MAGIC TOUCH CONSTRUCTION COMPANY, et al. v. BOROUGH OF KEYPORT, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4304-03T24304-03T2

MAGIC TOUCH CONSTRUCTION COMPANY,

a corporation of the State of

New Jersey, and EDWARD BURLEW,

Plaintiffs-Appellants,

v.

BOROUGH OF KEYPORT, a municipal

corporation of the State of New

Jersey and MAYOR KEVIN GRAHAM,

Defendants-Respondents,

and

ADMINISTRATOR/CLERK JUDITH L.

POLING; COUNCIL MEMBER ROBERT

J. BERGEN; AND FORMER COUNCIL

MEMBER GEORGE J. WALLING,

Defendants.

_________________________________

 

Argued: October 18, 2005 - Decided January 24, 2006

Before Judges Skillman, Axelrad and Levy.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-2755-00.

Theodore Sliwinski argued the cause for appellants.

Gordon Litwin, Ansell Zaro Grimm and Aaron, and Peter Till argued the cause for respondents (exclusive of respondent Mayor Kevin Graham's separate representation on punitive damages claim) (Peter W. Till, attorney; Mr. Till and Michael A. D'Aquanni, on the brief).

Keith P. Jones argued the cause for respondent Mayor Kevin Graham (only for his defense against punitive damages claim) (Hill Wallack, attorneys; Mr. Jones and Todd J. Leon, on the brief).

PER CURIAM

Magic Touch Construction Company, Inc. and its president Edward Burlew appeal from summary judgment dismissal of its complaint against the Borough of Keyport and its former mayor for possession and title to a strip of former tidelands located along the waterfront in Keyport. The amended complaint asserted claims for possession pursuant to N.J.S.A. 2A:35-1 based on plaintiff's upland ownership rights (count one), damages and mesne profits pursuant to N.J.S.A. 2A:35-2 for use of the premises as a parking lot and public field (count two), quiet title pursuant to N.J.S.A. 2A:62-1 and R. 4:62-1 (count three), trespass to property by the Borough's placement and use of a sewer line outside the easement granted in l9ll across the property (count four), inverse condemnation and compensation for taking of private property for public use under the Federal and State Constitutions (count five), and various violations of Burlew's constitutional rights and rights under 42 U.S.C. 1983 (counts six and seven). Keyport filed a counterclaim seeking a declaration of clear and exclusive title to the disputed parcel based on the theory of adverse possession.

On February 22, 1985, Magic Touch acquired by deed from Anvar Kassim Patel the parcel known as 59 West Front Street in Keyport and designated on the tax map as Lot 32, Block 21.01. The property at that time was improved with a single-screen movie theater. In l986 and l987, plaintiff gutted the building and converted it to a mini-mall, with the Bulkhead Bar and Grill as the anchor tenant at the bayside end of the building.

The disputed parcel is located between the rear lot line on the northerly boundary of Lot 32 and the high water line of the Raritan Bay. It is an approximate eight foot wide, fifty foot long strip running along the rear of plaintiff's property, and is designated as Block 21.01, part of Lots 49 and 22. Most, if not all, of the disputed property was formerly under the bay waters. In l964, Keyport sought to reclaim extensive portions of the Raritan Bay, which had previously been under water, and create additional dry land as part of a state-funded waterfront development project. Keyport acquired title to portions of all of the upland properties except for Lot 32 and one other lot. The borough deposited huge quantities of dirt and other fill material on the disputed property and adjacent lands located between the business properties on Front Street and the high water line, and constructed a bulkhead, road and parking lot. The upland area is now significantly larger than that which existed prior to the commencement of the project, and houses a portion of the municipal parking lot located between the road and buildings facing Front Street. The surrounding businesses and residences, including the movie theater that formerly occupied the property, used lot 32 as a parking lot, and it currently serves plaintiff's mini-mall patrons. The entire lot, including the disputed parcel, contains approximately thirty parking spaces.

In connection with a l988 proposed extension of First Street and a waterfront park development project, an issue arose as to whether plaintiff or Keyport had riparian rights in the disputed parcel. According to the title report, the old tax map showed the rear line of lot 32 and the high water line were the same, but the newer map showed an approximately eight-foot-wide difference between the two lines running along the fifty-foot rear width of Lot 32. The movement of the high water line had occurred over time due to erosion and accretion. Keyport discovered that it had not acquired any deed to the small portion behind Lot 32 that had been filled in and paved to form a part of the parking lot. Keyport officials requested that Burlew, as upland owner, donate the disputed strip to the borough, which he refused.

After receipt of the title report, plaintiff filed an application (No. 89-0035-T) with the Bureau of Tidelands Management, Department of Environmental Protection (Tidelands Bureau), for a riparian grant based on its predecessor's claimed ownership of the disputed parcel behind Lot 32 that extended to the former high water line of the Raritan Bay. On May 25, 1989, Keyport's municipal attorney wrote to the Tidelands Bureau, expressing concern over plaintiff's application and requesting that any riparian grant be conditioned upon the continued use of the riparian land for the public purposes of a bulkhead, walkway, roadway and parking area.

By letter of July 2l, l989, the municipal attorney recommended to Keyport officials that condemnation proceedings be instituted to acquire the disputed parcel. Keyport did not heed this advice, and plaintiff filed this lawsuit on June 12, 2000.

By correspondence of May 2, 2001 to the Bureau of Tidelands Management, Keyport opposed plaintiff's application, and subsequently filed a competing park grant application for a larger parcel that encompassed the area subject to plaintiff's application. Various proceedings ensued in the administrative agency regarding the disputed parcel, which we do not deem necessary to detail at length in this opinion.

The trial court found the cause of action accrued when Keyport took the property in l964 under its power of eminent domain, and thus dismissed plaintiff's claims set forth in counts one through five as a matter of law as barred by the six-year limitations period of N.J.S.A. 2A:14-1 applicable to "trespass to real property, for any tortuous injury to real . . . property. . . ." The court concluded that "title, and consequently the right to possession, rests in [Keyport] which, due to the passage of time, need not pay compensation for its appropriation of the property, nor need it bring a condemnation action." The court also dismissed as unsubstantiated the constitutional and 1983 claims.

On appeal, plaintiff contends the six-year statute of limitations is not implicated by the claims it asserted in counts one through five and essentially argues the merits of its case. Plaintiff also asserts error in the trial court's summary judgment dismissal of its 1983 claims contained in counts six and seven of the amended complaint. We affirm in part and reverse and remand in part.

Plaintiff does not take the position the disputed parcel was contained in the deed he obtained from Patel in l985. Rather, plaintiff's ownership and damage claims are founded on the upland status of the property and Keyport's failure to obtain a deed from plaintiff's predecessor in title when it filled the strip in l964 and its failure to institute condemnation proceedings. Plaintiff's claims are further based on an alleged good faith belief he acquired the rights to the strip by virtue of longtime use of the parcel for parking for the movie theater that had been situate on the lot, representations from the prior owner, and lack of signage indicating any parking restrictions on the strip. According to plaintiff, it would not make sense to purchase a large commercial building with no parking. Plaintiff Burlew further certified he asserted physical ownership of the disputed parcel subsequent to his purchase in l985, including picking up trash, plowing three or four times, routinely paving all of lot 32 and putting bumpers in the disputed area. Moreover, he always used the parcel for parking for his tenants and their customers.

In opposition to Keyport's adverse possession claim, plaintiff Burlew asserted the following examples as express acknowledgements by Keyport of his dominion, control and ownership of the disputed parcel since l985: he was never told by any borough official to remove the "No Trespassing" sign he placed on the property, Keyport did not assert ownership to the parcel until it filed its answer to this action in July 2000, and it did not object to plaintiff's riparian rights application for well over a decade. Additionally, the Keyport Borough Fire Department continuously requested permission to hold its annual fair on the parking lot and listed plaintiff as an additional insured on its policy. According to plaintiff, although he allowed Keyport to use the land, all parties understood that plaintiff owned all of Lot 32, including the disputed strip.

We are satisfied the waterfront development filling project constituted a taking by Keyport, triggering the accrual of a cause of action in l964. When the borough filled in and paved the strip along the rear of Lot 32, plaintiff's predecessor in title was put on notice the borough had seized, or taken, its property. The property owner did not file an action for damages for use of its property as a public parking lot, trespass on its property, or inverse condemnation for taking of its property, presumably because as owner of the movie theater it benefited from the municipal improvements and parking for its patrons, without having to pay local property taxes on the disputed parcel. Counts two, four and five of the complaint are in the nature of trespass or tort claims for which plaintiff is seeking monetary damages. Assuming the existence of a valid claim, we are satisfied the trial court properly dismissed these claims as barred by the six-year statute of limitations under N.J.S.A. 2A:14-1, for the reasons set forth in the trial court's written opinion.

The claims set forth in counts one and three of the complaint, however, are not actions for "trespass" or "tortious injury" to property governed by the six-year limitations period of N.J.S.A. 2A:14-1. Rather, they implicate ownership claims involving "possession" and "title" interests in the disputed property. The period of time required to obtain title to land containing improvements is now thirty years. J&M Land Co. v. First Union National Bank, 166 N.J. 493 (2001). It is undisputed that Keyport's taking or period of adverse possession commenced in l964. Because the trial court concluded that the six-year limitation period for trespass action applied to all of plaintiff's claims, it did not address the merits of plaintiff's claims for possession of the disputed parcel pursuant to N.J.S.A. 2A:35-1 or quiet title pursuant to N.J.S.A. 2A:62-1. Nor did the trial court make findings regarding the elements of Keyport's adverse possession counterclaim, i.e., whether it established possession through l994 that was "exclusive, continuous, uninterrupted, visible and notorious. . . ." Mannillo v. Gorski, 54 N.J. 378, 386 (1969).

Accordingly, we reverse the grant of summary judgment as to counts one and three of plaintiff's complaint and remand for further proceedings, along with Keyport's counterclaim for adverse possession.

Plaintiff's civil rights claims asserted in counts six and seven of the amended complaint are founded upon Keyport's assertion of its riparian rights to the disputed parcel before the Tidelands Commission and an alleged pattern of harassment and selective enforcement by borough officials against Burlew in retaliation for the exercise of his constitutional rights. These actions pertain to plaintiff's application to the Keyport Planning Board seeking approval to convert his property to a hotel, a borough ordinance eliminating hotels as a permitted use in the GC zone while plaintiff's application was pending, and numerous inspections and code enforcement actions. We affirm summary judgment dismissal of these claims substantially for the reasons articulated by the trial court on the record on March l2, 2004. R. 2:11-3(e)(1)(A) and (E).

 
Affirmed in part; reversed and remanded in part. We do not retain jurisdiction.

Plaintiff did not appeal dismissal of its complaint against other Borough officials. Although Magic Touch is the title owner of the property, throughout the litigation the parties and court have interchangeably used the terms plaintiff and plaintiffs. We will use the term "plaintiff" in this opinion.

Keyport classifies the disputed parcel as a 295-foot triangular piece based on the Helm Engineering Survey high water line referenced in the report of Richard G. Castagna, Supervising Environmental Specialist, Tidelands Bureau for the Tidelands Council.

Keyport's attorney informed us at oral argument that its park grant application was approved.

The certification of Andrew J. Provence, filed in support of Keyport's motion for summary judgment, certified that on October 1, 2003, the Tidelands Council voted to grant Keyport all former tidelands to the north of plaintiff's property, and at oral argument Keyport's counsel advised that the governor had not as yet signed off on the approval. Plaintiff disputes that the Tidelands Council made any findings respecting the accuracy of its survey, and contends that the agency made no final decision, but was awaiting the final outcome of this litigation. We were not provided with a copy of the agency's determination, and it does not appear to have been presented to the trial court.

Patel purchased the property from Eastern Theatres, Inc. in September l980, which had purchased the property in August l968 from the Surf Theatre Company, who had purchased the property in l921 from Richard and Grace Dechert.

(continued)

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A-4304-03T2

January 24, 2006