[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.
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.
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.
[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]
[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.
