NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5210-18T1
SERGIO MARTINS and
SANDRA MARTINS,
Plaintiffs-Respondents,
v.
TOWNSHIP OF CRANFORD,
Defendant-Appellant.
_________________________
Argued telephonically August 25, 2020 –
Decided September 11, 2020
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Union County, Docket No. C-
000141-18.
Renier P. Pierantoni argued the cause for appellant
(Cooper, LLC, attorneys; Ryan J. Cooper, of counsel
and on the briefs; Francine M. Kaplan, on the briefs).
Stephen F. Hehl argued the cause for respondents
(Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins,
attorneys; Stephen F. Hehl, of counsel and on the brief;
Joshua J. Koodray, on the brief).
PER CURIAM
Defendant Township of Cranford (the Township) appeals from the June
25, 2019 Chancery Division order entered in favor of plaintiffs, Sergio and
Sandra Martins, declaring the restraints, covenants, or conditions contained in
their deed "moot," as having been previously "fulfilled." We affirm.
We glean these facts from the record. On October 27, 2016, plaintiffs
acquired title to 116 Garden Street in Cranford (the property) for a purchase
price of $425,000. The property was designated as Block 285, Lot 5, on the
Township's tax map. The deed, which was recorded on November 18, 2016, was
"subject to all covenants, agreements, easements and restrictions of record ."
The property consisted of one lot encompassing Parcels A, B, and C. A
prior owner, Ravenell Williams, acquired Parcel C from Mary Brown in 1959.
Thereafter, in 1970, Williams acquired Parcel B from the Township for $1000
with the condition that "[t]he lands herein conveyed shall be used only in
conjunction with adjoining property owned by the grantees to form one building
lot."
Subsequently, in 1973, Williams acquired Parcel A from the Township for
$1000 with the same condition as Parcel B that the lands "shall be used only in
conjunction with adjoining property owned by the grantees to form one building
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2
lot." In a 1973 resolution authorizing the sale of Parcel A by public auction, the
Township expressly referenced the condition in the public notice advertising the
sale, and specified that the Township had "determined . . . that said lands and
premises [were] not required for public purposes and that it [was] in the best
interest of the Township that the same be sold at public auction."
After plaintiffs acquired the property, on August 24, 2017, they filed an
application with the Township for approval of a minor subdivision in order to
subdivide the property from one lot into two, proposing a single-family home
on each lot. Plaintiffs also sought certain variances related to minimum lot area,
minimum lot width, and combined side-yards. The property, which was located
in the R-4 Zone, required minimum lot widths of sixty feet. Although the
combined property had a width of 100 feet, originally, Parcel C had a lot width
of fifty feet and Parcels A and B had lot widths of twenty-five feet each.
On November 29, 2017, the Township issued a certification of
completeness, scheduled the matter for a development review committee
meeting, and later a public hearing before the Township's Planning Board.
During the public hearing, the Planning Board would not allow the application
to move forward unless the condition was removed from Parcels A and B.
Relying on Soussa v. Denville Twp. Planning Bd., 238 N.J. Super. 66 (App. Div.
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3
1990), the Planning Board contended that it did not have the authority to release
the condition because the Township and the general public were the intended
beneficiaries of the deed.1
On October 5, 2018, plaintiffs filed a complaint seeking relief under the
New Jersey Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62, and requested
that the court issue "a judicial declaration in order to declare and settle the rights
and obligations of the parties." In the complaint, plaintiffs asserted the condition
was "invalid, null and void" and the Township's "refusal and/or failure to act has
cast[] a cloud on title and restrains [p]laintiffs from fully enjoying and/or
utilizing the [p]roperty."
Further, plaintiffs asserted in their complaint that Soussa was
distinguishable from the instant matter because the deed restriction in that case
1
In Soussa, we affirmed the dismissal of the plaintiffs' complaint in lieu of
prerogative writs seeking to compel the Township's planning board to remove a
restrictive covenant that expressly barred subdivision so that the board could
review their subdivision application. Id. at 67-68. The deed "specifically recited
that the restriction was imposed in reliance on the resolution of the planning
board which resolution in turn recited that the restriction was required so 'that
there be adequate protection afforded the township and the general public[.]'"
Id. at 69. We held that inasmuch as "[t]he public . . . was . . . the intended third
party beneficiary of the covenant" and was therefore both "entitled to maintain
an action to enforce it" and "a necessary party to any action to lift" it, "[t]he
dismissal of the action was . . . proper" because "neither the Board nor [the
Township] ha[d] the power separately or together to eliminate the covenant in
the deed." Id. at 68.
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4
specifically referenced the fact that the restriction was being imposed to afford
"adequate protection . . . to the Township and the general public." However, no
such language referring to the "general public" existed in this matter, and the lot
size was much smaller than the one at issue in Soussa.
The Township filed a contesting answer. Following oral argument, on
June 25, 2019, the judge entered an order, granting plaintiffs a declaratory
judgment. In the accompanying written decision, the judge held that "[t]he deed
restriction on Parcels A and B" that "the lots be used to form one building lot"
had "been fulfilled by operation of law." Relying on Loechner v. Campoli, 49
N.J. 504 (1967), the judge determined that "[t]he three contiguous lots have
merged to form one building lot."
In reaching this conclusion, the judge determined that "[t]he Planning
Board's reliance on [Soussa was] misplaced." The judge explained that the
restriction in Soussa was imposed in reliance on the Planning Board's resolution
granting Soussa's initial application "for major subdivision approval" to build
on nine lots "on condition [that] the remaining 20.22 acres be left unavailable
for future development." To that end, in Soussa, the new deed specified that the
restriction was imposed to afford "adequate protection" to "the township and the
general public."
A-5210-18T1
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The judge pointed out that when the plaintiffs in Soussa "later applied to
subdivide the 20.22 acre tract contrary to the deed restriction[,]" the "Planning
Board determined that it lacked jurisdiction to review the plan because of the
deed restriction[,]" resulting in the dismissal of the Soussas' complaint, which
dismissal was affirmed on appeal "on the ground that the applicants had created
a property right in the public which the Town and Planning Board could not
surrender." According to the judge, here, unlike the restriction in Soussa,
"[t]here [was] no similar language creating a right in the public in the lands
owned by the Martins" and "[t]he deed restriction required [the property to] be
considered one lot, which ha[d] happened." Therefore, inasmuch as "[t]he deed
restriction . . . ha[d] been fulfilled[,]" it was "moot" and there was "no restrictive
covenant for the court to remove." This appeal followed.
On appeal, the Township argues that the judge erred in applying the
merger doctrine enunciated in Loechner "because the deed restrictions and
Loechner doctrine serve different purposes" and neither purpose "should
override the other." According to the Township, while the "deed restrictions
were an intentional and binding contract with Williams that was intended to run
with the land," the "Loechner doctrine is a passive . . . and temporally specific
rule of municipal land use law." While the Township acknowledges that "the
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parcels . . . merged," it contends "such merger has not extinguished the deed
restrictions expressly incorporated into the [d]eed." It asserts the restrictions
should be enforced because they are "reasonable" restrictions intended to
maintain the "existing zoning" and plaintiffs took title "with notice of the clear
and unambiguous restriction" on the property's use.
"The term 'merger' is used in zoning law to describe the combination of
two or more contiguous lots of substandard size, that are held in common
ownership, in order to meet the requirements of a particular zoning regulation. "
Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 578 (2005). "[T]he purpose of
the merger doctrine is to bring non-conforming lots into conformity and thus
advance the zoning scheme." Id. at 582. "In effect, it requires subdivision
approval for the development of individual substandard parcels if contiguous
parcels have been, at any relevant time, in the same ownership and, at the time
of such ownership, the parcel was not substandard." Id. at 578.
In Loechner, where the plaintiff acquired title to three adjoining lots, on
which her house was situated, and later acquired title to two adjoining vacant
lots, our Supreme Court held that despite separate designations on an old tax
map, under the merger doctrine, the adjacent lots were part of a larger tract or
parcel the plaintiff owned and "the separation of [the two vacant lots] from the
A-5210-18T1
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balance of the lots . . . constituted a subdivision." 49 N.J. at 511-12. "Although
Loechner never actually used the word 'merger,'" in actuality, "a Loechner
merger takes place as a matter of law where adjacent substandard lots come into
common legal title." Jock, 184 N.J. at 581.
Here, based on our de novo review of questions of law, Fallone Props.,
LLC v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561-62 (App. Div.
2004), Parcels A and B merged with Parcel C by operation of law. Specifically,
Parcels A and B, the adjacent undersized lots, were owned by Williams before
plaintiffs purchased the property, and thus merged with Parcel C as a matter of
law to form one lot. Therefore, we agree with the judge that the condition that
"[t]he lands herein conveyed shall be used only in conjunction with adjoining
property owned by the grantees to form one building lot"2 was fulfilled by virtue
of the merger doctrine, and imposed no further restraint in that regard on
plaintiffs to preclude the Planning Board's review of their subdivision
application.
Even assuming the condition survived, unlike Soussa, the condition does
not preclude subdivision to bar plaintiffs' subdivision application, nor specify
2
In Loechner, the Court observed that "[t]he sale of said lands was allegedly
made pursuant to a municipal practice of selling undersized lots to adjoining
owners for the purpose of combining the properties into one tract." Id. at 507.
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that "'there be adequate protection afforded the township and the general
public.'" Id. at 69. On the contrary, the 1973 resolution authorizing the sale of
Parcel A specified that the Township had "determined . . . that said lands and
premises [were] not required for public purposes and that it [was] in the best
interest of the Township that the same be sold at public auction."
We base our strict construction of the condition on well settled principles
that:
Restrictions on the use to which land may be put are not
favored in law because they impair alienability. They
are always to be strictly construed, and courts will not
aid one person to restrict another in the use of his land
unless the right to restrict is made manifest and clear in
the restrictive covenant.
....
Of course, the rule of strict construction will not be
applied to defeat the obvious purpose of a restriction.
However, the meaning of a restrictive covenant will not
be extended by implication and all doubts and
ambiguities must be resolved in favor of the owner's
unrestricted use of the land.
[Cooper River Plaza E., LLC v. Briad Grp., 359 N.J.
Super. 518, 526 (App. Div. 2003) (quoting Bruno v.
Hanna, 63 N.J. Super. 282, 285, 287 (App.Div.1960))
(citation omitted).]
Here, no manifest or clear restriction on subdividing appears in the condition,
and any ambiguity must be resolved in plaintiffs' favor.
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Affirmed.
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