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Levin Properties, L.P. v. Nouvelle Associates, LLC

A-1281-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

EASEMENTS; COMMON SCHEMES — A restriction in one deed prohibiting neighbors from using common areas of that property for common purposes may be subordinate to a neighborhood scheme created by the common grantor of the deed in question and of the deeds for the neighboring properties.

An application was made to develop a movie theater as part of a large shopping center complex. The complex utilized shared parking for all of its component parcels. The project required a number of variances, including one for parking. The owner of another parcel located within the same shopping center contested the application, claiming that a restrictive covenant in its deed prohibited other businesses from using parking spaces in its part of the shopping center. The municipality’s planning board granted the application and declined to determine the legal relationship and property rights of the various parcel owners in the shopping center. In an attempt to resolve the dispute with the objecting owner, the applicant modified its design of the theater complex by repositioning the main entrance of the theater to the front of its own parcel, which was located on the opposite side of the other lot owner’s parcel. This necessitated the filing of an amended application to reconfigure the lot and to add nine additional parking spaces. The board granted the amended application with several conditions, including one that required the applicant to instruct its employees to park in parking spaces that were not located within the other lot owner’s parking area. The complaining lot owner appealed.

The lower court upheld both the initial and amended planning board decisions. It found that: (a) historically, the various commercial establishments in the mall had shared the shopping center’s open parking lot; and (b) the common grantor of the parties’ lots created a common plan for all of the lots that was tantamount to a “neighborhood scheme” wherein reciprocal parking easements were established to benefit all lot owners. The lower court rejected the other parcel owner’s argument that it, by virtue of the expressed language in its deed, had the right to prevent other members of the shopping center from using its spaces, while preserving its own right to use the remaining spaces in the center. In other words, the lower court said the parcel owner wanted “all the benefits” which would allow the parcel owner and its tenants to park anywhere in the shopping center “without any of the burdens of a restricted covenant,” i.e. since it had further language in its deed, no one else could park on its property. The Court held that owners of property within a common property scheme suffer the scheme’s burdens while they receive the benefits. It found, at a minimum, that there were implied easement grants for the common property. The owner of the other parcel within the shopping center appealed.

The Appellate Division affirmed, rejecting the argument that the lower court erred when it applied common law easement principles to nullify the express restrictive covenant rights gives to the complaining parcel’s owner by the original grantor. It held that there was a common scheme regardless of the approach taken. The Court also rejected the contention that the planning board’s action was arbitrary, capricious, and unreasonable. It found that the restrictive covenants contained in the various deeds issued by the common grantor showed that it was the grantor’s intent to establish reciprocal parking easements and that the restrictive language in a lot owner’s deed was subordinate to, and otherwise superseded by, the neighborhood scheme created by the common grantor. The Court noted that a restrictive covenant is a contract; so long as any neighborhood scheme flows from the terms of the scheme, the restrictions apply to all lots of like character, the restrictions are effective. It also found that, although inapplicable to the current case, a complete uniformity of restrictions is not required when all the deeds for the lots making up any particular neighborhood group are made subject to uniform covenants.


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