CARTER ROAD HOMEOWNER'S ASSOCIATION, INC. v. LAWRENCE TOWNSHIP PLANNING BOARD (Superior Court of New Jersey Appellate Division August 9, 2011).
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.
The relevant facts were not in dispute. 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 agree 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.
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. 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.”
After zoning litigation related to the use of a different site, 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." By resolution dated April 22, 2009, the Township Council accepted a bid for construction of a tower at its Carter Road site.
On July 27, 2009, plaintiffs sought injunctive relief against the township and the planning board to prohibit construction of a communications tower at the Carter Road site. The Court held that neither the deed of conveyance nor the prior resolutions of the planning board bar the township's use of Carter Road site for a communications tower. Although municipalities are bound by deed restrictions just as private landowners are bound under New Jersey law, the deed in this case did not prohibit uses other than an emergency services substation.
Citing New Jersey law, the Court stated that the words used in a deed are a key factor in determining the parties' intent. "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." 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]." According to the Court, 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.
Furthermore, the Court stated 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 was 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. Therefore, the trial court 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.
Anthony Dorland
DorlandA@moss-barnett.com
(612) 877-5258