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Ferreira v. City of Asbury Park

Decided: November 30, 1989.

ALCIDES FERREIRA, PLAINTIFF-APPELLANT,
v.
CITY OF ASBURY PARK, DEFENDANT-RESPONDENT



King and Skillman. The opinion of the court was delivered by King, P.J.A.D.

King

[237 NJSuper Page 145] In this taxpayer's suit the plaintiff, Alcides Ferreira, a resident of Asbury Park, contends that the Law Division judge erred in summarily ruling that defendant, City of Asbury Park, could vacate a portion of Ocean Avenue and sell it and three

parcels of ocean-front land to a private developer for urban renewal purposes. We disagree and affirm.

On August 24, 1988 the City adopted an ordinance which vacated a portion of Ocean Avenue between Third Avenue and Fourth Avenue and amended its official map to reflect this street vacation. Ocean Avenue extends north to south along the Atlantic Ocean; Third Avenue and Fourth Avenue extend east to west and terminate on their east ends at Ocean Avenue. On September 7, 1988 the City adopted a resolution authorizing the sale of three parcels of land lying east of Ocean Avenue and west of the ocean-front boardwalk between Third Avenue and Seventh Avenue to Carabetta/Vaccaro Developers (developer), a private developer which is also called Asbury On The Ocean and Ocean Mile Development Group. The three parcels comprise a narrow strip of land, approximately 100 feet wide, immediately west of the boardwalk and east of Ocean Avenue.

On September 16, 1988 plaintiff filed this complaint in lieu of prerogative writs. He attacked the City's above-described actions on three theories.

First, plaintiff relies on the April 4, 1903 deed from James A. Bradley and his wife Helen M. Bradley, to the City, recorded on April 16, 1903. James A. Bradley was "the founder of Asbury Park," in the sense that, from some time before 1875, title to all land in Asbury Park was apparently derived from him. See Casriel v. King, 2 N.J. 45, 48 (1949). Bradley died in 1921. Plaintiff says that by the 1903 deed Bradley conveyed to the City, in exchange for $100,000, what is commonly called the "beachfront and boardwalk area." The vacated portion of Ocean Avenue and the three oceanfront parcels at issue in this case are within this area. Plaintiff stresses that the 1903 deed states as follows: "the said Ocean Avenue to be and forever remain a public street." He alleges that, because of this language, the 1903 deed "dedicates" Ocean Avenue "to the public as a street forever." Therefore, he claims the ordinance

vacating a portion of Ocean Avenue is "contrary to the 1903 deed."

Second, plaintiff said that the 1903 deed contains a covenant that said the conveyed "lands are to be used by the said City of Asbury Park for the purposes set forth in the Act of the Legislatures of the State of New Jersey, entitled, 'An Act to authorize cities bordering on the Atlantic Ocean to purchase the lands in any such city bordering on the ocean and adjacent lands thereto in such city for public purposes and to improve the same, and to issue bonds for such purposes,' approved March 23, 1900, L. 1900, c. 99, and the Act of April 24, 1902, amendatory thereof, L. 1902, c. 275, and for such other purposes and uses as may be now or hereafter authorized by law." Both acts authorized such cities to purchase such lands "for public purposes and for places of resort for public health and for recreation and to improve the same." Plaintiff observes that the 1903 deed, which also was signed by defendant, stated that the Bradleys and the City "agreed that this covenant shall attach to and run with the said land and that the said covenant shall be for the benefit of and may be availed of by any tax payer or holder of land in the said City of Asbury Park." Plaintiff urges that the City had "accepted the 1903 Bradley deed with covenants," and had "dedicated the land to the public." Therefore, plaintiff claims the resolution authorizing the sale of the three parcels to the developer "for development as commercial shops and/or private condominium residences" is "violative of the covenants in the [1903] Bradley deed," and also "contrary to law."

Third, plaintiff claims that the City adopted the ordinance vacating a portion of Ocean Avenue on August 24, 1988 but "failed to refer the proposed ordinance to the Asbury Park Planning Board." He asserts that the City's action in adopting the ordinance is illegal because it is "contrary to the Municipal Land Use Law."

On September 23, 1988 defendant filed a motion for summary judgment before answer. On October 11, 1988 the Planning Board of the City of Asbury Park (Board) adopted a resolution, stating that it had "previously reviewed and recommended adoption of the Waterfront Redevelopment Plan," and that a "fundamental element of that Plan is the creation of large development parcels by vacation of portions of Ocean Avenue." The Board's resolution also observes that the City had adopted an ordinance to "vacate the relevant portion of Ocean Avenue between Third and Fourth Avenues," and that, "to the extent that the street closings also constitute an amendment to the 'official map' of the City of Asbury Park," the Board "has been asked to review and make recommendations regarding the proposed changes in the streets." Finally, the resolution states that, "by virtue of its previous review and approval of the Redevelopment Plan," it "has already reviewed and approved the implementation of the Redevelopment Plan by adoption of an ordinance vacating the portions of the streets shown on Figure 25," which vacations include the "relevant portion of Ocean Avenue between Third and Fourth Avenues." The Board's October 11, 1988 resolution ends with the Board stating that it "hereby reaffirms that it approves the street vacations described in the [August 24, 1988] Ordinance . . . and [approves] a change to the official map to reflect those vacations."

On November 7, 1988 Judge Milberg heard argument on the City's motion for summary judgment. Finding no dispute of material fact, he ruled in favor of the City on these legal issues. This appeal ensued.

Several title and conveyancing issues are at the core of this appeal. They arise from three recorded documents. On April 22, 1878 James A. Bradley filed a map depicting the lot and street layout for the City of Asbury Park from Ocean Avenue on the east to Main Street on the west and from Deal Lake on the north to Wesley Lake on the south. We will call this the "1878 map." Along the top margin of the 1878 map is this handwritten legend: "All that portion of this Map included

within the black line in ink is filed subject to the condition written on the margin below and all outside the black line in ink is not filed." Along the bottom margin of the map is this handwritten condition:

This map is filed only as to the lots and streets which are included within the black lines in ink, and all the streets within said lines are dedicated to public use. In case any of the grounds marked street on that portion of the map which is filed are used for any other purpose than public streets or highways, the same shall revert to James A. Bradley, his heirs or assigns.

The black ink line contains that portion of Ocean Avenue, which was 75 feet wide at the time, extending from Fifth Avenue in the north to Asbury Avenue in the south. Asbury Avenue is the east-west street north of Wesley Lake. The easterly black ink line runs along the easterly line of Ocean Avenue.

The 1903 deed and covenant with the City described the land conveyed as "[b]ounded on the North by the south edge of the flume at the foot of Deal Lake, on the East by the Atlantic Ocean, on the South by the middle of Wesley Lake and on the West by the westerly line of Ocean Avenue projected and extended northwardly to the south edge of said flume at the foot of Deal Lake, and southwardly to the middle of said Wesley Lake." By this deed and covenant the City undertook to "within one year next after the date hereof, in due form of law, lay out and dedicate to public use for a public street, a strip of land twenty-five (25) feet in width immediately adjoining the present easterly side of the aforesaid Ocean Avenue on the east thereof, the whole length of said Avenue, so as to make the said Ocean Avenue a public street one hundred feet in width from Wesley Lake on the South to the flume at the foot of Deal Lake on the North." The City "accepted the (1903) Bradley deed," and "dedicated Ocean Avenue to the public as a public road 100 feet in width." In the 1903 deed Bradley and his wife also conveyed to the City " all. . . the reversion and reversions, remainder and remainders, . . . [a]nd also, all the estate, right, title, interest, dower and right of dower, property, possession, claim and demand whatsoever, as well in law as in equity, of . . . [Bradley and his wife], of, in or to the above

described premises and every part and parcel thereof" (emphasis added).

On September 19, 1988 Patricia McEvoy, "Trustee, under the Last Will and Testament and Codicils thereto of James A. Bradley," executed a deed to the developer here covering all the subject property, and specifically referring to the 1878 map and 1903 deed. In this deed the trustee did "remise, release and forever quitclaim unto the . . . [developer], its successors and assigns, all the aforesaid lots or parcels of land hereinabove described, freed and discharged of and from all right of entry for conditions broken, right of action, reversion or forfeiture, which the said James A. Bradley, at the time of his death, or which the . . . [trustee] now has, or might have or could have in, or to the said lots or parcels of land . . . for or by reason of the conditions, exceptions and reservations contained in the above mentioned deeds of conveyance from the said James A. Bradley and wife, under which the . . . [developer] holds the title to the said lots, or by reason of any violation of the said conditions, exceptions and reservations." We will call the September 19, 1988 deed the "1988 deed."

The City claims that the 1988 quit-claim deed conveyed to the developer "whatever interest" the Bradley estate "might have had" in the subject lands. Plaintiff agrees that, by executing the 1988 deed, the Bradley estate released to the developer "all the right, title and interest of the Estate in certain lands including those involved in this action," but claims that the reverter mentioned in the 1878 map was somehow "removed" by the 1903 deed to defendant, the City.

Plaintiff advances several contentions on this appeal:

I. The City does not have the statutory authority to sell land devoted to public use to a private party for private use.

II. The 1988 resolution authorizing defendant's sale of the three beachfront parcels was invalid because it violated ...


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