Aldrich v. Schwartz

• Decision Date: 07 July 1992
• Citation: 258 N.J.Super. 300,609 A.2d 507
• Parties: John F. ALDRICH, Plaintiff-Respondent, v. Leonard E. SCHWARTZ, Corrine F. Schwartz, M. Dean Kinsey, and Katherine Kinsey, Defendants-Appellants. and TOWNSHIP OF LONG BEACH, Long Beach Township Planning Board, Richard R. Hawrylo, Alexandra Hawrylo, and Commonwealth Land Title Insurance Company, and Long Beach Township Construction and Zoning Office, and Ron Pingaro, Long Beach Township Construction Official, and Sean Devitt, Long Beach Township Zoning Official, and Marylouise Desimone and Estate of Anthony J. Desimone, Defendants, v. Richard R. HAWRYLO and Alexandra Hawrylo, Third-Party Plaintiffs, v. (ESTATE OF) Anthony J. DESIMONE and Marylouise Desimone, and Estate of Alice Sutter, Third-Party Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 300

258 N.J.Super. 300

609 A.2d 507

John F. ALDRICH, Plaintiff-Respondent, v. Leonard E. SCHWARTZ, Corrine F. Schwartz, M. Dean Kinsey, and Katherine Kinsey, Defendants-Appellants. and TOWNSHIP OF LONG BEACH, Long Beach Township Planning Board,

Richard R. Hawrylo, Alexandra Hawrylo, and Commonwealth Land

Title Insurance Company, and Long Beach Township

Construction and Zoning Office, and Ron Pingaro, Long Beach

Township Construction Official, and Sean Devitt, Long Beach

Township Zoning Official, and Marylouise Desimone and Estate

of Anthony J. Desimone, Defendants, v. Richard R. HAWRYLO and Alexandra Hawrylo, Third-Party Plaintiffs, v. (ESTATE OF) Anthony J. DESIMONE and Marylouise Desimone, and Estate of Alice Sutter, Third-Party Defendants.

Superior Court of New Jersey,

Appellate Division.

Argued March 2, 1992.

Decided July 7, 1992.

Leonard E. Schwartz, Roseland, for defendants-appellants Leonard E. Schwartzand Corrine F. Schwartz (Greenberg Margolis, attorneys).

Robert E. Kingsbury, Medford, for defendants-appellants M. Dean Kinsey and Katherine Kinsey.

Beth G. Baldinger, Lawrenceville, for plaintiff-respondent John F. Aldrich (Stark & Stark, attorneys, Beth G. Baldinger on the brief).

Before Judges R.S. COHEN, ARNOLD M. STEIN, and KESTIN.

The opinion of the court was delivered by

R.S. COHEN, J.A.D.

In 1969, the Long Beach Township Planning Board approved a three-lot subdivision of a parcel fronting on Long Beach Boulevard and running east to the Atlantic Ocean. As part of the subdivision process, the Board of Adjustment granted a variance reducing from 20 feet to 15 feet the minimum width of part of an easement for access from the Boulevard to the two interior lots. The variance was granted subject to conditions, one of which required the southerly 45 feet of the new ocean-front lot to remain open and free of structures.

When plaintiff bought the ocean-front lot in 1989, he was unaware of the restriction on building within the southerly 45 feet. We hold that plaintiff is nevertheless bound by the restriction, but also that plaintiff may apply to the Board of Adjustment and/or to the Law Division for relief. We therefore reverse the summary judgment granted to plaintiff by the Chancery Division judge.

Alice B. Sutter owned Parcel 29 in the North Beach section of Long Beach Township. She and her late husband bought the property in 1949. It is in a narrow section of Long Beach Island, an eighteen-mile long sand-bar barrier island with a single road, Long Beach Boulevard, running its length. To the east is the Atlantic Ocean. To the west is Barnegat Bay. ¹

Parcel 29 was rectangular. It was 100 feet wide on the Boulevard and on the ocean beach. Its east-to-west sidelines were 462 feet long to the high water line of the ocean, with the easterly 142 feet consisting of dunes and beach. The Sutter house fronted on the Boulevard.

In 1969, Mrs. Sutter applied for a subdivision to divide her land into three lots. She would retain her house on the new Lot 1, which would be 100 feet wide on the Boulevard and 120 feet deep. Lot 2 would be 100 feet by 100 feet. Lot 3 would be 100 feet wide by 242 feet deep. Lot 3 would be nearest the ocean, and would include the 142 feet of dunes and beach, which would be subject to use by all three lots or to conveyance to the Township for public use.

The Township zoning ordinance permitted beach-to-boulevard strips like Mrs. Sutter's to be subdivided without creation of public access streets to the interior lots. Instead, it prescribed a 20-foot wide easement running from the Boulevard to the ocean-front lot. In this case, the easement would be 220 feet long, and would run over the southerly 20 feet of Lots 1 and 2, to the western line of Lot 3, where it would end. At that point, a five-foot walkway would continue to the beach.

There was a problem. Mrs. Sutter's house was less than 18 feet from her southerly sideline, and she therefore did not have room for the necessary easement. Everything else was in order, however, so the Planning Board approved the subdivision of Parcel 29, subject to the grant of a variance by the Board of Adjustment to permit a narrow easement. ²

The variance application and resolution granting it concerned the entire Parcel 29. The Board of Adjustment granted a variance permitting reduction of the easement width from 20 to 15 feet for the first 75 feet easterly from the Boulevard past the Sutter house. For its remaining 145 feet, the easement resumed the required width of 20 feet. The Board resolution was subject to a number of conditions, one of which was:

In order to reconcile the probable orientation of the dwelling house to be constructed on Lot 3, with the southerly orientation of the front yard of Lot 2, there shall be an open space of 45 feet, measured from the southerly line of Lot 3 and any dwelling house or accessory structures shall be constructed north of said open space.

The Board resolution also stated:

Suitable indications of the foregoing conditions shall be incorporated into the subdivision plan to be resubmitted to the Planning Board.

After obtaining the variance, Mrs. Sutter submitted to the Planning Board a subdivision plan showing the narrowed easement and the 45-foot building setback line for Lot 3. The Planning Board approved the plan.

In 1969, N.J.S.A. 40:55-1.17 provided that an approved subdivision plan be filed or recorded in the county recording office. The Sutter subdivision plan was never submitted for filing or recording. The record before us does not reveal why. The Planning Board's minutes record the decisions of that agency, and the Board of Adjustment's minutes record its actions. They are presumably available in the Township offices.

Mrs. Sutter sold each of the three lots. Ocean-front Lot 3 was bought by a corporation and resold to defendants DeSimone. They built a house on it, conforming to the variance condition, and sold to defendants Hawrylo, who sold in 1989 to plaintiff for $785,000. Lot 2 was bought by the Kinseys. In 1980 they built a house on it, sited to take advantage of the open space between the DeSimone house and its southerly neighbor. Lot 1 was bought by the Schwartzes. They subsequently made substantial improvements to the Sutter house.

Plaintiff bought the Hawrylo house and lot with the intention to demolish the house and, in plaintiff's words, "to build the ocean front home of [his] dreams." That involved building to within 20 feet of the southerly sideline of the lot, which was permitted by the zoning ordinance, but prohibited by the 1969 variance condition. When plaintiff presented his building plans to the Township, he was told, for the first time, about the building restriction.

Plaintiff sued his new neighbors, the Kinseys and the Schwartzes; his predecessors in title; his title insurance company; the Township; and a number of Township officials. His multi-count complaint sought a judgment (1) quieting title, (2) declaring the building setback unenforceable under the statutes regarding land use regulation, (3) declaring the building setback unenforceable as an unrecorded air right or sight easement, (4) compelling the Township and its officials to issue plaintiff a building permit, (5) requiring the title insurance company to defend plaintiff's title, (6) declaring the restriction void and unenforceable because not filed or recorded within 90 days, and (7) invalidating the restriction.

There were answers, counterclaims, crossclaims and third-party claims. Plaintiff moved for summary judgment declaring the building restriction unenforceable and requiring the Township to issue a building permit. Plaintiff's predecessors in title and his title insurance company supported his motion. Less expectably, the Planning Board also supported plaintiff's position. ³ The Kinseys and Schwartzes filed cross-motions for summary judgment.

The Chancery Division judge granted plaintiff summary judgment. He concluded that plaintiff was "a bona fide purchaser for value, without actual notice of the condition." He further concluded that plaintiff did not have constructive notice of the condition from deed references in his chain of title to a "certain subdivision plan of Lot 29" or from the physical locations of the existing Hawrylo and Kinsey houses. In the judge's view, the deed references were not "definite enough to be a clue," in the absence of a filed map, to prompt a searcher to go to the planning board records to find the terms of the subdivision. Likewise, he concluded that the locations of the houses did not create a duty to investigate the reasons for the pattern in which they were laid out. Only a "reasonable search" is required of a buyer, reasoned the judge, citing Palamarg Realty Co. v. Rehac, 80 N.J. 446, 404 A.2d 21 (1979), and the absence of a recorded subdivision map relieved plaintiff from the setback condition.

Before the Chancery Division and here, the parties have argued the effect of the recording statutes, the scope of a reasonable search, and the impact of the failure of the subdivision plan to be filed. There is another matter, however, to which they have given insufficient emphasis, and which is dispositive of plaintiff's appeal. It is the question whether the variance itself, embodied in the resolution of the Board of Adjustment, was binding on subsequent owners, in all of its terms, even if they had no notice or knowledge of it, and even if the subdivision was not perfected. We hold that it was binding, despite plaintiff's ignorance of it, and whether or not a reasonable search would have revealed it.

An examination of the question engages two legitimate but competing concerns. The first is the concern that, before consummating a purchase or security transaction, a buyer or lienor of real property should be able to discover and evaluate all of the interests in and restrictions on the property. The principal method of ascertaining the needed information,...