Estate of Neuberger v. Middletown Tp.

• Decision Date: 02 March 1987
• Citation: 521 A.2d 1336,215 N.J.Super. 375
• Parties: ESTATE OF Katherine K. NEUBERGER, Deceased, Plaintiff-Respondent, v. The TOWNSHIP OF MIDDLETOWN, Township Committee of the Township of Middletown, and the Landmarks Commission of the Township of Middletown, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 375

215 N.J.Super. 375

521 A.2d 1336

ESTATE OF Katherine K. NEUBERGER, Deceased, Plaintiff-Respondent, v.The TOWNSHIP OF MIDDLETOWN, TownshipCommittee of the Township of Middletown and the Landmarks Commission of the Township of MiddletownDefendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Feb. 3, 1987.

Decided March 2, 1987.

William F. Dowd for defendants-appellants(Mark T. Karinja, Newark, on the brief).

Chester Apy, Red Bank, for plaintiff-respondent(Apy and Margalotti, Red Bank, attorneys; Chester Apy, Red Bank, on the brief).

Before Judges MICHELS, O'BRIEN and LANDAU.

The opinion of the court was delivered by

LANDAU, J.S.C.(temporarily assigned).

This is an appeal by defendants Township of Middletown, Township Committee of the Township of Middletown, and the Landmarks Commission of the Township of Middletown(collectively Middletown) from a final judgment of the Law Division which declared invalid the Middletown "Landmarks Commission and Historical Preservation Ordinance,"(Historic Ordinance) based upon the proofs and legal arguments presented in an action in lieu of prerogative writs.The action was commenced by plaintiff, Estate of Katherine K. Neuberger, Deceased (Estate) after certain property of the Estate was designated "historic" by the Landmarks Commission pursuant to the Historic Ordinance on October 11, 1984.We affirm the declaration of invalidity, but for reasons which vary from those expressed by the trial judge.

THE ORDINANCE

It is undisputed that Middletown adopted the Historic Ordinance on September 10, 1974, as amended by ordinance on November 23, 1982.Only the amended ordinance appears in the record.

Middletown was one of the pioneer municipalities which sought to recognize the desirability of taking steps to preserve historic districts and landmarks.As amended, the Historic Ordinance enunciated as its purpose:

[t]o promote the educational, cultural, economic and general welfare of the township: through the preservation of historic buildings and structures, and of places and districts of historic interest; through the development and maintenance of appropriate settings for such buildings, structures, places and districts; and through collateral activities to document and promote the public enjoyment of such buildings, structures, places and districts, which impart to residents and visitors alike a distinct aspect of the township and which serve as visible reminders of the historic and cultural heritage of the township, the state and the nation.(Section 16A-2)

A landmarks commission of seven members is established under the Historic Ordinance, with the following pertinent powers:

Review by Commission

The Landmarks Commission shall review buildings, places and structures within the township, individually and collectively, in regard to their merit in several categories:

Historic events associated therewith, their architectural merit, age, persons of note who owned, used or were otherwise associated therewith, and their significance in the development of the township, county, state or nation.(Section 16A-18)

"Historic" Designation by Commission

The Landmarks Commission shall designate as "Historic" those buildings, places and structures which in regard to the category set forth in Section 16A-18 hereof have merit of a degree warranting their preservation.Although the historic designation may be applied on the basis of merit in more than one category, it may also be applied on the basis of merit in any single category even when there is no demonstrated merit in any other category.The Historic designation shall apply both within and outside historic districts and shall be deemed to include the tax map lot(s) upon which the designated building, place or structure is located.(Emphasis supplied)(Section 16A-19)

After designation of a historic site by the Landmarks Commission, it is shown on a "Historical Map" of the township and recorded in the county clerk's office "in the same manner as ... [a] lien upon real property."

The Historic Ordinance also establishes a number of "historic districts" within the municipality which are required to be shown on the zoning map.

Once designated as a historic site, no material visible change in any building or structure thereon (including color of paint) may be made without a "certificate of appropriateness" procured from the Landmarks Commission under procedures set forth.Demolition is subject to stringent standards, but owners denied certificates are afforded a period of time to solicit "fair market price" offers from persons willing to preserve the structure and land, following which demolition is permitted if no such offer at a price reasonably related to fair market value has been received.Denials of such certificates are appealable to the township committee and to court.A $500 per day penalty is established for any violation of the ordinance.

THE PROPERTY

By letter from the Landmarks Commission dated October 15, 1984, the "Historic" designation was conferred upon property known as "PropertyNo. 332, Block 38, Lot 5, 628 Middletown--Lincroft Road."The minutes of the Landmarks Commission meeting indicate that "Prop. # 332's complex of house and two barns," including "service access road to north of residence" was designated as "Historic Notable."¹Plaintiff's brief indicates that the entire 65 acre farm, upon which sit a large farmhouse and various other buildings including two barns, is known on the Tax Map as Block 38, Lot 5 and so might be deemed included in the designation under the ordinance.

From 1934 until her death in 1982, the property was owned by Katherine K. Neuberger, who amassed a distinguished career of service to her community, state and nation.She resided in the farmhouse, which dates to the 18th century, and appears to have kept faith with its historic character.In August 1984, prior to the historic designation, it is asserted [without support in the record] that the Estate entered into a contract for sale of the property and that the contract purchaser is seeking Mt. Laurel II relief for the property.This was confirmed at oral argument.

It is unnecessary for us here to consider the question, not addressed below, whether the Landmarks Commission's designation applies only to the main house and two barns with their service road, or to the entire lot and block reference made in the letter of designation.

STANDING

Although Middletown challenges the Estate's standing to question the Historic Ordinance, the Estate property is patently affected by the designation made thereunder.One of the points argued before the trial judge, and the principal basis for the judgment below, was the assertion of vagueness and consequent inadequacy of the standards set forth in the Historic Ordinance to govern the discretionary designation of historic sites.²

Relying upon Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439, 458(1974)andState v. Cameron, 100 N.J. 586, 624, 498 A.2d 1217(1985), Middletown urges that because the Neuberger home is historically notable by any yardstick, the Estate has no standing to assert a vagueness argument which even if correct would be applicable only to others.As we observed, this is only one of the reasons urged in support of the contention that the ordinance is invalid.Moreover, the problems we perceive with this ordinance are based upon separate issues raised by the Estate.Accordingly, its standing in this matter as an affected property owner is not subject to question.See, e.g., So. Burl. Co. NAACP v. Mt. Laurel Twp., 67 N.J. 151, 159 n. 3, 336 A.2d 713(1975)app. dism.423 U.S. 808, 96 S.Ct. 18, 46 L.Ed. 28(1975).

THE ORDINANCE

The trial judge extensively reviewed the Historic Ordinance and concluded that the standards which the Landmarks Commission must employ in making 'historic' designations are too broad and vague to be capable of objective application.It is clear that the drafters of the ordinance at least made a substantial effort to establish coherent standards.It is unnecessary to consider the vagueness issue, however, in light of our concern with a more fundamental problem raised by the Estate below and on appeal, i.e., the failure of Middletown to comply with the provisions of State enabling legislation, the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., when it delegated historic site and district designation power to its Landmarks Commission.

Invalidity of this delegation is not based upon the Estate's contention that the State has preempted local designation of historic sites by its enactment of the State Register Law, N.J.S.A. 13:1B-15.128 et seq.Although there is no express delegation of powers to municipalities in the State Register Law, we do not read into that limited statute a legislative intention to preempt all municipal action to preserve historic sites.To the contrary, the Legislature has clearly signalled its desire to expand the municipal role in such preservation efforts, at least since enactment of the Municipal Land Use Law as L. 1975 c. 291 § 1 et seq.( N.J.S.A. 40:55D-1 et seq.)The question is not whether the Legislature has left room for municipalities to place their local imprint on historic site and district selection, but how this municipal power is to be exercised.

We hold that it must be exercised according to the enabling authority and local planning and zoning scheme provided by N.J.S.A. 40:55D-1, et seq.This conclusion is further fortified and compelled by the most recent amendments to that law in L. 1985 c. 516, although we are satisfied that municipal designation of historic districts and sites necessarily fell under the zoning and planning powers in New Jersey long before those amendments.

It is generally accepted that such historic designation ordinances are, in essence, zoning ordinances.

Although an historic district ordinance is in essence...