John Westerhold v. Normandy Beach Associates Inc.

CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 16, 2025
DocketA-2551-22
StatusUnpublished

This text of John Westerhold v. Normandy Beach Associates Inc. (John Westerhold v. Normandy Beach Associates Inc.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John Westerhold v. Normandy Beach Associates Inc., (N.J. Ct. App. 2025).

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2551-22

JOHN AND LORI WESTERHOLD,

Plaintiffs-Respondents/ Cross-Appellants,

v.

NORMANDY BEACH ASSOCIATES, INC. and NORMANDY BEACH IMPROVEMENT ASSOCIATION,

Defendants-Appellants/ Cross-Respondents,

and

TOWNSHIP OF BRICK, NEW JERSEY,

Defendant. ___________________________

Argued November 13, 2024 – Decided January 16, 2025

Before Judges Gilson, Firko, and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C- 000037-20.

H. Lockwood Miller, III argued the cause for appellants/cross-respondents (Goldberg Segalla LLP, attorneys; Daniel L. Klein, of counsel and on the briefs; H. Lockwood Miller, III, on the briefs).

Mark J. Oberstaedt argued the cause for respondents/cross-appellants (Archer & Greiner, PC, attorneys; Mark J. Oberstaedt and Alexis M. Way, on the briefs).

PER CURIAM

This appeal involves disputes between plaintiffs, John and Lori

Westerhold, who own beachfront property, and two beach associations,

defendants Normandy Beach Associates, Inc. (NBA) and Normandy Beach

Improvement Association (NBIA). The central dispute is whether plaintiffs

have a right to walk directly from their property across NBA's property to access

the ocean. NBA and NBIA appeal from an order granting partial summary

judgment to plaintiffs and finding that plaintiffs have an implied easement to

walk across NBA's property and dunes that have been built on the property.

Because there are disputed issues of material fact concerning whether plaintiffs

have an implied easement, we reverse, vacate the order granting partial summary

judgment to plaintiffs, and remand the easement issues for further proceedings.

A-2551-22 2 Plaintiffs cross-appeal from an order denying their motion to amend their

complaint to add an individual defendant, E. Stephen Kirby, and assert claims

of malicious prosecution and liable per se against Kirby. They also cross-appeal

from an order that effectively dismissed their claims for attorneys' fees and

punitive damages. We affirm those orders because plaintiffs do not have

evidence to support claims of malicious prosecution or liable per se against

Kirby. Plaintiffs also have no right to attorneys' fees or punitive damages in this

action.

I.

In 1921, Coast and Island Development Company (C&I Co.) acquired a

large tract of oceanfront property in Ocean County. Thereafter, C&I Co.

subdivided the property to create what is now known as Normandy Beach.

Normandy Beach is a community of individually owned properties with the

beach land owned by NBA. Normandy Beach is located in Brick Township and

Toms River Township.

In connection with the subdivision of the land to create Normandy Beach,

in 1925, C&I Co. filed the "Plan and Map of Normandy Beach" (the 1925 Plan)

with the Clerk of Ocean County. The 1925 Plan provided for over seventy

sublots, which would be sold as individual properties on which the owners could

A-2551-22 3 build single-family homes. The sublots were organized into twenty-five blocks,

eight of which fronted the beach. The beach itself was reserved for ownership

by a community association and was eventually conveyed to NBA. Some of the

original advertisements for Normandy Beach told prospective owners that they

would have access to the beach for "[s]urf [b]athing" and "[s]urf [f]ishing."

NBA "sets strategic direction and provides the long[-]range planning

function for the [Normandy Beach community] in terms of properties,

buildings[,] and major capital expenditures." NBIA is a not-for-profit entity that

does "any and all things necessary or incident[al] to the improvement" of

Normandy Beach. As such, NBIA is regarded as the "operating arm" of the two

associations.

The NBA beach property extends from the mean high-water line of the

Atlantic Ocean to the beachfront lots. The 1925 Plan does not expressly provide

for easements or points of access from the individual lots to the NBA beach. It

does, however, show eight avenues that end at the NBA beach property. The

1925 Plan also reserved an area for a potential boardwalk and a two-foot "buffer"

between the proposed boardwalk and the eastern boundaries of the beachfront

lots. The proposed boardwalk was never built.

A-2551-22 4 Plaintiffs own property known as 526 Ocean Terrace, Normandy Beach,

Brick Township, which consists of two beachfront lots (plaintiffs' property).

Plaintiffs bought their property in 2000. The chain of title for their property

runs from a succession of sales originating with a sale in 1929 from C&I Co. to

Samuel Berger. None of the property transfers in plaintiffs' chain of title include

express language identifying an easement over NBA's property.

After plaintiffs acquired their property in 2000, they became members of

NBA. It is undisputed that from 1929 until 2018, the predecessor owners of

plaintiffs' property, as well as plaintiffs, directly accessed the NBA beach

property by walking from their property to the beach.

In 2012, Hurricane Sandy struck the Jersey Shore, heavily damaging the

NBA and plaintiffs' properties. Following Hurricane Sandy, the United States

Army Corps of Engineers (Army Corps) and the New Jersey Department of

Environmental Protection (NJDEP) worked together to repair and restore

beaches along the coast of New Jersey, including by constructing and restoring

dune systems.

As a condition for undertaking those beach replenishment projects, the

Army Corps required all beachfront property owners to grant the NJDEP and

local municipalities a perpetual easement and right of way over their property

A-2551-22 5 (the Perpetual Easements). NBA and plaintiffs each granted the NJDEP and

Brick Township a perpetual easement to construct and preserve "a public beach,

dune system, and other erosion control and storm damage reduction measures."

Under the Perpetual Easements, property owners retained "the right to construct

a dune overwalk structure in accordance with any applicable Federal, State, or

local laws or regulations" to gain access to the beach.

As part of the beach replenishment projects, governmental entities

constructed protective dunes on the western portion of the NBA's property and

eastern portion of plaintiffs' property. Accordingly, by the fall of 2018,

plaintiffs' property was separated from the beach by dunes that had been

constructed under the Perpetual Easements.

In November 2018, plaintiffs built a walkover that allowed them to cross

over the dunes and access the beach directly from their property. The following

summer, in July 2019, Brick Township issued notices of violations to plaintiffs

and NBA concerning plaintiffs' dune walkover and directing both parties to

"correct these issues . . . by removal of the access . . . [or face] [v]iolations and

penalties." The next month, in August 2019, NBIA removed plaintiffs' dune

walkover.

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