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New Jersey Dept. of Environmental Protection v. Shelter Bay Club Town Home Assoc., Inc.

A-4527-97T3 (N.J. Super. App. Div. 1999) (Unpublished)

DEVELOPERS; SUCCESSORS—Where a developer’s successor has notice of conditions that are part of a development grant, the successor is bound by those conditions.

The Department of Environmental Protection (DEP) issued a permit allowing construction of a high rise residential development on the Hudson River. One of the approved “projects” was a “continuous linear public access strip across the water’s edge of not less than 20 feet in width.” One of the conditions required “[p]ublic access to and along the waterfront, including details as walk- and bike-way widths, lighting, landscaping, bollards, and waterfront theme.” The project was built and its common elements eventually devolved to a homeowners association. A time came when a DEP inspector discovered that the association had erected a fence with a locked gate which prohibited public access along the constructed walkway. The DEP issued an administrative order directing that the fence be removed and that a formal conservation easement be recorded. The association and a member of that association appealed, arguing that they were not bound by the permit because the permit was issued to the original developer which was not the actual owner of the property. In addition, they argued that they had no notice of the easement. Further, they challenged the permit on statutory and constitutional grounds, arguing that the public walkway requirement was not authorized by statute and therefore was an ad hoc adjudication. Lastly, they contended that the requirement amounted to an unconstitutional taking. The DEP Commissioner ruled that the association’s challenge to the permit was untimely and therefore dismissed it. The Commissioner held that the association was bound by the DEP’s permit requirement. Consequently, the Commissioner did not reach the “taking” issue. The Appellate Division affirmed those decisions essentially because the original developer allowed the appeal period to pass without objection. The Court also observed that the association and the property owner had “notice of the public access.” Their chain of title included a riparian grant from the state to a prior owner. That grant contained an express condition requiring that a permit be obtained before the land upon which the access strip was located was developed. In addition, the permit that had been issued was also required by the Waterfront Development Act. Consequently, by reason of the “limitation” in the riparian grant and by reason of the Waterfront Development Act, the appellants were on notice that a DEP permit was a prerequisite to the waterfront development.


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