TRENTON – On June 5, a two-judge Appellate Court panel affirmed a lower court decision dismissing the Borough of Avalon’s complaint against the developer of the Avalon Anchorage Marina.
The case had a long history reaching back to 2005 when the previous owner of the marina approached the borough seeking to rezone to permit residential development.
The borough had a public interest in seeing certain amenities either remain or get added as part of any development of the area.
By 2007 the marina presented a site plan to the Planning and Zoning Board requesting that the borough vacate title to a portion of 20th Street and promised to maintain the existing fuel dock as well as construct a public access area and public boat ramp.
A long chain of events detailed in the court decision resulted in a March 2010 resolution in which Avalon Borough Council confirmed compliance with the conditions required by the vacating ordinance.
All seemed well until the previous owner, whose site plan contained the public amenities desired by the borough, sold the property rather than develop it.
The sale took place in February 2012.
By February 2016, the new owners submitted a revised site plan without the fuel dock, boardwalk, or public access boat ramp.
The borough litigated and lost in lower court and appellate levels.
The essence of the decision was that the borough failed to place conditions on the vacating of a portion of the street in such a way that there was a reasonable opportunity for the buyer to get fair notice of the borough’s conditions.
The court agreed that the failure of the borough to implement an effective condition in the vacating ordinance would not necessarily have prevented the borough from forcing the original developer to provide the public benefits.
But the panel said it is “another matter altogether to enforce such an unexpressed restriction against a subsequent purchaser without knowledge of the condition.”
According to the court, the new ownership took “title free of the unexpressed conditions of which it had no notice.”
What does it all mean? The new owner of the marina has no obligation to provide the public benefits promised by the previous owner.
These include the fuel dock, the public access walkway along the water, and the public access boat ramp.
The court indicated that it was well aware that “this result” deprives the public of “significant benefits.”
To contact Vince Conti, email vconti@cmcherald.com.
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