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Rosen v. Keeler

January 27, 2010

PAUL ROSEN, AS BENEFICIAL INTEREST HOLDER, AND WENDY H. ROSEN AND STEVEN F. GADON, AS TRUSTEES ON BEHALF OF THE ROSEN TRUST, PLAINTIFFS-APPELLANTS,
v.
PETER KEELER AND EILEEN KEELER, HUSBAND AND WIFE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-160-07.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 30, 2009

Before Judges Lisa, Alvarez and Coburn.

This case involves a dispute regarding a beach access easement. The property is located in the Township of Long Beach, on a portion of Long Beach Island known as Loveladies. Plaintiffs, who we will generally refer to as the Rosens or the Rosen family, brought this action seeking enforcement of a claimed access easement over the beachfront property owned by defendants, Peter and Eileen Keeler. The parties filed cross-motions for summary judgment. Judge Buczynski granted the Keelers' motion and denied the Rosens' motion. He then denied the Rosens' reconsideration motion. Final judgment was entered, the result of which was to deny the Rosens the right of access to the ocean across the Keelers' property. The judge stayed the judgment pending appellate review.

The Rosens base their asserted right of easement on certain documents which they contend granted the right. They argue (1) the judge erred in his interpretation of those documents, (2) alternatively, material facts are in dispute regarding the circumstances surrounding the preparation and execution of the documents, (3) case law in other jurisdictions supports their position, and (4) allowing beach access to the Rosens will not overburden the Keelers' property, as a result of which the principles undergirding the trial court's decision are not furthered by precluding such access. The Rosens further argue that the judge erred in denying their reconsideration motion. We reject these arguments and affirm.

I.

The properties involved in this dispute lie on a narrow strip of Long Beach Island situated between the Atlantic Ocean and the Barnegat Bay and are separated by Long Beach Boulevard, with oceanfront lots to the east and bayfront lots to the west. The Rosens own a bayfront lot. The Keelers own the property directly across the boulevard, which, as we will explain, was subdivided by its previous owner into two lots. One of those lots has frontage on the boulevard (boulevard lot). The other fronts the ocean (ocean lot), but is configured as a "flag" lot, with a twenty-five foot portion running along the southerly side of the boulevard lot to prevent the ocean lot from being landlocked and to provide it access to Long Beach Boulevard.

Prior to 1978, Robert and Ellen Seltzer owned all of the property now owned by the Keelers as a single lot. In 1978, the Seltzers subdivided the lot into its current status. They intended to sell the boulevard lot and retain the ocean lot. In order to make the boulevard lot marketable, the Seltzers executed and recorded a "DECLARATION OF EASEMENTS AND RESTRICTIONS," which created an easement appurtenant which burdened the ocean lot and benefited the boulevard lot by granting to the owners of the boulevard lot, their family, and their invited guests, the right to cross over a five-foot strip of land along the northerly edge of the ocean lot for the purpose of accessing the beach. More particularly, the Declaration provided in relevant part:

1. The owner of Tract A [the boulevard lot] shall have a perpetual, irrevocable right and easement over that certain strip of land five (5) feet in width (herein called "5 Foot Strip") along the entire northernmost side of Tract B [the ocean lot] for use by the owner of Tract A, members of his family and his invited guests, as a pedestrian walkway to permit ingress and egress to and from the Atlantic Ocean. The right granted herein to the owner of Tract A to use the 5 Foot Strip shall be in common with the owner of Tract B. The owner of Tract A shall be responsible for repairing all damage caused to the 5 Foot Strip by the wrongful acts or negligence of such party, or members of his family, or other invited guests.

6. No structure, barriers, fences, obstructions or other improvement may be placed or erected upon any of the 5 Foot Strip [or other areas]*fn1 . . . on which easements have been created hereunder, and there shall be no act or conduct which shall interfere with the free and uninterrupted use of the easements herein created . . . .

8. The grants, easements, covenants and declarations herein made shall be deemed covenants running with the land and shall bind and inure to the benefit of the owner of Tract A and the owner of Tract B, and their heirs, personal representatives, assigns and successors in title. [Emphasis added.]

In 1978, the Seltzers sold the boulevard lot to Edward and Barbara Edelstein, retaining ownership for themselves of the ocean lot. The Rosens purchased their bayfront lot in 1986. Because of their friendship with the Edelsteins and Seltzers, the Rosens utilized the footpath for beach access across both the boulevard and ocean lots ever since they purchased their bayfront lot.*fn2

On July 19, 1999, the Keelers contracted with the Seltzers to purchase the ocean lot. Settlement was scheduled for October 22, 1999. On August 12, 1999, Paul Rosen wrote to Robert Seltzer asking that he fulfill an earlier informal commitment that if the ocean lot was ever sold he would convey to Rosen an easement for beach access over it. On October 13, 1999, the Rosens, Edelsteins, and Seltzers executed a document entitled "ACCESS EASEMENT." This document created two easements, one burdening the Edelstein tract (the boulevard lot) and one burdening the Seltzer tract (the ocean lot). Both were for the benefit of the Rosen property to enable the Rosens to use the "5 Foot Strip" along the northerly edge of the ocean lot created by the 1978 Declaration. In relevant part, the 1999 Access Easement provided:

WHEREAS, the Edelstein Tract and the Seltzer Tract are benefitted [sic] and burdened by that certain Declaration of Easements and Restrictions dated October 9, 1978 and recorded [in deed book and page in the Ocean County Clerk's Office], the terms and provisions of which are incorporated herein by reference for all purposes; and

WHEREAS, pursuant to the [1978] Declaration of Easements and Restrictions, the owner of the Edelstein Tract has a perpetual, irrevocable right and easement over a certain strip of land five (5) feet in width (defined in the Declaration of Easements and Restrictions as [and hereinafter called] the "5 Foot Strip") along the entire northernmost side of the Seltzer Tract . . . to permit ingress and egress to and from the Atlantic Ocean; and

WHEREAS, Edelstein desires to grant to the owner of the Rosen Tract an easement over the Edelstein Tract for use by the owner of the Rosen Tract, Paul R. Rosen and/or Wendy H. Rosen, their family members, and invited guests, for pedestrian access to the 5 Foot Strip to permit ingress and egress to and from the Atlantic Ocean; and

WHEREAS, Seltzer desires to grant to the owner of the Rosen Tract an easement over the 5 Foot Strip for use by the owner of the Rosen Tract, Paul R. Rosen and/or Wendy H. Rosen, their family members, and invited guests, as a pedestrian ...


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