Daily Development for Tuesday, March 6, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
MUNICIPAL LAW; DEDICATION; ACCEPTANCE; PARKS: When lands are sold with reference to a map upon which appear a dedication of certain areas to the public as a park, but there is no immediate acceptance of such dedication, this establishes an offer of dedication that cannot be revoked except by consent of the municipality; therefore, when the affected property is sold, even in a tax sale, it is sold subject to the municipality's right to accept the dedication.
Township of Middletown v. Simon, 387 N.J. Super. 65, 903 A.2d 418 (App. Div. 2006); July 31, 2006.
Developers subdivided a tract of vacant land into fifty-seven lots for residential development. Fifty six of the lots were numbered, and one lot, designated on the map as "Park," was unnumbered. The municipality approved the subdivision and developers recorded the approved subdivision map. Although the proposed subdivision was located on a lake, only twenty of the fifty-six numbered lots and the lot designated as a park afforded direct access to the lake.
Developer later appeared to try to develop a restricted subdivision and sold off a number of lots, but only a few of the deeds referred to the park parcel as subject to an easement of use.
For tax purposes, the park lot was initially appended to an adjoining lot and given only a nominal assessment. When the adjoining lot was sold, a question arose as to whether its boundaries corresponded with the tax records. To resolve this problem, the tax assessor gave the park lot a separate lot designation and assessment. Because the assessor was unable to identify the owner of this lot, the tax records indicated: "Owners Unknown." Thereafter, no taxes were paid for this lot.
Eventually, the municipality sold a tax sale certificate for the park lot to an investor, who subsequently paid delinquent taxes on the lot as well as the interest and costs of the tax sale. Later, the investor brought a tax foreclosure action seeking title to the park lot. Those opposing the foreclosure action filed an answer contending the municipality was an indispensable party to the tax foreclosure action because the subdivision map recorded by the couple had dedicated the lot as a park, and the municipality had a continuing right to accept the dedication. The lower court rejected this contention and held that the park had not been dedicated to public use.
The investor subsequently entered into a contract to sell the lot to a new developer who planned to construct a residence on it. When these plans became known, the owners of homes in the lake development voiced objections to the municipal governing body, claiming that the park lot was dedicated for park use and therefore could not be developed.
The municipality then filed this particular action against the investor and the developers, seeking a declaration that the park lot had been dedicated for use as a park. During the pendency of this action, the municipality's governing body adopted an ordinance accepting dedication of the park lot.
At trial, the lower court concluded that the municipality was in privity with the property owner who opposed the tax foreclosure action, and therefore, the municipality was barred under the doctrine of res judicata and collateral estoppel from relitigating the ruling in the foreclosure action that the park was not dedicated to public use. The lower court also indicated that even if the municipality had not been barred from relitigating the issue, it would have concluded that the park lot had not been dedicated to public use. Accordingly, the lower court dismissed the municipality's complaint. The municipality appealed.
On appeal, Held: Reversed: The municipality is entitled to prove a dedication to public use.
In addressing the argument that the municipality was barred by collateral estoppel from asserting that the park lot was dedicated to public use, the Appellate Division explained that to foreclose relitigation of an issue based on collateral estoppel, the party asserting the bar must show that: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to, or in privity with, a party to the earlier proceeding.
The Court found that the issue of whether the couple dedicated the park lot for public use was actually litigated in the foreclosure action, and the identical issue was presented in this case. Furthermore, the tax foreclosure action resulted in a final judgment in the investor's favor. Consequently, the investor had established the first three prerequisites for collateral estoppel. However, the Court concluded that a finding of whether the couple dedicated the park lot was not essential to the judgment in the tax foreclosure action, and therefore, the fourth prerequisite for invocation of collateral estoppel to bar relitigation of this issue had not been established.
The Court then discussed the interest a municipality acquires when land is dedicated for public use and the interest a foreclosing party acquires when a final judgment is entered in a tax foreclosure action. When a private property owner dedicates land for public use, he or she makes an offer of a public easement and the municipality has a continuing right to accept the dedication at any time, unless it rejects the dedication by official municipal action. Until the municipality accepts the dedication, it acquires no interest in the land. When a party acquires title to property by a tax foreclosure action, that party only acquires the fee interest in the land that was subject to taxes. Consequently, if the former owner dedicated the property to a public use, a party that 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. In light of this analysis, the Court concluded that the
determination whether the couple dedicated the park lot for use as a park was not essential to the judgment in the tax foreclosure action.
The municipality had not accepted the alleged dedication until it adopted an ordinance for this purpose. Thus, even if the original developer made a valid dedication of the lot for use as a park, that developer and its successors in title continued to own the lot and remained subject to property taxes. Therefore, the Court held that the lower court's conclusions in the foreclosure action regarding the dedication of the park lot for public use were unnecessary dicta and for that reason, did not prevent the municipality from relitigating the issue in this case.
The Court explained that when lands are sold with reference to a map upon which lots and streets are delineated, and there is a dedication of certain of the property on the map to the public, such dedication continues and cannot be revoked except by consent of the municipality. The Court found that the couple's recording of the subdivision map and subsequent sale of residential lots with reference to that map constituted an irrevocable dedication of the lot for public use as a park. Thereafter, the public rights conferred by the dedication could only be destroyed by proper municipal action. The Court reasoned that the conveyances of remaining lots in the subdivision by reference to the filed map reinforced the conclusion that the couple made an irrevocable dedication of the park lot for public use as a park.
Further, despite the dedication of the lot for use as a park, it remained subject to taxes. When the taxes were not paid, the municipality had a right to issue a tax sale certificate, and the investor acquired valid title to the lot in the tax foreclosure action. But the title was subject to the dedication of the land for use as a park, just as it would have been if the original developer had retained title to the lot or sold it to a third party. Therefore, the municipality's issuance of a tax sale certificate for the lot and the tax foreclosure judgment vesting title to the lot in the purchaser were not inconsistent with the Court's conclusion that the lot is dedicated for use as a public park.
Lastly, the Court rejected the argument that the municipality's claim that the park lot was dedicated to public use, and its subsequent acceptance of that dedication, was unfair to the investor and the developers. The Court reasoned that the investor and the developers had record notice of the subdivision map that designated the lot for use as a park, and an inspection of the lot would have revealed that it was developed and maintained as a park providing access to the lake. It further found that the investor and the developers had to have been aware that they would be able to construct a house on the lot only if neither the municipality nor the owners of other lots in the lake development attempted to enforce the dedication; or if the investor and developers were able to persuade a court that the filed subdivision map had not resulted in a dedication of the lot for use as a park.
Editor’s Comment: The New Jersey approach here is hardly the universal rule. At least with respect to streets and roads, many states have statutes that require acceptance of a tendered dedication within a specified time period, or the dedication is void and the property reverts to wherever the court concludes it ought to revert.
Also see: Barry Simon Developments, Inc., v. Hale, Cas No. ED87452 (Mo. App. 10/24/06) (the DIRT DD for 10/27/06) A depiction of an easement of access on a PUD plan is sufficient to establish dedication of the easement under the "implied dedication from plat" doctrine, and such easement may benefit owners of land adjacent to the land depicted on the plan, who were "strangers to the grant" in that they were unrelated to the developers or purchasers of the property subject to the plan. Nettleton Church of Christ v. Sandra Conwill, 92-CA-01215-SCT (Miss. 2/20/97) (the DIRT DD for 6/4/97) Under statute providing that "all streets, roads, alleys and other public ways" set forth on an approved subdivision map will be deemed dedicated to the approving agency (city or county), the dedication will be deemed a dedication in fee, and not just an easement; and under an approved subdivision map showing a square in the center of the subdivision connected to the surrounding street system, the p
ublic square will be deemed dedicated according to the statute. Kraus v. Gerrish TP., 517 N.W.2d 756 (Mich. App. 1994). (The DIRT DD for 8/18/95) Once a road easement by dedication has been tendered, the public agency may accept it whenever public necessity demands, unless the dedicator withdraws the offer of dedication by specific statements or by use of the land that is wholly inconsistent with the later creation of a public way.
Compare: Reagan v. Brissey, 832 N.E.2d 659 (Mass. App. Ct. 2005) (the DIRT DD for 2/13/06). An implied park dedication easement must be affirmatively proven. Although the intent to create an easement may be interpreted from circumstances existing at the time deed was created or conveyed, the simple statement on the plat map that lots are dedicated may not be enough, and was not enough here.; Stafford v. Klosterman, 998 P.2d 1118 (Idaho 2000) (the DIRT DD for 4/11/01) Roadway easement depicted on a subdivision plat but not accepted by the county highway district through endorsement of the plat are not public roads; consequently, there is no public right of use.
All prior DIRT DD’s are on the DIRT website: www.umkc.edu/dirt
The Reporter for this item was Ira Meislik of the New Jersey Bar. The Editor has edited and revised the report substantially.
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