Split Decision On Deed Restriction Case

By on August 30, 2016
A Superior Court judge has affirmed that the deed to the Stonham house at 200 Bloomfield Avenue has a valid restriction against commercial use.

A winter photo of the Stonham house at 200 Bloomfield Avenue.

A Superior Court judge has decided that while the deed to a key Bloomfield Avenue property does have a valid restriction against commercial development, that restriction cannot be enforced.

Judge Thomas M. Moore published his decision on 200 Bloomfield Avenue on August 16. The property is one of two lots just east of Everett Field that was the subject of three years of hearings before Verona zoning officials. In June 2015, Dennis M. Handel’s development company DMH2 won Planning Board approval for a structure with ground-floor commercial space and apartments above. Almost immediately, abutting property owners and descendants of people who were property owners in the area more than a century ago filed legal action to uphold a deed restriction against commercial usage put on 200 Bloomfield Avenue in 1893. It had been discovered by Montclair Avenue resident Jack McEvoy in August 2013.

In a 26-page decision, Judge Moore traced the deed restriction from 1890 to the present, noting that each conveyance had been with the restrictions “of record”. (There are restrictions on 10 other lots to the east of Everett Field.) But he concluded that the restriction on 200 Bloomfield Avenue is not now enforceable because of the extent of commercial usage on Bloomfield Avenue and its current zoning. In 2011, Verona re-zoned 200 Bloomfield Avenue from residential to “Extended Town Center” (ETC), which allows commercial usage, as part of the new township Master Plan. Neither the township nor Jason Kasler, the planner who prepared the Master Plan, seem to have examined potential deed restrictions when the new zoning was created.

Bloomfield Avenue is soon not going to be as commercial as it used to be. What had been the largest commercial property in Verona, the former Annin flag factory, is located just across the street from DMH2’s property and it is now being converted from commercial to residential use. Further west, the former site of the Brunner auto dealership is being redeveloped as two small apartment buildings.

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“From a strictly lawyer perspective it was interesting to see a judge spending as much attention to detail as he did,” said Steven Tombalakian, a lawyer with Wiener Lesniak in Parsippany who represented the group that had sought to uphold the deed restriction. “But I was disappointed that we didn’t get the ruling we sought.”

The judge’s decision does not remove all the obstacles to redeveloping 200 Bloomfield Avenue. DMH2 is still being sued by Lars Sternas, whose home on Montclair Avenue abuts the property. That case, which focuses on issues pertaining to the site plan approval, is not expected to be heard until late fall. The affirmation of the deed restriction could also make it difficult for DMH2 to secure financing for a commercial project from bank or alternative lenders. To clear up the title, DMH2 would have to file a lawsuit to “quiet title”, which is generally regarded as a cumbersome and expensive process because it must involve the entire neighborhood around the property and local government.

In addition, Handel is currently being sued for non-payment by a lawyer and planner who worked on his project. He has $8,218.84 in unpaid property taxes for 2015 and 2016, and $730.56 in unpaid water and sewer bills on 200 Bloomfield Avenue. He similarly has $11,501.11 in unpaid property taxes on 176 Bloomfield Avenue, which is also to be part of his mixed-use project. Verona has scheduled a tax sale of roughly $9,400 of what Handel owes for December 1. MyVeronaNJ.com left a cell phone message for Handel last Friday seeking comment on the decision. It has not been returned.

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McEvoy and Jessica Pearson, who filed the motion to uphold the deed restriction, were disappointed with the decision. “We feel that the Judge’s decision weighed too heavily upon the fact that Verona rezoned the property from R4 to ETC in 2011,” they said by email.  “Through the discovery process of our case, we have to think that the property was, at least in part, rezoned for this developer.”

“The rezoning of the property was done without knowledge of the restriction and we therefore feel that this mistake should not have had such influence on any legal decision,” they added.  “As is stated clearly in our Zoning Ordinance: ‘It is not the intention of this ordinance to repeal, abrogate, annul, impair or interfere with… a private deed restriction or covenant’.   It is for these reasons that we feel that the court has only compounded an erroneous zone change.”

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2 Comments

  1. John moore

    August 31, 2016 at 8:14 am

    This is not a split decision, this is a knock out and a win for Verona! The judge clearly laid out that yes their is a restriction on the title but the restriction was wasn’t meant for purpitiety. The judge did quiet title and I’m sure that after all these years we will start to see that mess of a property cleaned up and developed. The entire town suffered because of a few people !

  2. Kim

    September 1, 2016 at 11:13 am

    This decision is a loss for the entire town of Verona. If the developer wins approval to build the proposed monstrosity, there will be quarry blasting for at least 6 months. Many of the houses in the area will be at risk from the blasting as well as the health of the neighbors and every child playing in Everett Field. Bloomfield Avenue will be a mess during construction, as well as afterwards. This is not a NIMBY issue- it will affect everyone in Verona.

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