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Cyzner v. Township of North Brunswick

A-946-03T5 (N.J. Super. App. Div. 2004) (Unpublished)

CONTRACTS; ASSESSMENTS—A municipality that adopts a land swap agreement ordinance can be ordered to convey the subject parcels if it refuses to do so on its own and it cannot not impose sewer and water assessments on unimproved land.

A man purchased a number of parcels of land. Without his or the seller’s knowledge, the municipality had constructed a water tower and pump station on several of them before he made the purchase. The owner only learned about the construction two years later when a child, who had fallen from the tower, sued him. Since the facilities were mistakenly built on private property, the municipality needed to acquire that land. So, the parties discussed a land exchange. After the negotiations, the municipality adopted an ordinance setting forth the lots to be exchanged. The ordinance also cancelled sewer and water assessments and set forth that the lots conveyed by the municipality were not needed for public use. The agreement between the man and the municipality was not consummated immediately. In fact, it took approximately seven years for most of the exchange to occur. Furthermore, the municipality failed to convey some of those lots.

Based on these conveyances, the property owner applied for a major subdivision to create single-family residential lots from some of the lots conveyed by the municipality. The only means of public access to the subdivision would have been a right of way on one of the lots that the municipality had failed to convey. The local planning board granted preliminary approval conditioned on the owner obtaining written confirmation from the municipality that the municipality didn’t hold title to any part of the property. Concurrently, the municipality adopted a new ordinance repealing that part of the eleven year old original ordinance that had cancelled the water and sewer assessments. It also adopted a resolution which stated that, prior to the issuance of building permits, the subject lot must already be owned by the applicant with all outstanding taxes and assessments on the property paid.

In response, the owner filed a complaint, seeking a judgment declaring the new ordinance invalid and seeking clear title to the lot that had not been conveyed. The lower court ruled in favor of the owner and ordered the municipality to provide a corrective deed conveying the missing lots. It also ordered cancellation of the sewer and water assessments. The Appellate Division affirmed, finding that the parties had originally contracted that the municipality would convey all of the lots in question to the owner. Furthermore, the Court pointed out that the original agreement was that the swapped lot “was not needed for public use.” This was critical to the owner’s meeting the remaining contingencies for the development of his property. As a result, the Court affirmed the lower court’s holding that the municipality’s attempt to retain the lot was inconsistent with the intentions of the original agreement.

According to the Court, the municipality had breached the contract when it attempted to renege on the cancellation of the assessments. The original ordinance governed. Further, sewer and water assessments can only be imposed upon improved lands, but the property in question was unimproved at the time of the assessments. Lastly, according to the Court, this attempted reinstatement of the assessments constituted a “special assessment” ordinance. Such an ordinance requires personal notice to affected property owners.


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