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Carter Road Homeowner’s Association, Inc. v. Lawrence Township Planning Board

A-4156-09T3 (N.J. Super. App. Div. 2011) (Unpublished)

DEEDS — Where the language in a deed merely identifies the subject property as being the same property listed in an external document, for a particular use that language will not constitute a deed restriction because 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.

A not-for-profit corporation homeowner’s association was organized to represent the interests of residents who lived on or owned property near a particular road. A resident and homeowner in the municipality, who also was an officer of the homeowner’s association, sued to challenge a proposal by the municipality to lease property along the road for purposes of constructing cellular communications towers.

In the late 1980s, a company applied to the municipality planning board for approvals to expand its existing research facility. The planning board granted the requested preliminary and final site plan and conditional use approvals. A condition of the approvals was that the applicant would voluntarily agree to dedicate a piece of land to the municipality along the road for an emergency services substation. By deed, the subject land was conveyed to the municipality.

Following zoning litigation related to the use of a different site, the municipality solicited bids for the lease of a portion of the road site “for the construction and operation of wireless communication poles and related facilities.” By resolution, the municipality accepted a bid for construction of a tower at its road site.

In his suit, the homeowner sought injunctive relief to prohibit construction of the communications tower along the road. In an appeal by the homeowner, the Appellate Division held that neither the deed of conveyance nor the prior resolutions of the planning board barred the municipality’s use of the road site for a communications tower. Although municipalities are bound by deed restrictions just as are private landowners, the deed in this case did not prohibit uses beyond that of 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 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 the research company to the municipality merely identified the property as the same premises dedicated for emergency services in accordance with a resolution adopted by the municipality. According to the Court, this language stated the purpose for which the land was conveyed to the municipality; it did not explicitly restrict the use of the land to that single purpose.

Furthermore, the Court held that no other acts of the municipality or other circumstances shown in the factual allegations of homeowner’s complaint that established a prolonged use of the land for the stated purpose. No emergency services substation was ever built and none was in the municipality’s plans. Even if one were built in the future, it would not be affected by concurrent use of the land for a communications tower. There was nothing in the complaint nor was there any other evidence suggesting that the municipality would no longer able to use the land for its intended purpose as an emergency substation if a communications tower were built. In fact, the municipality’s engineer submitted evidence to the lower court showing that the site could accommodate both uses. Therefore, according to the Court, the lower 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 road site for a communications tower and related facility.

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