                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2654-17T2

FLOWING WHITE MILK, LLC,

          Plaintiff-Appellant,

v.

TOWNSHIP OF LAKEWOOD,

     Defendant-Respondent.
______________________________

                    Argued February 6, 2019 – Decided April 3, 2019

                    Before Judges Ostrer, Currier, and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Docket No. L-1040-17.

                    Anthony L. Velasquez argued the cause for appellant.

                    Harold N. Hensel argued the cause for respondent
                    (Secare & Hensel, attorneys; Harold N. Hensel, on the
                    brief).

PER CURIAM

          In this matter arising out of an action to quiet title, we consider whether a

municipality may accept land dedicated as open space fifteen years after the
property was tendered to it, and after the municipality sold a tax lien against it

and permitted the tax certificate holder to foreclose on it.        Because the

controlling law set forth in Township of Middletown v. Simon, 193 N.J. 228

(2008) authorizes the municipality's acceptance of the property despite the

lengthy period of time following its tendered dedication, we affirm.

       In 2002, a developer, Kedma I, Inc. (Kedma), applied to the Lakewood

Township Zoning Board of Adjustment (Zoning Board) for a special permit to

subdivide a property in a single-family residential zone. Under a Lakewood

"cluster" zoning ordinance, a developer may create residential lots smaller than

otherwise required if it designates the excess land as "open space." Kedma

submitted a site plan, including small residential lots, and dedicated the roughly

6.81 remaining acres (the parcel) as "open space" in compliance with the

ordinance.1 The Zoning Board approved the permit and plan, noting in the

memorializing Resolution: "For the reasons given, including the strong public

purpose of dedicating [o]pen [s]pace for preservation the [s]pecial [p]ermit

sought may be granted."

       Although Kedma filed a subdivision map in the county clerk's office

reflecting the open space, it did not execute a deed. As a result, defendant


1
    The parcel contained a detention basin and wetlands.
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                                        2
Township of Lakewood immediately began to assess taxes against the parcel.

During this time, defendant never acted to accept the dedication.

      When Kedma failed to pay taxes, defendant sold a tax lien against the

parcel to Crusader Servicing Corporation (Crusader) in 2005.             Crusader

foreclosed on the parcel in December 2010 and recorded the foreclosure with

the county clerk. Crusader subsequently sold the parcel to plaintiff Flowing

White Milk, LLC in October 2014 for $3,000.

      Plaintiff applied to the Lakewood Planning Board (Planning Board) in

2016 to further subdivide the parcel into a residential lot (.41 acres) and an open

space (6.4 acres). The proposed open space would contain the detention basin

and wetlands. After learning of the 2002 dedication from a local homeowner's

association, the Planning Board denied plaintiff's application, querying whether

it had jurisdiction to consider the application.

      In April 2017, plaintiff filed a quiet title action to extinguish any claim

that the parcel was subject to the 2002 dedication. In September 2017, while

the action was pending, defendant adopted a resolution accepting the 2002

dedication (Ordinance).     The resolution noted that Kedma "never formally

finalized the dedication of the land to [defendant] by way of execution of a




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                                         3
deed," but the county clerk's record contained a "specific notation that [the

parcel] was dedicated to [defendant]."

        Plaintiff moved for injunctive relief to stay the Planning Board's adoption

of the Ordinance and amend the complaint as an action in lieu of a prerogative

writs. The court granted the motion and ordered defendant to show cause as to

why the Ordinance should be upheld.2 Defendant then moved for summary

judgment and plaintiff cross-moved for summary judgment.

        In an order and written opinion issued January 24, 2018, the court

concluded Middletown governed the issue of a municipality's delayed

acceptance of a dedication of land. Under Middletown, the judge noted "[a]s

long as the piece of land is properly dedicated, the municipality gains the

ongoing right to accept the dedication or deny the dedication via municipal

ordinance." See 193 N.J. at 237. Therefore, the judge found the passage of the

Ordinance to accept the dedication of the parcel was valid.

        The judge further considered whether plaintiff was entitled to

reimbursement of the excess taxes assessed against the property. He stated:

                    [Defendant] would be unjustly enriched if this
              [c]ourt were to recognize the dedicated status of the
              property and simultaneously enforce the full tax
              assessments against Crusader and [plaintiff].

2
    The court also ordered a stay of the Ordinance.
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                                         4
               [Defendant] received tax revenues on the property over
               the course of a few years in excess of the value of the
               lot as dedicated property. Therefore, it is only fair and
               equitable to reimburse . . . [p]laintiff for the excess tax
               amounts assessed against the property.

      Therefore, the court also ordered defendant to reimburse plaintiff in the

amount of $10,264.18, representing the price of the tax certificate ($2,757.12) ,

plus the amount Crusader paid in taxes from 2005 to 2008 ($7,507.06), which

exceeded the "nominal" taxable value of the parcel given its dedicated status.

Summary judgment was granted to defendant.

      On appeal, plaintiff challenges both the validity of the Ordinance and

alternatively, the trial court's calculation of the reimbursement.

      We review the grant or denial of summary judgment de novo, under the

same standard governing the trial court. Henry v. N.J. Dep't of Human Servs.,

204 N.J. 320, 330 (2010).         Giving no deference to the trial court's legal

conclusions, we must determine whether no genuine issue of material fact exists,

entitling the moving party to judgment as a matter of law. N.J. Dep't of Envtl.

Prot. v. Alloway Twp., 438 N.J. Super. 501, 507 (App. Div. 2015).

      Plaintiff contends the parcel's designation as "open space" is not an

appropriate category of land for dedication. We disagree. Under N.J.S.A.

40:67-1,   a     municipal    government       may   enact    ordinances     to "vacate


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                                           5
[or] . . . accept any street, highway, lane, alley, square, beach, park or other

place, or any part thereof, dedicated to public use." (emphasis added). The 2002

Resolution indicated that Kedma dedicated the parcel as an "open space." The

Municipal Land Use Law defines "open-space" as "any parcel or area of land or

water essentially unimproved and set aside, dedicated, designated or reserved

for public or private use or enjoyment or for the use and enjoyment of owners

and occupants of land adjoining or neighboring such open space . . . for

recreation and conservation purposes." N.J.S.A. 40:55D-5. "Recreation and

conservation purposes" includes "the use of lands for . . . natural areas . . . water

reserves, watershed protection . . . or a similar use for either public outdoor

recreation or conservation of natural resources, or both." N.J.S.A. 13:8C-3. In

granting Kedma's permit, the 2002 Resolution noted the "strong public purpose

of dedicating open space for preservation." Here, the dedication of the parcel,

an open space including a detention basis and wetlands, is a legitimate public

purpose.

      Plaintiff also contends defendant may not accept a dedication after taxing

and selling a tax lien on the property.          Our Supreme Court's ruling in

Middletown compels we reject this contention.




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                                         6
       In Middletown, the owners of property dedicated a lot on a subdivision

map as a "park" in 1929, but the municipality neither accepted nor rejected the

dedication for over seventy years. 193 N.J. at 232-34. After realizing in 1988

that the property comprised its own lot, the town began to assess taxes against

it and eventually sold the tax lien to a bidder, who foreclosed on it in 2003. Id.

at 233-35. A year later, the town sought a judgment recognizing the 1929

dedication and, while the action was pending, passed an ordinance accepting the

dedication. Id. at 235.

       The trial court rejected the town's claim that the park was dedicated to

public use and dismissed the complaint. This court reversed, Township of

Middletown v. Simon, 387 N.J. Super 65 (App. Div. 2006), and the Supreme

Court affirmed the town's acceptance of the dedication, expressing its

"substantial agreement" with this court's reasoning. 3 Middletown, 193 N.J. at

236.

       The Supreme Court found that "[o]nce an owner of land makes an offer of

dedication, that offer is 'complete and irrevocable so far as the dedicator is

concerned.'"     Id. at 241 (quoting Roger A. Cunningham & Saul


3
  Because the Court affirmed the portion of the judgment approving the town's
acceptance of the dedication of the park for the reasons expressed in Judge
Skillman's "comprehensive opinion", we quote from both cases. Id. at 240.
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                                        7
Tischler, Dedication of Land in New Jersey, 15 Rutgers L. Rev. 377, 382, 395

(1961)). The Court further explained:

            The offer remains in place until the municipality
            accepts or rejects it, "no matter how long delayed, and
            these public rights can only be destroyed by proper
            municipal action, usually by vacation." Highway
            Holding Co. v. Yara Engineering Corp., 22 N.J. 119,
            126 (1956) (citations omitted); Velasco v. Goldman
            Builders, Inc., 93 N.J. Super. 123, 134 (App. Div. 1966)
            ("[T]he power of acceptance continues indefinitely in
            the public authorities until such time as they reject or
            vacate the dedicated lands by official municipal
            legislative action.").

            [Ibid.]

      Because a dedication does not convey property to the public, legal title

remains with the dedicator, who must pay taxes on it. Id. at 236-37. Since a

dedicated lot remains taxable, selling a tax lien on it does not serve to reject the

dedication or bar acceptance of it under principles of collateral or equitable

estoppel. Id. at 237. The right of acceptance remains regardless of who owns

the property — "a subsequent party who 'acquires title by a tax foreclosure

action takes the property subject to the public use and the municipality's

continuing right to accept the dedication.'" Ibid. (quoting Middletown, 387 N.J.

Super. at 75-76).




                                                                            A-2654-17T2
                                         8
      Here, defendant properly accepted the 2002 dedication, which remained

valid despite defendant taxing and selling a tax certificate on it.        As in

Middletown, where a municipality could accept a decades-old dedication after

assessing taxes and selling a tax lien against it, here, defendant may also accept

the dedication despite taxing and selling a tax lien on it.

      In considering the applicability of a remedy, the Court acknowledged the

dedication status of the property decreased its value considerably, accordingly,

tax assessments must reflect the diminished value. Middletown, 193 N.J. at 244-

45. Because the town received tax revenues on the park well in excess of the

value of the lot as a dedicated property, equitable principles required

reimbursement to the defendants. Id. at 245.

      We are satisfied the trial judge properly assessed the reimbursement due

to plaintiff. The record reflects the face value of the tax certificate Crusader

purchased was $2,757.12, and the taxes paid by Crusader from 2005 to 2008

were $7,507.06. Recognizing defendant must disgorge the revenue it received

on the parcel in excess of the nominal amount to which it was entitled, the trial

judge appropriately ordered reimbursement of $10,264.18.

      Affirmed.




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