September 18, 2008
LEISURETOWNE ASSOCIATION, INC., PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
TOWNSHIP OF SOUTHAMPTON, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-0171-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 16, 2008
Before Judges Axelrad, Sapp-Peterson and Messano.
Plaintiff, LeisureTowne Association, Inc. (Association), is the homeowners' association for LeisureTowne, an age-restricted community located in Southampton. Plaintiff appeals from the February 7, 2007 order granting defendant Township of Southampton's (Township) cross-motion for summary judgment. Defendant cross-appeals the portion of the order dismissing, without prejudice, plaintiff's "potential claim seeking to bar the public use of Old Forge Lake[.]" We affirm.
LeisureTowne was developed by Leisure Technology, Inc. (LTI), which is currently known as Realmark Holdings Corporation (Realmark), successor to LTI. LeisureTowne consists of eleven sections of active adult housing and certain common areas developed for the benefit of the homeowners. The development includes eight lakes: Old Forge, Cedar Run, Dunstable, Mayfair, Liverpool, Turnbridge, Wooten, and Canturbury. With the exception of Canturbury, all of the lakes are man-made and were created from a naturally occurring stream known as Friendship Creek, which runs through the southern end of LeisureTowne, empties into Old Forge, meanders throughout other areas of the property, and empties into Dunstable. From Dunstable, aided by an underground pipe system created by LeisureTowne, the stream passes through to the remaining lakes. The lakes are part of the common property within the development and are currently owned by the developer.
In the past, LTI unsuccessfully attempted to transfer ownership of the lakes to the Association. There are documents that reflect the developer's intent to convey ownership to the Association. Specifically, The LeisureTowne Residents' Handbook (handbook) describes the lakes and ponds, and the surrounding shorelines, as "community property." Additionally, language in The LeisureTowne Public Offering Statement (Public Offering) provides in pertinent part that
[E]very Purchaser shall be a member of [the] Association which will maintain and operate the recreational facilities in the community.
The maintenance of LeisureTowne recreational facilities will be the responsibility of LeisureTowne Association and will be paid for out of the monthly dues paid to the Association by the residents of LeisureTowne and the contribution made in support of such facilities by the Developer.
Also incorporated in the Public Offering is the Declaration of Restrictive and Protective Covenants (Declaration), which includes the following language:
Easements and rights-of-way for the installation, maintenance, operation, renewal and repair of water, sewer . . . storm drainage facilities and open drainage swales and ditches are reserved and granted to the . . . Township of Southampton as shown on the final map of said lands and premises filed or to be filed in the office of the Clerk of Burlington County.
The final maps were filed with the Clerk of Burlington County and approved by the Township of Southampton Planning Board and the County of Burlington. These maps describe a 140-foot-wide right-of-way over Cedar Run Lake that provides access to the northern part of the community. The maps also identify the drainage easements granted to the Township. These drainage easements contain the storm water piping which connects inlets from various points on the streets.
In addition to the Public Offering, the Declaration, the final maps, and handbook, the Association had occasion to describe some of its responsibilities to the Department of Environmental Protection (DEP). In a letter dated August 2, 2004 from the president of the Association's Board of Trustees, the Association represented that it was "responsible for the operation and maintenance of the Community's facilities, including fifteen bodies of water, all of which are man-made and used primarily for drainage control. They include lakes, ponds, detention and retention basins, a creek, a ditch, and a canal."
As each residential section was completed, connecting roads were constructed and then dedicated to the Township. The dam containing Cedar Run Lake includes a bridge with a roadway providing access to the northern portion of the community. Although disputed by the Township, plaintiff contends the wing walls that support the bridge also physically support the spillway to the dam. The Township accepted easements, including drainage easements, for the storm water inlets and grates adjacent to the streets, as well as the storm water piping which connects inlets from various points on the streets. LeisureTowne also granted the Township a 140-foot-wide right-ofway over Cedar Run Lake that provides access to the northern part of the community.
The present litigation dates back to 1991 when DEP notified the Township that as the owner of Cedar Run Lake dam, it was required to conduct biennial inspections. In response, the Township advised DEP that the roadway and dam were owned by plaintiff. This dispute sparked a continuous debate over the next several years as to who was responsible for conducting minor repairs and restoration of the Cedar Run Lake and dam. In 1995, DEP threatened enforcement action, but the parties reached a settlement that negated the enforcement action. Under the settlement, the Township agreed to pay for repair to the dam, and the parties agreed to split the cost of an engineering inspection every four years. This arrangement continues to the present.
In 1997, LTI sued the Southampton Township Planning Board and plaintiff in its effort to move forward with development of the final sections of the community. As part of the relief sought, LTI wanted plaintiff to take ownership of all of the lakes within the development. A settlement was reached that did not include resolution of who owned the lakes. Although not a party to the litigation, the Township agreed, as part of the settlement, to accept dedication of several dry drainage basins in the three new sections to be constructed.
On October 26, 2005, plaintiff commenced a declaratory judgment action in Superior Court seeking a judgment declaring the Township responsible for the inspection, repair, and maintenance of the man-made lakes and dams within the development and an order directing the Township to accept the dedication of Old Forge Lake, the largest of the man-made lakes. The court conducted a case management conference during which both sides agreed that without undertaking any further discovery the "matter could benefit from the consideration of Cross-Motions for Summary Judgment." The court entered an order establishing a briefing schedule for the summary judgment motions.
In its motion, the Association urged that it was entitled to summary judgment declaring (1) the Township responsible for the costs attendant to its right-of-way and drainage easements under, across and through the development because the Township's easements imposed a duty upon it to inspect, maintain, and repair the Cedar Run Lake dam and bridge; and (2) the Township must either accept dedication of Old Forge Lake or terminate its public use. In its cross-motion, the Township raised defenses of lack of standing, judicial estoppel, and laches. It also urged that (1) plaintiff cannot force the Township to accept private property for public use; (2) the easements granted to it did not impose an obligation upon it to inspect, maintain, or own the lakes beyond discharging its responsibility to inspect and maintain the pipes, inlets and grates constructed to exercise its easement rights; (3) its 140-foot-wide right-of-way over the Cedar Run Lake dam did not impose an obligation upon the Township to maintain or repair the dam; and (4) the Township claimed no ownership of Old Forge Lake or the boat ramp.
On December 15, 2006, the court issued a tentative decision rejecting defendant's entire controversy, judicial estoppel, and laches arguments. It then found: (1) the Township was not responsible for the maintenance of the Cedar Run Lake dam; and (2) ownership of the Old Forge Lake, whether natural or man-made, remained with the developer until acceptance by plaintiff. However, the court granted, as unopposed, plaintiff's request that the public be barred from using Old Forge Lake. Following a December 22, 2006 hearing on the cross-motions, the judge did not materially alter his tentative decision. The February 7, 2007 order dismissed plaintiff's complaint with prejudice except that plaintiff's potential claim related to public access to Old Forge Lake was dismissed without prejudice. The present appeal followed.
On appeal, plaintiff contends the Township's easements impose an obligation upon the Township to inspect, maintain and repair the Cedar Run Lake dam and bridge; (2) the court erred by granting summary judgment after observing that it was not deciding who was responsible for maintaining the Cedar Run Lake dam; and (3) the court erred by granting the Township's cross-motion without discovery and without conducting a hearing. In its cross-appeal, defendant urges that under the entire controversy doctrine, the Association is precluded from seeking to bar public access to Old Forge Lake and/or, alternatively, the Township is precluded from obtaining such relief by virtue of the court's decision related to the other seven lakes.
We first dispense with plaintiff's claim that summary judgment should not have been entered without conducting discovery and without conducting a hearing. In view of the agreement on December 15, 2006 that both sides believed that summary judgment motions could be filed without the necessity of discovery, we find this point without merit and decline to address it on appeal.
A trial court's grant of summary judgment, pursuant to Rule 4:46-2(c), is appropriate where, upon review of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, viewed in the light most favorable to the non-moving party, it is shown that there is no genuine issue as to any material fact challenged. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Our review of the grant of a summary judgment motion is de novo and we "employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
In its cross-motion, the Township argued that it maintains the storm water inlets and grates, as well as the storm water piping which connects inlets from various points on the streets. The Township denied any responsibility for the maintenance and repair of any drainage system, lakes, or any other common area of the property that it did not specifically accept. The Township also argued that it could not be forced to accept privately-owned property. Moreover, although it conceded that the drainage system deposits road run-off directly into the Association's streams, it contends this condition is a function of the design of the roadways that LTI constructed, rather than the result of any action by the Township, which was also statutorily mandated to accept the community roads after their construction was completed.
In New Jersey, where there is a dispute as to whether private property has been accepted by a municipality, the private property owner bears the burden to establish the requisite intent and actual dedication. Velasco v. Goldman Builders, Inc., 93 N.J. Super. 123. 136 (App. Div. 1966) (citing Point Pleasant Manor Bldg. Co. v. Brown, 42 N.J. Super. 297, 303 (App. Div. 1956), certif. denied, 23 N.J. 140 (1957)). A municipality's acceptance of private property can occur in two ways. First, acceptance may occur through formal legislative action wherein the municipality accepts the dedication and thus, acquires an interest in the property. Twp. of Middleton v. Simon, 387 N.J. Super. 65, 75 (App. Div. 2006); see also Englander v. Twp. of West Orange, 224 N.J. Super. 182, 188 (App. Div. 1988). Acceptance may also occur if the municipality exercises possession or control over the property, such as maintaining and repairing the disputed property. Borough of Milford v. Arnold, 382 N.J. Super. 83, 92 (Law Div. 2005).
The Association urges that the Township is responsible for the repair and maintenance of the Cedar Run Lake dam and bridge because it approved the plans for their construction and accepted the 140-foot right-of-way for the road and dam structure. Plaintiff also contends the Township is required to maintain the lakes throughout the development because water flows from the roadways, which it now owns, into the lakes. The trial court rejected these arguments and we do as well.
To support its claim that the Township bears responsibility for the maintenance and repair of Cedar Run Lake dam and bridge, plaintiff cited the Law Division decision in Braun v. Township of Mantua, 270 N.J. Super. 404 (Law Div. 1993). In Braun, heavy rains eroded and breached a dam, destroying the public road it supported. This dam and roadway had been in existence since at least 1876, but the actual date of construction and the builder were unknown. Id. at 408. The plaintiffs, who owned property abutting the dam, sued the defendant township, seeking to compel it to rebuild the dam and road. Id. at 406. The defendant township counterclaimed, seeking to impose this responsibility on the plaintiffs since, according to the plaintiffs' deed, their property actually extended to the centerline of the roadway atop the dam. Id. at 407. The defendant admitted that it was the dominant tenant by virtue of the public road atop the dam. It nonetheless maintained that its sole responsibility was to maintain its easement by keeping the roadway clear and even for safe passage. Id. at 408. The plaintiffs, however, insisted that since the defendant's road could not exist without the lateral support provided by the dam embankments, it was also obligated to maintain the dam. Id. at 410.
After the parties filed cross-motions for summary judgment, the trial judge ruled that the municipality was responsible for maintaining the dam. Critical to its determination, however, was the absence of evidence of who constructed the dam and for what purposes, leading the court to conclude that a case where facts concerning construction of the dam are unknown and where it cannot be said that the dam was constructed for the specific benefit of the adjoining property owners . . . it may be concluded that the dominant tenant who has the duty to maintain the road, which it owns, must also be deemed responsible for maintaining the dam upon which the road is constructed. [Id. at 411.]
Here, the trial court concluded that Braun was distinguishable because "[i]t is certainly clear in the case at hand who constructed the dam and for what purpose." We agree.
In addition to the Public Offering, final maps and plans, handbook, and correspondence to DEP, all evidencing the Association's responsibility for the lakes and dams, the Association did not, for purposes of opposing defendant's cross-motion for summary judgment, dispute that the Cedar Run Lake and dam were constructed by LTI exclusively for its benefit. Nor does plaintiff dispute that LTI marketed LeisureTowne as offering lakefront homes. Likewise, plaintiff does not dispute that the roadways were constructed by LTI to drain into the privately-owned community lake system. Thus, the fact that runoff containing silt and sand flows from the roadway into the dam is not a condition created by the Township. Rather, it was one created by the developer, who also built the lakes, and given the design and construction of the roadway, it is apparent that such a result was intended by the developer. Moreover, the Township's acceptance of the roadways was consistent with its statutorily mandated duty to do so. See N.J.S.A. 40:67-23.7. There is, however, no concomitant statutory duty imposed upon the Township to accept the privately-owned lakes and dam.
We similarly conclude, as did the trial court, that plaintiff's reliance upon a Hawaii Supreme Court decision, Ass'n of Apartment Owners of Wailea Elua v. Wailea Resort Co., Inc., 58 P.3d 608 (2002), to support its contention that defendant's drainage easements obligated it to maintain the entire drainage system, is misplaced. There, the plaintiff condominium association sued the county after a roadway that ran through the condominium collapsed allegedly due to lack of maintenance. The trial court entered judgment in favor of the plaintiff based upon its finding that the county was the owner by virtue of its express or implied easements in the location of the drainpipes that had failed. The Hawaii Supreme Court upheld this finding, concluding that the county's express easements included the areas containing the drainpipes.
In the present matter, the trial judge found that plaintiff's reliance upon the Hawaii Supreme Court decision was misplaced:
There, [as] pointed out by Defendant, there was an implied easement over the detention lakes which provided the Wailea Court with a vehicle to extend the municipality's easement out over the detention lakes. Here, Defendant's easements cover only the right-of-way, grates, inlets and pipes. Plaintiff does not appear to even argue that the Defendant was ever given any easements over the lakes. Rather, Plaintiff impermissibly seeks to impose an obligation on the Defendant for the lakes as an extension of their actual accepted easement.
Plaintiff correctly pointed out that the Defendant has some duty to maintain and repair its easements and the Court is satisfied that the Defendant has done so by repairing and maintaining the right of way, grates, inlets and pipes as needed. The Defendant cannot now be forced to accept an extension of their easements over the lakes.
Indeed, Plaintiff conceded in its Reply Brief that a municipality could not be forced to accept such dedication. The Defendant is responsible for the actual easements that it accepted and cannot be forced to accept responsibility for the lakes on the theory of an extended easement or any obligation springing therefrom.
An easement is a non-possessory interest in the land of another entitling the holder to make some use of the owner's property. State ex rel. Comm'r of Transp. v. Dikert, 319 N.J. Super. 310, 316 (App. Div.), certif. denied, 161 N.J. 150 (1999). The land burdened by the easement is known as the servient tenement, while land benefiting from the easement is termed the dominant tenement. Id. at 317. In general, the beneficiary of an easement, not the owner of the burdened property, is obligated to maintain the easement, unless otherwise required by the easement itself or some other agreement, or unless the easement is jointly utilized for the same purposes by the property owner with the benefited parties. Khalil v. Motwani, 376 N.J. Super. 496, 507 (App. Div. 2005); Poblette v. Towne of Historic Smithville Cmty. Ass'n, Inc., 355 N.J. Super. 55, 67 (App. Div. 2002). The easement holder also has a duty to inspect the property subject to an easement. Ibid. Ambiguities surrounding an easement are construed against the grantor. Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957).
Our decision in Poblette, supra, although not directly on point factually, is nonetheless helpful. In Poblette, the plaintiffs were property owners who sued their homeowners' association after their homes were damaged because of a poorly maintained detention basin. The developer had declared bankruptcy, but prior to doing so, never transferred responsibility for maintenance of the detention basin to the homeowner's association. Such a transfer was contemplated by the public offering document, declaration and covenants, and disclosure documents. Prior to trial, the homeowners moved for partial summary judgment, seeking a declaration that the association was under a duty to maintain and repair the detention basin as the holder of an easement granting exclusive control of the detention basin to it. After a hearing, the trial court granted the relief. Following trial on the remaining issues, a jury entered a verdict in favor of the homeowners. The homeowners' association appealed. We upheld the trial court's ruling, reasoning that the absence of any evidence of a formal transfer of the detention basin from the developer to the homeowners' association was not dispositive because its obligation was clearly reflected in the overall declaration and surrounding circumstances. Id. at 63-66.
This is an analogous situation here. While the Association has disputed ownership of the lakes for many years, all of the proofs demonstrate that it was always the intent of LTI to transfer ownership of the lakes to plaintiff, along with the responsibility to maintain and repair them. The final map filed with the Burlington County Clerk's Office unambiguously shows that the Township's easements were for pipes, inlets and grates, as well as the 140-foot right-of-way. There is nothing in the history of LeisureTowne that shows the Township ever expressly or impliedly accepted easements for the lakes or dam. The motion judge properly ruled that the Township cannot be held responsible for maintaining the privately-owned lakes and Cedar Run Lake dam.
In its reply brief, the Association argues for the first time that the Township is responsible for maintaining the lakes because defendant has either acquired prescriptive easements over the lakes or because its discharge of storm water into the lakes without an easement constitutes a taking for which just compensation is due. Because these contentions were not raised before the trial court, we decline to consider these issues on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (issues not raised below that do not concern matters of substantial public interest will not be considered by appellate court); see also In re Bell Atl. N.J., Inc., 342 N.J. Super. 439, 442-43 (App. Div. 2001) (declining to address issue first raised in reply brief).
In its cross-appeal, the Township contends the court should have denied plaintiff's request to bar the public from using Old Forge Lake with prejudice. The Township did not dispute that it had for years operated a playground and beach on township land located on the western shore of Old Forge Lake, and from this access point, township residents, with plaintiff's knowledge, regularly swam in the lake. However, defendant denied that it owned or operated the boat ramp. It also insisted that it could not be forced to accept dedication of Old Forge Lake. In its tentative decision, the court noted that the Association was "back[ing] off of its original position that Defendant should be forced to accept a [dedication] of Old Forge Lake and has proposed in the alternative that the public be barred from using the lake which Defendant does not oppose[.]" Thus, the court granted the Association's request.
At the outset of the December 15 oral argument, the court advised counsel that while the Association raised an argument in its motion papers about ending all public use of Old Forge Lake, no actual request for such relief had ever been made in plaintiff's complaint. The judge stated, "[A]nything I do here, even if the plaintiff loses, is not under the Entire Controversy Doctrine or anything else meant to be an adjudication on the merits on that question because I only think that question's not really here." The Township's attorney argued, "For the record, your tentative was that their motion to bar the public . . . is granted. I respectfully suggest you can't [grant] relief that wasn't asked for." The court responded:
Maybe I was a little oblique. But what I said was on that, and I'm going to say it again, it's really not actually before the Court, although it was raised in the papers, it was not a direct application. So, it's not going to be barred. It's denied without prejudice.
The court's February 7 order dismissed this "potential claim" without prejudice.
According to defendant, since plaintiff, in its complaint, sought only the transfer of Old Forge Lake to defendant, the "trial court was precluded from offering any other alternate relief under the entire controversy doctrine[,]" and plaintiff "should not be permitted to litigate the status of Old Forge Lake at some point in the future[.]" In defendant's view, the trial judge should have dismissed the complaint as to this lake with prejudice for failure to state a claim upon which relief could be granted. We disagree.
The entire controversy doctrine seeks to assure that all aspects of the controversy between those who are parties to a litigation be included in a single litigation. Olds v. Donnelly, 150 N.J. 424, 431 (1997); R. 4:30A. When a particular claim could have been fully litigated in an earlier action, the doctrine may be invoked to bar the raising of that claim in a second proceeding. Hillsborough Twp. Bd. of Educ. v. Faridy Thorne Frayta, P.C., 321 N.J. Super. 275, 284 (App. Div. 1999).
Here, plaintiff withdrew its original claim seeking an order compelling the Township to accept Old Forge Lake and sought the alternative relief, barring public access to Old Forge Lake. Despite the Township's initial failure to object to the alternative relief, because plaintiff never formally sought this relief, the court was well within its right not to rule on an issue not properly raised and to dismiss plaintiff's request without prejudice.
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