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.
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
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."