NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2654-17T2
FLOWING WHITE MILK, LLC,
Plaintiff-Appellant,
v.
TOWNSHIP OF LAKEWOOD,
Defendant-Respondent. ______________________________
Argued February 6, 2019 – Decided April 3, 2019
Before Judges Ostrer, Currier, and Mayer.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1040-17.
Anthony L. Velasquez argued the cause for appellant.
Harold N. Hensel argued the cause for respondent (Secare & Hensel, attorneys; Harold N. Hensel, on the brief).
PER CURIAM
In this matter arising out of an action to quiet title, we consider whether a
municipality may accept land dedicated as open space fifteen years after the property was tendered to it, and after the municipality sold a tax lien against it
and permitted the tax certificate holder to foreclose on it. Because the
controlling law set forth in Township of Middletown v. Simon, 193 N.J. 228
(2008) authorizes the municipality's acceptance of the property despite the
lengthy period of time following its tendered dedication, we affirm.
In 2002, a developer, Kedma I, Inc. (Kedma), applied to the Lakewood
Township Zoning Board of Adjustment (Zoning Board) for a special permit to
subdivide a property in a single-family residential zone. Under a Lakewood
"cluster" zoning ordinance, a developer may create residential lots smaller than
otherwise required if it designates the excess land as "open space." Kedma
submitted a site plan, including small residential lots, and dedicated the roughly
6.81 remaining acres (the parcel) as "open space" in compliance with the
ordinance.1 The Zoning Board approved the permit and plan, noting in the
memorializing Resolution: "For the reasons given, including the strong public
purpose of dedicating [o]pen [s]pace for preservation the [s]pecial [p]ermit
sought may be granted."
Although Kedma filed a subdivision map in the county clerk's office
reflecting the open space, it did not execute a deed. As a result, defendant
1 The parcel contained a detention basin and wetlands. A-2654-17T2 2 Township of Lakewood immediately began to assess taxes against the parcel.
During this time, defendant never acted to accept the dedication.
When Kedma failed to pay taxes, defendant sold a tax lien against the
parcel to Crusader Servicing Corporation (Crusader) in 2005. Crusader
foreclosed on the parcel in December 2010 and recorded the foreclosure with
the county clerk. Crusader subsequently sold the parcel to plaintiff Flowing
White Milk, LLC in October 2014 for $3,000.
Plaintiff applied to the Lakewood Planning Board (Planning Board) in
2016 to further subdivide the parcel into a residential lot (.41 acres) and an open
space (6.4 acres). The proposed open space would contain the detention basin
and wetlands. After learning of the 2002 dedication from a local homeowner's
association, the Planning Board denied plaintiff's application, querying whether
it had jurisdiction to consider the application.
In April 2017, plaintiff filed a quiet title action to extinguish any claim
that the parcel was subject to the 2002 dedication. In September 2017, while
the action was pending, defendant adopted a resolution accepting the 2002
dedication (Ordinance). The resolution noted that Kedma "never formally
finalized the dedication of the land to [defendant] by way of execution of a
A-2654-17T2 3 deed," but the county clerk's record contained a "specific notation that [the
parcel] was dedicated to [defendant]."
Plaintiff moved for injunctive relief to stay the Planning Board's adoption
of the Ordinance and amend the complaint as an action in lieu of a prerogative
writs. The court granted the motion and ordered defendant to show cause as to
why the Ordinance should be upheld.2 Defendant then moved for summary
judgment and plaintiff cross-moved for summary judgment.
In an order and written opinion issued January 24, 2018, the court
concluded Middletown governed the issue of a municipality's delayed
acceptance of a dedication of land. Under Middletown, the judge noted "[a]s
long as the piece of land is properly dedicated, the municipality gains the
ongoing right to accept the dedication or deny the dedication via municipal
ordinance." See 193 N.J. at 237. Therefore, the judge found the passage of the
Ordinance to accept the dedication of the parcel was valid.
The judge further considered whether plaintiff was entitled to
reimbursement of the excess taxes assessed against the property. He stated:
[Defendant] would be unjustly enriched if this [c]ourt were to recognize the dedicated status of the property and simultaneously enforce the full tax assessments against Crusader and [plaintiff].
2 The court also ordered a stay of the Ordinance. A-2654-17T2 4 [Defendant] received tax revenues on the property over the course of a few years in excess of the value of the lot as dedicated property. Therefore, it is only fair and equitable to reimburse . . . [p]laintiff for the excess tax amounts assessed against the property.
Therefore, the court also ordered defendant to reimburse plaintiff in the
amount of $10,264.18, representing the price of the tax certificate ($2,757.12) ,
plus the amount Crusader paid in taxes from 2005 to 2008 ($7,507.06), which
exceeded the "nominal" taxable value of the parcel given its dedicated status.
Summary judgment was granted to defendant.
On appeal, plaintiff challenges both the validity of the Ordinance and
alternatively, the trial court's calculation of the reimbursement.
We review the grant or denial of summary judgment de novo, under the
same standard governing the trial court. Henry v. N.J. Dep't of Human Servs.,
204 N.J. 320, 330 (2010). Giving no deference to the trial court's legal
conclusions, we must determine whether no genuine issue of material fact exists,
entitling the moving party to judgment as a matter of law. N.J. Dep't of Envtl.
Prot. v. Alloway Twp., 438 N.J. Super. 501, 507 (App. Div. 2015).
Plaintiff contends the parcel's designation as "open space" is not an
appropriate category of land for dedication. We disagree. Under N.J.S.A.
40:67-1, a municipal government may enact ordinances to "vacate
A-2654-17T2 5 [or] . . . accept any street, highway, lane, alley, square, beach, park or other
place, or any part thereof, dedicated to public use." (emphasis added). The 2002
Resolution indicated that Kedma dedicated the parcel as an "open space." The
Municipal Land Use Law defines "open-space" as "any parcel or area of land or
water essentially unimproved and set aside, dedicated, designated or reserved
for public or private use or enjoyment or for the use and enjoyment of owners
and occupants of land adjoining or neighboring such open space . . . for
recreation and conservation purposes." N.J.S.A. 40:55D-5. "Recreation and
conservation purposes" includes "the use of lands for . . . natural areas . . . water
reserves, watershed protection . . . or a similar use for either public outdoor
Free access — add to your briefcase to read the full text and ask questions with AI
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-2654-17T2
FLOWING WHITE MILK, LLC,
Plaintiff-Appellant,
v.
TOWNSHIP OF LAKEWOOD,
Defendant-Respondent. ______________________________
Argued February 6, 2019 – Decided April 3, 2019
Before Judges Ostrer, Currier, and Mayer.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1040-17.
Anthony L. Velasquez argued the cause for appellant.
Harold N. Hensel argued the cause for respondent (Secare & Hensel, attorneys; Harold N. Hensel, on the brief).
PER CURIAM
In this matter arising out of an action to quiet title, we consider whether a
municipality may accept land dedicated as open space fifteen years after the property was tendered to it, and after the municipality sold a tax lien against it
and permitted the tax certificate holder to foreclose on it. Because the
controlling law set forth in Township of Middletown v. Simon, 193 N.J. 228
(2008) authorizes the municipality's acceptance of the property despite the
lengthy period of time following its tendered dedication, we affirm.
In 2002, a developer, Kedma I, Inc. (Kedma), applied to the Lakewood
Township Zoning Board of Adjustment (Zoning Board) for a special permit to
subdivide a property in a single-family residential zone. Under a Lakewood
"cluster" zoning ordinance, a developer may create residential lots smaller than
otherwise required if it designates the excess land as "open space." Kedma
submitted a site plan, including small residential lots, and dedicated the roughly
6.81 remaining acres (the parcel) as "open space" in compliance with the
ordinance.1 The Zoning Board approved the permit and plan, noting in the
memorializing Resolution: "For the reasons given, including the strong public
purpose of dedicating [o]pen [s]pace for preservation the [s]pecial [p]ermit
sought may be granted."
Although Kedma filed a subdivision map in the county clerk's office
reflecting the open space, it did not execute a deed. As a result, defendant
1 The parcel contained a detention basin and wetlands. A-2654-17T2 2 Township of Lakewood immediately began to assess taxes against the parcel.
During this time, defendant never acted to accept the dedication.
When Kedma failed to pay taxes, defendant sold a tax lien against the
parcel to Crusader Servicing Corporation (Crusader) in 2005. Crusader
foreclosed on the parcel in December 2010 and recorded the foreclosure with
the county clerk. Crusader subsequently sold the parcel to plaintiff Flowing
White Milk, LLC in October 2014 for $3,000.
Plaintiff applied to the Lakewood Planning Board (Planning Board) in
2016 to further subdivide the parcel into a residential lot (.41 acres) and an open
space (6.4 acres). The proposed open space would contain the detention basin
and wetlands. After learning of the 2002 dedication from a local homeowner's
association, the Planning Board denied plaintiff's application, querying whether
it had jurisdiction to consider the application.
In April 2017, plaintiff filed a quiet title action to extinguish any claim
that the parcel was subject to the 2002 dedication. In September 2017, while
the action was pending, defendant adopted a resolution accepting the 2002
dedication (Ordinance). The resolution noted that Kedma "never formally
finalized the dedication of the land to [defendant] by way of execution of a
A-2654-17T2 3 deed," but the county clerk's record contained a "specific notation that [the
parcel] was dedicated to [defendant]."
Plaintiff moved for injunctive relief to stay the Planning Board's adoption
of the Ordinance and amend the complaint as an action in lieu of a prerogative
writs. The court granted the motion and ordered defendant to show cause as to
why the Ordinance should be upheld.2 Defendant then moved for summary
judgment and plaintiff cross-moved for summary judgment.
In an order and written opinion issued January 24, 2018, the court
concluded Middletown governed the issue of a municipality's delayed
acceptance of a dedication of land. Under Middletown, the judge noted "[a]s
long as the piece of land is properly dedicated, the municipality gains the
ongoing right to accept the dedication or deny the dedication via municipal
ordinance." See 193 N.J. at 237. Therefore, the judge found the passage of the
Ordinance to accept the dedication of the parcel was valid.
The judge further considered whether plaintiff was entitled to
reimbursement of the excess taxes assessed against the property. He stated:
[Defendant] would be unjustly enriched if this [c]ourt were to recognize the dedicated status of the property and simultaneously enforce the full tax assessments against Crusader and [plaintiff].
2 The court also ordered a stay of the Ordinance. A-2654-17T2 4 [Defendant] received tax revenues on the property over the course of a few years in excess of the value of the lot as dedicated property. Therefore, it is only fair and equitable to reimburse . . . [p]laintiff for the excess tax amounts assessed against the property.
Therefore, the court also ordered defendant to reimburse plaintiff in the
amount of $10,264.18, representing the price of the tax certificate ($2,757.12) ,
plus the amount Crusader paid in taxes from 2005 to 2008 ($7,507.06), which
exceeded the "nominal" taxable value of the parcel given its dedicated status.
Summary judgment was granted to defendant.
On appeal, plaintiff challenges both the validity of the Ordinance and
alternatively, the trial court's calculation of the reimbursement.
We review the grant or denial of summary judgment de novo, under the
same standard governing the trial court. Henry v. N.J. Dep't of Human Servs.,
204 N.J. 320, 330 (2010). Giving no deference to the trial court's legal
conclusions, we must determine whether no genuine issue of material fact exists,
entitling the moving party to judgment as a matter of law. N.J. Dep't of Envtl.
Prot. v. Alloway Twp., 438 N.J. Super. 501, 507 (App. Div. 2015).
Plaintiff contends the parcel's designation as "open space" is not an
appropriate category of land for dedication. We disagree. Under N.J.S.A.
40:67-1, a municipal government may enact ordinances to "vacate
A-2654-17T2 5 [or] . . . accept any street, highway, lane, alley, square, beach, park or other
place, or any part thereof, dedicated to public use." (emphasis added). The 2002
Resolution indicated that Kedma dedicated the parcel as an "open space." The
Municipal Land Use Law defines "open-space" as "any parcel or area of land or
water essentially unimproved and set aside, dedicated, designated or reserved
for public or private use or enjoyment or for the use and enjoyment of owners
and occupants of land adjoining or neighboring such open space . . . for
recreation and conservation purposes." N.J.S.A. 40:55D-5. "Recreation and
conservation purposes" includes "the use of lands for . . . natural areas . . . water
reserves, watershed protection . . . or a similar use for either public outdoor
recreation or conservation of natural resources, or both." N.J.S.A. 13:8C-3. In
granting Kedma's permit, the 2002 Resolution noted the "strong public purpose
of dedicating open space for preservation." Here, the dedication of the parcel,
an open space including a detention basis and wetlands, is a legitimate public
purpose.
Plaintiff also contends defendant may not accept a dedication after taxing
and selling a tax lien on the property. Our Supreme Court's ruling in
Middletown compels we reject this contention.
A-2654-17T2 6 In Middletown, the owners of property dedicated a lot on a subdivision
map as a "park" in 1929, but the municipality neither accepted nor rejected the
dedication for over seventy years. 193 N.J. at 232-34. After realizing in 1988
that the property comprised its own lot, the town began to assess taxes against
it and eventually sold the tax lien to a bidder, who foreclosed on it in 2003. Id.
at 233-35. A year later, the town sought a judgment recognizing the 1929
dedication and, while the action was pending, passed an ordinance accepting the
dedication. Id. at 235.
The trial court rejected the town's claim that the park was dedicated to
public use and dismissed the complaint. This court reversed, Township of
Middletown v. Simon, 387 N.J. Super 65 (App. Div. 2006), and the Supreme
Court affirmed the town's acceptance of the dedication, expressing its
"substantial agreement" with this court's reasoning. 3 Middletown, 193 N.J. at
236.
The Supreme Court found that "[o]nce an owner of land makes an offer of
dedication, that offer is 'complete and irrevocable so far as the dedicator is
concerned.'" Id. at 241 (quoting Roger A. Cunningham & Saul
3 Because the Court affirmed the portion of the judgment approving the town's acceptance of the dedication of the park for the reasons expressed in Judge Skillman's "comprehensive opinion", we quote from both cases. Id. at 240. A-2654-17T2 7 Tischler, Dedication of Land in New Jersey, 15 Rutgers L. Rev. 377, 382, 395
(1961)). The Court further explained:
The offer remains in place until the municipality accepts or rejects it, "no matter how long delayed, and these public rights can only be destroyed by proper municipal action, usually by vacation." Highway Holding Co. v. Yara Engineering Corp., 22 N.J. 119, 126 (1956) (citations omitted); Velasco v. Goldman Builders, Inc., 93 N.J. Super. 123, 134 (App. Div. 1966) ("[T]he power of acceptance continues indefinitely in the public authorities until such time as they reject or vacate the dedicated lands by official municipal legislative action.").
[Ibid.]
Because a dedication does not convey property to the public, legal title
remains with the dedicator, who must pay taxes on it. Id. at 236-37. Since a
dedicated lot remains taxable, selling a tax lien on it does not serve to reject the
dedication or bar acceptance of it under principles of collateral or equitable
estoppel. Id. at 237. The right of acceptance remains regardless of who owns
the property — "a subsequent party who 'acquires title by a tax foreclosure
action takes the property subject to the public use and the municipality's
continuing right to accept the dedication.'" Ibid. (quoting Middletown, 387 N.J.
Super. at 75-76).
A-2654-17T2 8 Here, defendant properly accepted the 2002 dedication, which remained
valid despite defendant taxing and selling a tax certificate on it. As in
Middletown, where a municipality could accept a decades-old dedication after
assessing taxes and selling a tax lien against it, here, defendant may also accept
the dedication despite taxing and selling a tax lien on it.
In considering the applicability of a remedy, the Court acknowledged the
dedication status of the property decreased its value considerably, accordingly,
tax assessments must reflect the diminished value. Middletown, 193 N.J. at 244-
45. Because the town received tax revenues on the park well in excess of the
value of the lot as a dedicated property, equitable principles required
reimbursement to the defendants. Id. at 245.
We are satisfied the trial judge properly assessed the reimbursement due
to plaintiff. The record reflects the face value of the tax certificate Crusader
purchased was $2,757.12, and the taxes paid by Crusader from 2005 to 2008
were $7,507.06. Recognizing defendant must disgorge the revenue it received
on the parcel in excess of the nominal amount to which it was entitled, the trial
judge appropriately ordered reimbursement of $10,264.18.
Affirmed.
A-2654-17T2 9