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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...