Carter Road site. In its findings of fact, the board stated that "[i]n accordance with Resolution 52-87 . . . the applicant voluntarily agreed to dedicate to the Township of Lawrence a two (2) acre parcel of land along Carter Road . . . for an emergency services substation."

By deed dated May 22, 1992, Squibb conveyed the Carter Road site to the township. Relevant to this litigation, the deed described the property as follows:

All that tract or parcel of land and premises, situate, lying, and being in the Township of Lawrence . . .

. . . .

Being the same premises dedicated for emergency services in accordance with Resolution of Memorialization No. 33-91 adopted by the Lawrence Township on September 25, 1991.

In 1999, Verizon Wireless applied unsuccessfully to the township's zoning board of adjustment for a use variance and site plan approval for the construction of a cellular tower at property owned by Peterson's Nursery & Garden Market on State Highway 206, a site in an Environmental Protection Zoning District where wireless communications facilities are not a permitted use under the township's zoning ordinance. See Cellco P'ship v. Bd. of Adj. of Lawrence Twp., No. A-4696-00 (App. Div. June 19, 2002). Having failed in that effort, Verizon made inquiries of the township to determine whether the Carter Road site was a viable alternative location to build a communications tower. A letter dated December 17, 2003, from the Township Manager to counsel for Verizon stated:

I reviewed with Township Council your clients' interest in collocation of telecommunications equipment on the Township-owned property above referenced. The Council recognizes that you will look elsewhere, but feels that the donation of the property as a potential fire sub-station makes disingenuous the use of the property for the proposed purpose.

Having been rebuffed as to the Carter Road site, Verizon and other wireless carriers filed a new application with the board of adjustment in 2005 seeking again approval for a wireless communications facility at the Peterson Nursery site. The board of adjustment initially denied the application on the ground that it was the same application as the one that had been denied in 1999. Verizon and the other carriers filed an action in the Law Division to set aside that decision. The Law Division remanded the matter to the board of adjustment for a full hearing on the merits of the Verizon application.

During public hearings before the board of adjustment on the Peterson Nursery site, board members raised the potential availability of the Carter Road site as an alternative location for the tower. For example, in response to questioning from the board, the carriers' expert testified that a communications tower at the Carter Road site would fill some of the gap areas in the western part of the township that the Peterson Nursery site would not reach. The board's own expert also testified that the Carter Road site had the potential to be a more comprehensive solution to wireless communications needs of the township than a tower at the Peterson Nursery site.

In December 2007, the board of adjustment voted to deny the application of Verizon and the other carriers for variance relief and site plan approval for the Peterson Nursery site. Among the reasons for denial, the board's resolution included potential availability of the Carter Road site as an alternative location. Specifically, the resolution stated:

2. The Board finds that the Applicants cannot satisfy the positive criteria in the instant case since an alternative site owned by Lawrence Township on Carter Road (Block 6601, Lot 2.01) and located in the RD-1 Zone is available and can address the gap in service. Unlike the proposed site, the alternative site is not zoned in a way which prohibits cell tower facilities and is therefore a site which is more consistent with the Township's Zone Plan.

On appeal, we reversed the board of adjustment's decision and remanded for reconsideration of Verizon's application without consideration of the potential availability of the Carter Road site. Cellco P'ship v. Zoning Bd. of Adj. of the Twp. of Lawrence, Nos. A-4615-08, A-5383-08 (App. Div. Sept. 10, 2010) (slip op. at 32-33).

Our decision, however, was based on the proper application of the time of decision rule, id. (slip op. at 30-32), and it was issued some two and a half years after the township had changed its views about offering its Carter Road property for construction of a communication tower. In January and March 2008, the township issued public notices indicating that the planning board would be conducting a courtesy review of whether a wireless communication tower could be located at the Carter Road site. On April 21, 2008, the planning board voted four to one to grant "courtesy approval" of the proposal as set forth in the following resolution:

Whereas Lawrence Township Planning Board has reviewed the Township Administration's Plans to solicit bids for the construction of up to two wireless unipoles and related facilities on Township Property. Whereas this Board has solicited and considered expert testimony and public input regarding this plan on three occasions; and may it be resolved that this Board advises the Township Council that it has concluded: (1) that the placement of communication unipoles on the proposed site on Carter Road is consistent with the Township's Master Plan and Land Use Ordinance; (2) that there is no other site in the northern part of the Township that is appropriately zoned, located and available; (3) that there is significant public benefit gained for the construction of such unipoles.

Subsequently, the township solicited bids for the lease of a portion of the Carter Road site "for the construction and operation of wireless communication poles and related facilities." The notice soliciting bids stated that "[t]he Lead Bidder shall not be required to obtain formal zoning or site plan approvals for the construction of the wireless telecommunications facility; however, the Lead Bidder will be required to present the site plan to the Lawrence Township Planning Board for a courtesy review." By resolution dated April 22, 2009, the Township Council accepted a bid by CWL Realty, LLC, for construction of a tower at its Carter Road site.

On July 27, 2009, plaintiffs filed their five-count complaint in the Chancery Division seeking injunctive relief against the township and the planning board to prohibit construction of a communications tower at the Carter Road site. In lieu of answers, the township and planning board moved to dismiss plaintiffs' complaint under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. The Chancery Division heard argument and granted defendants' motion by order and written opinion dated March 30, 2010. This appeal followed.

While this appeal was pending, the planning board reconsidered on remand the Verizon application for the Peterson Nursery site. It granted the application and approvals to construct a tower and related facilities at that site. In addition, the planning board held another courtesy review hearing on June 21, 2010, regarding the proposed construction of communications facilities at the Carter Road site. Our record does not indicate what decision, if any, the planning board made at that hearing, but we understand that it again granted courtesy approval to the lessee, CWL Realty, LLC, for construction of a communications tower at the Carter Road site. We have not been made aware of any further action toward construction of a tower at that site.

On appeal, plaintiffs argue that the trial court erred in dismissing their complaint in the Chancery Division because:

1. The township was required to obtain mandatory, not "courtesy," review of any proposal to build a telecommunications tower at the Carter Road site.

2. The deed of conveyance from Squibb to the township prohibits use of the property for any purpose other than an emergency substation.

3. The use of the site for a telecommunications tower is materially inconsistent with the planning board's prior resolutions permitting Squibb's application to expand its facility and subdividing the two-acre lot for conveyance to the township.

4. Plaintiffs' due process rights were violated by the planning board's manner of conducting a hearing to grant "courtesy approval."

5. The planning board failed to make findings of fact as required by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -112, in granting courtesy approval.

We divide these arguments into two primary issues: (1) whether the documents upon which plaintiffs' complaint relies and the uncontested facts are sufficient to show that use of the Carter Road site for a communications tower is prohibited either by deed restriction or the planning board's prior resolutions, and (2) whether the procedural rights of plaintiffs and others were adequately protected by the actions of the township and the planning board, in particular, by the courtesy approvals of the planning board of the proposed Carter Road site for the construction of a tower.

As to the first issue, we agree with the opinion of the Chancery Division that neither the deed of conveyance nor the prior resolutions of the planning board bar the township's use of the Carter Road site for a communications tower.

Plaintiffs cite cases for the proposition that municipalities are bound by deed restrictions just as private landowners are bound. See State by State Highway Comm'r v. Cooper, 24 N.J. 261 (1957); Soussa v. Denville Twp. Planning Bd., 238 N.J. Super. 66 (App. Div. 1990); Twp. of Springfield v. Bd. of Educ. of the Twp. of Springfield, 217 N.J. Super. 570 (App. Div. 1987); Koch v. Bor. of Seaside Heights, 40 N.J. Super. 86 (App. Div.), aff'd, 22 N.J. 218 (1956); Priory v. Bor. of Manasquan, 39 N.J. Super. 147 (App. Div. 1956). That proposition is not disputed. We agree with the trial court and defendants, however, that the deed in this case did not prohibit uses other than an emergency services substation.

The words used in a deed are a key factor in determining the parties' intent. Hagaman v. Bd. of Educ. of Woodbridge Twp., 117 N.J. Super. 446, 452 (App. Div. 1971). "Words of limitation merely stating the purpose for which the land is conveyed usually do not indicate an intent to create a fee simple determinable although other language in the instrument, the amount of consideration and the circumstances surrounding the conveyance may indicate such an intent." Ibid.; see also Hammett v. Rosensohn, 46 N.J. Super. 527, 535 (App. Div. 1957), aff'd, 26 N.J. 415 (1958) ("the policy of the law is against the imposition of restrictions upon the use and enjoyment of land and such restrictions are to be strictly construed").

Here, the language in the deed from Squibb to the township merely identifies the property as "the same premises dedicated for emergency services in accordance with Resolution of Memorialization No. 33-91 adopted by the Lawrence Township [Planning Board]." This language states the purpose for which the land was conveyed to the township; it does not explicitly restrict the use of the land to that single purpose. Hagaman, supra, 117 N.J. Super. at 452.

In contrast, each of the cases cited by plaintiffs either contained explicit restrictive language in the deed, or other clear evidence supported a conclusion that the intent of the grantor or of the authorizing agency was to restrict the use only to the purpose for which the land was dedicated or conveyed. See Cooper, supra, 24 N.J. 261 (subdivision map designating 2.6 acres as a "Public Square," and more than a century of public use as a park, created a public trust in municipality, which State's eminent domain power could nevertheless supersede); Soussa, supra, 238 N.J. Super. 66 (when subdivision was approved with restriction on future subdividing of undeveloped portion of tract, public became a third-party beneficiary and had to be joined to any action to remove the restriction); Springfield, supra, 217 N.J. Super. 570 (as public grantee of land dedicated for school use by means of clear and unambiguous language, board of education could not unilaterally sell the land for a different use); Koch, 40 N.J. Super. 86 (passage of ordinance and installation of gravel and blacktop was clear and compelling evidence of dedication of land for use as a public street); Priory, supra, 39 N.J. Super. 147 (deed of dedication conveying land for use as a boardwalk and prohibiting structures on the land did not bar construction of a comfort station in conjunction with the boardwalk use).

This case is different from the cited cases because neither the planning board's resolutions of 1987 and 1991, nor the 1992 deed of conveyance, contained specific restrictive language. Rather, the resolutions and deed merely stated the purpose of the site's dedication to the township for an emergency services substation. Furthermore, no other acts of the township or other circumstances shown in the factual allegations of plaintiffs' complaint established a prolonged use of the land for the stated purpose. An emergency services substation was never built and is not currently in the township's plans. Whether it might be built in the future may not be affected by concurrent use of the land for a communications tower. Nothing in the allegations of the complaint or other evidence suggests that the township will not be able to use the land for its intended purpose as an emergency substation if a communications tower is also built. In fact, the township engineer submitted evidence to the trial court showing that the site can accommodate both uses.

The Chancery Division did not err in concluding as a matter of law that neither the deed nor the planning board's resolutions bar the intended use of the Carter Road site for a communications tower and related facility.

Before the site can be used for that purpose, however, the public is entitled to notice of any official action taken to approve construction, and a right to be heard. The second issue presented by plaintiffs is not so readily disposed of on its merits. Plaintiffs argue persuasively that the public must have adequate notice of any approvals granted by municipal agencies for the construction of a communications tower. We agree, but we also agree that the trial court determined correctly that plaintiffs' complaint in that regard is premature and not ripe for adjudication.

Defendants do not cite the statutory authority under the MLUL or otherwise by which the granting of courtesy review and approval by the planning board is sufficient to authorize the issuance of a building permit and construction of a communications tower at the Carter Road site. We are not aware of any authority that the planning board has in these circumstances to issue an advisory opinion about compliance of a proposed use or site plan with applicable laws and regulations.

However, the record provided to us on this appeal is sparse.1 We cannot determine whether the planning board's courtesy reviews were intended to be official actions subject to challenge by means of an action in lieu of prerogative writs or otherwise. If they were, plaintiffs are already beyond the time for challenging any action taken on April 21, 2008, or June 21, 2010. See R. 4:69-6(a). However, since the Chancery Division determined that plaintiffs could not challenge the municipal actions until construction was "shovel ready," plaintiffs may be entitled to expansion of time to bring an action in lieu of prerogative writs to challenge the courtesy approvals in accordance with R. 4:69-6(c). On the other hand, if the courtesy reviews are not official action approving the site for construction of a communications tower, plaintiffs have nothing to appeal at this point.

Further adding to the uncertainty of the procedural posture of this litigation, the township argues that planning board approval is not necessary at all for it or its lessee to construct a communications tower at the site. It cites Hills of Troy Neighborhood Association v. Township of Parsippany, 392 N.J. Super. 593 (Law Div. 2005), as authority for its contention that it need not obtain variances and site plan approval to construct a tower. In Hills of Troy, the Law Division considered "the extent to which a municipality is exempt from its own zoning approval ordinances, the reasonable exercise of such authority and, to the extent so exempt, the novel question of whether private telecommunications companies may share in that exemption by co-locating on a communications tower on municipal property." Id. at 597.

Relying on Thornton v. Village of Ridgewood, 17 N.J. 499 (1955); Rutgers, The State Univ. v. Piluso, 60 N.J. 142 (1972); and Mayor and Council of Kearny v. Clark, 213 N.J. Super. 152 (App. Div. 1986), the court held that a municipality had authority to construct a communications tower at its police headquarters without obtaining zoning approvals but its construction plans were subject to review to ensure they were reasonable, and the public had a right to notice and public comment on the plans. Id. at 600-04. The court further held that private entities that joined in the use of a municipally-owned communications tower were also exempt from zoning regulations so long as the public interest outweighed the private benefit. Id. at 609. See also Crown Commc'n N.Y., Inc. v. Dep't of Transp., 824 N.E.2d 934, 938 (N.Y.) (co-location of commercial communications antennae on state-owned towers was exempt from zoning regulations), cert. denied, 546 U.S. 815, 126 S. Ct. 340, 163 L. Ed. 2d 52 (2005).

We do not decide here whether Hills of Troy correctly states the law that applies to the proposed use of the Carter Road site in this case. Likewise, we make no determination whether the township was correct in its bid documents for the Carter Road site in stating that a private lessee would not need formal zoning or site plan approvals. We agree with the Chancery Division that plaintiffs may again challenge, when ripe for adjudication, the procedures the township has followed in authorizing use of the site for a communications tower.2 At this point, with no authorization for a tower having been issued and an inadequate record by which to review the municipal proceedings, we agree with the Chancery Division that plaintiffs' claims of procedural and statutory violations do not state a claim upon which relief can be granted.

Affirmed.

1 While the appeal was pending, defendants moved to compel plaintiffs to obtain a transcript of the proceedings before the Chancery Division. Plaintiffs argued in opposition that such a transcript was not necessary to present an adequate record for their appeal. We denied defendants' motion but also commented that plaintiffs are confined on appeal to the written record presented to the trial court. The more significant issue on the merits of the appeal is the adequacy of this record without any transcripts or other records of proceedings before the planning board in its courtesy reviews on April 21, 2008, and June 21, 2010.

2 The Chancery Division characterized the point of ripeness for litigation as the time when the site is "shovel ready" for construction. We think plaintiffs have a right to proceed judicially to protect their interests when official action has been taken subject to administrative or judicial review, or alternatively, when an event contrary to law has occurred without such official action.