American Dream at Marlboro, LLC v. Marlboro Tp. Planning Bd., 209 N.J. 161 (2012). This per curiam opinion addresses the issue of when a deed restriction imposed by a planning board can be eliminated. The parties agreed that planning boards lack the power to do that, citing Soussa v. Denville Planning Bd., 238 N.J. Super. 66, 69 (App. Div. 1990). The parties also agreed that the courts have equitable power to modify or terminate such a restriction, citing Citizens Voices Ass’n v. Collings Lakes Civic Ass’n, 392 N.J. Super. 432, 446 (App. Div. 1997). The issue, then, was “the standards that the trial court must apply when considering an application to eliminate a deed restriction based on changed circumstances and the manner in which the proofs should be evaluated.”
The Court succinctly stated the test: the applicant must show that it has become “impossible as a practical matter to accomplish the purpose for which a servitude or restrictive covenant was created.” The standard is a very stringent one. The Court remanded to the trial court for further proceedings, noting that the trial court needed to explicate its findings more fully than it had, and observing that, in this equitable context, plaintiff’s alleged unclean hands and/or an argument that the situation plaintiff found itself in was of its own making, were to be considered.