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Township of Middletown v. Lynch

July 31, 2006

TOWNSHIP OF MIDDLETOWN, PLAINTIFF-APPELLANT, AND PETER LYNCH AND CLIFFORD RAISCH, PLAINTIFFS/INTERVENORS-RESPONDENTS,
v.
RICHARD SIMON, TRUSTEE, JEFFREY JERMAN, AND LAMBERTO BUILDERS, L.L.C. DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-176-04.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 20, 2005

Before Judges Skillman, Axelrad and Payne.

This appeal requires us to consider the effect of issuance of a tax sale certificate and entry of a tax foreclosure judgment upon a dedication of the foreclosed property for public use.

In 1929, the Middletown Township governing body approved an application by Elmer and Nellie Alexander to subdivide a tract of vacant land into fifty-seven lots for residential development. Fifty-six lots were numbered, and one lot, designated on the map as "Park," which is the subject of this litigation, was unnumbered. In 1932, the Alexanders recorded the approved subdivision map.

The proposed subdivision was located on a lake called Shadow Lake. However, only twenty of the fifty-six numbered lots and the lot designated as a park afforded direct access to the lake.

Between 1932 and 1938, the Alexanders conveyed two lots in the subdivision by reference to the subdivision map. The deed to the purchaser of the first lot restricted development to construction of a single-family residence and imposed various other restrictions, including setback requirements. The deed provided that these restrictions would run with the land and continue in effect until 1950.

In 1938, Nellie Alexander entered into an agreement with the purchasers of the first two lots that imposed restrictions on development of their lots and nineteen of the unsold lots. These restrictions were similar to the restrictions contained in the deed to the first purchaser of a lot. The agreement provided that these restrictions would run with the land and would continue in effect until 1962. In addition, the agreement contained a provision obligating Nellie Alexander and her successors to maintain the lot designated "Park" and certain streets in the development until this responsibility was assumed by Middletown:

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.

The agreement also stated: "[I]t being understood and agreed 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 [filed subdivision] map."

Between 1938 and 1956, the Alexanders conveyed twenty-one other lots in the subdivision. The deeds all described the lots by reference to the 1932 filed subdivision map. In addition, one deed conveyed the lot "[t]ogether with the right to use, in common with others, the park and Shadow Lake." Only one of the deeds included a specific reference to the 1938 agreement between Nellie Alexander and the purchasers of the first two lots.

For tax purposes, the park lot was initially appended to an adjoining lot and given only a nominal assessment. When the adjoining lot was sold in 1988, a question arose as to whether the boundaries of the lot corresponded with the tax records. To resolve this problem, the tax assessor gave the park lot a separate lot designation and assessment. Because the assessor was unable to identify the owner ...


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