Township of Middletown v. Simon

937 A.2d 949, 193 N.J. 228, 2008 N.J. LEXIS 2
CourtSupreme Court of New Jersey
DecidedJanuary 15, 2008
StatusPublished
Cited by31 cases

This text of 937 A.2d 949 (Township of Middletown v. Simon) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Township of Middletown v. Simon, 937 A.2d 949, 193 N.J. 228, 2008 N.J. LEXIS 2 (N.J. 2008).

Opinions

Justice WALLACE, JR.,

delivered the opinion of the Court.

In 1929, the owners of land adjacent to Shadow Lake in Middletown Township subdivided the land into fifty-six numbered residential lots and one unnumbered lake-front lot labeled “Park.” The subdivision map was presented to the Township and recorded in 1932. Many years later, the Park lot was assessed as a separate lot for tax purposes. Because the owners of the Park lot were unknown, taxes on the lot were not paid. Subsequently, the Township sold several tax sale certificates on the lot. A purchaser of a tax sale certificate successfully foreclosed on the property, obtained title to the Park lot, and contracted to sell it to a construction company for the construction of a residence.

The Township filed a complaint against two of the certificate holders and the contracted construction company, asserting that the Park lot was dedicated to the Township for public use and that conversion of the parcel to private use would violate the rights of the public in the dedicated property. Following cross motions for summary judgment, the trial court concluded that the Township [232]*232did not have a dedicated interest in the property and granted judgment in favor of defendants. On appeal, the Appellate Division reversed, holding that the “recording of the subdivision map and subsequent sale of residential lots with reference to that map constituted an irrevocable dedication of the lot for public use as a park.” Twp. of Middletown v. Simon, 387 N.J.Super. 65, 77, 903 A.2d 418 (2006).

We granted certification to determine whether the issuance of a tax sale certificate and a successful foreclosure action by the certificate holder prevent a municipality from subsequently accepting the lot as dedicated. We agree with the reasoning of the Appellate Division that the Park lot was dedicated land and that the sale of the tax sale certificate and the subsequent foreclosure on the lot did not prohibit the Township from later accepting the dedication of the land as a park. We conclude, however, that under the circumstances presented, a remand is necessary for the court to fix an amount of reimbursement due to defendants.

I.

A.

Elmer and Nellie Alexander owned a parcel of land adjacent to Shadow Lake in Middletown Township. In December 1929, the Alexanders presented a subdivision map to the Township, and the Township Committee of the Township of Middletown approved the map on December 12,1929. The map depicted fifty-six numbered residential lots and one unnumbered lot designated “Park.” Approximately one-half of the fifty-six numbered residential lots and the Park lot had direct access to Shadow Lake, while the remaining lots did not. The map was recorded with the Monmouth County Clerk on April 26,1932. The status of the 1.08-acre Park lot is the focus of this dispute.

Elmer died in January 1932. Prior to 1938, Nellie, his widow, sold two lots, one to Stanley Haviland in October 1933 and one to Charles Green in November 1936. Both transactions referenced [233]*233the filed map for Shadow Lake Park. In June 1938, Nellie entered into an agreement (the 1938 Agreement) with Haviland, Green, and the bank holding a mortgage on portions of Nellie’s property. The 1938 Agreement set forth certain restrictions applicable to twenty-one of the lots in the subdivision and made two references to a park. One reference specifically mentioned the lot marked “Park” on the map and read as follows:

The drive known as Alexander Drive and the place known as Sunrise Place and the road known as Orchard Road and the parcel of land marked “Park” on the said map, shall at all times hereafter, until the care and maintenance thereof shall be taken over by the municipality be cared for and maintained by [Nellie Alexander], her heirs and assigns.
[ (emphasis added).]

The other reference was in an introductory paragraph that limited the running of the restrictions with the land until July 1,1962. It provided that “no street, roads, avenues, parks or any other land is intended to be dedicated to public use by reference thereto or by reference to the said map.” (emphasis added).

Following the 1938 Agreement, Nellie conveyed other lots in Shadow Lake Park to various purchasers. However, the 1938 Agreement was only expressly mentioned in two of the deeds between 1938 and 1956. Still, most of the conveyances referenced the 1929 map that depicted the unnumbered Park lot, and at least one deed expressly conveyed the lot “[t]ogether with the right to use, in common with others, the park and Shadow Lake.”

Neither Nellie nor her heirs ever conveyed the Park lot. At some unknown time, for tax purposes, the Township joined the Park lot to the adjacent lot 17. In 1988, a tax assessor became aware that the Park lot was improperly attached to lot 17 when the owner of that lot prepared to sell it. The Township then uncoupled the Park lot from lot 17 and gave it a separate tax designation. The owners of the Park lot were listed as unknown.

For the next two years, no taxes were paid on the Park lot. As a result, on November 28, 1990, the Township sold a tax sale certificate on the lot to Jeffrey Jerman. A second certificate was sold to Joyce Bussey on December 6,1991, and a third to Richard [234]*234Simon on June 23,1995. Thereafter, Simon paid the taxes on the Park lot.

In July 2000, Simon filed a tax foreclosure action (the Foreclosure Action) seeking to obtain title to the Park lot. When a search of the records revealed that Clifford Raisch, the owner of lot 17, might have an interest in the Park lot, Simon joined him in the action. Raisch filed an answer asserting that the Township was an indispensable party to the Foreclosure Action because it held a continuing and irrevocable right to accept the Park lot for public use under the law of dedication. Simon moved to strike Raisch’s answer. The trial court found that the original owners of the Park lot did not intend to dedicate it to the Township; therefore, the Township was not an indispensable party to the action. The trial court granted Simon’s motion to strike Raisch’s answer. Thus, the Township was not included as a party in the Foreclosure Action.

While the Foreclosure Action was pending, the Township’s attorney, Bernard Reilly, wrote a letter to Simon dated March 6, 2003, explaining that homeowners in Shadow Lake Park claimed that the tax sale certificate issued on the Park lot was potentially erroneous. Reilly noted that the homeowners’ association obtained a partial interest in the Park lot and might convey that interest to the Township, with the Township taking over the property and keeping it as a “ ‘park’ or ‘open space’ in accord with the restriction on the Filed Map and various deeds.” Reilly stated that the Township wanted “to avoid litigation over the tax status of the parcel” and sought Simon’s “advice as to a possible negotiated compromise” in light of “the potential non-usability of the parcel for anything other than a ‘Park’ — and the potential for litigation over this possible restriction.”

Simon’s attorney, Keith Bonchi, responded to Reilly’s letter that Simon was not interested in selling his valid tax sale certificate and that the trial court had rejected a claim that the Park lot was dedicated public land.

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Bluebook (online)
937 A.2d 949, 193 N.J. 228, 2008 N.J. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/township-of-middletown-v-simon-nj-2008.