NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2604-22
RIVER DRIVE DEVELOPMENT, LLC, RIVERFRONT RESIDENTIAL 1 LLC, RIVERFRONT RESIDENTIAL 2 LLC, and RIVERWALK III, LLC,
Plaintiffs-Respondents,
v.
BOROUGH OF ELMWOOD PARK,
Defendant-Appellant. _______________________________
Argued October 29, 2024 – Decided January 9, 2025
Before Judges Gilson and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5108-21.
Michael A. Bukosky argued the cause for appellant (Loccke, Correia & Bukosky, LLC, attorneys; Michael A. Bukosky, of counsel and on the briefs).
Adam D. Wolper argued the cause for respondents (Wolper Law Group, LLC, attorneys; Adam D. Wolper, of counsel and on the brief). PER CURIAM
This appeal arises from a dispute between plaintiffs, four limited liability
companies, and defendant, the Borough of Elmwood Park (the Borough),
concerning whether two roads were dedicated and accepted as public roads
while plaintiffs were developing a property in the Borough. In an action brought
in lieu of prerogative writs, the trial court entered an order granting summary
judgment to plaintiffs and held that two roads that provide access to plaintiffs'
property are public roads that had been dedicated to and accepted by the
Borough under N.J.S.A. 40:55D-53(j). The Borough appeals from that order
and an amendment to that order. Because the material undisputed facts establish
that the two roadways were dedicated to and accepted by the Borough as public
roads in accordance with N.J.S.A. 40:55D-53(j), we affirm.
I.
We discern the facts from the summary judgment record. In support of
their motion, plaintiffs submitted three certifications and numerous documents
supporting their statement of material undisputed facts. The Borough did not
submit a certification or other evidence in opposition to plaintiffs' statement.
Instead, the Borough submitted "Answers" prepared by its counsel. The
Borough's counsel, however, did not certify that he had personal knowledge of
A-2604-22 2 the statements made in the "Answers." Just as importantly, the Borough's
"Answers" did not identify evidence disputing plaintiffs' statement of material
facts. Accordingly, we derive the material facts from the documents and
certifications submitted by plaintiffs.
Plaintiffs are River Drive Development, L.L.C. (RDD), Riverfront
Residential 1, LLC (RR1), Riverfront Residential 2, LLC (RR2), and Riverwalk
III, LLC (RIII). In 2001, RDD took title to approximately twenty acres of vacant
land in the Borough (the Property). The Property is bordered on its northern
side by Slater Drive, on its western side by the Passaic River, on its eastern side
primarily by River Drive, and on its southern side by Route 46. Over the next
twenty years, RDD and various of its affiliates subdivided and developed the
Property by building numerous buildings that are used for residential, office,
and retail purposes. As part of those improvements, RDD and its affiliates also
constructed two roads to access the Property: Riverfront Boulevard (Boulevard
R) and Right of Way A (ROW A) (collectively, the Roads).
RDD received its first site plan approval in 2002. In 2004, RDD entered
into a developer's agreement with the Borough. Those documents required,
among other things, RDD to construct all "streets" in the development "in strict
compliance with the rules, regulations, specifications, requirements, and
A-2604-22 3 [o]rdinances of [the Borough]." The 2004 resolution also required RDD to
"provide appropriate performance bonds" for each part of its construction .
Between 2006 and 2007, RFC-1, LLC (RFC), an affiliate of RDD, built a
three-story office building on one of the lots of the Property. As part of that
project, RFC constructed ROW A and part of Boulevard R. RFC also built a
driveway off Boulevard R to access an adjoining property that is currently
owned and used by a church. In connection with the Roads' construction, RFC
provided a performance bond to the Borough. The Borough released that
performance bond in 2007, after the completion of the construction.
In 2010, the Borough's planning board issued a resolution granting RR1
final site plan approval to construct a residential apartment building on another
lot of the Property. The 2010 resolution required the Roads to be upgraded to
the Borough's standards "prior to" the Roads being "dedicated to the Borough."
In that regard, the 2010 resolution stated:
The access road to the premises must be constructed in accordance with Borough standards and . . . [if] the exi[sting] access road is not up to [B]orough standards, the existing access road must be upgraded to Borough standards prior to the same being dedicated to the Borough [] at the cost and expense of the applicant.
In connection with the 2010 resolution, a tax map was filed and recorded
(the 2010 Tax Map). The 2010 Tax Map was signed by the chair and secretary
A-2604-22 4 of the Borough's planning board, the Borough's engineer, the Borough's clerk,
and a representative of the Bergen County Planning Board. The 2010 Tax Map
depicted Boulevard R and "public" ROW A. The 2010 Tax Map also included
a note stating that an additional thirty-two square feet of Boulevard R was being
dedicated as a public right of way.
Thereafter, RR1 entered into a developer's agreement with the Borough.
RR1 also posted bonds for its performance of the improvements, which included
upgrading and finishing Boulevard R and upgrading ROW A. In 2012, RR1
completed the construction of the apartment building and the upgrades to the
Roads. The following year, the Borough issued a resolution releasing RR1's
performance bonds.
Between 2013 and 2015, another of the lots of the Property was developed
with a multi-family apartment building. As part of that development, the
curbing of the Roads was improved. In 2015, after the construction and
improvements were completed, the Borough issued a resolution releasing the
related performance bonds. The 2013 and 2015 resolutions, which released the
performance bonds, both stated that the Borough's engineer took no exception
to the release of the bonds.
A-2604-22 5 In 2018, RDD applied for an amended site plan approval to construct four
multi-family apartment buildings on another lot of the Property. During an
October 2018 hearing on RDD's application, the Borough's planning board
questioned whether Boulevard R and ROW A were public roadways. Plaintiffs
responded through their counsel and took the position that the Roads had already
been dedicated and accepted for public use and, therefore, were public roads
under N.J.S.A. 40:55D-53(j).
In connection with the issue of the status of the Roads, in November 2018,
Peter C. Ten Kate (Ten Kate) of Boswell Engineering wrote to the planning
board's counsel. Ten Kate explained that in 2015, Bowell Engineering had
inspected and approved the Roads as compliant with the Borough's standards.
Ten Kate also stated that Boswell Engineering had recommended to the
Borough's mayor and council that RR2's performance bonds be released. In that
regard, Ten Kate wrote:
Boswell Engineering inspected the construction of the roads of the Riverfront Development to Borough Standards. By virtue of the fact that we recommended to the Mayor and Council that the Performance Guarantees be released in 2015, we found the construction of the roads to be satisfactory and in compliance with Borough Standards.
A-2604-22 6 Several months later, in January 2019, the planning board issued a
resolution approving RDD's amended site plan to develop the multi-family
apartment buildings. The 2019 approval resolution stated: "Dedication of
Roadways to the Borough [] should be addressed by the Applicant with the
Borough, and the Applicant shall be responsible to undertake any additional
steps, as may be necessary, for the road dedication."
Thereafter, RDD and the Borough entered into a developer's agreement
under which RDD constructed the apartment buildings. The construction
included improvements to be made to the Roads. RDD also provided the
Borough with performance bonds.
As part of the 2019 approval resolution, RDD and the Borough executed
an easement agreement to provide public access to the Passaic River docks. The
docks were floating docks on the Passaic River. The easement can only be
accessed by traveling on Boulevard R.
In January 2021, RDD's counsel sent a letter to the Borough's counsel
requesting the Borough to enter a resolution acknowledging that the Roads had
been dedicated to and accepted by the Borough and were public roadways. The
Borough did not directly respond to that letter. Instead, on June 17, 2021, the
A-2604-22 7 Borough issued a resolution rejecting RDD's offer to dedicate the roadways to
the Borough as public roadways.
In response to the Borough's resolution, on August 2, 2021, plaintiffs filed
a complaint in lieu of prerogative writs. In their complaint, plaintiffs asserted
three counts seeking (1) to invalidate the June 2021 resolution and obtain a
judgment compelling the Borough to adopt an ordinance formally accepting
public dedication of the Roads; (2) remedies for promissory and equitable
estoppel; and, alternatively, (3) a judgment declaring the Roads private property
belonging to plaintiffs and confirming that plaintiffs could restrict access to the
Roads.
Following discovery, plaintiffs moved for summary judgment on counts
one and two of their complaint. In support of that motion, plaintiffs submitted
three certifications: two from George Siller and one from their counsel. Siller
is a member and officer of the companies comprising plaintiffs and he is also a
licensed professional engineer. In addition, Siller had helped to oversee the
development projects on the Property. Plaintiffs also submitted numerous
documents, including an excerpt from the Division of Taxation's "State of New
Jersey Tax Maps Regulation and Standards" detailing that private roads must be
labeled as "private."
A-2604-22 8 In opposing plaintiffs' motion, defendant submitted a certification from its
counsel and excerpts from transcripts from two of the planning board meetings
held in 2018. As already noted, the Borough's counsel did not certify that he
had any personal knowledge of the facts. Nor did the Borough's "Answers"
identify evidence rebutting the material facts set forth in plaintiffs' statement.
After hearing oral argument, on April 4, 2023, the trial court issued an
order granting plaintiffs' motion for summary judgment on count one of
plaintiffs' complaint. In that regard, the court declared Boulevard R and ROW
A public roads that had been dedicated and accepted by the Borough as a matter
of law. The court then dismissed counts two and three of the complaint as moot.
The trial court supported its ruling with a written decision. Initially, the
court conducted a thorough analysis of plaintiffs' statement of material facts and
the Borough's answering statement. The trial court then detailed how the
Borough's answers failed to dispute the material facts set forth in the documents
and evidence submitted by plaintiffs. In short, the trial court rejected
defendant's denials of plaintiffs' material facts because they were not supported
by any competent evidence.
Turning to the substance of the summary judgment motion, the trial court
found that the material facts established that plaintiffs had dedicated the Roads
A-2604-22 9 to the Borough in 2010 and thereafter. In that regard, the court found the
material facts established that the Borough had understood that plaintiffs had
dedicated the Roads for public use. The court also found that Ten Kate, an
employee of Boswell Engineering, represented that the Roads had been
inspected by an engineer and complied with the Borough's standards. In making
that finding, the trial court did not find that Boswell Engineering had been the
Borough's engineer in 2013 and 2015. The record, however, established that
Boswell Engineering was the Borough's engineer during those years.
Furthermore, based on the inspections and approvals by Boswell
Engineering, in 2013 and 2015 the Borough had released the performance bonds
related to two of the development projects that were completed between 2012
and 2015. Therefore, the trial court found that the undisputed facts established
that the Borough had accepted the Roads as public roads.
In making its legal determinations, the trial court noted that the Borough
had not presented any ordinance governing how the Roads should be dedicated.
The court, therefore, held that N.J.S.A. 40:55D-53(j) governed the issue. The
trial court then applied the undisputed facts and held that the Roads were public
roads and had been accepted by the Borough in accordance with N.J.S.A.
40:55D-53(j). The trial court also found that the Borough's 2021 resolution was
A-2604-22 10 arbitrary, capricious, and unreasonable because it was not supported by relevant
facts.
On April 28, 2023, the trial court issued an amended order appending
"Exhibit A," a tax map highlighting the public roads. The Borough now appeals
from the April 4, 2023 order and the April 28, 2023 amended order.
II.
On appeal, the Borough raises eight arguments, contending (1) it cannot
be compelled to accept dedicated roads; (2) it always reserved the right to
decline plaintiffs' dedications; (3) the trial court erred in holding that the Roads
had been dedicated and accepted as public roads; (4) each resolution and
developer's agreement placed conditions on the Borough's acceptance of the
Roads and those conditions were never fulfilled; (5) a proper determination of
whether the Roads were accepted as public roads requires an evidentiary
hearing; (6) the zoning status of the land under the Roads is not clear and,
therefore, precluded summary judgment to plaintiffs; (7) the Roads are really
"By-Road[s]"; and (8) plaintiffs should be estopped from denying their
obligation to maintain the Roads.
None of defendant's arguments are supported by material facts or law.
Instead, most of those arguments are based on factual contentions that are not
A-2604-22 11 supported by competent evidence in the record and legal contentions that are
inconsistent with the governing law. Moreover, defendant's eighth argument
concerning estoppel was not raised in the trial court and is not properly before
us on this appeal. See N. Haledon Fire Co. No. 1 v. Borough of N. Haledon, 425
N.J. Super. 615, 631 (App. Div. 2012) ("An issue not raised [in the trial court]
will not be considered for the first time on appeal."); see also Brock v. Pub. Serv.
Elec. & Gas Co., 149 N.J. 378, 391-92 (1997) (declining to address an argument
because it was raised for the first time on appeal). We therefore focus our
analysis on whether the material undisputed facts establish that the Roads were
dedicated and accepted as public roads.
A. Our Standard of Review.
An appellate court reviews a grant of summary judgment de novo,
"applying the same standard used by the trial court." Samolyk v. Berthe, 251
N.J. 73, 78 (2022). That standard requires the appellate court to "determine
whether 'the pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact challenged and that the moving party is entitled to a
judgment or order as a matter of law.'" Branch v. Cream-O-Land Dairy, 244
N.J. 567, 582 (2021) (quoting R. 4:46-2(c)). "Summary judgment should be
A-2604-22 12 granted . . . 'against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and on which that party
will bear the burden of proof at trial.'" Friedman v. Martinez, 242 N.J. 449, 472
(2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). An
appellate court does not defer to the trial court's legal analysis or statutory
interpretation. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472
(2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).
"Summary judgment requirements . . . are not optional." Kopec v. Moers,
470 N.J. Super. 133, 156 (App. Div. 2022) (omission in original) (quoting Lyons
v. Twp. of Wayne, 185 N.J. 426, 435 (2005)). In that regard, a party may not
defeat a summary judgment motion through a certification or affidavit by
"attorneys of facts not based on their personal knowledge but related to them by
and within the primary knowledge of their clients." Pressler & Verniero,
Current N.J. Court Rules, cmt. on R. 1:6-6 (2025); Gonzalez v. Ideal Tile
Importing Co., 371 N.J. Super. 349, 358 (App. Div. 2004) (citing R. 4:46-5(a)).
(explaining that "[e]ven an attorney's sworn statement will have no bearing on a
summary judgment motion when the attorney has no personal knowledge of the
facts asserted").
A-2604-22 13 B. The Law Concerning Dedication and Acceptance of Public Roads.
"The process of dedication and acceptance is a method by which property
is transferred to a municipality's control." Twp. of White v. Castle Ridge Dev.
Corp., 419 N.J. Super. 68, 78 (App. Div. 2011). The actions of a landowner
manifesting an intent to dedicate land to a public use is referred to as an "offer
of dedication," which is "complete and irrevocable." Twp. of Middletown v.
Simon, 193 N.J. 228, 241 (2008); Velasco v. Goldman Builders, Inc., 93 N.J.
Super. 123, 137 (App. Div. 1966). Actual dedication, however, is "not
consummated until there has been an acceptance." Velasco, 93 N.J. Super. at
137. Under N.J.S.A. 40:55D-53(a) and N.J.S.A. 40:55D-65, a municipality
"may adopt an ordinance which establishes a process that a developer must
undergo prior to the municipality's acceptance of the road or improvement."
White, 419 N.J. Super. at 78. Alternatively, a municipality "may enter into a
developer's agreement with a developer which provides for the transfer and
dedication to the municipality of a road built for . . . [a] development." Ibid. In
that situation, the road "remains the private property of the developer," who
continues to bear the responsibility for maintenance, until the municipality
formally accepts the dedication. Ibid. "Generally, 'the actual dedication to
public use is consummated when the dedication is accepted by an appropriate
A-2604-22 14 ordinance or resolution of the municipality.'" N.J. Transit Corp. v. Franco, 447
N.J. Super. 361, 376 (App. Div. 2016) (quoting State v. Birch, 115 N.J. Super.
457, 464 (App. Div. 1971)).
Nevertheless, acceptance of dedication "may also be accomplished by
other 'official conduct which manifests an intent to treat the land in question as
dedicated to the public use.'" Ibid. (quoting Englander v. Twp. of W. Orange,
224 N.J. Super. 182, 188 (App. Div. 1988)). Accordingly, under N.J.S.A.
40:55D-53(j), a municipality "shall be deemed" to accept dedication of roads for
public use when three criteria have been met. N.J.S.A. 40:55D-53(j) states:
To the extent that any of the improvements have been dedicated to the municipality on the subdivision plat or site plan, the municipal governing body shall be deemed, upon the release of any performance guarantee required pursuant to subsection a. of this section, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the municipal engineer.
In short, a municipality is deemed to have accepted a developer's
dedication of a road when (1) a developer has dedicated the road to the
municipality, which was built in accordance with approved site plans; (2) the
municipal engineer has inspected and issued final approval of the improvements;
A-2604-22 15 and (3) the municipal governing body has released any performance guarantees
related to the construction of the road. Ibid. Furthermore, a municipality cannot
arbitrarily refuse to accept dedication of roads constructed in conformance with
state and local law. See Kligman v. Lautman, 53 N.J. 517, 536 (1969)
(explaining that a municipality must accept as public those streets meeting
municipal requirements, as shown upon an approved plat plan, when the
improvements are completed because of the "benefit of both house purchasers
and the developer").
C. The Application of the Material Undisputed Facts to the Law.
Applying the material undisputed facts to the law establishes that the
Roads are public roads under N.J.S.A. 40:55D-53(j). In that regard, the material
undisputed facts establish that (1) the Roads were dedicated to the Borough; (2)
the Roads were inspected and approved by the Borough's engineer; and (3) the
Borough released plaintiffs' performance bonds after the Roads had been
constructed and improved.
First, plaintiff dedicated the Roads to the Borough. That dedication was
most clearly made in the 2010 resolution approving the construction of
apartment buildings and the related 2010 Tax Map. The 2010 approval
resolution stated:
A-2604-22 16 The access road to the premises must be constructed in accordance with Borough standards and . . . the exi[sting] access road must be upgraded to Borough standards prior to the same being dedicated to the Borough of Elmwood Park at the cost and expense of the applicant.
The 2010 Tax Map then depicted the Roads as public roads. ROW A was
labeled: "Borough of Elmwood Park Public R.O.W." Boulevard R had a
notation stating that "thirty-two [square feet] to be dedicated as [public right of
way]."
In addition, nowhere on the current Official Tax Map are the Roads
depicted as private roads. The absence of a depiction of the Roads as private is
significant. The regulations governing municipal tax maps establish standards
for those maps. See N.J.A.C. 18:23A-1.1(a)(4); N.J.A.C. 18:23A-1.15(d). The
standards state: "[p]rivate . . . streets shall be shown as lots with separate lot
numbers or shall be shown with dashed lines." N.J.A.C. 18:23A-1.15(d) (citing
Standards, S1, S11, S26, and S36). The standards also state that private roads
shall be expressly labeled as "private." N.J.A.C 18:23A-1.15(d); S36. In
contrast, "[a]ll dedicated streets, roads and highways shall be shown by a solid
line." N.J.A.C 18:23A-1.15(a). On the current Official Tax Map, Boulevard R
and ROW A are both depicted with "solid line[s]" instead of "dashed lines."
A-2604-22 17 Thus, Boulevard R and ROW A are depicted as public roads under N.J.A.C.
18:23A-1.15(a).
Second, the Roads were inspected and approved by the Borough's
engineer. That fact is confirmed in the Borough's 2013 and 2015 resolutions
releasing the performance bonds. Both resolutions stated that Boswell
Engineering took "no exception to the release" of the performance bonds.
Indeed, Ten Kate of Boswell Engineering later explained:
Boswell Engineering inspected the construction of the roads of the Riverfront Development to Borough Standards. By virtue of the fact that we recommended to the Mayor and Council that the Performance Guarantees be released in 2015, we found the construction of the roads to be satisfactory and in compliance with Borough Standards.
Third, it is not disputed that the Borough released the performance bonds
after the completion of the construction of the Roads. Those facts are confirmed
in the Borough's 2013 and 2015 resolutions releasing the performance bonds. In
short, the undisputed material facts establish that by 2015, the Borough had
accepted the Roads as public roads in accordance with N.J.S.A. 40:55D-53(j).
The Borough's arguments to the contrary are not supported by competent
evidence or law. The Borough primarily relies on the fact that it never issued a
resolution accepting the Roads as public roads. Municipalities can formally
A-2604-22 18 accept an offer of dedication by ordinance or resolution. See Velasco, 93 N.J.
Super. at 137; see also N.J.S.A. 40:67-1(b). Nevertheless, N.J.S.A. 40:55D-
53(j) makes clear that a municipality "shall be deemed" to have "accept[ed]"
dedication of a road when the criteria of that statute has been met. As we have
already detailed, the three criteria of N.J.S.A. 40:55D-53(j) were established by
the material undisputed facts in the record.
The Borough's numerous arguments challenging the trial court's grant of
summary judgment to plaintiffs lack sufficient merit to warrant further
discussion in a written opinion. See R. 2:11-3(e)(1)(E). We do, however, make
one overview comment. The summary judgment record established that
plaintiffs and the Borough had a consistent course of dealing between 2002 and
2019. Plaintiffs consistently proposed developments on the Property that
reflected that the Roads would be dedicated to the Borough as public roads. The
Borough acted consistently as though it had accepted the dedication of the
Roads. It was only in 2018 that the Borough first raised a question about the
status of the Roads. Moreover, it was not until June of 2021 that the Borough
attempted to take formal action to decline the dedication of the Roads. As we
have detailed, the June 2021 resolution was arbitrary, capricious, and
unreasonable because the Borough had already been deemed to have accepted
A-2604-22 19 the Roads as public roads under N.J.S.A. 40:55D-53(j). Consequently, we
affirm both the April 4, 2023, and the amended April 28, 2023 orders.
Affirmed.
A-2604-22 20