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Borough of Point Pleasant v. Rollano

May 2, 2008

BOROUGH OF POINT PLEASANT, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, WILLIAM C. BRADLEY, GEORGE AND PATRICIA MROCZKO, ROBIN KOZIK, MADLYAN FITZGERALD, KEN AND DENISE WLODARCVZYK, JEFF AND RENEE COWENHOVEN, VALERIE PATTERSON, AND DAWN LOVELAND, PLAINTIFFS,
v.
JAMES ROLLANO AND EDWARD REILLY, DEFENDANTS, AND ROBIN KOZIK AND MADLYAN FITZGERALD, THIRD-PARTY PLAINTIFFS-RESPONDENTS,
v.
BOROUGH OF POINT PLEASANT, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THIRD-PARTY DEFENDANT-RESPONDENT, AND JAMES ROLLANO AND EDWARD REILLY, THIRD-PARTY DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Ocean County, Docket No. C-332-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 21, 2008

Before Judges S. L. Reisner, Gilroy and Baxter.

Appellants, James Rollano and Edward Reilly, appeal from the March 21, 2007, order of the Chancery Division, General Equity Part, which, among other matters: 1) dismissed their counterclaim for a judgment, declaring that they had legal access to and from their property through the unimproved portion of Cottage Place as a public thoroughfare; and 2) entered judgment in favor of respondents, Robin Kozik and Madlyan Fitzgerald, quieting title to the unimproved portion of Cottage Place lying between the terminus of the paved portion of Cottage Place and the northerly property line of appellants' property. We affirm.

Appellants are the owners of property known and designated as 713-715 Burnt Tavern Road, or Block 145, Lot 31, on the Tax Map of the Borough of Point Pleasant on which two residential duplex structures are located. Directly to the south of appellants' property is Burnt Tavern Road, a heavily traveled county road. Located in the same block north of appellants' property are Lots 28 and 29, which are owned by Kozik and Fitzgerald, respectively. The Kozik and Fitzgerald properties lie at the base of a dead-end public street known as Cottage Place, with the paved portion of Cottage Place ending at their northerly property lines, leaving a grassy and landscaped area between the southerly terminus of the paved portion of Cottage Place and appellants' northerly property line (the grassy area).

In 1972, Franklin W. Hall, the then-owner of Lots 30 and 31, Block 145, applied to the Planning Board of the Borough of Point Pleasant for approval to re-subdivide the property into two lots. After receiving subdivision approval, Hall applied to the Board of Adjustment of Point Pleasant (Board) for variances necessary to construct three duplex residential dwellings on what is now known as Lot 31. At the time of that hearing, Cottage Place terminated approximately twenty feet from the northerly property line of Lot 31. After acknowledging the existence of Cottage Place, Hall's engineer advised the Board that Hall had "no intention of using it whatsoever." On August 31, 2002, the Board approved the variance application for the construction of only two duplex dwellings, not three. At the time of the subdivision and variance approvals, Cottage Place was a private right-of-way and had not been dedicated to the use of the public. On February 5, 1980, the Borough adopted Ordinance #628, which designated Cottage Place, among other streets in the Borough, for public use.

On February 1, 2000, appellants acquired title to Lot 31. At that time, an un-gated chain link fence and shrubbery ran along the northerly property line of appellants' property, separating the grassy area from their property. In 2001, appellants filed an application with the Board, seeking to relocate their driveway from Burnt Tavern Road to Cottage Place. Appellants had proposed to remove forty feet of the existing fence/vegetation buffer from between their property and the abutting single-family homes fronting on Cottage Place. On November 7, 2001, the Board adopted a Resolution denying the application, determining, among other matters, that: 1) the proposed application would result in a 35% increase of traffic on Cottage Place, which would substantially alter the character and nature of that roadway, which has always been a relatively quiet cul-de-sac; and 2) the resulting increase of traffic onto Cottage Place posed a danger and threat to the public safety and welfare of the residents of not only that roadway, but also of Nersita Drive, an intersecting street with Cottage Place. On appeal, first to the Law Division and then to this court, the action of the Board was affirmed. See Rollano v. Zoning Bd. of Adj. of Bor. of Point Pleas., No. A-2954-02 (App. Div. April 6, 2004).

Commencing in November 2004, changes were made in and along the boundary line of Lot 31 in the grassy area. Appellants installed a gate in the chain link fence that bordered their northerly property line, and removed some of the shrubbery buffer that was in and along the fence line. Moreover, appellants commenced placing garbage cans in the grassy area for municipal pickup, and allowed bicyclists and motorcyclists to access their property via Cottage Place.

On December 14, 2005, the Borough filed its verified complaint, seeking to enforce provisions from the Board's 1972 Resolution, which had granted variance relief for the construction of the two duplexes. Specifically, the Borough sought an order to compel appellants to: 1) remove the gate that had been added to the chain link fence at the northerly property line of appellants' property; and 2) construct a six-foot-high stockade fence along the northerly property line, which effectively would have precluded appellants' use of Cottage Place as a means of ingress and egress to and from their property. As a result, Reilly filed his answer and asserted a counterclaim against the Borough, seeking "[a] declaratory judgment that defendant, Edward Reilly, shall have full and complete access to the public thoroughfare known as Cottage Place for any and all lawful uses," while Rollano filed a separate answer.

On January 6, 2006, the trial court entered an order granting leave to the owners of properties abutting Cottage Place to intervene as party plaintiffs in the action. The plaintiffs-intervenors sought to prevent appellants from allowing their tenants access to Cottage Place. On April 7, 2006, the court granted leave to Kozik and Fitzgerald to file a third-party complaint against the Borough and appellants.

On April 21, 2006, Kozik and Fitzgerald filed their third-party complaint, contending that "[c]ontrary to what the current Tax Map of the Borough of Point Pleasant depicts, Cottage Place does not extend to Lot 31 in Block 145 on the Tax Map of the Borough of Point Pleasant . . . ." The third-party complaint further alleged that "[t]he records of the Ocean County Clerk fail to reveal any instrument or map of record dedicating or extending the portion of Cottage Place, which lies between Lots 28 and 29 in Block 145 of the Tax Map . . . to Lot 31 . . . ." Kozik and Fitzgerald sought to quiet title "to the portion of Cottage Place which lies between Lots 28 and 29 in Block 145 . . . by declaring each of [them] to be the owner of the portion of said tract of land [i.e., the grassy area] lying between their respective parcels and the extended center line of Cottage Place." Lastly, Kozik and Fitzgerald sought a declaration that Rollano and Reilly had no right of access to Cottage Place.

On the first day of trial, the Borough presented the trial court with a title search, which indicated that the Borough did not own a right-of-way in the grassy area, but only in the paved portion of Cottage Place, which stopped at the northerly property line of Kozik and Fitzgerald's properties. Contrary to the Tax Map, showing Cottage Place continuing past Kozik and Fitzgerald's properties to the northerly line of appellants' property, the title search verified that the grassy area was owned of record by Kozik and Fitzgerald. Accordingly, the Borough dismissed its complaint, and agreed to be bound by the trial court's determination on the remaining issues.

The court tried the issues of whether the unimproved portion of Cottage Place, which runs through Lots 28 and 29 and abuts appellants' property, had been dedicated by implication as a public thoroughfare; and if it had been so dedicated, whether it entitled appellants to a right of ingress and egress to and from their property via Cottage Place. On March 2, 2007, Judge Grasso rendered a sixteen-page written opinion determining that the unimproved portion of Cottage Place had never been dedicated as a public thoroughfare, by implication or otherwise, and that the grassy area was owned in fee simple ...


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