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Borough of Point Pleasant v. Rollano

A-4524-06T1 and A-4540-06T1 (N.J. Super. App. Div. 2008) (Unpublished)

RIGHTS OF WAY — Where a grassy area adjacent to a public road has never been dedicated as a public thoroughfare and is owned by property owners, no other property owners have a right of access across that grassy area to a public road.

Two property owners owned a lot with two residential structures and driveway access to and from an abutting busy county road. A grassy, non-paved area abutted the property on the side opposite the county road. The grassy area led to the base of a paved dead end street on which two lots stood, each of which had a home on it. The dead end street was originally a private right-of-way, but was later dedicated for public use. The previous owner of the property owners’ lot had obtained permission to construct the two residential structures. Each was to be a duplex rental building. The previous owner assured the municipality that it had no intention of using the grassy area (which led to a dead end street). After the property owners obtained title to the lot, they unsuccessfully attempted to relocate the lot’s driveway so as to access the dead end street instead of the county road. The municipal planning board found that relocating the driveway to access the dead end street would significantly increase traffic on the dead end street, would change the nature of the roadway, and would present a danger to the residents living on the street as well as to residents living on an intersecting road. The property owners appealed the board’s decision to the lower court and then to the Appellate Division, both of whom affirmed the board’s decision.

About four months following the Appellate Division’s affirmation of the board’s decision, the property owners placed a gate in the chain link fence that separated their lot from the grassy area. They also removed shrubbery along the fence line. The property owners then allowed bicyclists and motorcycle riders to access the lot through the grassy area and placed garbage cans in the grassy area for pick-up by the municipality. The municipality sued the property owners, seeking an order to compel them to remove the chain link fence and replace it with a six-foot-tall fence along the property line so that the residents of the duplexes would not be able to access the county road through the grassy area. The property owners responded with separate counterclaims, both for a declaration that they would each have unfettered access to the grassy area.

The lower court allowed two homeowners, each of whom owned a property on the dead end street, to intervene in the proceedings. Those homeowners sought to quiet, or affirm, their respective titles to the grassy area and sought a declaration that they were the owners of the grassy area. They also sought a declaration that the two abutting property owners had no right of access to the dead end street. A title search revealed that the two homeowners each held title to the half of the grassy area that abutted their respective properties, and that the municipality did not have a right-of-way over the grassy area. The lower court then found that the grassy area was never dedicated as a public thoroughfare, that the grassy area was owned by the homeowners, and that the other property owners had no right of access through the grassy area. It also found that there was no right of public access over or through the grassy area. On appeal, the Appellate Division found that the property owners’ arguments did not warrant discussion, also finding that the lower court rightly decided the matter based on the evidence on the record and affirmed its judgment.

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