NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2009-23 A-2700-23
529 WATERFRONT PROPERTIES, LP,
Plaintiff-Appellant,
v.
MICHAEL GARGIULO, PATRICIA GARGIULO, and the BOARD OF ADJUSTMENT OF THE TOWNSHIP OF HARDING,
Defendants-Respondents. ____________________________
MICHAEL BATTISTA; TRACEY BATTISTA; 529 WATERFRONT PROPERTIES, LP; and COLITE 24, LLC,
Plaintiffs-Appellants,
MICHAEL GARGIULO and PATRICIA GARGIULO, Defendants-Respondents. ____________________________
Argued October 30, 2025 – Decided November 10, 2025
Before Judges Mawla, Bishop-Thompson, and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0014-23; and the Superior Court of New Jersey, Chancery Division, Morris County, Docket Nos. C-000054-20 and C- 000055-20.
Arnold C. Lakind argued the cause for appellants (Szaferman, Lakind, Blumstein & Blader, PC, attorneys; Arnold C. Lakind, on the briefs).
Ronald Z. Ahrens argued the cause for respondents Michael Gargiulo and Patricia Gargiulo (Riker Danzig LLP, attorneys; Nicholas Racioppi, Jr., of counsel and on the briefs; Ronald Z. Ahrens and Ryan M. Dunn, on the briefs).
Gary T. Hall argued the cause for respondent Board of Adjustment of the Township of Harding in A-2009-23 (McCarter & English LLP, attorneys; Gary T. Hall, of counsel and on the brief).
PER CURIAM
In A-2009-23, plaintiff 529 Waterfront Properties, LP appeals from a
February 9, 2024 order entering judgment in favor of defendants Patricia and
Michael Gargiulo and the Harding Township Board of Adjustment, upholding
the grant of a tree removal permit. In A-2700-23, plaintiffs Michael and Tracey
A-2009-23 2 Battista, 529 Waterfront Properties, LP, and Colite 24, LLC appeal from April
28, 2023 and April 25, 2024 orders granting defendants Michael and Patricia
Gargiulo summary judgment regarding an access easement dispute. We affirm.
The parties are neighbors. The Gargiulos1 own a property located on
Block 5, Lot 8 of the Harding Township tax map. 529 Waterfront and its
principal Michael Battista own Block 5, Lots 6.01, 6.02, 7.04, and 7.05. We
replicate the tax map here:
I.
A-2009-23
1 In both appeals, we refer to appellants as 529 Waterfront and respondents as the Gargiulos, despite the fact there are other named parties. We do this for ease of reference and intend no disrespect. A-2009-23 3 In 2019, the Gargiulos filed for a permit to remove twenty-eight trees and
make landscaping improvements on their lot. The township tree conservation
officer conditionally approved the application. 529 Waterfront appealed and the
Board passed a resolution upholding the grant of the permit. Again 529
Waterfront appealed, and the trial court entered a consent order dismissing the
appeal and directed the Board to have the tree conservation officer send the tree
removal application to the township's "Shade Tree Advisory Committee and
thereafter make a new decision on the tree removal permit application."
The Board and the tree conservation officer followed suit. After a member
of the advisory committee suggested one of the trees, a catalpa, should be
preserved because of its excellent condition, the conservation officer re-
inspected the tree. He concluded the catalpa had excess decay, was hazardous,
and should be removed. 529 Waterfront appealed to the Board, which again
upheld the permit approval. In 2022, the Board issued a resolution permitting
the Gargiulos to remove the catalpa and twenty-seven other trees, conditioned
on replacing them with 370 trees in accordance with the Gargiulos's landscaping
plan and other terms.
The matter returned to court after 529 Waterfront filed a complaint in lieu
of prerogative writs to reverse the Board. It argued the Board erred because
A-2009-23 4 each of the ten factors set forth in the ordinance were not satisfied before the
conservation officer granted the tree removal permit. According to 529
Waterfront, the conservation officer also misinterpreted the factors he relied
upon, one of which was ambiguous. It also alleged the Board erred when it
barred expert testimony from a planner regarding the effects of granting the
Gargiulos's permit vis-à-vis the purpose of the ordinance and master plan.
On February 9, 2024, the trial judge issued a detailed written opinion
rejecting 529 Waterfront's arguments. He found the officer considered each
factor, and the record supported the officer's reliance on the factors he cited.
Those were as follows: "(5) Whether the cutting or removal would constitute a
significant change in the screening between existing or proposed buildings on
adjoining lots;" and "(10) Any planned tree replacement or other landscape plan
for revegetating cleared areas."
The judge observed the Board's 2020 resolution "found . . . the [o]fficer's
determination . . . the issuance of the [p]ermit would result in improved
screening was grounded in factor [five] of the [o]rdinance." The Board relied
on the conservation officer's testimony, which it found credible. The judge
found "no . . . evidence that would lead [him] to conclude . . . the Board's
credibility determination was unreasonable." Neither the conservation officer
A-2009-23 5 nor the Board misinterpreted the ordinance because the ordinance required
consideration of all factors, not "that each factor must be satisfied in its entirety."
Therefore, "[b]ecause the [o]fficer credibly considered each factor, . . . the
Board's decision to defer to the [o]fficer's expertise . . . [was] reasonable."
The judge rejected the argument factor ten was ambiguous. He reasoned,
even if it were "ambiguous, the [c]ourt must defer to the Board's finding that the
[c]onditions, which explicitly require the replanting of 370 trees, is 'an extensive
tree replacement plan[,]' pursuant to factor [ten], and thus, reasonable."
The judge concluded the Board acted reasonably when it barred 529
Waterfront's expert testimony because it relied on the plain language of the
ordinance, "rather than define subjective concepts." Quoting Atlantic
Container, Inc. v. Township of Eagleswood Planning Board, the judge observed
because the "Board has input into the adoption of a master plan . . . as well as
the adoption or amendment of a[n] . . . ordinance[,] . . . [the] Board can be
expected to have more than a passing knowledge of the legislative intent at the
time of the enactment." 321 N.J. Super. 261, 269-70 (App. Div. 1999). In other
words, the Board neither misinterpreted its own ordinance nor its master plan.
A.
A-2009-23 6 On appeal, 529 Waterfront argues the judge's ruling the conservation
officer considered each factor of the ordinance was erroneous because the
officer did not evaluate each factor. According to 529 Waterfront, the difference
between considering and evaluating factors is, in the latter case, the officer must
determine which factors are relevant, weigh those factors, and explain their
decision.
We review municipal-board decisions under "the same standard as the trial
court." Cohen v. Bd. of Adjustment of Borough of Rumson, 396 N.J. Super.
608, 614-15 (App. Div. 2007). This requires recognition that a board's "peculiar
knowledge of local conditions" allows it "wide latitude in the exercise of
delegated discretion." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013); accord
Advance at Branchburg II, LLC v. Branchburg Twp. Bd. of Adjustment, 433
N.J. Super. 247, 252-53, 255 (App. Div. 2013) (acknowledging the Board of
Adjustment's superior "knowledge of local circumstances" entitles it broad
deference).
Therefore, "[w]e give deference to the actions and factual findings of local
[b]oards." Hoboken for Responsible Cannabis, Inc. v. City of Hoboken Plan.
Bd., 480 N.J. Super. 357, 371 (App. Div. 2024). We do not substitute our "own
judgment for that of the municipal board invested with the power . . . to pass
A-2009-23 7 upon the application." Kenwood Assocs. v. Bd. of Adjustment, 141 N.J. Super.
1, 4 (App. Div. 1976). However, we review de novo a municipal board and trial
court's interpretations of ordinance language. Big Smoke LLC v. Twp. of W.
Milford, 478 N.J. Super. 203, 221 (App. Div. 2024).
Where a party contests the decision of a local board, we consider "whether
the board could reasonably have reached its decision on the record." Jock v.
Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005). A municipal board's
decision "is presumptively valid, and . . . reversible only if arbitrary, capricious,
and unreasonable." Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of
Adjustment, 152 N.J. 309, 327 (1998).
We use "the established rules of statutory construction to interpret a
municipal ordinance." Paff v. Byrnes, 385 N.J. Super. 574, 579 (App. Div.
2006). "Those principles require that an ordinance should be interpreted to
'effectuate the legislative intent in light of the language used and the objects
sought to be achieved.'" Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999)
(quoting Merin v. Maglaki, 126 N.J. 430, 435 (1992)). Generally, "the best
indicator of [legislative] intent is the statutory language." DiProspero v. Penn,
183 N.J. 477, 492 (2005).
A-2009-23 8 We first consider the "plain language of the" ordinance. Nini v. Mercer
Cnty. Cmty. Coll., 202 N.J. 98, 108 (2010). Our "duty is to . . . apply the statute
as enacted." DiProspero, 183 N.J. at 492 (quoting In re Closing of Jamesburg
High Sch., 83 N.J. 540, 548 (1980)). It is not our function to "rewrite a plainly-
written enactment," add language, or "engage in conjecture or surmise which
will circumvent the plain meaning of the act." Ibid. (first quoting O'Connell v.
State, 171 N.J. 484, 488 (2002); and then quoting Jamesburg High Sch., 83 N.J.
at 548).
We interpret words according to their "generally accepted meaning."
Kocanowski v. Twp. of Bridgewater, 237 N.J. 3, 9 (2019) (quoting Spade v.
Select Comfort Corp., 232 N.J. 504, 514-15 (2018)). Phrases are "read sensibly
rather than literally." Correa v. Grossi, 458 N.J. Super. 571, 580 (App. Div.
2019) (quoting Haines v. Taft, 237 N.J. 271, 283 (2019)). "If the plain language
of a statute is clear, our task is complete." Musker v. Suuchi, Inc., 260 N.J. 178,
186 (2025) (quoting Savage v. Twp. of Neptune, 257 N.J. 204, 215 (2024)).
Pursuant to these principles, we conclude neither the Board nor the judge
misconstrued the ordinance. The ordinance reads as follows:
D. Standards for permit issuance. To the greatest extent practicable, large trees, tree rows and hedgerows should be preserved. In addition, the following factors
A-2009-23 9 shall be taken into consideration in determining whether to issue a permit for tree cutting or removal:
(1) Whether the area where such tree or trees are located will be occupied by a building or structure, a driveway or recreation area, a roadway, an equestrian (bridle) trail, a drainage right-of-way, sewer line, septic system or well, or whether it is reasonably necessary to regrade the area in relation to any of the foregoing, and further provided that such regraded areas shall be restored and landscaped with suitable ground cover, shrubbery and/or trees after construction.
(2) Whether the area where such tree or trees are to be cut down or removed is consistent with the approval of any required subdivision or site plan by the Planning Board or Board of Adjustment and any conditions pertaining thereto.
(3) Whether the cutting or removal would change existing drainage patterns.
(4) Whether the cutting or removal would allow soil erosion or increase dust.
(5) Whether the cutting or removal would constitute a significant change in the screening between existing or proposed buildings on adjoining lots.
(6) Whether the cutting or removal would constitute a horticulturally advantageous thinning of an existing overgrown area,
A-2009-23 10 taking into consideration the tree species, size and health of the trees to be removed.
(7) Whether the cutting or removal would impair the growth and development of the remaining trees on the applicant's property or adjacent property.
(8) Whether the area where such tree or trees are located has a depression or fill of land which is deemed injurious to such tree or trees or other trees located nearby.
(9) Whether the presence of such tree or trees is likely to cause hardship or will endanger the public or the owner of the property on which the tree or trees are located or an adjoining property owner or for some other adequate reason within the intent of this article.
(10) Any planned tree replacement or other landscape plan for revegetating cleared areas.
[Harding, N.J., Code § 225-111(D) (amended 2024).]
We do not interpret the list of ten factors as requiring the conservation
officer to discuss or weigh every factor when forming their decision. Even if
this were the case, our review of the record readily shows factors one through
four, seven, and eight were not implicated; and factors six and nine supported
granting the removal permit. Notably, the ordinance requires the officer to "set
A-2009-23 11 forth the basis for" a decision only "in the case of partial or complete
disapproval." Harding, N.J., Code § 225-111(C)(5) (amended 2024).
We decline to find error by parsing the definition of "consider" versus
"evaluate" as 529 Waterfront suggests. To "consider" something is to "observe"
it, "think about" it, or take it "into account." Merriam-Webster's Collegiate
Dictionary 265-66 (11th ed. 2003). Whereas to "evaluate" something is "to
determine [its] significance." Id. at 432. The plain language of the ordinance
does not require an evaluation of the factors. Even if it did, as we noted, it would
not lead to a different outcome here.
Indeed, the conservation officer testified how he considered each of the
ten factors. He concluded the Gargiulos's landscaping replacement plan "looked
like a win-win for everybody." It promised "better screening" and "problem-
free plant material." Twenty-seven of the replaced trees were dying, toxic, or
not worth preserving. The catalpa was completely hollow, unstable, and dying.
It contained a raccoon nest, was covered in feces, and dangerous to people and
property.
The Board correctly observed its scope of review was limited to whether
the conservation officer's decision "was contrary to the [o]rdinance, not . . .
whether a different decision would have been better." It found he "grounded"
A-2009-23 12 the decision "on specific provisions in the" ordinance and deferred to his
arboreal expertise. The judge likewise considered whether the conservation
officer complied with the ordinance and found nothing in the record showed his
or the Board's conclusions were unreasonable.
B.
529 Waterfront argues the judge and the Board erred because they
misconstrued factors five and ten of the ordinance, which were ambiguous. This
argument lacks merit.
"The meaning derived from [statutory] language controls if it is clear and
unambiguous." Schad, 160 N.J. at 170. However, if "varying interpretations of
the statute are plausible," then it is ambiguous, and permits a court to interpret
the statute by resorting to "extrinsic" evidence. Nini, 202 N.J. at 108 (quoting
Bergen Comm. Bank v. Sisler, 157 N.J. 188, 202 (1999)). Statutory ambiguity
does not occur "simply because a disagreement exists about what the words
convey." State v. Gandhi, 201 N.J. 161, 179 (2010). Courts do not "torture" the
facts of a "case to create an ambiguity in an otherwise clear statute."
DiProspero, 183 N.J. at 506. We determine ambiguity "by assessing the
reasonableness of the parties' positions based on" the court's "own review of the
statutory language." Gandhi, 201 N.J. at 179.
A-2009-23 13 529 Waterfront attacks factor five of the ordinance, noting the Gargiulo
permit application concerned a roadway easement with no adjoining lots
containing buildings, and the conservation officer and the Board applied the
factor in a manner which read the phrase "'buildings on adjoining lots' out of
the" ordinance. We reject this argument because the factor requires the
conservation officer to consider "[w]hether the cutting or removal would
constitute a significant change in the screening between existing or proposed
buildings on adjoining lots." Harding, N.J., Code § 225-111(D)(5) (amended
2024). The word "whether" indicates "alternative conditions or possibilities."
Merriam-Webster's Collegiate Dictionary 1425 (11th ed. 2003). Neither the
conservation officer nor the Board erred because the plain language of factor
five considers instances where there are no buildings or adjoining lots.
529 Waterfront asserts the permit should have been rejected because
factor five seeks to avoid increased screening, which was a byproduct of the
Gargiulos's plan. The permit should have been denied because increased
screening also violated the township master plan's goal of preserving vistas. The
removal of the trees permitted views of the nearby fields, whereas the Gargiulos
plan to replace the trees with hedgerows would obstruct the view.
A-2009-23 14 We reject both arguments because they would read new language into
factor five. Factor five says nothing about avoiding or promoting increased
screening or view preservation. It directs the conservation officer to consider
whether there is a significant change in screening.
529 Waterfront claims factor ten is ambiguous because it does not specify
which aspects of the replacement plan should be considered, and the
conservation officer and Board only focused on the number of trees to be
replanted. We are unpersuaded.
The gravamen of the Gargiulos's plan was to remove dead, dying, and
toxic trees. The ordinance states it "is not intended to restrict homeowners from
removing dead or diseased trees." Harding, N.J., Code § 225-111(A)(2)
(amended 2024). Factor ten requires consideration of "[a]ny planned tree
replacement or other landscape plan for revegetating cleared areas." Harding,
N.J., Code § 225-111(D)(10) (amended 2024). The conservation officer's focus
on the trees was reasonable because he testified the township's policy was "not
to be over-restrictive in the removal and replacement of trees," but "if you're
going to remove a tree, you replace a tree." We discern neither an ambiguity
nor a misapplication of factor ten.
A-2009-23 15 C.
529 Waterfront asserts the conservation officer's opinion was not entitled
to deference, and his decision should have been reviewed by the Board and the
trial judge de novo. It points us to N.J.S.A. 40:55D-74, which states: "The
board of adjustment may reverse or affirm, wholly or in part, or may modify the
action, order, requirement, decision, interpretation or determination appealed
from and to that end have all the powers of the administrative officer from whom
the appeal is taken." 529 Waterfront also challenges the judge's affirmance of
the Board's rejection of its second planning expert's testimony on relevancy
grounds.
We decline to read N.J.S.A. 40:55D-74 as mandating a de novo review of
every administrative officer's decision. This would make a board's task on
appeal impossible by requiring it to second guess every decision in every appeal.
Nothing in our statutes or case law suggests the Legislature intended to burden
municipal boards in such a way.
A de novo review is also unwarranted because the Board "has the choice
of accepting or rejecting the testimony of witnesses. Where reasonably made,
such choice is conclusive on appeal." Ne. Towers, Inc. v. Zoning Bd. of
Adjustment of Borough of W. Paterson, 327 N.J. Super. 476, 498 (App. Div.
A-2009-23 16 2000) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 288 (1965)). The
record supports the Board and the trial court's findings the conservation officer's
grant of the permit was reasonable. Therefore, whether de novo review was
applied or not, we discern no reversible error.
It follows from our discussion there was no error in rejecting 529
Waterfront's second planning expert whom it intended to testify about how the
permit application would affect the goals and policy of the township's master
plan. At the outset, we note 529 Waterfront called two experts. The first expert
was a professional planner; the second was proffered as an expert on "tree health
and stability, conservation, and the impacts of trees and the removal on the
environment."
The planning expert testified the master plan intended to preserve the
township's rural character by preserving trees and hedgerows. He opined the
portion of the Gargiulo's property slated for re-landscaping was a tree
conservation area.
When the second expert was called, 529 Waterfront's counsel sought to
have him also testify on the impact of the Garguilo plan on the rural character
of the community. The Board's counsel and chair stated the proposed testimony
was not within the witness's expertise and irrelevant to whether the conservation
A-2009-23 17 officer followed the ordinance. Following a colloquy on this issue, the hearing
adjourned as it was nearing 11:00 p.m.
When the hearing resumed, 529 Waterfront presented testimony from an
arborist who explained why the conservation officer erred in his assessment of
the trees' health. 529 Waterfront also sought to adduce testimony from a second
planner. The Board declined to hear from the planner because it was duplicative
of the first planner's testimony and irrelevant to whether the tree removal permit
was improperly granted under the ordinance.
"The rules of evidence are not binding on a zoning board." Bd. of Educ.
of Clifton v. Zoning Bd. of Adjustment, 409 N.J. Super. 389, 430 (App. Div.
2009). "Technical rules of evidence shall not be applicable to the hearing, but
the agency may exclude irrelevant, immaterial or unduly repetitious evidence."
N.J.S.A. 40:55D-10(e). "Further, while expert testimony is often presented to a
Board of Adjustment and is found helpful, a Board is not bound to accept the
testimony of any expert." Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405
N.J. Super. 189, 197 (App. Div. 2009).
A zoning board "has the choice of accepting or rejecting the testimony of
witnesses. Where reasonably made, such choice is conclusive on appeal." Ne.
Towers, Inc., 327 N.J. Super. at 498; accord Bd. of Educ. of Clifton, 409 N.J.
A-2009-23 18 Super. at 434-35 (collecting cases). "If the testimony of different experts
conflicts, it is within the Board's discretion to decide which expert's testimony
it will accept." Klug v. Bridgewater Twp. Plan. Bd., 407 N.J. Super. 1, 13 (App.
Div. 2009).
The township's ordinance also reflects the Board's discretionary authority.
It states witness testimony before the Board is "subject to the discretion of the
presiding officer and to reasonable limitations as to the time and number of
witnesses." Harding, N.J., Code § 225-17(C) (amended 2024).
"In reviewing a [tribunal's] evidential ruling, an appellate court is limited
to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J.
6, 12 (2008). 529 Waterfront already presented testimony from its first planning
expert. Its arborist also testified the proposed tree removal was "indiscriminate
and excessive." Additionally, the ordinance does not require input from a
professional planner. The Board therefore correctly concluded the second
planner's testimony was irrelevant. The record reflects the proffered testimony
was duplicative. Pursuant to these principles and the facts of this case, we
discern no reversible error.
A-2009-23 19 II.
A-2700-23
Block 5, Lots 6.01, 6.02, 6.03, 7.04, 7.05, and 8 lie west of Van Beuren
Road, the nearest public thoroughfare. To recount, 529 Waterfront and Michael
Battista own Lots 6.01, 6.02, 6.03, 7.04, 7.05. The Gargiulos own Lot 8.
Title to Lots 6, 6.01, 6.02, 6.03, and 8 derive from a common owner, who
acquired the land in 1927. The owner used Lots 6.01 and 6.02 for farming,
before creating the easement at issue in this case. Lot 6.03 was comprised of
grass and trees, and connected Lot 6.02 to Van Beuren Road, however it was
never paved or improved.
Lot 8 included a flagstaff of land 1,250 feet long by 50 feet wide, which
ran past Lots 6.01, 6.02, 7.04, and 7.05, and terminated at Van Beuren Road.
The flagstaff is vegetated and is where the Gargiulos sought to remove and
replant trees.
In 1946, the landowner subdivided and conveyed Lot 6.01 and part of Lot
6.02 to Horace C. Jeffers. The landowner also conveyed Lot 6, 6.03, and the
other portion of Lot 6.02 to the Walker family. The land conveyed to Jeffers
lacked access to a public road so the deed to Jeffers granted an easement along
the flagstaff. The deed forecasted a driveway extending to Van Beuren Road
A-2009-23 20 would be built on the fifty-foot right of way, and once completed, Jeffers would
have a right of way to enter and exit his property. In the meantime, the deed
permitted Jeffers to use "the existing northerly driveway" on the parcel
conveyed to the Walkers.
A driveway was constructed across the Lot 8 flagstaff, providing access
to Van Beuren Road. The Jeffers deed expressly stated the landowner had not
granted Jeffers an "easement by necessity or otherwise" over the land conveyed
to the Walkers because they "set aside the fifty-foot strip of land . . . for the
purpose of establishing a right of way extending from Van Beuren [R]oad to
provide ingress and egress to" Jeffers's land. In 1951, Jeffers conveyed his land
to the Walkers, resulting in the Walkers owning Lots 6, 6.01, 6.02, and 6.03.
In 1954, the original landowner conveyed the remaining parcel, Lot 8, to
Alice P. Work, "subject to a right of way [fifty] feet in width for all roadway
purposes and for the installation and maintenance of utilities, . . . as set forth in
the deeds" to Jeffers and the Walkers. In 1965, the Silloway family acquired
Lot 8.
In 1975, the Walkers conveyed Lot 6.01 to the Levine family. The Levine
deed granted them "the right to share the easement from . . . Jeffers to [the
Walkers] by [d]eed . . . , to use, repair[,] and maintain in common with others
A-2009-23 21 the existing telephone and electric pole lines running along the northeasterly
boundary line of the existing right of way." Aside from the utility easement, the
deed expressly stated no easement by necessity was granted over the Walkers's
remaining lands, "or over the right of way fifty . . . feet in width . . . described
in the deed from . . . Jeffers . . . to [the Walkers, and no easement] . . . shall arise
by legal implication." Instead, a "strip of land twenty-five . . . feet in width
extending northwesterly from Van Beuren Road included in the herein conveyed
3.735 acres is for the purpose of providing ingress and egress to the lands
conveyed by the" Walkers to the Levines.
The Silloways were not a party to the Levine deed. In 1983, the Silloways
subdivided their land and sometime later, transferred ownership of Lot 8 to the
Hawrylo family. The Hawrylos disputed the Walkers' right to use the easement
on Lot 8 to access Lots 6, 6.02, and 6.03. The court held the Walkers still had
a valid easement along the Lot 8 flagstaff because the driveway was
continuously used since 1946 to access Lots 6, 6.02, and 6.03.
In 2003, the Walkers applied to subdivide their land. Although they
proposed Lot 6.03 "be a private road lot for access to Lot 6.02," they still planned
to continue using the easement on Lot 8 to access Lot 6.02. The Hawrylos
objected, contending Lot 6.03's use as a road would abandon the easement over
A-2009-23 22 Lot 8 to access Lot 6.02. The Planning Board disagreed, approved the
subdivision, and ruled "Lot 6.02 would continue to access Van Beuren via the
[e]asement across the flagstaff of Lot 8."
In August 2003, the Carey family acquired Lots 6, 6.02, and 6.03 from the
Walkers. A February 2004, subdivision map noted "the shared driveway on Lot
8" was still "the sole means of vehicular access to Van Beuren Road for" the
Careys's land, and "any development or improvement of Lot 6.03 as a roadway
will be subject to further municipal approvals."
The Gargiulos purchased Lot 8 in 2013. In 2019, 529 Waterfront acquired
Lots 6.01, 6.02, and 6.03. 529 Waterfront continued to use Lots 6.01 and 6.02
for farming. The easement was used by pedestrians, and to move farm
equipment, livestock, and workers.
As noted in the companion appeal, in December 2019, the township
approved the Gargiulos's application to remove trees from Lot 8 and re-
landscape the property. In June 2020, 529 Waterfront filed a complaint, alleging
the Gargiulos's application to improve Lot 8 by removing trees and
relandscaping the property breached the right of way agreement. The
landscaping plan called for planting approximately 250 green giant arborvitaes,
forty-four large linden trees, magnolia trees, and pachysandra ground cover
A-2009-23 23 along both sides of the Lot 8 flagstaff. The row of trees extended nearly the full
length of 529 Waterfront's properties, blocking access to Lot 6.01, and nearly
all access to Lot 6.02. The Gargiulos also installed five-foot-tall fencing, seven-
foot-tall deer fencing, a metal entrance gate, brick pillars, and an iron deer grate.
The installation of the gate shortened the easement by approximately 150 feet.
Notwithstanding these changes, 529 Waterfront still had access to Van Beuren
Road from Lot 6.02.
The Gargiulos also asserted claims for slander of title, breach of the access
easement, trespass, and nuisance. They sought a declaratory judgment regarding
the scope of the right of way.
Each party moved for summary judgment. The trial judge issued an order
with a detailed statement of reasons on April 28, 2023, which denied 529
Waterfront summary judgment, dismissed its breach of the right-of-way claim,
and partially granted the Gargiulos summary judgment on the declaratory
judgment claim.
The judge ruled the purpose of the access easement from Lot 6.01 across
Lot 8 was for access to and from Van Beuren Road. However, the easement was
abandoned by the 1975 deed. "[T]he alterations . . . the Gargiulos made to the
Lot 8 [f]lagstaff [did not] unreasonably interfere with the use and purposes of
A-2009-23 24 the" utilities easement, meant "to allow for use, repair, and maintenance of
existing phone and electric lines." 529 Waterfront did not show how the
plantings and improvements made by the Gargiulos interfered with their "ability
to use the [f]lagstaff [d]riveway as a right of way to Van Beuren Road from Lot
8, nor how [they] . . . interfered with the ability to maintain utilities." The judge
also found there was no prescriptive easement on the utility easement, flagstaff,
or the flagstaff driveway because 529 Waterfront admitted they were "invited to
us[e] the Lot 8 [f]lagstaff or the [f]lagstaff [d]riveway by the previous owners
of Lot 8." On April 25, 2024, the judge entered a consent order dismissing the
remaining claims unresolved by the April 2023 order with prejudice.
On appeal, 529 Waterfront argues the judge's finding the easement was
abandoned was erroneous because the Levine deed's discussion of the easement
was ambiguous and extrinsic evidence, including the easement's use for farming
purposes, shows it was not abandoned. The restrictions in the Levine deed only
applied to the Levines. 529 Waterfront asserts the judge did not explain how
the ambiguously worded deed constituted clear and convincing evidence the
easement was abandoned.
A-2009-23 25 529 Waterfront claims the judge ignored the history of the easement,
including the court's findings in the Hawrylo lawsuit that the easement clearly
and unambiguously provided the Walkers with access to Jeffers's portion of Lot
6. He also misconstrued other evidence in the record and improperly weighed
evidence in deciding the summary judgment motion.
529 Waterfront claims the judge mistakenly found: it made "permissive"
uses of the Lot 8 flagstaff, Lot 6.01 was not landlocked, and the sole purpose of
the easement was to access Van Beuren Road. As to the last point, 529
Waterfront argues the easement was for all roadway uses and purposes.
Therefore, because the easement had a broad purpose, the judge erred when he
concluded the Gargiulos did not interfere with 529 Waterfront's easement rights
by improving the Lot 8 flagstaff in a manner, which permitted access to Van
Beuren Road from Lot 6.02, but did not permit other uses by Lot 6.01. Contrary
to the judge's findings, 529 Waterfront claims the Gargiulos illegally interfered
with their easement by making improvements to the flagstaff, which narrowed
its length from the original metes and bounds of the easement described in the
Jeffers deed.
A-2009-23 26 B.
We review the grant of summary judgment de novo, applying "the same
standard as the trial court." Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021).
A court must grant summary judgment "if the pleadings, depositions, answers
to interrogatories[,] and admissions on file, together with the affidavits, if any,
show . . . there is no genuine issue as to any material fact challenged and . . . the
moving party is entitled to a judgment or order as a matter of law." R. 4:46-
2(c).
Easements appurtenant are servitudes "created when the owner of one
parcel of property . . . grants rights regarding that property to the owner of an
adjacent property." Rosen v. Keeler, 411 N.J. Super. 439, 450 (App. Div. 2010).
"The easement appurtenant 'enhances the value of the dominant estate and
cannot exist separate from the land itself.'" Rosen, 411 N.J. Super. at 450
(quoting Vill. of Ridgewood v. Bolger Found., 104 N.J. 337, 340 (1986)). When
a written instrument creating an easement appurtenant uses "the word 'assign,'"
then "the parties intended the benefit to run with the land." Id. at 451. A benefit
which runs with the land will "survive any subsequent conveyance or devise by
the original grantee." Khalil v. Motwani, 376 N.J. Super. 496, 502 (App. Div.
2005).
A-2009-23 27 An easement appurtenant may be created "by express acts." Kline v.
Bernardsville Ass'n, Inc., 267 N.J. Super. 473, 478 (App. Div. 1993). Grantors
"may, by covenant in a deed," create an easement to "restrict the use of land
conveyed for the benefit of land retained[,] and bind the grantee and
[their]successors in title who take with notice." Perelman v. Casiello, 392 N.J.
Super. 412, 418 (App. Div. 2007). "No particular words are necessary to
constitute the grant of an easement; any words which clearly show the intention
to give an easement are sufficient to effect that purpose, provided the language
is certain and definite in its terms." Borough of Princeton v. Bd. of Chosen
Freeholders of Cnty. of Mercer, 333 N.J. Super. 310, 324 (App. Div. 2000).
The written instrument making the conveyance fixes the "extent of the
easement" it creates. Eggleston v. Fox, 96 N.J. Super. 142, 147 (App. Div. 1967)
(citing Restatement (First) of Prop. § 482 (Am. L. Inst. 1944)). Where "written
agreements" have created an easement, principles of contract law guide the
court's analysis of the easement's existence and scope. Borough of Princeton,
333 N.J. Super. at 324-25.
The goal of contract interpretation is to determine "the intention of the
parties as revealed by the language used by them." Cooper River Plaza E., LLC
v. Briad Grp., 359 N.J. Super. 518, 527 (App. Div. 2003). Written agreements
A-2009-23 28 "must be read as a whole without focus on an isolated phrase." AXA Assurance,
Inc. v. Chase Manhattan Bank, 339 N.J. Super. 22, 26 (App. Div. 2001). The
"words are to be given a 'reasonable meaning rather than an unreasonable one
and a court will endeavor to give a construction most equitable to the parties and
which will not give one of them an unfair or unreasonable advantage over the
other.'" Krosnowski v. Krosnowski, 22 N.J. 376, 387-88 (1956) (quoting 9
Williston on Contracts § 46 (rev. ed. 1945)).
A threshold question is whether the terms of the easement are "susceptible
to at least two reasonable alternative interpretations," and thus, ambiguous.
Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 195 N.J. 231, 238 (2008).
Courts analyze the issue by considering the grant's language in its "entirety and
in the light of the surrounding circumstances." Tide-Water Pipe Co. v. Blair
Holding Co., 42 N.J. 591, 605 (1964).
If the terms are not susceptible to reasonable alternative interpretations,
and their "meaning is plain," then those terms "will control without resort to
artificial rules of construction." Ibid.; Oldfield v. Stoeco Homes, Inc., 26 N.J.
246, 257 (1958) ("If the four corners of the deed provide a coherent expression
of the parties' intent, we need search no further."). Courts do not re-write such
A-2009-23 29 instruments "to afford greater or different rights than those literally and
unambiguously expressed." Khalil, 376 N.J. Super. at 506. Indeed,
where there is an express limitation in the grant or reservation of the use to or purpose for which a way is to be put it will be enforced notwithstanding it becomes necessary or convenient for use for other purposes of the dominant landowner not existing or contemplated when the easement is created.
[Leasehold Ests., Inc. v. Fulbro Holding Co., 47 N.J. Super. 534, 551 (App. Div. 1957) (collecting cases).]
A written instrument may also terminate an easement or abandon it. Van
Horn v. Harmony Sand & Gravel, Inc., 442 N.J. Super. 333, 345 (App. Div.
2015) (citing Restatement (Third) of Prop.: Servitudes § 7.1 (Am. L. Inst.
2000)). "[T]here must be two elements present, an act tantamount to an
abandonment and an intention to abandon." Freedman v. Lieberman, 2 N.J.
Super. 537, 544 (Ch. Div. 1949). "To establish that the owner of an easement
has abandoned it[,] there must be clear and convincing proof of either an
intention on [their] part to abandon it forever or an a[c]quiescence by [them] in
some action taken by the owner of the servient tenement adverse to the
easement." Rossi v. Sierchio, 30 N.J. Super. 575, 580 (App. Div. 1954).
Pursuant to these principles, we conclude summary judgment was
properly granted to the Gargiulos. The plain language of the Levine deed was
A-2009-23 30 clear and convincing evidence of both an intent and an action taken to abandon
the easement. It stated ingress and egress to Lot 6.01 would come from Lot
6.01's own "strip of land twenty-five . . . feet in width extending northwesterly
from Van Beuren Road." The deed expressly stated there would be no remaining
easement "over the right of way fifty . . . feet in width more particularly
described in the" Jeffers deed. Simply put, no easement remained for Lot 6.01
across the Lot 8 flagstaff, and Lot 6.01 had its own access to Van Beuren Road.
For these reasons, the judge was not required to consider extrinsic
evidence, including the easement's history, historical use, and intended purpose.
The findings in the Hawrylo litigation were not dispositive because they did not
concern Lot 6.01. The Levine deed controlled and unambiguously abandoned
the easement. The remaining arguments raised by 529 Waterfront in this vein
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Finally, we reject 529 Waterfront's argument the judge weighed the facts,
including: 529 Waterfront made permissive use of the Lot 8 flagstaff, and Lot
6.01 was not landlocked without the easement. His decision centered around
the express language of the Levine deed. Our de novo review does not convince
A-2009-23 31 us otherwise. Even so, we review judgments, not opinions. Do-Wop Corp. v.
City of Rahway, 168 N.J. 191, 199 (2001).
Affirmed in A-2009-23 and A-2700-23.
A-2009-23 32