Opinion
DOCKET NO. A-1521-11T2
03-26-2013
SOHO PROPERTIES, L.L.C., Plaintiff-Respondent, v. CENTEX HOMES, L.L.C., Defendant-Respondent/Cross-Appellant, and CITY HOMES AT ESSEX PARK CONDOMINIUM ASSOCIATION, INC., Defendant-Respondent. CENTEX HOMES, L.L.C., Third-Party Plaintiff-Respondent/Cross-Appellant, v. NEW HORIZON INVESTMENT CORPORATION, Third-Party Defendant-Appellant/Cross-Respondent, and CENTER FOR MOLECULAR MEDICINE AND IMMUNOLOGY, INC., Party-in-Interest, and NORTHWEST ESSEX COMMUNITY HEALTHCARE NETWORK, INC., COUNTY OF ESSEX and ESSEX COUNTY IMPROVEMENT AUTHORITY, Parties-in-Interest-Respondents.
Michael V. Elward argued the cause for appellant/cross-respondent New Horizon Investment Corporation (Montenegro, Thompson, Montenegro & Genz, P.C., attorneys; Mr. Elward, of counsel and on the brief). Michael J. Canning argued the cause for respondent/cross-appellant Centex Homes, L.L.C. (Giordano, Halleran & Ciesla, attorneys; Mr. Canning, of counsel and on the brief; Matthew N. Fiorovanti, on the brief). Anthony G. DelGuercio argued the cause for respondent Northwest Essex Community Healthcare Network, Inc. (Gaccione Pomaco, attorneys, join in the brief of respondent/cross-appellant Centex Homes, L.L.C.). Stephen H. Shaw argued the cause for respondent City Homes at Essex Park Condominium Association, Inc. (Hueston McNulty, attorneys, join in the brief of respondent/cross-appellant Centex Homes, L.L.C.). James R. Paganelli, Essex County Counsel, attorney for respondent County of Essex, joins in brief of respondent/cross-appellant Centex Homes, L.L.C. Respondent Soho Properties, L.L.C. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Waugh and St. John.
On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-216-07.
Michael V. Elward argued the cause for appellant/cross-respondent New Horizon Investment Corporation (Montenegro, Thompson, Montenegro & Genz, P.C., attorneys; Mr. Elward, of counsel and on the brief).
Michael J. Canning argued the cause for respondent/cross-appellant Centex Homes, L.L.C. (Giordano, Halleran & Ciesla, attorneys; Mr. Canning, of counsel and on the brief; Matthew N. Fiorovanti, on the brief).
Anthony G. DelGuercio argued the cause for respondent Northwest Essex Community Healthcare Network, Inc. (Gaccione Pomaco, attorneys, join in the brief of respondent/cross-appellant Centex Homes, L.L.C.).
Stephen H. Shaw argued the cause for respondent City Homes at Essex Park Condominium Association, Inc. (Hueston McNulty, attorneys, join in the brief of respondent/cross-appellant Centex Homes, L.L.C.).
James R. Paganelli, Essex County Counsel, attorney for respondent County of Essex, joins in brief of respondent/cross-appellant Centex Homes, L.L.C.
Respondent Soho Properties, L.L.C. has not filed a brief. PER CURIAM
On this appeal and cross-appeal, we affirm the Chancery Division's October 18, 2011 decision granting interior lot owners who are parties in this suit a private right-of-way over an oval roadway traversing lands owned by third-party defendant, appellant, and cross-respondent, New Horizon Investment Corp. (NH). Because the issues unfortunately require it, we first detail the history of ownership, subdivision, development, and related litigation as it pertains to lands designated in 1903 as Township of Belleville Block 550, Lot 1, and Block 540, Lot 1.
I.
BLOCK 540 AND 550
Essex County Subdivides and Conveys the Property
In 1903, third-party defendant Essex County acquired Block 550, Lot 1, and Block 540, Lot 1, in the Township of Belleville, by conveyance from Abram L. Cross and his wife, Fannie A. Cross. Block 550 is a rectangular lot directly to the north of Block 540. The entire tract is bordered by Franklin Avenue to the east, and Belleville Avenue to the south, both now heavily traveled roadways. A narrow residential municipal road, Carpenter Avenue, borders the land to the west.
After the acquisition, Essex County constructed a hospital at the location, including an oval-shaped macadam roadway providing access to Franklin Avenue. The roadway has been in place for at least forty or fifty years prior to the 2009 trial. The roadway provided access not only to Franklin Avenue, but to various related structures sited around it, and surrounding parking areas and driveways.
Essex County subdivided Block 540, Lot 1 into two lots. This subdivision was approved by way of an August 12, 1993 resolution adopted by the Township of Belleville Planning Board (Planning Board). Lot 1.01 included 18.59 acres and retained the by-then-vacant main hospital building and parking areas. The other lot, designated as 1.02, consisted of 4.38 acres to the north of Lot 1.01.
The Planning Board's resolution approving the subdivision states that access through Carpenter Street is prohibited, and that ingress and egress to the parcels will be "through the 18.59 acres" upon which the oval roadway was located. New Lot 1.02 included the property which now belongs to plaintiff Soho Properties, L.L.C. (Soho). No other language regarding ingress and egress, easements, or roadways was included in the resolution, which simply states, "[e]ntrance to the site is from Belleville Avenue and exit to Franklin Avenue, and it has an internal network of driveways connecting two parking lots."
On July 20, 1995, Essex County conveyed title to a 9.13-acre portion of Block 540, Lot 1.01 to the Essex County Improvement Authority (ECIA). We cannot discern from the record if a formal subdivision was sought or obtained. In any event, the deed excised 9.13 acres from Lot 1.01; the language of conveyance included the phrase "the benefits of the easements hereinafter set forth." The deed describes the grant by Essex County to ECIA as being in furtherance of a 1993 redevelopment plan calling for the use of the land as a medical research center, and the lease of the land by ECIA to the Center for Molecular Medicine and Immunology, Inc. (CMMI), a research and cancer care facility.
Described in the caption as a "party-in-interest" and respondent.
Described in the caption as a "party-in-interest" and respondent.
With regard to "[a]ccess [e]asements," the deed stated:
1. Grantor hereby grants and conveys to CMMI, its patients, agents, contractors, employees and invite[e]s for the use and benefit of the Project, perpetual access easements ("Access Easements") and the right to use in, to, over and across the driveways, walkways and sidewalks located on the property ("Easement Area") as shown on the site plan attached hereto and made a part hereof as Schedule C, for purposes of ingress, egress, passage and delivery by vehicles and pedestrians to and from Franklin Avenue and Belleville Avenue.
2. With respect to the Access Easements the Grantor shall not commit any act or cause any act to be committed which would prevent, obstruct or interfere with the passage and free flow of vehicular and/or pedestrian traffic to and from the Project.
3. CMMI shall have the right, but not the obligation, to apply for stop signs, traffic signals, speed bumps and other traffic control devices and for the establishment of reasonable rules and regulations with respect to the use of the Access Easements necessary for the safe ingress and egress to and from the Project.
4. CMMI shall have no obligation whatsoever to maintain the Access Easements.
5. Subject to any and all required governmental approvals, Grantor shall have the right at the direction of the Grantor, to shift, modify and/or relocate the driveways, walkways and sidewalks comprising the Access Easements as long as CMMI's access and use is not diminished or impaired and so long as the primary access at the front of the Building is not relocated.
6. CMMI shall have the right to install and maintain reasonable signage required to identify the Project on the Belleville Avenue entrance to the front of the Building located in the Easement Area.
On that same date, July 20, 1995, ECIA conveyed Block 540, Lot 1.01, to CMMI. The deed states, "title to the Property and the easements hereinafter provided shall automatically revert to the County of Essex," upon the occurrence of certain eventualities related to the nature of CMMI's activities. The deed also included a description of "[a]ccess and [u]tility [e]asements" granted to CMMI. The conveyance was made upon the condition that Essex County "as the fee owner of the Easement Area as described in the County Deed, shall be solely responsible for all of the grantor's obligations contained in the County Deed related to such easements, and [ECIA] shall have no obligation or liability for the performance [of] any . . . obligations or duties related to such easements." The access easement depicted on Schedule C, attached to the deed, was hand-drawn, and, NH asserts, did not extend over the oval roadway.
The copy provided in NH's appendix is virtually unreadable.
Essex County Further Subdivides the
Property in Preparation for Sale
In September 1997, Essex County adopted an ordinance authorizing the sale of the lands, which indicated that the land was being sold "as is." Title would be conveyed "subject to all easements and restrictions of record and to such state of facts as an inspection and survey may reveal."
Map No. 4041, prepared before, and filed after, the eventual 1998 auction of lands, clearly depicts the subdivision of Block 540, Lots 1.01 and 1.02 into seven lots. Original Lot 1.02 was subdivided to create three lots which contained (a) the new Block 540, Lot 1.02, the southern-most part of the property eventually developed by defendant and third-party claimants Centex Homes, L.L.C. (Centex); (b) the new Block 540, Lot 4, now owned by Soho; and (c) the new Block 540, Lot 5, currently owned by Northwest Essex Community Healthcare Network, Inc. (CHN). This further subdivision of Lot 1.01 created four new lots, including Block 540, Lot 1, owned by NH.
Described in the caption as a "party-in-interest" and respondent.
The macadam oval roadway at issue is depicted on Map No. 4041. The newly created lots bordered it in such fashion that it naturally became the means of access to Franklin Avenue.
In requests for admission obtained during discovery, Essex County admitted that the "actions of filing Map No. 4[0]41 with roads delineated therein, making reference to same in the deed to New Horizon and making the conveyance to New Horizon subject to easements of record can be deemed consistent with providing access rights to the interior lot owners for ingress and egress from Franklin Avenue via the [E]xisting [R]oadway."
In fact, Gerald Capasso, a licensed land surveyor and principal engineer for Essex County, who worked in its engineering division from 1957 to 1998, prepared and signed Map No. 4041. He testified during the trial of this matter that he configured the lots so as to provide each with access to the oval roadway. Capasso understood access to the interior of the property to be via the oval roadway, specifically including Soho's property, which would otherwise have no frontage on Franklin Avenue.
Although on cross-examination Capasso readily acknowledged that it was not his intent to create an easement in drawing the map, he reiterated that he purposefully depicted a condition already in existence; namely, that the oval roadway provided the sole means of access for the interior lots to Franklin Avenue. He said that the oval roadway had been in use at least the forty years during which he had been familiar with the site. Capasso also said that the interior buildings have, over the years, accessed Franklin Avenue via the oval roadway.
In contrast, Catherine Tamasik, counsel to Essex County at the time of the 1998 sale, testified during trial that the properties were all sold "as is, whereas." Access was not Essex County's concern — its only concern was the successful sale of the lots.
Centex's Predecessor Enters into
Agreements with Soho and New Horizon to
Compel Essex County's Conveyance of the Lots
Soho's principal, Robert Grogan, and Kaiser Pathan, NH's principal, participated in the eventual auction of the lots on August 31, 1998. Soho won the bid with regard to three properties on Block 540 — Lots 1.02, 3, and 4. Lot 3 is a small parcel fronting only on Carpenter Avenue. Lot 1.02 and Lot 4 were configured to touch upon the oval roadway. The southern edge of Lot 1.02 contains the northern elongated stretch of the oval roadway while the eastern edge of Lot 4 contains the western apex of the oval.
NH acquired Block 540, Lot 1, which included the eastern apex of the oval roadway proceeding out to Franklin Avenue. Pathan also acquired Block 540, Lot 2, a parcel fronting on Belleville Avenue, through an entity known as Azan International, Inc. (Azan).
Grogan filed suit when Essex County refused to convey title to Lots 1.02, 3, and 4. NH was also compelled to sue in order to acquire title. During the pendency of the litigation, Jerry Nardella, defendant and third-party plaintiff Centex's predecessor in title, through entities known as Wellington Partners and Kessler Development Corporation, approached Grogan. They agreed that Nardella's companies would pursue the litigation against Essex County, in exchange for the right to purchase Lots 3 and 1.02 from Soho; Soho would retain Lot 4. As part of this arrangement, Soho sought to preserve access to Franklin Avenue from Lot 4 via a written agreement dated August 25, 1999, entitled Access Easement Agreement (AEA).
We will refer to these entities as "Nardella" or "Nardella's companies."
Nardella also entered into a similar arrangement with Azan and NH. Upon successful lawsuits against Essex County, NH and Azan would lease both their lots to Nardella for a thirty-year term with two renewable options of thirty years. In the agreements between Nardella, NH, and Grogan, the parties committed to assist Nardella's efforts to acquire and develop the remaining properties. Nardella successfully resolved the litigation with Essex County and obtained the conveyance of the subject lots for the bid amounts. Nardella subsequently acquired Block 540, Lot 5, and Block 550, Lot 1, as a result of which he now controlled access along the entirety of Franklin Avenue to the north of NH's Block 540, Lot 1. NH controlled the remaining access to the southern length of Franklin Avenue.
The record does not indicate whether the lease agreement was ever effectuated.
Although he had originally planned to develop that parcel, Nardella later sold Block 540, Lot 5 to CHN, to allow it, among its other activities, to continue running a school for the disabled. The southeastern corner of Lot 5 touches a small northwestern portion of the oval; the southern edge of Lot 5 borders the northern edge of Lot 4.
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Terms of the AEA Between Centex's Predecessor and Soho
The AEA provides that Nardella, Centex's predecessor, granted to Soho:
a continuous, perpetual and unobstructed non-exclusive easement (the "Access Easement") over and upon such Access Road as Grantor has reasonably designated, as it may exist from time to time, or over and upon such portion of the Grantor Parcel as Grantor shall reasonably determine during such periods when no Access Road exists, for the benefit of the Grantee Parcel, for the purpose of ingress and egress of pedestrian and vehicular traffic to, from and between the Grantee Parcel and Franklin Avenue.
Soho and Nardella defined "Access Road" as:
Initially, the Access Road shall be the existing roadway (the "Existing Roadway") located along the southeast corner of Lot B and the southern portion of Lot 1.29. . . . Upon completion of construction/redevelopment of the Grantor Parcel, if the Existing Roadway no longer exists, Grantor shall provide a paved macadam/asphalt roadway, comparable to the Existing Roadway wide enough for ingress and egress, from Franklin Avenue over the Grantor Parcel . . . .The existing roadway referred to in the AEA is the oval roadway at issue here.
Thus under the AEA, Centex's predecessor committed himself to provide access to Grogan, the owner of Block 540, Lot 4, in the event the existing roadway "no longer exists." Eventually, Centex constructed a gated townhouse condominium project on the lands to the north of the oval roadway, Block 550, Lot 1 and Block 540, Lot 1.02. The final design did not affect the oval roadway. As a result, Soho continued to have unobstructed access over the entire oval roadway, including the portions which traversed NH's property.
When Soho obtained site plan approval in 2003 for development of its own lands, the approval was contingent on access to Franklin Avenue via the oval roadway. Having grown up in the Township of Belleville, James Landon, the engineer and architect who prepared Soho's site plan application, testified during trial that access to and from Franklin Avenue to the interior of the lots had, for more than fifty years, been over the oval roadway. Accordingly, Landon's plans depicted access from the Soho property to Franklin Avenue via the oval roadway. As a property owner within 200 feet of the Soho property, NH received notice of the application and did not object.
The deeds of conveyance dated August 25, 1999, subsequent to the settlement of the litigation with Essex County, made specific reference to Map No. 4041. All conveyances were made "subject to Grants, Easements, Reservations, Covenants and Restrictions of record."
Centex's Predecessor and New Horizon
Enter into a Settlement Agreement Relating
to the Townhouse Development
On April 14, 2005, a settlement agreement was entered into between NH and Centex's predecessors in interest, resolving various lawsuits not pertinent to this opinion. It is relevant, however, that NH agreed as follows:
No party to this Settlement Agreement and Mutual Release shall challenge or interfere in any way in the zoning or development sought by the other parties hereto with respect to their properties in Belleville, New Jersey, including but not limited to [Centex's predecessor's] site plan approval granted by the Belleville Planning Board by resolution adopted February 16, 2005 and any applications brought by the New Horizon Parties with respect to their properties.Nardella testified that this clause was of great import because he had designed the gated community to preserve Soho's access to Franklin Avenue via the oval roadway.
At trial, Pathan acknowledged that he understood the April 2005 settlement agreement to mean he could not interfere with access over the oval roadway. He also acknowledged that if he attempted to block access, he would be violating the April 2005 settlement agreement. Pathan admitted that the two letters sent by his attorney to Centex, CHN, and Grogan, which prohibited them from using the oval roadway portion extending over his lands, violated that settlement agreement. He knew full well that access was integral to the approvals for development granted to Nardella.
In October 2004, Centex's predecessor's site plan application to the Planning Board, for the construction of a complex of gated townhouses, was approved, leaving the oval roadway intact. This was important, as neither Nardella nor the Planning Board wanted buses or any other vehicles going to and from Soho's lot, and CHN's lot, to travel through the gated community with the potential increase in traffic and resulting safety concerns.
II.
On July 16, 2007, Soho filed the within complaint and order to show cause seeking to enforce the terms of the AEA entered into with Nardella, Centex's predecessors. The filing was triggered by Pathan's written notification to all adjoining lot owners to cease and desist from use of the oval roadway over NH's property.
Soho sought access to Franklin Avenue through the gated townhouse community. Centex thereafter filed its answer and counterclaim against Soho, and third-party complaint against NH as well as CMMI, CHN, Essex County, and the ECIA. Among other things, Centex sought a judgment that a private right-of-way exists over the entire existing oval roadway for abutting lot owners.
In an August 2010 opinion, the trial court entered judgment in favor of Soho and against Centex granting access through the gated community. Thereafter, Centex obtained a stay from the court and filed for reconsideration of the final judgment.
On reconsideration, the trial court reversed its prior opinion. It found that abutting landowners had a perpetual and indefeasible right of access over the macadam oval roadway. Furthermore, the court found that Soho was judicially estopped from maintaining that it was entitled to access through the gated townhouse community because that position was inconsistent with its testimony that access was available over the oval roadway.
III.
NH thereafter filed this appeal, asserting the following points of error for our consideration:
I. THE TRIAL COURT MISAPPLIED THE LAW CONCERNING THE CREATION OF IMPLIED EASEMENTS AND AS A RESULT CENTEX HOMES WAS RELIEVED OF ITS BURDEN TO PROVE ALL ELEMENTS OF AN IMPLIED EASEMENT BY CLEAR AND CONVIN[C]ING EVIDENCE.
II. CENTEX HOMES FAILED TO ESTABLISH ALL ELEMENTS OF AN IMPLIED EAS[E]MENT BY THE CLEAR AND CONVINCING STANDARD.
A. CENTEX HOMES DID NOT EVEN[] ATTEMPT TO ESTABLISH THE REASONABLE NECESSITY ELEMENT OF AN IMPLIED EASEMENT.
B. THE LOTS CREATED FROM THE 1998 SUBDIVISION ARE NOT LANDLOCKED.
C. THE TRIAL COURT IMPROPERLY RELIED UPON THE COUNTY OF ESSEX'S REPLIES TO REQUESTS FOR ADMISSIONS.
D. NEITHER NEW HORIZON'S REPLY TO REQUESTS FOR ADMISSIONS NOR THE TESTIMONY OF KAISER PATHAN ESTABLISHED AN EASEMENT OVER NEW HORIZON'S PROPERTY.
Centex filed a cross-appeal, asserting that the trial court made these errors:
POINT III
THE TRIAL COURT FAILED TO CONSIDER THE REMAINDER OF CENTEX'S ARGUMENTS ON RECONSIDERATION AS BASES FOR DECLARING THE EXISTENCE OF AN EASEMENT OVER THE OVAL ROADWAY.
A. A RIGHT OF ACCESS VIA THE OVAL ROADWAY WAS CREATED UPON APPROVAL OF THE 1993 SUBDIVISION.
B. NARDELLA HAD THE RIGHT TO PROVIDE ACCESS TO SOHO ACROSS THE NEW HORIZON PROPERTY AS A RESULT OF HIS LEASEHOLD RIGHTS IN THE NEW HORIZON PROPERTY.
C. THE TRIAL COURT FAILED TO CONSIDER THE IMPACT OF NEW HORIZON'S CONTRACTUAL INABILITY TO INTERFERE WITH CENTEX'S ACCESS RIGHTS.
For the reasons that follow, we affirm the court's decision on reconsideration of the original judgment.
IV.
When a party appeals a judge's final decision after a bench trial, the factual "[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). An appellate court will "'not disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). So long as "there is sufficient credible evidence in the record to support the findings," an appellate court will defer to the trial judge's findings. State v. Adams, 194 N.J. 186, 203 (2008). Additionally, an appellate court "may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). Nevertheless, an appellate court will engage in de novo review of the trial judge's legal determinations. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
Reconsideration "is a matter within the sound discretion of the court," and is "to be exercised in the interest of justice." Dover-Chester Assocs. v. Randolph Twp., 419 N.J. Super. 184, 195-96 (App. Div.), certif. denied, 208 N.J. 338 (2011); see also R. 4:49-2. Accordingly, a trial judge's decision regarding a motion for reconsideration is reviewed under the "abuse of discretion" standard. Del Vecchio v. Hemberger, 388 N.J. Super. 179, 189 (App. Div. 2006).
Reconsideration . . . is appropriate "only for those cases which fall into that narrowWhere the party requesting reconsideration "'wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application, the [c]ourt should, in the interest of justice (and in the exercise of sound discretion), consider the evidence.'" Cummings, supra, 995 N.J. Super. at 384 (quoting D'Atria v. D'Atria, 949 N.J. Super. 392, 401 (Ch. Div. 1990)). However, the court should deny such a motion if it is based on facts the movant knew or could have known of prior to judgment but did not raise. See Del Vecchio, supra, 388 N.J. Super. at 188-89.
corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence."
[Dover-Chester Assocs., supra, 419 N.J. Super. at 196 (quoting Cummings v. Bahr, 995 N.J. Super. 374, 384 (App. Div. 1996)).]
V.
a.
NH's points of error, simply stated, sidestep the basis for the trial judge's decision. Believing that she had "conflated the standards for dedication of land to the public with creation of separate and distinct private rights of access," the judge on reconsideration relied extensively on Highway Holding Co. v. Yara Engineering Corp., 22 N.J. 119 (1956), and Bubis v. Kassin, 323 N.J. Super. 601 (App. Div. 1999).
In Highway Holding, supra, 22 N.J. at 124, the disputed rights of access resulted from metes and bounds descriptions of streets depicted on a filed map. The streets were formally abandoned by the municipal authorities after the filing of the map and the purchase of many lots, it could reasonably be assumed, in reliance upon the metes and bounds descriptions, including the paper streets. Ibid. The Court found such sales to constitute "a dedication of streets delineated thereon to the public." Ibid. In reaching its ultimate conclusion, the Court relied upon the principle that when lands are sold with reference to streets depicted on a filed map, the result is the creation of private rights in an abutting owner. Id. at 126.
Highway Holding addresses the issue of whether and when, even after streets are vacated, private rights to the streets continue to exist in adjoining land owners. The case stands for the proposition that lot owners who purchased did so in reliance on the filed maps, thereby acquiring a perpetual and indefeasible right of access to at least the adjoining street. Id. at 127-28. The extent of the "implied grant of a private way in the street is confined to such use of the road or the street as is necessary for the beneficial enjoyment of the lot conveyed." Id. at 134.
Similarly, in Bubis, supra, 393 N.J. Super. at 605, developers relied upon a map subdividing a tract offered for sale into lots, blocks, and streets. Sales commenced in 1885. Ibid. In 1995, the Kassins purchased eight oceanfront lots, and created a twelve to fourteen-foot-high sand berm along the western boundary of their property, which barred plaintiffs' access to the beach and the ocean. Id. at 606. Bubis reiterated the Highway Holding principle that a private right-of-way in an adjoining lot owner is unaffected by a municipality's acceptance or vacation of such a dedication. Id. at 609. When "the location of the lots or the circumstances surrounding the conveyance indicate that a more expansive right of way is necessary for the purchaser to obtain the full beneficial enjoyment of the lot, the courts will recognize whatever implied right of access is required to carry out the intent of the conveyance." Id. at 610. In Bubis, the private right-of-way necessary to access the beach and the ocean "was an essential part of the package of benefits which the developers conveyed to plaintiffs' predecessors in title." Id. at 611. Thus, it is clear that a private property owner retains a private right of access even after a public right-of-way has been vacated if the property was conveyed with reference to it.
Although not entirely apposite, it is worth reiterating a phrase from Highway Holding, "[i]t is the genius of the common law that it grows and adapts itself to changing conditions." Highway Holding, supra, 22 N.J. at 133. Although no map was filed by a developer nor formal action taken by Belleville, Essex County's sale, development, and subdivision of the lands at issue resulted in an equally effective dedication entitling adjoining landowners to access and creating a private interest in the right-of-way.
Unlike Highway Holding and Bubis, the original grantor in this case was Essex County itself. The oval roadway accesses a county road today as it has since the early twentieth century. As title devolved and the land was subdivided, even though the oval roadway was not specifically described by metes and bounds, when the lots were offered for sale to the public in 1999, the roadway was depicted on a filed map that would have been familiar to new owners.
Historically, the oval roadway had been used by the interior occupants for access to Franklin Avenue. As the judge noted, Capasso testified that he intended to depict the means of access for the individual lots on the 1999 filed map based on the access that had existed "since back in the 1960's." Both Capasso and Tamasik testified that Essex County did not intend any parcel to be landlocked; nevertheless, it wished to avoid offering any warranties when the lots were sold.
As the trial court noted, Essex County admitted in discovery that the filing of the map, and the deed reference to the map, made the conveyance to NH "consistent with providing access rights to the interior lot owners for ingress and egress from Franklin Avenue via the existing roadway."
It was for this reason the trial judge decided to reconsider her initial decision. Essex County "was not even attempting to rebut any presumption such as advocated by Centex," even when afforded the opportunity to refute the claim that private rights were effectively created by Essex County's development of the site. NH's acquisition of title was therefore burdened by the responsibility not to bar Soho's access. N.H.'s ownership was subject to a private right-of-way in the interior lots. The judge perceived herself to have made an error of law because although the county had not engaged in any formal process creating a street or granting easement access, it conveyed the property in question subject to a right-of-way.
b.
In granting reconsideration, the court also observed that NH was well aware of its obligation to allow Soho's unfettered use of the oval roadway. Pathan testified that he knew he was taking the property subject to the roadway that had historically been used by adjoining owners.
The actual existence of a paved roadway and its depiction on Map No. 4041, in this unique instance, is equivalent to the dedication of a street by Essex County. It is for that reason that the Highway Holding and Bubis analysis applies. When the current owners took title, they did so "subject" to the oval roadway.
Moreover, the court also relied on Pathan's trial testimony that he understood the 2005 settlement to mean that he could not interfere with the interior lot owners' access rights to the oval roadway. The AEA clearly stated that no party to the settlement agreement, including Pathan and NH, would in any way interfere with the development of the properties by Centex's predecessor, including the site plan approval granted by the Planning Board's February 26, 2005 resolution. By that commitment, NH was precluded from interfering with access rights. Although the 2005 agreement did not create an easement per se, certainly it imposed upon Pathan the obligation not to interfere with Soho or CHN's unimpeded use of the oval roadway.
In fact, during the trial, Pathan was asked:
Q: . . . My question was did you understand at the time that you entered into [the 2005 settlement] agreement that [the] site plan approval included approval of the access?
A: Yes.
Q: And you understood that the site plan approval granted to Nardella was going to have approval of the access which was submitted to the board. Right?
A: Yes.
Q: And you told us that you know from looking at this map that there w[ere] two accesses, one of which included the access across your property. Correct?
A: True.
Q: And . . . you undertook . . . this broad undertaking to not interfere in any way with the approvals and that included the approvals regarding the access. Correct?
A: Correct.
VI.
By way of cross-appeal, Centex asserts that the trial court erred by failing to consider additional grounds as a basis for a judgment in its favor. By rule, cross-appeals may be taken of right only from orders. R. 2:3-4. This means that no cross-appeal is necessary where the intent is merely to raise additional arguments in support of a court's judgment which is being appealed. Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:3-4 (2013); see Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 256 n.1 (App. Div. 2011), certif. denied, 209 N.J. 98 (2012).
VII.
Because we agree with the judge's determination that a private right to access over the oval roadway was based on Essex County's grant of ownership and subdivision of the lands in question, as well as NH's commitment to support development of the Centex property as it stands today, we affirm. The right of access issue is dispositive; no discussion of judicial estoppel is necessary. In granting reconsideration, the judge correctly concluded that the interests of justice required her to revisit the principles of law upon which she relied in making her decision. Reconsideration was therefore well within the sound discretion of the court, not an abuse of discretion, and warrants affirmance.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION