[Added 9-23-2020 by Ord. No. 809-2020; amended 2-28-2024 by Ord. No. 873-2024]
a. 
The Borough did, during the 1950s and 1960s and perhaps at other times as well, and in an undetermined number of instances involving an unknown number of parcels of land without any improvement thereon, convey such parcels of real property subject to certain conditions which required the grantee to either make certain site improvements (such as install fill to bring the property to grade; install utilities including water and sewer) and to build a principal structure for living purposes consisting of a minimum number of square feet. Usually this required that the grantee make the improvements within a stated period of time and, in the event that the grantee failed or neglected to do so, the parcel would revert to the Borough. Among the restrictions commonly imposed was a height restriction which limited the height of any structure to two stories and without any specification of feet or other quantitative measure. These conveyances by the Borough were generally made before the Borough enacted a Master Plan and before enactment of comprehensive land use ordinances. These conveyances by the Borough were also made at a time when the Borough was seeking to increase the number of tax ratables and also to encourage development in parts of the Borough where development would prove beneficial.
Ordinance 614 was adopted by the Board of Commissioners of the Borough of Avalon on January 30, 1979. This ordinance was entitled the "Comprehensive zoning ordinance [of the Borough of Avalon] regulating and limiting the uses of land and the uses and locations of buildings and structures; regulating and restricting the height and bulk of buildings and structures and determining the area of yards, courts and other open spaces; regulating and restricting the density of population, the creation of zones for such purposes and adopting a map of said Borough showing boundaries and classifications of said zones, promulgating regulations for the enforcement thereof and prescribing penalties for the violation of its provisions." This ordinance was enacted pursuant to Chapter 291, Laws of New Jersey 1975 (N.J.S.A. 40:55D-1 et seq)., commonly known as the New Jersey Municipal Land Use Law, which became effective August 1, 1976.
b. 
In certain of these instances, an inspection of the parcel by the appropriate Borough officer or official can confirm that the required site improvements have been made. The appropriate Borough officer or official shall provide said confirmation to the Clerk’s office affirming that all conditions have been complied with. The restriction shall be discharged or the reverter shall be released through a quit claim deed which shall be reviewed and approved by the Borough Solicitor which is then signed by the Mayor and Borough Clerk and provided to the Property Owner so that it may be duly recorded with the County.
c. 
There are some other instances where the Borough has imposed deed restrictions which can be waived, released, modified or subordinated by the Borough but only after a public hearing and compliance with the procedures specified in N.J.S.A. 40:60-51.2.
d. 
Among such restrictions are those which limit the construction of any building to two stories and prohibit any construction in excess of two stories as indicated previously.
e. 
Borough Council has also been informed in an opinion by the Borough Solicitor that any deed restriction that is vague or ambiguous is most likely to be held to be unenforceable by the Courts and that any ambiguities in a deed are construed against the grantor, in this case the Borough, citing Union Cty. Indus. Park v. Union Cty. Park Comm'n, 95 N.J. Super. 448, 452—53 (App. Div. 1967).
f. 
Indeed, the two-story height restriction was the subject of a challenge in litigation in the Superior Court of New Jersey, Cape May County in the matter of J. Taney Willcox, Jr. and Catherine E. Willcox v. Harold A. Sorgenti and Ann R. Sorgenti, Docket No. C-119-91 (Hon. John F. Callinan, J.S.C. Presiding) wherein the Court found by Order dated February 14, 1994, that such deed restriction was "unenforceable by reason of vagueness" and the Court further Ordered and Adjudged that a copy of the Order "be recorded in the Cape May County Clerk's Office to provide record notice of this Order." Said Order was thereafter duly recorded in the Office of the Cape May County Clerk on March 14, 1994, in Deed Book 2450, pages 333 to 336, and continues to remain of record.
g. 
The decision in Willcox v. Sorgenti is completely in accord with the 1967 decision of the Appellate Division of the Superior Court of New Jersey in the matter of Union Cty. Industrial Park v. Union Cty. Park Commissioners, 95 N.J. Super. 448 which is cited in Subsection e above. See also Cooper River Plaza E., LLC v. Briad Grp. 359 N.J. Super. 518.
h. 
Arguably, the Court decision in Willcox v. Sorgenti provides guidance in leading to a determination that any such two-story height restriction imposed by the Borough is null and void since it is "unenforceable by reason of vagueness" as ordered by the Willcox Court and it may be further argued that the Willcox decision negates the need for a hearing under N.J.S.A. 40:60-51.2 since it is no longer a discretionary matter within the control of the governing body since the restriction has been ruled to be unenforceable by the Superior Court of New Jersey.
i. 
The two-story height restriction could also be invalidated for a separate reason. In 1971, the New Jersey Legislature adopted N.J.S.A. 40A:12-13. That law regulates the sale of property by municipalities. Subparagraph (a) of that law authorizes municipalities to impose restrictions that are "related to a lawful public purpose and encourage and promote fair and competitive bidding" but also provides that such restrictions "…shall not, in the case of a municipality, be inconsistent with or impose a special or higher standard than any zoning ordinance or building, plumbing, electrical, or similar code or ordinance then in effect in the municipality."
j. 
Currently, the Borough's zoning ordinance contains provisions specifying the maximum height of buildings.[1] To the extent that the two-story height restriction imposes a more restrictive limitation than the current ordinance requires, it would arguably violate N.J.S.A. 40A:12-13.
[1]
Editor's Note: See Ch. 27, Zoning.
k. 
Since the Borough has subsequently adopted a Municipal Zoning Ordinance and other land use ordinances and a comprehensive Master Plan has been adopted by the Avalon Planning/Zoning Board which is periodically re-examined in accordance with the provisions of the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.) which establish regulations as to building height among other things,[2] there is no present or foreseeable future need for such deed restrictions as were imposed in the 1950s and the release thereof would not appear to adversely affect the rights of any third parties.
[2]
Editor's Note: See Ch. 27, Zoning.
l. 
Based on the foregoing, and after due consideration of a legal opinion from the Borough Solicitor, Borough Council is of the opinion that the two-story height restriction is vague, ambiguous, and unenforceable and that a Court of competent jurisdiction has already so ruled. (See Willcox v. Sorgenti above.) Furthermore, the Borough has no reason to attempt to enforce or maintain such restriction since the land use ordinances of the Borough provide ample protection.
m. 
While N.J.S.A. 40:60-51.2 sets forth a procedure whereby municipalities may waive, release, modify or subordinate building restrictions contained in conveyances by municipalities, it is only reasonable to construe that statute as only applying to deed restrictions that are valid, unambiguous, sufficiently detailed and specific, and have a reasonable likelihood of being enforceable. To require a public hearing before releasing or modifying each individual deed restriction that has been held "to be unenforceable by reason of ambiguity and vagueness" by the Superior Court of New Jersey is meaningless, puts applicants and the Borough to needless expense, seeks public participation in a process in which Borough Council has no discretion which only leads to a loss of public confidence in the integrity of the process, particularly when such outcome is predetermined by the vagueness, ambiguity and unenforceability of the challenged restriction, and all to the detriment of the applicant, the public, and the Borough. To continue past practice, will only result in a multitude of such applications on an individual basis which will continue to result in multiple hearings that are, and will continue to be, duplicitous in nature and which will ultimately result in the foregone result that such restriction must be released since the Court has already ruled and determined that the two-story height restriction is void and unenforceable.
n. 
Borough Council is of the opinion, therefore, that the intent and purpose of N.J.S.A. 40:60-51.2 is met and satisfied by the procedure hereinafter set forth, and by the holding of a public hearing, with appropriate notice, prior to adoption.
[Added 9-23-2020 by Ord. No. 809-2020; amended 2-28-2024 by Ord. No. 873-2024]
a. 
Any deed restriction, whether or not accompanied by a reverter clause provision, contained in any deed from the Borough of Avalon, as grantor, and delivered to any person(s), or entity, as grantee(s) for any real property located within the boundaries of the Borough of Avalon, Cape May County, New Jersey which purports to limit the height of any building to be constructed to "two stories" or other similar height restriction without any specification of feet or other quantitative measure is hereby declared to be void for vagueness and ambiguity in accordance with the ruling of the Superior Court of New Jersey, Cape May County, Chancery Division in the matter of J. Taney Willcox, Jr., and Catherine E. Willcox v. Harold A. Sorgenti and Ann R. Sorgenti, Docket No. C-119-91 and shall be subject to discharge and release in accordance with the procedures set forth herein. In addition, since the Borough has enacted various land use ordinances including a Municipal Zoning Ordinance which limits the heights of all buildings and determines how such height is to be determined, as previously stated, such prior height restriction imposed by deed restriction is hereby deemed to be superfluous and to have been superseded by such land use ordinances. Such deed restriction would further appear to violate the provisions of the Local Land and Buildings Law, N.J.S.A. 40A:12-1 et seq. Accordingly, any such restriction shall be deemed released by Resolution No. 71-2024 of Borough Council.
b. 
Any deed restriction, whether or not accompanied by a reverter clause provision, contained in any deed from the Borough of Avalon, as grantor, and delivered to any person(s), or entity, as grantee(s) for any real property located within the boundaries of the Borough of Avalon, Cape May County, New Jersey which requires the construction or installation of any site improvement(s) including the construction of any dwelling or structure of any certain size or dimension or other similar type condition may be released upon a site inspection by the appropriate Borough officers or official and such officer(s) or official confirm(s), in a written report to the Borough Clerk that all site improvements have been made or installed in a satisfactory manner or that any required structure has been constructed and completed. In addition to any site visit or inspection, the appropriate Borough officer(s) or official may rely upon records of the Borough, including construction permits, variance applications, certificates of occupancy or certificates of approval, and other documentation of the same or similar nature. Any such restriction shall be deemed released by resolution No. 71-2024 of Borough Council.
c. 
Any other deed restriction, other than the type described in Subsections a and b above, shall be released only following a public hearing and the procedure established in N.J.S.A. 40:60-51.2 or such other statute as may be applicable.
[Added 9-23-2020 by Ord. No. 809-2020; amended 2-28-2024 by Ord. No. 873-2024]
a. 
Procedure; Release without Additional, Individual Public Hearing.
1. 
Those restrictions described in § 28-2a hereof shall be deemed to be released, by a global resolution of Borough Council, Resolution No. 71-2024 and without the necessity for an additional, individual public hearing as might otherwise be required by N.J.S.A. 40:60-51.2, upon the application of the owner or other party in interest, for the reasons set forth herein.
2. 
Those restrictions described in § 28-2b hereof shall be released, by a global resolution of Borough Council, Resolution No. 71-2024, upon the application of the owner or other party in interest, and upon the filing of one or more of the reports described herein and upon Borough Clerk and Solicitor being satisfied that all previously imposed conditions have been met and satisfied.
b. 
Application Process and Solicitor Review. The application for release shall be on forms provided by the Borough. The applicant shall provide any such additional information or documentation as the Borough Clerk may require or as the Borough Solicitor may recommend. The applicant shall also provide a proposed quit claim deed releasing the restrictions which must be prepared by a State of New Jersey licensed attorney. Once a completed application is received by the Borough Clerk, and the requirements set forth in § 28-3a and b have been satisfied, the proposed deed releasing said restrictions shall be forwarded to the Borough Solicitor for review.
After review by the Solicitor, the approved quit claim deed shall then be signed by the Mayor and Borough Clerk and provided to the Property Owner so that it may be duly recorded with the County. It shall be the responsibility of the property owner to record the deed with the County. A copy of the recorded deed shall be provided to the Borough Clerk from the property owner.
c. 
Fees and Costs to Be Paid by Applicant; Amount Determined by Resolution. The applicant shall pay all costs incurred by the Borough in connection with such request including, but not limited to, the Borough’s administrative costs, legal fees in reviewing the application and proposed deed. All fees to be charged shall be established pursuant to resolution of Borough Council and may be revised from time to time as Borough Council shall determine.
d. 
Escrow. The Borough may, in its discretion, require the applicant to deposit an escrow amount to cover the Borough's legal and administrative costs.
[Added 9-23-2020 by Ord. No. 809-2020]
a. 
Other than the foregoing type(s) of restrictions described in § 28-2 hereof, any other deed restriction imposed by the Borough shall remain in full force and effect and shall be waived, modified, released, or subordinated only in accordance with the provisions of N.J.S.A. 40:60-51.2.
b. 
Upon the adoption of the resolution specified in § 28-2 hereof, the Mayor and Borough Clerk are hereby authorized and directed to execute, on behalf of the Borough, a deed or such other instrument as may be appropriate to release such restriction.
[Added 9-23-2020 by Ord. No. 809-2020; amended 2-28-2024 by Ord. No. 873-2024]
On a date concurrent with the public hearing on this chapter, the Borough shall conduct a public hearing pursuant to N.J.S.A. 40:60-51.2 on the release of the two-story deed restriction as well on the release of the site improvements referenced in § 28-2a and b. Notice of the time, date, place and purpose of such hearing shall be published as required by said statute. The form of such notice shall be subject to approval by Borough Council and shall conform to such statute to the greatest extent possible and shall inform the general public of the nature of the restriction being considered for release when the existence of such deed restriction becomes known. The form of notice shall conform substantially to the form annexed hereto.