Loveladies Property Owners Ass'n, Inc. v. Barnegat City Service Co.

• Decision Date: 31 March 1960
• Docket Number: No. A--87,A--87
• Parties: LOVELADIES PROPERTY OWNERS ASSOCIATION, INC., et al., Plaintiffs-Appellants, v. BARNEGAT CITY SERVICE CO., Inc., et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 491

60 N.J.Super. 491

159 A.2d 417

LOVELADIES PROPERTY OWNERS ASSOCIATION, INC., et al Plaintiffs-Appellants, v. BARNEGAT CITY SERVICE CO., Inc., et al., Defendants-Respondents.

No. A--87.

Superior Court of New Jersey, Appellate Division.

Argued Feb. 22, 1960.

Decided March 31, 1960.

James M. Davis, Jr., Mount Holly, argued the cause for plaintiffs-appellants (Powell & Davis, Mount Holly attorneys).

James L. Wilson, Ship Bottom, argued the cause for respondent Carl A. Sutter, Building Inspector of Long Beach Tp. (Berry, Whitson & Berry, Ship Bottom, attorneys).

Norman J. Abrams, Plainfield, argued the cause for respondents Ernest Spisso, Joseph L. Spisso and Seamen's Landing (Abrams & Kestenbaum, Plainfield, attorneys).

Vincent A. Grasso, Toms River, argued the cause for respondents Wesley A. Roche, Wallace C. France, Max Weiner, Besse Weiner and American Seashore Homes, Inc. (Hiering & Grasso, Toms River, attorneys).

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

CONFORD, J.A.D.

Plaintiffs, owners of property in the Loveladies section of Long Beach Township in Ocean County and the non-profit landowner's association to which they belong, appeal from a summary judgment entered in favor of defendants, three groups of land developers, whom they sought to enjoin from proceeding to develop for residential purposes certain portions of the Loveladies area in accordance with their filed subdivision plans. These plans had been previously approved by the governing body of the municipality and duly filed in the office of the county clerk. Plaintiffs also sought to enjoin the building inspector of the township from issuing building permits for the lots delineated in the filed subdivision plats.

Plaintiffs' objection to the subdivision plats is that the lots therein laid out do not meet the minimum area requirements for Loveladies as set forth in the township zoning ordinance, amended in its pertinent particulars prior to the submission of any of the plats in question. Their position is that in computing the area of the lots certain private easements of access, hereinafter described, were erroneously included. It is clear that almost all of the lost delineated on the subdivision plats can meet the minimum area requirements only if these easement strips are included in calculating their size. The trial court granted defendants' motion for summary judgment on the ground that in the light of the ambiguity of the minimum area provisions the contemporaneous construction of the ordinance by the municipal authorities charged with its enforcement determined the meaning to be given to the provisions, and that construction indicated that inclusion of the easements was proper.

The plan of the developers here objected to is best understood in the context of the geographical setting of the community. Long Beach Township is located on Long Beach Island, which lies off the mainland of Ocean County. Eighteen miles long, and varying in width from a few hundred feet to half a mile, it is bounded by the Atlantic Ocean on the east, Barnegat Bay and Little Egg Harbor on the west, Barnegat Inlet on the north and Beach Haven Inlet on the south. Long Beach Township occupies all of the island except for six noncontiguous areas running the width of the island which constitute separate municipalities. Generally bisecting the island lengthwise, and running in a north-south direction, is Long Beach Boulevard. The Loveladies section of the township is its most northerly, lying just south of the Borough of Barnegat Light. Until recently it was very sparsely populated. See Jones v. Zoning Board of Adjustment, Long Beach Tp., 32 N.J.Super. 397, 401, 108 A.2d 498 (App.Div.1954). When originally subdivided it was laid out in lots 125 feet wide, which fronted in Long Beach Boulevard and extended all the way to the bay on the west or to the ocean on the east. Plaintiffs Antal, Price and Weintraub are each owners of an original, ocean-side lot, and plaintiffs Fleming own a bay-side lot. All have built expensive and commodious homes on their lots in accord with what appears to be the present general charactor of Loveladies as a desirable and high-quality residential section.

The subdivisions here in question involve nine of the original 125-foot lots: six contiguous lots on the bay side and one on the ocean side owned by defendants Roche and Frank, successors in interest to Barnegat City Service Co., Inc., which originally prepared, obtained approval of and filed the subdivision plat in 1955 designating the development as Long Beach Club Estates; and two owned by defendants Spisso, one on the bay side and one on the ocean side, directly opposite each other, that on the bay side contiguous to the most northerly lot in Long Beach Club Estates.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The subdivision pattern for the bay side of Long Beach Club Estates illustrates the dispute involved in this litigation. Treatment therein of lots and easement strips is typical of the subdivision plans of all the defendant developers as well as those already executed in other sections of the township, especially North Beach. As is made clear from the portion of the subdivision plat herein reproduced, the six original lots in Long Beach Club Estates are subdivided into five tiers of twelve building lots each, whose frontages run perpendicular to Long Beach Boulevard. Each tier except one backs on an artificial lagoon. In lieu of streets affording access into the development, the developers have provided private easements by marking off within the lot boundaries 20-foot strips running the length of each tier perpendicular to the boulevard, so that in the case of the two double tiers the private way is 40 feet wide. Each of the three private ways is given a street name on the filed plat. The only variation in the other subdivision plats is the absence of lagoons and street names for the private ways. These differences will be seen not to be significant in terms of the issue in this case.

The ordinance requires that lots in the Loveladies section be at least 75 feet by 100 feet and have a minimum of 10,000 square feet. As the plat indicates, each of the lots meets the frontage requirement; moreover, regardless of the exclusion of the easement strips, they all conform to the depth requirement. But if the easement strips are excluded in the area calculation all but 10 of the 68 lots in Long Beach Club Estates and all but one of the 13 Spisso lots fall short of the minimum area requirement.

The determination of whether these easement strips may be included in the area calculations depends upon the proper construction to be given to the directly pertinent provisions of the zoning ordinance, read in the context of the entire ordinance, their evident purpose and policy, and recognized principles of zoning in general. See San-Lan Builders, Inc v. Baxendale, 28 N.J. 148, 155, 145 A.2d 457 (1958); Wright v. Vogt, 7 N.J. 1, 5--6, 80 A.2d 108 (1951). The ordinance defines 'lot' as:

'A parcel of land on which a main building and its accessory buildings are or May be placed, together with the Required open spaces, the location, dimensions and boundaries of which are shown on the records of Ocean County.' (Emphasis added.)

The question, then, is whether a proper construction of this definition would permit these easement strips to be included within the meaning of the term 'lot,' for purposes of the minimum area requirement. We have concluded in the negative.

First, it is clear that the strips are not land on which buildings 'may be placed.' There can be little doubt that these private ways, indicated as they are on the filed plat, constitute perpetual easements of access appurtenant to each of the lots in the tier serviced thereby, and that while they can be extinguished through the consent of all the property owners (an unlikely eventuality in view of the fact that there is no other possible means of access to the interior lots except for the two lagoons), no single property owner would have the right unilaterally to interfere with the free passage thereon by all the other property owners, their guests, and other licensees. See Allen v. Stevens, 29 N.J.L. 509, 510--511 (E. & A.1861); Booraem v. North Hudson County R.R. Co., 40 N.J.Eq. 557, 564, 5 A. 106 (E. & A. 1885); Dill v. Board of Education of City of Camden, 47 N.J.Eq. 421, 432--433, 20 A. 739, 10 L.R.A. 276 (Ch.1890); Brindley v. Borough of Lavallette, 33 N.J.Super. 344, 360, 110 A.2d 157 (Law Div.1954). See also Larkin v. Kieselmann, 259 S.W.2d 785 (Mo.Sup.Ct.1953); Fiebelkorn v. Rogacki, 280 App.Div. 20, 111 N.Y.S.2d 898 (1952), affirmed 305 N.Y. 725, 112 N.E.2d 846 (Ct.App.1953).

Furthermore, these private ways cannot, as is argued by defendants, be considered as part of 'the Required open spaces' included in the definition of 'lot.' Those open spaces plainly mean the front, rear and side yards, these being the only open spaces Required by the ordinance. Those yards are expressly defined in the ordinance as 'open, unobstructed space(s).' The functional and aesthetic differences between a yard which is reserved for the private use of the individual property owner and a way in front of his home over which there is or may be at any time passage of pedestrians and vehicles unrelated to his private use are obvious. The justification for yard requirements in a zoning ordinance is that they implement the valid zoning purposes of controlling population density and the overcrowding of land and buildings and promoting the general welfare (purposes expressed in the statute, R.S. 40:55--32, N.J.S.A., and in the ordinance in question) by providing 'sufficient open space around buildings for rest and recreation,' San-Lan Builders, Inc. v. Baxendale, supra (28 N.J. at page 158, 145 A.2d at page 462), as well as access for fire-fighting and other municipal...