Judicial Discretion and the abuse of Homeowner Property Rights:
County of Bergen v. Cooper-Shepard & Shepard
Below is an
essay on the basics of our case and the legal history behind the actions
that were taken. You will notice specific references to statutes, court
rules, etc. that were presented to the court. These were all dismissed
as inconsequential.
As we include additional documents, if you
are familiar with the basics of law and legal system in this state you
will find some direct correlations to criminal practice by Bergen County
that were simply dismissed as inconsequential - things that people get
prosecuted for separately. But that's another issue when raised was
dismissed. Anyway, read on and please visit our COMMENTS page to post your opinions or even a story of your own.
WHAT IF NJ COURTS
DO NOT FOLLOW THE LAW?
Bergen County built a bike path along
the Saddle River in 2001. Our property was not identified as
encroaching like some other adjacent properties were. At no point did it
ever interfere with the construction or use of the path. Accordingly it
was never considered during Bergen’s planning. Regardless, Bergen
demands that we destroy improvements that lay just a few feet onto land
several feet away from the path, on top of a steep adjacent incline.
Bergen wants the small, awkward parcel back after 50 years of
abandonment, despite admitting no intention to use it.
Our story
has been misunderstood, misrepresented by the County press and
conducted in a mostly secretive manner that discourages exposure of the
truth. The case draws many parallels to more publicized eminent domain
cases that challenge governmental abuses, practices and violations of
due process rights that our Constitution guarantees to all citizens and
property owners. What qualifies as a genuine public interest vs. an
agenda superficially disguised and disingenuously argued as a public
purpose to be served - is often at the crux of decisions made at the
sole discretion of politically appointed judges. In our case, we were
even specifically denied the right to have a jury.
According to
court records, Bergen admittedly always knew about our predecessors’
“encroaching” improvements built by original owners, and knows that a
required fence outlining an extended property line that surrounds a
swimming pool and other improvements was constructed in 1959 and
approved by Borough officials, who granted a permit in 1963. For us to
satisfy Bergen’s demands would involve destroying a concrete gate, large
cedar cabana, pool house with filter, electrical wires, swimming pool
plumbing and more, leading to an estimated cost to only us of a minimum
of $75,000.00 and possibly causing us to lose our home.
All
parties agree that the encroaching structures do NOT interfere or effect
the bike path and Bergen concedes it has NO intention to use the small,
awkward disputed parcel, which leads reasonable people to ask - so
“where’s the beef”?
Five years later Bergen sued us in Chancery
Equity Court for trespassing. Judge Contillo denied our rights &
requests to countersue, for a jury, and for adequate time to replace our
attorney who withdrew due to illness early on (and later passed away),
as the case rapidly headed towards trial. A trial would have exposed
Bergen County’s failure in this matter, but Bergen was protected from
the ‘judgment of the Court of Public Opinion’ when Contillo granted
Bergen’s summary judgment against us in June 2007, just one week before,
in what seemed like a secret hearing in the empty courtroom.
Two
separate appeals remain pending in this troubling litigation’s fourth
year. Appearing unlikely, we still hope justice, equity, and peace will
prevail, and that we won’t be forced to destroy parts of our yard and
property, the setting for decades of memories of pool parties with
friends and family before my father passed away in 2000. I returned to
my childhood home by the year’s end as its new owner through
inheritance. Bergen contacted us months later.
The case history
officially began in 2002, when Bergen Parks Department confronted me and
my husband. We are an interracial couple and do not know to what extent
discrimination may explain what transpired. What we do know is that
Bergen treated our neighbors differently by offering to assist them and
remove their encroachments for them. In contrast, we initiated a
resolution meeting with then Parks Director, Wolfgang Albrecht. He
agreed but then tricked us into believing that there would be a private
discussion without counsel. Upon arrival, we were ambushed by four
County and Borough Officials including County Counsel, who collectively
mocked and threatened us.
Bergen admits knowing of the defect it
failed to cure as well as failing to warn my parents, already County
residents who were bona-fide purchasers in 1972. Despite fault, Bergen
directed Borough to assist in coercing us to demolish our property. As a
result, Borough issued violations imposing $500.00 weekly penalties
against us. We appealed. Bergen County Construction Board deemed the
violations false and overturned them in 2003.
Bergen filed its
civil action against us in 2006, based on County Surveyor John
Lombardo’s false description inflating the encroachment size to 4615
square feet, which he now admits is really only 1154 square feet, one
fourth of his original declaration filed with the Court. The Appellate
Court affirmed Contillo’s decision but recognized the correct size of
the “encroachment”. The Appellate Court remanded back to Chancery Court
judge to correct the judgment, which only resulted in more evidence of
the injustice in this case. Contillo again refused to direct Bergen to
correct Lombardo’s false evidence, now within the modified judgment
directed on remand.
Besides Lombardo’s evidence, Bergen’s case
relied upon its ‘proffer’ that it is immune to statutes of limitation
due to an ancient doctrine based on its claim that surrounding lands
were always provided for public park activities, since the date Bergen
acquired them. But - Bergen’s only evidence referred to inapplicable
areas almost a mile away. In contrast, our evidence proved actual
abandonment, included witness County architect’s testimony confirming
that the lands were left undeveloped in an unsafe hazardous condition,
not maintained, and without access or even an open view, due to
obstruction - until the 2002 bike path, 50 years later.
All
parties agree that the encroaching structures do NOT interfere or effect
the bike path and Bergen concedes to having NO intention to use the
small, awkward disputed parcel, which leads reasonable people to ask -
so “where’s the beef”?
Contillo ruled that an ancient immunity
doctrine derived by and for English kings in the 1700’s, nullum tempus,
controls the case. Despite that it was never made US law, most likely
due to its inherent unconstitutionality, some NJ courts applied it
before 1992.
The parcel in dispute was maintained for five
decades by three homeownerships and all three paid taxes on the
improvements. The abandonment was far beyond the statutory period
required by Bergen to have provided the lands to the public, to claim
immunity, according to Contillo’s precedent set, relying on nullum
tempus.
At the eleventh hour, Bergen changed its position to
claim that if the lands were not actively developed publicly used park
lands, then they were inactive undeveloped lands deemed “open space”.
Bergen can not and did not provide the required proof to support a legal
designation of “open space” and ‘public use’ claim nor any proof of
having provided access to the public also required to qualify. An access
entryway was never constructed until the 2001 bike path. The late plan
"B" public use theory was elaborated on only in Contillo’s Decision. We
were astounded that a judge would do that, allowing no opportunity for
rebuttal. Regardless, it became the material fact upon which Contillo
applied ‘the law’ or rather Bergen’s immunity to law and Bergen’s
victory.
While appealing, we continued to discover facts that
disprove the theory. Although other County lands were designated as
“open space”, as required, this land was not. It was revealed that
Bergen was not even eligible for the designation. Bergen had failed to
meet any of the requirements including to maintain the land, to provide
public access and to obtain prior public input. The neighboring
homeowners raised strong objections and were shocked and outraged to
discover the bike path was approved long before they were told it was
even considered.
What we next discovered is a mind blowing
missing link and should have been disclosed during discovery or when the
Court requested a complete history of subject land use to support
whether or not the lands had been used for a public purpose. In the
1980s, Bergen passed a law to make its undeveloped land actually illegal
for the public’s use, imposing fines and jail. This act not only
negates Bergen’s public use claim, but also reflects that Bergen changed
its original dedication for “park purposes” and so voids it. How can a
lawsuit founded solely upon a claim of public use proven false, be
allowed to stand? But, wait – it gets worse!
The law of the
case held by Contillo, deems that Devins v. Borough of Bogota, 124
N.J. 570 (1991) controls. In Devins, the Supreme Court
instated a stipulation for ‘government’ to qualify to apply the immunity
rule of nullum tempus (“time runneth not against the king”). If
the new public use criteria was met immunity would apply, but if not
then statutes of limitation applied. Contillo cited Devins and
applied nullum tempus based on the alleged “open space” theory
and ruled for Bergen. This disregarded that homeowners, the Devins’,
sued Bogota for title to land by adverse possession (for 20 years) and
won, unlike our case. In contrast, we the homeowners are defending
ourselves against Bergen’s Civil Action for removal. We filed no action,
sued no one.
Ironically, everything changed by 1992. Nullum
tempus immunity rule was abolished by three 1991 Supreme Court
decisions including Devins, which caused the New Jersey State
Legislature to review the issue and on January 16, 1992
enacted N.J.S.A. 2A:14-1.2. This new statute confirms this historical abolishment and
replaces nullum tempus with new controlling law barring state
political subdivisions (naming counties) from filing civil actions
beyond ten years from January 1992, when the law became effective.
On
notice since 1959, Bergen already enjoyed a long grace period, while
neglecting to provide public access for “park purposes” as required by
the terms of purchase, and specified & regulated by the New
Jersey Administrative Code (NJAC) Green Acres Section 7, which is
under Title 13 of the New Jersey State Statutes Annotated
(N.J.S.A.).
We filed a Motion for Relief under NJ Court Rule 4:50, a
vehicle to present material information discovered after a ruling,
which if known at the time would change the ruling. It exists to prevent
error, “manifest injustice” or “irreparable harm”. Ours remains pending
appeal.
Court Ethics Rules of Professional Conduct, RPC,
require attorneys to disclose all material law and facts, even if
adverse to their client’s position. But Bergen’s did not. RPC 3.3
was clearly violated here, with the contradictory material law and
facts, including Bergen’s very own law that specifically made it illegal
for the public to exercise the right to public access by making to the
very lands it illegal it now demands returned based on the pretense that
the lands are for public use and have always been so protected and
provided. The truth is that the evidence supports the opposite - an
actual history of blatant abandonment and neglect.
Contillo
applied nullum tempus as the basis for Bergen’s 2007 victory,
despite its abolishment in 1991 and despite that new superseding law
applied by 1992. In 2008 he confirmed believing he was correct and would
not acknowledge nullum tempus was abolished. He refused to
discuss the statute, its Supreme Court and legislative history, and the
reflective Court Rules Section R. 4:5-4(36.7), “State; actions
by”, all of which his opinion contradicts. Is this lawful or
impartial?
The case was decided as if WE had sued for title by
adverse possession, but it is Bergen who filed a civil action in
Chancery against us. Regardless, although numerous equitable remedies to
resolve the case are available, Bergen insists on only litigation and
on imposing only the one remedy where the homeowners are devastated and
alone bear the full burden. Contillo insists that the discretion to
choose a remedy belongs only to Bergen, and not to the Court.
We
are currently asking the Appellate Court to substitute a fair and less
devastating remedy than removal solely at our expense, irrespective of
any interpretation of law. In support of our request, we are relying on
case law that demonstrates a trend more often followed where the Courts
have done just that. In numerous encroachment cases, a measurement
standard to assess and balance the hardships among parties has been
applied in order to weigh the harm caused against any benefit gained by
removal vs the same if the encroachment is allowed to remain – where the
sale of the disputed land may be directed instead. In so applying the
Relative Hardship Doctrine, the facts are considered; whether an
innocent mistake occurred vs. intentional trespass, whether title holder
was justified in being unaware and acted without negligence or was not
justified having had notice, failed to act and so acquiesced instead.
Whether misconduct by a party has occurred in Equity Court is also
considered. This equitable standard, by which Courts can & do decide
cases and the inherent priority reflected to choose the remedy that
will cause the least harm to achieve balance and equity has been
traditionally favored, and is now pending, in our case appeal.
Ultimately,
a bigger picture haunts and drives us. Unlikely any personal gain would
be worth opposing Bergen in this ‘Goliath vs. David-esque’ fiasco, our
case must be reversed or at minimum the remedy replaced by one of the
equitable options presented. Otherwise, equity is abandoned with no
trial, no jury, no due process. Sadly, if equity and changes in law can
be disregarded here, than our case will provide authority for future
cases to also revert back and follow old 1991 law. It would render all
positive and authoritative 1992 changes meaningless. Worse, it would
render our civil judicial system futile, revealing that there is no
neutral groundvehicle to oppose government, posing the question of how
different are we really from a government run by kings or dictators. It
would be a step backwards for homeowners, a threat to due process
promised by our Constitution, and would negate the legislative
abolishment of the government immunity doctrine in property and most
other subject matters addressed in N.J.S.A. 2A:14-1.2. The statute limits government civil actions to within ten
years, effective 1992. Bergen had to sue by 2002 and did so four years
too late, in 2006.
Whether or not we are awarded title, under
current State law, Bergen’s Civil Action and removal demands should be
rejected by NJ courts. It is irrelevant how long or if ever subject
lands were provided for the public’s use or any use, accordingly.
Bergen’s continued refusal to discuss & resolve the matter and
insistence on litigation, does not change the fact that we are entitled
to an equitable remedy that is not punishment or hardship or if not a
trial by jury. The removal option defies all principles of equity and
threatens devastation to innocent citizens. This alone should guide the
Courts in this case, but so far has not. In contrast, Bergen has nothing
at stake, and has not even claimed any harm or damages caused by the
improvements. No public interest is to be served by removal or the
hardship caused to us. No one is affected either way; the bike path
remains unaffected and the small, awkward parcel has value only to us.
The case can be resolved in numerous other ways. In the end, the outcome
will rely on whether Bergen suddenly develops a conscience, whether
principles of equity are honored or whether the Courts follow the law.
By:
Iris Cooper-Shepard, Homeowner, Pro Se Litigant Recreation
Therapist, Teacher, Advocate, Songwriter, Coordinator of Events to Raise
Awareness & Funds for Causes including: Homeless People &
Animals, Environment, Foster Care/Adoption, and Justice
