On appeal from Superior Court of New Jersey, Law Division, Cape May County, L-651-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Sapp-Peterson, and Alvarez.
Plaintiffs, Edward W. and Nancy M. Klumpp, appeal from the dismissal of their claims against the Borough of Avalon (the Borough) by order entered January 29, 2008. We affirm.
Plaintiffs are the record owners of land identified on the Borough's Tax Map as Block 74.03, lots 2, 4 and 6 (the property), located at the eastern end of 75th Street. The Borough maintains a protective engineered sand dune system constructed on the beach, from 13th Street to 80th Street, on land that includes the property.
Plaintiffs built a summer home on the property in 1960. It was leveled in early March 1962, during the coastal northeastern storm notorious for the devastation that it wrought on New Jersey's coastline.
Over the years since the storm, the Borough adopted several resolutions and ordinances intended to advance the construction, protection and maintenance of the engineered dune project. These are extensively detailed elsewhere. See Raab v. Borough of Avalon, 392 N.J. Super. 499 (App. Div.), certif. denied, 192 N.J. 475 (2007); Klumpp v. Borough of Avalon, No. A-0911-05 (App. Div. January 29, 2007). Suffice it to say here that on August 15, 1962, Resolution No. 62-102 declared the restoration of "the sand dunes, vegetation, and other protections [that] existed along the shoreline" to be in the Borough's best interests. The resolution authorized Borough representatives to enter any property "to be used as protective barriers to take control and possession thereof, and to do such acts as may be required, including removing, destroying or otherwise disposing of any property located thereon without first paying any compensation therefor."
In November 1962, the Borough initiated a property-exchange program "as a means of compensating property owners whose lots had been taken as a result of the storm." Raab, supra, 392 N.J. Super. at 505. Nonetheless, "[d]espite this tacit acknowledgment of a taking," the Borough continued to tax property owners for their lots.*fn1 Ibid.
In April 1963, the Borough regraded and reconstructed the beach and dune area. The initial dune rebuilding project was completed in 1965. The Borough has since continued to maintain the engineered dune, including the property, installing protective dune fencing, planting vegetation, removing trash and refuse, and supplementing the dune with sand from other areas. In June 1968, the Borough adopted Ordinance No. 393, the "Beach Protection Ordinance," delineating the dune line west of the property and prohibiting the removal or rearrangement of sand on any land to the east of the designated dune line.
In the summer of 1997, plaintiffs' prior attorney corresponded with the Borough's counsel regarding the adoption of the various ordinances and resolutions, which made it impossible for plaintiffs to rebuild their summer home. Counsel for the Borough acknowledged that plaintiffs could not rebuild, but denied that the ordinances effectuated a taking, asserting that, instead, they merely regulated activities on the dune for the benefit of the community. The Borough refused to compensate plaintiffs for a taking.
The Borough has sent a tax bill every year to date since plaintiffs acquired the property. Although the assessed value for the property was designated as only approximately $100, plaintiffs continued to pay. The tax bills from 1993 to 2005 came to forty-six cents annually. On the Borough's official map, the property is marked as privately owned rather than as "beach exempted" publicly-owned land. In July 2002, plaintiffs received a notice, as did all other property owners in the Borough, informing them that a property revaluation for tax purposes was anticipated in the near future. Plaintiffs' deed is the last recorded document conveying ownership of the property.
In March 2003, plaintiffs applied for an individual Coastal Area Facility Review Act (CAFRA) permit from the New Jersey Department of Environmental Protection (DEP) to construct a single-family residence on the property. On November 13, 2003, plaintiffs' counsel notified the Borough that the DEP would not entertain the application unless plaintiffs could demonstrate that they had access to the property. Counsel asserted that because the Borough's construction and maintenance of the dune denied plaintiffs access, a taking had occurred entitling plaintiffs to just compensation. Three additional letters to the Borough followed, but no responses were received. Plaintiffs subsequently filed their initial Law Division complaint on November 18, 2004, seeking a declaration that they had the pedestrian and vehicular access necessary to develop a single-family residence on the property.
When the Borough answered the initial complaint, it admitted that plaintiffs owned the property, but it raised adverse possession, N.J.S.A. 2A:14-30, as a separate defense. The Borough also filed a counterclaim seeking: title to the property by adverse possession, an easement by prescription ...