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Mavroudis v. The Borough of Alpine

A-2222-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; EASEMENTS; STANDING—A neighbor was denied standing to assert that a recorded restrictive covenant precluded a variance applicant being granted land use approvals because the covenant, by its language, restricted the class of persons who could enforce the covenant.

A wireless company received approval from a planning board to construct a communications tower on municipal land. A local resident appealed the approval, claiming the transaction was a breach of the municipality’s fiduciary duty, was arbitrary and capricious, and was void due to a lack of an authorizing ordinance. The lower court dismissed two counts of the complaint for lack of standing. Those counts relied on a restrictive covenant placed on the land over fifty years earlier. According to the covenant, the land was “to be used for no purposes other than park purposes, and no structures were to be permitted except for the possibility of bus shelters.”

However, in dismissing the first two counts, the lower court, with the Appellate Division’s approval, held that only a “devisee, assignee, or a subsequent owner of real property owned by the original conveyor adjoining the conveyed land” could rightfully enforce the restrictive covenant; and the resident did not meet these qualifications. Because the potential members of the benefited community was expansive, and extended across two states, the original conveyor limited the covenant’s class of enforcers. In addition, the Court held that enforcing and interpreting deed restrictions is outside of the duties of a planning board, therefore its decision not to enforce the restriction was not arbitrary or capricious.

In response to the resident’s claim that there was no authorizing ordinance, the Court, after reviewing the relevant ordinances, held that communication towers were permitted uses in the zone because the majority of the land was retained and reserved for public purposes, and the land being used for the antenna was for the benefit of public communication.

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