Government

Is it Legal? Chatham Township Committee to Consider Lawyer's Advice Before Vote to Vacate Walkway Easement

f1b4e20daaacfa837f96_PrivateRoad.jpeg
Linden Lane residents have erected a new sign that says "Private Road" and "No Tresspassing"
f1b4e20daaacfa837f96_PrivateRoad.jpeg

CHATHAM, NJ - Can the Chatham Township Committee legally vacate a "walkway easement" that is part of a property deed?

That will be the legal question before the Chatham Township Committee when it meets 7:30 p.m. Thursday, April 24 at the municipal building on Meyersville Road. The committee tabled the vote to adopt the ordinance, which would vacate a walkway easement that runs from Linden Lane to Pine Street, to review the legal ramifications.

The easement has been on the books since 1957.

Sign Up for E-News

Carl Woodward, retired township attorney, will advise the board on the legality of vacating the easement. He was asked to advise the committee after current township attorney Albert Cruz recused himself. Also recused from the proceedings is committee member Bailey Brower, Jr., who is a member of the Linden Lane Association.

Brower originally introduced the ordinance, but it was reintroduced when it was discovered that Brower could present a conflict of interest.

Carl Woodward, former township attorney, advises committee to table ordinance

https://www.youtube.com/watch?v=Ic-DWfm35ok

A letter from attorney Joseph E. Murray of Schiller & Pittenger, P.C., representing Sarah and Lawrence Fechtner, makes a number of legal arguments that challenge the township committee's authority to vacate such an easement.

One Legal Argument and precedent cited by attorney Joseph E. Murray.

N.J.S.A. 40:67-19 is not applicable to the walkway easement for two reasons: first, the easement grant contained in the 1957 deed is not a “dedication,” and, second, the walkway easement is not “a public street or highway or a public square or public place.”

Dedication is “the permanent devotion of private property to a use that concerns the public in its municipal character.” Black v. Central Railroad Company, 85 N.J.L. 197, 202 (E. & A. 1913),

Pirozzi v. Acme Holding Company of Paterson, 5 N.J. 178, 185-86 (1950), Township of Middletown v. Simon, 193 N.J. 228, 240 (2008) (emphasis added to all three sources). Both Black and Pirozzi distinguish dedication from the circumstance where use is intended “by the public in their capacity as individuals.” 85 N.J.L. at 202, 5 N.J. at 186. Dedication does not create any right of public use or obligation of municipal maintenance until there has been municipal acceptance. The owner of the dedicated property retains legal title and is responsible for the payment of property taxes until acceptance. Simon, 19 N.J. at 241-42.

The easement in the 1957 deed is not dependent upon municipal acceptance or maintenance. In the language of Black and Pirozzi, use of the walkway is permitted “by the public in their capacity as individuals.” It has been used in the past and was used by our clients in 2013. Mere non-use of an easement does not destroy it. Fairclough v. Baumgartner, 8 N.J. 187, 189 (1951).

BROWER WAS FOR IT BEFORE HE WAS AGAINST IT

Committee member Bailey Brower, Jr., who has recused himself as a member of Linden Lane Association, had been in favor of the walkway easement when it was first proposed. According to Planning board minutes from 1955:  "Application of Bailey Brower:  Major subdivision on southwest side of Shunpike, known as Pierson and Kelly Pond tract...Also, to have maps reflect provision for 6 ft. easement from Linden Lane to Pine Street.  Such easement to be used as a path for school children.  Mr. Brower will consider trying to make provision that will provide for Kelly Pond to be used as a skating area for local children."

TAP Into Another Town's News:

Sign Up for E-News

Chatham

Upcoming Events

Carousel_image_e54353bd68f7785329f6_donate-blood

Fri, April 27, 2:00 PM

Madison Area YMCA - Kroll Conference Room, Madison

Blood Drive

Giving Back Health & Wellness Other

Sun, May 20, 2:00 PM

Chatham Township Municipal Building, Chatham

A Tour of Chatham Township and Green Village

Arts & Entertainment

Robotics and Turkey Sandwiches

April 24, 2018

April 22, 2018

Below is the thank you letter written to all of the groups involved in a wonderful service project today in support of Bridges Outreach, a Summit based organization that has been aiding local homeless friends for 30 years.

Dear Central Presbyterian Kindergartners, Stanley Family and friends, Fear the Gear, Columbia High School robotics and Washington Avenue School ...

Chatham Brownie Troop Makes Lunches for Bridges Outreach Program

April 25, 2018

Milton Ave Brownie Troop 96312 assembled and donated over 30 sustainable lunches for Bridges Outreach on Tuesday, April 24th.

Included in the lunches were canned chicken with crackers, fruit cup, goldfish, cereal bar & a water bottle. Bridges Outreach, based in Summit, delivers meals, clothes and support to homeless and food insecure people in lower Manhattan, Newark and ...