THOMAS DOLECKY, et al. v. BOROUGH OF RIVERTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6013-04T16013-04T1

THOMAS DOLECKY,

Plaintiff-Appellant,

and

ROBERT HORNER and BARBARA

HORNER,

Plaintiffs,

v.

BOROUGH OF RIVERTON,

Defendant-Respondent.

____________________________________

 

Argued April 25, 2006 - Decided June 15, 2006

Before Judges Skillman, Payne and Sabatino.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-4189-02.

Ronald J. Cappuccio argued the cause for appellant.

Thomas J. Coleman argued the cause for respondent (Raymond & Coleman, attorneys; Stephen G. Raymond, on the brief).

PER CURIAM

Defendant Borough of Riverton is a municipality located on the Delaware River in Burlington County. Most property on the riverfront in the municipality, which is approximately a mile long, is privately owned. There is a one-way paved street that runs along the river called Bank Avenue.

Plaintiff Thomas Dolecky owns three of the private lots that abut the Delaware River and are bisected by Bank Avenue. Dolecky and the owners of one of the other riverfront lots brought this action, claiming that Riverton had taken the part of their properties extending from the landward edge of Bank Avenue to the river and seeking compensation for these takings. Plaintiffs' complaint also sought a declaration that a municipal ordinance that requires owners of riverfront properties to "maintain, rebuild [and] repair" any bulkheads located on their properties is "ultra vires" and an injunction against enforcement of the ordinance.

Riverton filed a counterclaim for a mandatory injunction requiring plaintiffs to repair and reconstruct the bulkheads in front of their properties.

The case was brought before the trial court by cross-motions for summary judgment. In its moving papers, Riverton asserted that Bank Avenue was located on a public easement that had been dedicated by map filings and deed references in the nineteenth century. Riverton did not claim that there was any express public easement over the land between Bank Avenue and the Delaware River, and counsel for the municipality conceded at oral argument that the public had no right to use that area.

The trial court upheld Riverton's claim that Bank Avenue is located on a dedicated public easement. The court also held that plaintiffs had presented no evidence to support their claim that Bank Avenue is wider than the dedicated public easement. However, the court further held that Riverton has no right to expand the existing street. Based on these rulings and Riverton's concession regarding the land between Bank Avenue and the Delaware River, the court entered an order on May 11, 2005, which states in pertinent part:

2. The property of the Plaintiffs extending from Bank Avenue to the Delaware River is hereby declared as private property with the exclusive rights of ownership in the Plaintiffs; and

3. The Borough of Riverton has no rights of ownership or the right to use the private property in question between Bank Avenue and the Delaware River. The right to use the particular property between Bank Avenue and the Delaware River by members of the general public can only be granted by permission of the particular property owner and not by a prescriptive use or by the Borough of Riverton; and

4. The Borough of Riverton has [a] documented easement to use, operate and maintain its public improvement known as Bank Avenue. For purposes of this Order, it is expressly ordered that the Borough of Riverton may not expand the existing height, width or location of Bank Avenue from its present location[.]

The trial court did not rule upon plaintiffs' challenge to the validity of the bulkhead ordinance on the return date of the cross-motions for summary judgment. Instead, the court reserved decision pending receipt of a copy of the applications to the Army Corps of Engineers for permission to construct bulkheads. The court indicated that it needed to know what requirements the Army Corps would impose for the repair or reconstruction of the bulkheads to "determine whether the ordinance is reasonable."

On May 23, 2005, the court sent a letter to the parties, which stated:

This letter will acknowledge receipt of correspondence from Mr. Coleman dated May 16 and May 19, 2005. I have now had an opportunity to review the documents and photographs submitted and I reached the following conclusions:

1. Those residents who own properties along Bank Avenue and who additionally own property between Bank Avenue and the River have a legal responsibility to maintain the seawall and prevent erosion of their properties which could also affect the sanitary sewer line and manhole as well as Bank Avenue. There is a legal obligation to continue to maintain their property so as not to effect the rights of others. I have also reviewed the application for a Department of the Army Permit and the application information for the United States Army Corps of Engineers Regulatory Program together with Environmental Questionnaire. I agree with Mr. Coleman's assessment that a complete application does not require fully engineered plans.

2. The homeowners who have been cited as derelict in their duty to maintain the seawall shall have a period of 20 days from the date of a signed order to complete the application for the Army Corps of Engineers and a period of 120 days to complete the repairs once the Army Corps of Engineers is satisfied that the proposed work to be done is appropriate.

3. All prosecutions will be held in abeyance until the conclusion of that period of time.

4. In the event that the affected homeowners fail to make the appropriate application or to repair the seawall pursuant to approved plans, the Borough of Riverton may continue with prosecutions and/or undertake the improvement to the seawall and assess each property owner his, her or their fair share.

The court's letter did not address plaintiffs' claim that the bulkhead ordinance is ultra vires. The letter also did not specifically address plaintiff's claim that the ordinance is unreasonable.

On June 14, 2005, the court entered an order, which states:

1. Chapter 61 of the Code of the Borough of Riverton (entitled "Bulkheads") is hereby determined to be enforceable by the Borough of Riverton in its current form.

2. Borough of Riverton residents who own real property between Bank Avenue and the Delaware River have a legal obligation to maintain their seawalls and/or bulkheads in accordance with the provision of Chapter 61 of the Code of the Borough of Riverton.

3. The plaintiffs, Thomas Dolecky, Robert Horner and Barbara Horner[,] are directed within twenty (20) days of the date of this Order to complete and file the necessary applications with the U.S. Army Corps of Engineers and the New Jersey Department of Environmental Protection, if necessary for the repair, replacement and/or maintenance of their seawalls and/or bulkheads abutting their particular properties.

4. It is further ORDERED that upon the plaintiffs' receipt of their permit(s) from . . . the U.S. Army Corps of Engineers that they complete the necessary repairs, replacements and/or maintenance to their seawalls and/or bulkheads within one hundred twenty (120) days.

5. The Borough of Riverton may not enforce any penalty provision or penalty of Chapter 61 of the Code of the Borough of Riverton until the one hundred twenty (120) day construction period set forth in paragraph 4 of this Order has expired and the plaintiffs have failed to undertake the necessary repairs, maintenance and/or replacement of their seawalls and/or bulkheads.

6. In the event that the plaintiffs' fail to either make the appropriate application(s) or to repair, maintain or replace their seawalls and/or bulkheads pursuant to the provisions of this Order, the Borough of Riverton may continue with its prosecution of Chapter 61 of the Code of the Borough of Riverton and/or undertake the necessary improvements to the plaintiffs' seawalls and/or bulkheads and assess each of the plaintiffs for their respective share of the cost of improvement.

Dolecky appeals from the part of May 11, 2005 order that declares that Riverton "has [a] documented easement to use, operate and maintain its public improvement known as Bank Avenue[,]" and all of the June 14, 2005 order. Riverton has not cross-appealed from the parts of the May 11, 2005 order that determined that there is no public easement over the lands between Bank Avenue and the Delaware River and that Riverton may not expand Bank Avenue.

We affirm the part of the May 11, 2005 order which declares that Riverton has an easement over Bank Avenue. We reverse the June 14, 2005 order upholding the validity of the bulkhead ordinance and remand this part of the case for further proceedings in the trial court.

I

A "dedication" has been defined as "the permanent devotion of private property to a use that concerns the public in its municipal character." Velasco v. Goldman Builders, Inc., 93 N.J. Super. 123, 133 (App. Div. 1966) (quoting Black v. Cent. R.R. Co., 85 N.J.L. 197, 202 (E. & A. 1913)). A dedication may be express or implied. Id. at 133. "The former is ordinarily effected by a deed of grant or by a written or oral declaration of intention." Ibid. The latter arises "from conduct of the dedicator which falls short of an express statement of intent to dedicate but which nevertheless manifests an intent to dedicate land to public use." Ibid. (quoting Cunningham and Tischler, Dedication of Land in New Jersey, 15 Rutgers L. Rev. 377, 384-85 (1961)).

Any doubts as to whether the land has been dedicated are generally "resolved against the dedicator and in favor of the public." Id. at 137. Accordingly, where a developer "plats a tract of land into building lots and prepares a map disclosing streets abutting such lots, if he conveys by reference to the map, and the purchaser relies thereon, an intent to dedicate may be assumed." Id. at 135. Although the fact that land is used by the public for a period of time "does not in itself indicate a dedication thereof by the owner," the public use of such land "is a significant element to be considered in connection with other facts in determining the existence of a dedication." Ibid.

Once dedicated, the offer cannot be revoked except by consent of the municipality in the mode or manner prescribed by law. Englander v. W. Orange, 224 N.J. Super. 182, 188 (App. Div. 1988). The 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. Brookdale Park Homes, Inc. v. Twp. of Bridgewater, 115 N.J. Super. 489, 497 (Ch. Div. 1971). Moreover, "[a]lthough dedication of a street may be formally accepted by an appropriate municipal ordinance or resolution, 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.'" Englander, supra, 224 N.J. Super. at 188 (quoting State v. Birch, 115 N.J. Super. 457, 464 (App. Div. 1971)).

The facts of this case demonstrate an intention on the part of Dolecky's predecessors in title to dedicate Bank Avenue to public use. The properties that Dolecky owns are located at 207, 309, and 407 Bank Avenue. By deed dated May 5, 1857, Daniel Miller transferred the lot located at 309 Bank Avenue, "[s]ubject nevertheless to the easement or easements of the public right of way and other usual urban servitudes of, in, and upon so much of said premises as lies within the limits of said Bank Avenue." By deed dated November 1, 1868, the Riverton Improvement Company transferred the lot located at 207 Bank Avenue, "subject nevertheless to the easement or easements of the public rights of way and other usual urban servitudes of, in, and upon so much of said premises as lies within the limits of said Bank Avenue." And by deed dated March 27, 1882, John Marrill and others transferred the lot located at 407 Bank Avenue, "[u]nder and subject as regards the premises above described to the easement or easements of the public right of way and other usual urban servitudes of, in, and upon so much thereof as lies within the limits of the said Bank Avenue." Furthermore, maps filed in 1877 and 1882 indicate the existence and location of Bank Avenue during this time period. The dedication of Bank Avenue evidenced by the deeds to Dolecky's predecessors in title and the filed maps is also supported by the certification of Betty B. Hahle, the historian for Riverton, which states that "[i]n my lifetime of eighty-four (84) years, Bank Avenue has always been a public right of way maintained by the Borough of Riverton and available to pedestrian and vehicular traffic." Therefore, the undisputed evidence presented on the cross-motions for summary judgment showed that Bank Avenue was dedicated as a public easement in the nineteenth century.

Dolecky contends that Riverton has impermissibly raised Bank Avenue beyond its original height and widened the road from eight to seventeen feet. However, Dolecky failed to present any evidence to support this contention. Therefore, the trial court correctly concluded that the dedicated easement includes all of the area presented traversed by Bank Avenue.

Dolecky also argues that Riverton improperly expanded the scope of the easement by paving what formerly had been a dirt road and then a gravel passageway. However, "by the dedication of land for a public street, the municipality 'acquires not only the easement of passage but also the right to grade and improve the surface of the street[.]'" Haven Homes, Inc. v. Raritan Twp., 19 N.J. 239, 245 (1955) (quoting Levi v. Schwartz, 95 A.2d 332 (Md. Ct. App. 1953)); see also Lander v. Village of S. Orange, 58 N.J. 509, 516-17 (1971) (noting that "dedicator is presumed to have intended the property to be used by the public, within the limitations of the dedication, in such way as will be most convenient and comfortable and according to not only the properties and usages known at the time of the dedication, but also to those justified by lapse of time and change of conditions") (quoting Biglin v. W. Orange, 46 N.J. 367, 373 (1966)).

Accordingly, we affirm the part of the May 11, 2005 order declaring that Riverton has a public easement over Bank Avenue.

II

The bulkhead ordinance challenged in this action provides:

61-1. Maintenance of bulkheads required.

The owner or owners of land along the Delaware River in the Borough of Riverton in front of or along which any bulkhead, riverwall or other work or structure has been or hereafter may be built, constructed, erected or maintained shall maintain, rebuild, repair and keep in repair any such bulkhead, riverwall or other work or structure, including the filling in of the land around and about the same, at the cost and expense of said owner or owners of said lands.

61-2. Work to be done according to specifications.

The maintenance, rebuilding and repairing of any such bulkhead, riverwall or other work for a structure, including the filling in of the land around and about the same, shall be done and performed in accordance with either Plan No. 33-8336 and specifications relating thereto prepared by Sherman and Sleeper, Borough Engineers, dated February 7, 1951, or Project No. C-510-011 entitled "Riverfront Wall Rehabilitation Alternate Wall Section A," dated May 1994, Richard A. Alaimo, Association of Engineers, or Project No. C-510-011 entitled "Riverfront Wall Rehabilitation Alternate Wall Section B," dated August 1995, prepared by Richard A. Alaimo, Association of Engineers . . . .

61-3. Work to be supervised by Engineer.

All building or rebuilding of any such bulkhead, riverwall or other work or structure other than maintenance and repairs shall be performed under the supervision of a Borough Engineer or consulting engineer who shall prescribe the proper grade and who shall endeavor to maintain conformity of construction and appearance with existing construction on the particular lot.

61-4. Notice to repair.

Whenever any bulkhead, riverwall or other work or structure as aforesaid shall be or become in a state of disrepair or, in the opinion of a Borough Engineer or consulting engineer, Construction Code Official or Code Enforcement Officer, in an unsafe or dangerous condition, the owner or owners of the land in front of and along which such bulkhead, riverwall or other work or structure shall have been erected, constructed, maintained or built shall be notified in writing by the Borough Construction Code Official or Code Enforcement Officer of the existence of said condition, of the work required to be done to remedy said condition and of the requirement that said work be performed in accordance with the plans and specifications hereinbefore approved and adopted and in a manner consistent with the provisions of this chapter. . . .

61-5. Failure to comply; work done by borough; assessment of costs; violations and penalties.

A. If the owner or owners of the lands in front of and along which such bulkhead, riverwall or other work or structure shall have been erected, maintained, constructed or built shall fail to maintain, rebuild, repair or keep in repair such bulkhead; riverwall or other work or structure, including the filling in of the land around and about the same, according to the requirements of this chapter, the borough, after giving written notice and the expiration of the time as provided in the 61-4, shall cause the work required to be done, to said bulkhead, riverwall or other work or structure to be performed and the cost thereof with interest shall, by resolution of the Borough Council, be assessed upon the land in front of and along such bulkhead, riverwall or other work or structure, which shall have been constructed in a manner consistent with N.J.S.A. 40:56-1 et seq.

There are a number of statutory provisions dealing with the authority of a municipality to provide for the erection and maintenance of bulkheads. N.J.S.A. 40:68-4 provides that "[t]he governing body of every municipality shall have power to make, amend, repeal and enforce ordinances to . . . [p]rovide for the erection, improvement, alteration, extension, [and] maintenance . . . [of] bulkheads, . . . subject to the regulations of the United States and of this state." N.J.S.A. 40:14-15 deals specifically with the construction of bulkheads along the Delaware River:

Any . . . municipality bordering on the Delaware River may, subject to the provisions of section 12:5-3 of the Revised Statutes, erect and construct bulkheads and structures to prevent erosion by said river and fill in behind the same, upon public lands, and upon private lands with the written consent of the owner thereof, at the expense of the county or municipality when authorized so to do by resolution of . . . the governing body of the municipality,

. . . adopted by a 2/3 vote of the membership of said . . . body and declaring that a danger of erosion exists at the time when, and place where, said work is to be performed.

Dolecky's brief does not address these statutory provisions. However, we conclude that this case sufficiently implicates the public interest to require consideration of these statutes. Moreover, Dolecky asserts that Riverton's enforcement of the bulkhead ordinance has resulted in a taking of his property. A court ordinarily will refrain from addressing constitutional issues if a case is susceptible to disposition on other grounds. See In re New Jersey Am. Water Co., Inc., 169 N.J. 181, 197 (2001). Therefore, we remand the case to the trial court to consider the effect of these statutory provisions upon Dolecky's claims.

The court should consider whether the intent of N.J.S.A. 40:14-15 was to require the municipality or county to finance the construction of any bulkhead along the Delaware River. If so, the court should consider whether this governmental responsibility extends to the maintenance or repair of existing bulkheads. The court also should consider whether Riverton is requiring Dolecky to maintain or repair the existing bulkhead or to erect a new bulkhead to replace the existing one.

If the court concludes that the obligations Riverton is seeking to impose upon Dolecky for the repair, maintenance or reconstruction of the bulkhead are statutorily authorized, the court should then address Dolecky's claims that the bulkhead ordinance is arbitrary and capricious and will result in an unconstitutional taking of his property. The cost of the work Dolecky is being required to perform and whether the bulkheads currently located on his properties were constructed by Riverton or by Dolecky's predecessors in title may be relevant to these claims. Dolecky also should be allowed to present evidence on his allegations that the Army Corps of Engineers requires the approval of the Department of Environmental Protection (DEP) before it will issue a permit for the bulkhead work and that the DEP will not give such approval unless Dolecky grants a public easement over his land between Bank Avenue and the Delaware River.

Our opinion should not be read to hold that evidence concerning any of these factual issues will be dispositive of Dolecky's claims. We only conclude that a final decision on his claims relating to the bulkhead ordinance should be based on a full development of all potentially relevant facts. See Jackson v. Muhlenberg Hosp., 53 N.J. 138, 142 (1969) (cautioning against deciding issue of potentially broad social and legal effect on a meager record presented on a motion for summary judgment).

Accordingly, we affirm the part of the May 11, 2005 order declaring that Riverton has an easement over Bank Avenue. We reverse the June 14, 2005 order upholding the validity of the bulkhead ordinance and remand this part of the case to the trial court for further proceedings in conformity with this opinion.

 

The other plaintiffs have not joined in the appeal.

(continued)

(continued)

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A-6013-04T1

June 15, 2006