What Can I Do About a Spite Fence on My Neighbor's Property?
Full Question:
Answer:
I suggest contacting city hall or the building department to inquire about any applicable fence ordinances, as they vary by local area. If you have a homeowner's association, it is possible that the fence violates a restrictive covenant. It is also possible that you might be able to bring an action for private nuisance and ask for injunctive relief if the fence is deemed a spite fence. However, a spite fence is typically defined by height. For example, one state statute defines it as a "fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property", and declaring it is a private nuisance.
Injunctive relief consists of a court order called an injunction, requiring an individual to do or not do a specific action. It must be proven that without the injunction, harm will occur which cannot be remedied by money damages. To issue a preliminary injunction, the courts typically require proof that
(1) the movant has a ‘strong’ likelihood of success on the merits;
(2) the movant would otherwise suffer irreparable injury;
(3) the issuance of a preliminary injunction wouldn't cause substantial harm to others; and
(4) the public interest would be served by issuance of a preliminary injunction.
For further discussion, please see:
http://public.findlaw.com/abaflg/flg-5-3e-3.html
Please see the following NJ case law:
BUBIS v. KASSIN, 184 N.J. 612 (2005)
878 A.2d 815
SOPHIE BUBIS AND ALCIDES FERREIRA, PLAINTIFFS-APPELLANTS, v. JACK A.
KASSIN AND JOYCE KASSIN, HUSBAND AND WIFE, DEFENDANTS-RESPONDENTS, AND
BOARD OF TRUSTEES OF THE VILLAGE OF LOCH ARBOUR, DEFENDANT.
A-44 September Term 2004
Supreme Court of New Jersey.
Argued February 1, 2005
Decided August 10, 2005
Appeal from the Superior Court, Chancery Division, Monmouth
County.
Page 613
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Page 616
Chief Justice PORITZ, Justices LONG, LaVECCHIA, ZAZZALI, and
ALBIN — 5.
Justices WALLACE and RIVERA-SOTO — 2.
Leonard S. Needle argued the cause for appellants.
David C. Apy argued the cause for respondents (McCarter &
English, attorneys).
Justice ZAZZALI delivered the opinion of the Court.
As this appeal illustrates, good fences do not always make good
neighbors. Defendants' creation of an approximately eight-foot
high sand berm, topped with six-foot tall trees, for the purpose
of ensuring defendants' privacy, has bred extensive litigation
and disharmony between these neighbors.
To finally resolve this ten-year-old dispute, we must determine
whether the berm constitutes a fence for the purposes of applying
a restrictive covenant and a local zoning ordinance. Because the
berm is a fence that is more than six feet tall, we conclude that
it violates both the restrictive covenant and the ordinance.
I.
A.
In 1978, plaintiff Sophie Bubis and her late husband purchased
the property at 1 Ocean Place in the Village of Loch Arbour, New
Jersey. That property is directly across the street from the
beach. Prior to 1995, Bubis could view the beach and ocean from
the first floor of her home through a chain-link fence on the
beach property.
In 1995, Jack and Joyce Kassin purchased the beach property.
The entire Kassin parcel comprises two-thirds of the beachfront
property in Loch Arbour. The Kassins converted it from a
privately owned beach that was open to the public for a fee to a
private beach for the exclusive recreational use of their family
and friends. Later that year, they erected an eight-foot high
sand
Page 617
berm behind the existing six-foot chain link fence by pushing
sand into a heap along the western boundary of their beach
property. To further ensure their privacy, the Kassins topped the
berm with bushes and trees. At the time of the complaint, the
height of the berm, trees, and shrubbery together measured
approximately fourteen to eighteen feet.
Initially, we provide a brief description of the physical
layout of the property at issue. Running from east to west are
the ocean, the beach, the berm, the chain link fence, the street,
and the Bubis home. The berm effectively ensures the Kassins'
privacy and prevents Bubis from viewing the beach and ocean from
her home.
B.
This appeal implicates both a restrictive covenant and a local
zoning ordinance. First, an 1887 restrictive covenant prohibits
the construction of fences higher than four feet on the Kassins'
property. Both Bubis and the Kassins bought their properties
subject to that covenant. Second, a municipal zoning ordinance
regulates land use in the Village of Loch Arbour. The Bubis and
Kassin properties are located in the "beach" or "B" zone of the
village. The ordinance states that the purpose of the beach zone
"is to preserve the existing natural beach area and dunes which
are present in the Village for their unique beauty and
recreational assets." Unlike the sections of the ordinance
governing residential and commercial zones, which allow fences
and walls as accessory uses to the property, the section relevant
to the beach zone did not list any accessory uses prior to 1996.
In 1996, Loch Arbour amended its ordinance to include the
following language: "All fences shall be made from a chain link
or similar fencing material. The use of webbing or any other such
material through or attached to a fence of the chain link type is
prohibited." Moreover, such fences "shall have a maximum of
height of 72" above the ground." The ordinance, in a section that
pertains to all zones, reiterates that "[n]o fences or hedges on
any interior lot line shall be higher than 6 feet."
Page 618
Apart from the restrictive covenant and the zoning ordinance,
New Jersey's Department of Environmental Protection (DEP)
regulates the creation and maintenance of dunes, pursuant to the
Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to
-33; N.J.A.C. 7:7E-3A.3. The DEP defines a dune as "a wind or
wave deposited or man-made formation of sand (mound or ridge),
that lies generally parallel to, and landward of, the beach and
the foot of the most inland dune slope." N.J.A.C. 7:7E-3.16(a).
C.
This is the third appeal filed in this litigation, which
commenced in 1995. The complex procedural history and facts
relating to the two prior appeals have been set forth in detail
in published opinions at 323 N.J.Super. 601, 733 A.2d 1232
(App.Div. 1999) (Bubis I), 353 N.J.Super. 415, 803 A.2d 146
(App.Div. 2002) (Bubis II), and in the most recent, unreported
Appellate Division decision (Bubis III). Because most of that
background is irrelevant to the resolution of the questions
presented here, we focus only on the essential facts and
procedure.
In Bubis II, supra, the Appellate Division rejected the
Kassins' argument that the restrictive covenant had been
abandoned. 353 N.J.Super. at 426 n. 2, 803 A.2d 146. The
Appellate Division explained that an accepted and ongoing
"violation□ [of the restrictive covenant has] resulted in a
modification of the covenant under which a six-foot-high chain
link fence of the sort maintained by the Kassins is not
prohibited." Ibid. (Citation omitted). As a result, the
Appellate Division concluded that the covenant now restricts
fence height to six feet rather than four feet as stated in the
original covenant. Ibid. The panel remanded to the Chancery
Division for consideration of Bubis's argument that the Kassins'
berm constituted a fence that violated the zoning ordinance.
Id. at 431, 803 A.2d 146.
On remand, Bubis filed a second amended complaint alleging that
the berm was the functional equivalent of a fence that violated
both the restrictive covenant's limitation on fence height
Page 619
and a similar provision in a Loch Arbour zoning ordinance. The
Chancery Division heard testimony from Bubis and two licensed
professional planners and considered the deposition testimony of
Loch Arbour's zoning code enforcement officer. The testimony
conflicted concerning whether the berm constituted a fence as
Bubis claims or a dune as the Kassins contend.
The Chancery Division held that the berm was not a fence, but
rather was a dune that was not subject to the height limitations
in the covenant or ordinance. After surveying various definitions
of "fence," the court found that dictionary definitions were not
determinative and that the ordinary meaning of "fence" did not
include "dune." The court also held that, in any event, CAFRA,
which regulates the creation and maintenance of dunes, preempted
the ordinance, making its height limitation inapplicable.
Bubis appealed the ruling of the Chancery Division. In an
unpublished opinion, Bubis III, the Appellate Division affirmed
the lower court's conclusion that the berm did not violate the
restrictive covenant. Describing the chancery court's decision as
"a commonsense interpretation of the term `fence,'" the panel
explained that the covenant did not prohibit dunes generally
because, at the time the covenant was created, dunes already
existed on the property. The panel also held that the berm was
not a fence under the ordinance since it was not made from "chain
link or similar fencing material." In dicta, the panel concluded
that CAFRA and the ordinance did not conflict in this case, so no
preemption issue arose.
We granted Bubis's petition for certification. 181 N.J. 548,
859 A.2d 693 (2004).
II.
Bubis asserts that the approximately fourteen-foot high
vegetated berm violates the restrictive covenant because it is
the functional equivalent of a fence in excess of four feet, and,
further, that the dune satisfies the dictionary definition of
"fence." Bubis emphasizes that the vegetated berm is not a dune
under CAFRA.
Page 620
Finally, Bubis suggests that the lower courts did not properly
analyze whether CAFRA preempts the zoning ordinance in this case.
The Kassins argue that the berm is a dune that does not violate
the covenant or the ordinance because it is not within the ambit
of the ordinary meaning of the word "fence" as used in either
source. Alternatively, the Kassins assert that CAFRA's dune
regulations preempt the zoning ordinance.
We consider first whether this berm is a fence, and second, if
it is, whether it violates the restrictive covenant and the
zoning ordinance. Finally, we examine the Kassins' preemption
claim.
III.
A.
Because neither the restrictive covenant nor the zoning
ordinance defines the term "fence," we must rely on other sources
in deciding whether this berm is indeed a fence.
Black's Law Dictionary defines a fence as a
hedge, structure, or partition, erected for the
purpose of inclosing a piece of land, or to divide a
piece of land into distinct portions, or to separate
two contiguous estates. An enclosure about a field or
other space, or about any object; especially an
enclosing structure of wood, iron or other materials,
intended to prevent intrusion from without or
straying from within.
[Black's Law Dictionary 618 (6th ed. 1990)
(emphasis added).]
According to Webster's Third New International Dictionary 837
(16th ed. 1971), a fence is "a barrier intended to prevent
escape or intrusion or to mark a boundary." (Emphasis added.)
American Heritage Dictionary, Second College Edition 497 (1995)
provides that a fence is a "structure serving as an enclosure,
barrier, or boundary, usually made of posts, boards, wire, or
rails." (Emphasis added.) Concise Oxford Dictionary of Current
English 357 (7th ed. 1989) defines a fence as a "hedge, railing,
bank, etc., preventing entry to or exit from [a] field etc."
(Emphasis added.) And, finally, pursuant to Webster's II New
College Dictionary 412 (1995), a fence is a "structure
functioning as a boundary or
Page 621
barrier, usually made of posts, boards, wire, or rails."
(Emphasis added.)
As these varying definitions demonstrate, there is no single
construct for the word fence. Nonetheless, they provide two
guideposts for our analysis. First, the definitions do not limit
the type of material from which a fence can be made. Although
each lists materials often used for building fences, these are
merely examples as is evidenced by the use of limiting language
such as "especially," "usually," and "etc."
Second, each definition centers on the manner of use or the
purpose of the structure. The emphasized language indicates that
the user's intent and the actual function of the structure are
dispositive in ascertaining whether a structure is a fence. From
the above definitions, and as a matter of common sense, we can
fairly conclude that a fence is defined primarily by its
function, not by its composition. As long as the structure marks
a boundary or prevents intrusion or escape, then it is a fence,
regardless of the material from which it is forged. This is the
ordinary understanding of "fence."
In construing a restrictive covenant, a Washington appeals
court applied a similar rationale in determining that a row of
trees could constitute a fence. Lakes at Mercer Island
Homeowners Ass'n v. Witrak, 61 Wash.App. 177, 810 P.2d 27,
30 (1991). The court held that the trial court had erred in
holding that trees could not be used as a fence because
[e]ven the literal meaning of "fences" does not
exclude a row of trees along a property line. A
common and ordinary meaning of "fence" is "a
barrier", Webster's Third New International
Dictionary 837 (1969), or "a hedge, structure or
partition, erected for the purpose of inclosing a
piece of land, or to divide a piece of land . . . or
to separate two contiguous estates." Black's Law
Dictionary 745 (4th ed. 1968).
[Ibid.]
Furthermore, our understanding of the term "fence" is
consistent with other cases in which courts have found that rows
of trees can constitute fences pursuant to spite fence statutes.
For example, in Dowdell v. Bloomquist, the Supreme Court of
Rhode Island
Page 622
held that, under such a statute, the trial court had properly
"considered the proximity of the four trees that touched one
another, and the broad span of sixty feet across which they
spread, and rationally interpreted that the trees were a fence."
847 A.2d 827, 830 (2004). The court explained that, "because of
their towering presence, as well as their relative positioning on
defendant's land . . . we can consider the trees nothing less
than a fence." Id. at 831. A California appeals court also held
that "a row of trees planted on or near the boundary line between
adjoining parcels of land can be a fence or other structure in
the nature of a fence." Wilson v. Handley, 97 Cal.App.4th
1301, 119 Cal.Rptr.2d 263, 269 (2002) (internal quotation marks
omitted). Although those decisions arose in the context of spite
fence statutes, their reasoning nonetheless assists our analysis.
B.
Turning to the facts in this appeal, we hold that the Kassins'
berm satisfies the definition of a "fence." It is a partition
that separates the Kassins' property from the street. Although
the Kassins argue that the berm cannot be a fence because it is
not made of wood, iron, or any typical fencing material, the
above definitions and case law demonstrate that a partition need
not be so composed.
More important, the Kassins' structure "prevent[s] intrusion
from without." Black's Law Dictionary, supra, at 429. The
Kassins' deposition testimony reveals that, in addition to
winterizing their property, they wanted to ensure their privacy
and generally deter trespassing. They essentially constructed a
privacy fence made of sand and trees that shields the Kassins
from the invasive gaze of their neighbors and other passers-by.
Indeed, "[s]uch `fencing' occurs on a regular basis." Lakes,
supra, 810 P.2d at 30. This function contrasts sharply with
the environmental protection uses and natural scenic value
normally associated with sand dunes. See, e.g., N.J.A.C.
7:7E-3.16(c) ("The creation of dunes for the purpose of shore
protection is strongly encouraged.");
Page 623
Spiegle v. Borough of Beach Haven, 116 N.J.Super. 148, 151,
281 A.2d 377 (App.Div. 1971) (stating local "dune ordinance . . .
intended to prevent increased westward encroachment by the
sea"); Biehl v. N.J. Dep't of Envtl. Prot., OAL Docket No. ESA
8499-98, 2000 WL 266399 (Feb. 28, 2000) (stating "dunes are an
irreplaceable physical feature of the natural environment
possessing outstanding geological, recreational, scenic and
protective value"). Despite the Kassins' assertion in their DEP
permit application that the berm would protect the beach from
winter storms, Bubis's expert testified that, as constructed, the
berm cannot protect the beach from erosion because there is no
sand behind the berm.
In determining that a row of trees could be a fence, the courts
in Lakes, Dowdell, and Wilson considered the use and
placement of the barrier at issue, rather than the material used
to create it. Here, the mound of sand topped with a row of trees
and shrubs rises at least fourteen feet, nearly
two-and-a-half-times the allowed fence height. This establishes a
"towering presence" along Ocean Place akin to that created by the
trees in the above cases. Moreover, the Kassins' positioning of
the structure along the westerly boundary of their premises
reveals their desire to partition their property from the street
and from neighboring lots. That, of course, is not an illegal
purpose, but it does underscore the barrier's function as a
fence. Just as the Supreme Court of Rhode Island and the
California Court of Appeals found the size and position of trees
determinative of whether a structure was a fence, so too, we have
considered the span, height, and location of the sand and trees
and conclude that this structure is "nothing less than a fence."
Dowdell, supra, 847 A.2d at 831.
We recognize that the DEP issued a permit allowing the Kassins
to create and maintain a dune, but such a permit does not
determine whether in fact the Kassins actually constructed a
dune, a fence, or both. The CAFRA definition of dune is "a
formation of sand . . . that lies generally parallel to, and
landward of, the beach and the foot of the most inland dune
slope." N.J.A.C. 7:7E-3.16(a).
Page 624
Regardless of whether the structure is also a dune under that
definition, it is a fence. Therefore, contrary to the Kassins'
suggestion, the DEP's exercise of its authority over dune
creation is not determinative of the question before us. By
choosing to erect a fence that has elements of a dune, whether in
an attempt to avoid the local restrictions on fence height or for
some other reason, the Kassins have merely subjected themselves
to an additional set of state regulations. In reaching our
conclusion that the berm is a fence, we do not construe that word
either narrowly or broadly, but interpret it consistent with the
general understanding of the word. Accordingly, this fence, even
if it is a dune, is subject to the requirements of the
restrictive covenant and zoning ordinance.
IV.
A.
Having determined that this berm is a fence, we now must
consider whether the fence violates the 1887 restrictive
covenant. In construing such covenants, our primary objective "is
to determine the intent of the parties to the agreement." Lakes,
supra, 810 P.2d at 28 (construing "fence" pursuant to spite
fence statute). "Generally, in the context of restrictive
covenants, a rule of strict construction should be
applied. . . ." Homann v. Torchinsky, 296 N.J.Super. 326, 335,
686 A.2d 1226 (App.Div. 1997) (citations omitted). However, that
canon of construction has its limitations. Importantly, as one
court has said in finding that a row of trees could constitute a
fence notwithstanding the strict construction rule, "it is well
settled that a covenant should not be read in such a way that
defeats the plain and obvious meaning of the restriction." Lakes,
supra, 810 P.2d at 29 (emphasis added); Homann, supra,
296 N.J.Super. at 335, 686 A.2d 1226. That is why, "[a]bsent
explicit indication of a special meaning, words must be given
their ordinary meaning." Homann, supra,
296 N.J.Super. at 336, 686 A.2d 1226 (internal quotation marks and citations
omitted).
Page 625
B.
As noted, the record does not reveal evidence of the precise
intent of the drafters when they incorporated a height
restriction into the covenant in 1887. But common sense suggests
that the drafters most likely intended and expected that such a
limitation would enable nearby residents and passers-by to view
both the seascape and the landscape of the beach. Our conclusion
is reinforced by the later-created ordinance which, in describing
the beach zone, recognizes the value of the area's "unique
beauty" and "recreational assets." It would be unreasonable to
conclude that the drafters intended to prohibit six-foot fences
but would allow construction of a fourteen-foot high barrier
extending along the westerly boundary of the beach property.
Bubis, moreover, relied on the covenant when she and her late
husband purchased the property in 1978. For over a quarter of a
century she has enjoyed her property and the benefits of the
covenant. She now faces an obstruction that runs counter to both
her reasonable reliance and the likely intent of the drafters who
created the covenant.
We have carefully considered the ordinary meaning of the word
"fence," the probable intent of the drafters, the reliance by
Bubis, and the case law. Regardless of what we call it, whether a
berm, fence, wall, barrier, or partition, we conclude that this
structure, which is at least fourteen feet high, violates the
covenant.[fn1]
V.
Quite apart form the violation of the covenant, there is a
separate question presented — whether the Kassins' fence violates
Page 626
Loch Arbour's Zoning Ordinance, and if so, whether CAFRA
nonetheless preempts it. We hold that the Kassins' fence violates
the ordinance and that CAFRA does not preempt the ordinance.
A.
In determining whether the fence violates the ordinance, we
must adhere to principles of statutory construction. "Where
statutory language is clear, courts should give it effect unless
it is evident that the Legislature did not intend such meaning."
Rumson Estates, Inc. v. Mayor of Fair Haven, 177 N.J. 338,
354, 828 A.2d 317 (2003). Moreover, statutory provisions
"should be given their literal significance□ unless it is clear
from the text and purpose of the statute that such meaning was
not intended." Turner v. First Union Nat'l Bank, 162 N.J. 75,
84, 740 A.2d 1081 (1999).
There is nothing ambiguous about the word "fence" as it is used
in the ordinance, and nothing in the record indicates that the
drafters intended a special meaning of the term. Indeed,
section 300 of the ordinance provides for the opposite, that is, "[a]ny
word or term not defined [in the ordinance] shall be used with a
meaning of standard usage for the context in which the word is
used." Thus, according to the ordinance, and as explained at
length in Part III above, this berm satisfies the dictionary and
decisional definition of a "fence."
In arguing that the berm is not a fence under the ordinance,
the Kassins rely, in part, on the deposition testimony of George
Gustafson, a part-time Loch Arbour zoning ordinance enforcement
officer. Notably, it does not appear that the Kassins qualified
Gustafson as a zoning or planning expert, in contrast to Bubis's
expert who had an extensive background in municipal planning and
zoning ordinance drafting. And, because he died before trial,
only Gustafson's deposition testimony is available. In any event,
when asked, Gustafson defined a fence as "[a] series of posts
with something in between it." His definition is not only
imprecise and unduly narrow, but it is incorrect in light of
Page 627
decisional law and common experience. See, e.g., Lakes, supra,
61 Wash.App. 177, 810 P.2d 27 (holding that row of trees
constituted fence); Dowdell, supra, 847 A.2d 827 (same);
Wilson, supra, 119 Cal.Rptr.2d 263 (same). Although a
municipality's informal interpretation of an ordinance is
entitled to deference, Fallone Props., L.L.C. v. Bethlehem Tp.
Planning Bd., 369 N.J.Super. 552, 561, 849 A.2d 1117
(App.Div. 2004), that deference is not limitless. As with other
legislative provisions, the meaning of an ordinance's language is
a question of law that we review de novo. In re Distribution of
Liquid Assets, 168 N.J. 1, 11, 773 A.2d 6 (2001); DePetro
v. Tp. of Wayne Planning Bd., 367 N.J.Super. 161, 174,
842 A.2d 266 (App.Div. 2004).
Because the Kassins' structure constitutes a fence, and the
zoning ordinance applies to this factual circumstance, the
Kassins must comply with its provisions. This fence is
approximately fourteen feet tall, and at points may rise to
eighteen feet. Inasmuch as it exceeds the height allowance by no
less than eight feet, it violates the Loch Arbour Zoning
ordinance.[fn2]
B.
We are convinced that this berm constitutes a fence as that
word is commonly understood and as other courts have defined it.
For the sake of completeness, we note that even had we found that
the berm was not a fence, it is, at least, a wall or hedge —
neither of which are permitted in the beach zone.
A wall is "[a]n erection of stone, brick, or other material,
raised to some height, and intended for purposes of privacy,
security or inclosure." Black's Law Dictionary, supra, at 1581.
Similar to the definition of "fence," the definition of "wall"
focuses primarily on
Page 628
the use or function of the structure as its quintessential
characteristic. As discussed above, the Kassins admitted at the
deposition that they desired privacy for their property.
Moreover, the wall of sand operates as a security measure by
deterring trespassers from entering the Kassins' beach property,
a concern that the Kassins also expressed at their deposition.
A hedge is "[a] row of closely planted shrubs or low-growing
trees forming a fence or boundary." American Heritage
Dictionary, supra, at 602. In Dowdell, supra, the court
determined that "a row of western arborvitae trees may constitute
a hedge," even though that type of tree "may not be the most
optimal species for the creation of a hedge owing to their
enormous stature and girth," 847 A.2d at 830. Here, record
photographs of the beach property illustrate that the various
trees and shrubbery situated atop of the sand form a hedge. The
Kassins lined the mound of sand with dune grass, tall trees, and
lower-growing shrubs in close proximity to one another.
Consistent with the dictionary definition of "hedge," these
plantings clearly delineate the western boundary of the beach
property and separate it from the adjacent public street.
In arguing that the berm is not a hedge, the Kassins again rely
on former part-time zoning code enforcement officer Gustafson's
deposition testimony. When asked to articulate his understanding
of "hedge," he replied, "I don't know. . . . A hedge is something
that grows that is trimmed." He explained that if the vegetation
is not trimmed, it is not a hedge. Contrary to that belief,
neither the dictionary nor case law requires that a hedge be
trimmed. As a matter of common knowledge and experience,
overgrown hedges are at least as common as the groomed variety.
In sum, unlike the commercial and residential zones of Loch
Arbour, the beach zone does not provide for walls or hedges as
permitted accessory uses. Indeed, section 419 of the ordinance
explicitly states that "[a]ll uses not expressly permitted in
this ordinance are prohibited." Accordingly, even if the Kassins'
berm
Page 629
was not a fence subject to the height restriction, the ordinance
would prohibit the structure in its entirety as a wall or hedge.
C.
Finally, we consider the Kassins' preemption argument. State
legislation preempts a municipal zoning ordinance when the
ordinance "expressly forbids something which is expressly
authorized by statute or permits something which a statute
expressly proscribes." Tumino v. Long Beach Tp.,
319 N.J.Super. 514, 520, 725 A.2d 1173 (App.Div. 1999) (citing
Summer v. Tp. of Teaneck, 53 N.J. 548, 554, 251 A.2d 761
(1969)). "Preemption analysis calls for the answer initially to
whether the field or subject matter in which the ordinance
operates, including its effects, is the same as that in which the
State has acted. If not, then preemption is clearly
inapplicable." Overlook Terrace Mgmt. Corp. v. Rent Control Bd.
of W. New York, 71 N.J. 451, 461, 366 A.2d 321 (1976).
CAFRA and the Loch Arbour Zoning Ordinance do not govern the
same field. We discern this from the face of the statute and the
ordinance. CAFRA governs dune creation and maintenance; the
ordinance makes no mention of dunes at all but discusses fence
height and location. Because the ordinance and CAFRA do not
attempt to regulate the same activities, they do not conflict.
Cf. Tumino, supra, 319 N.J.Super. at 516, 725 A.2d 1173
(holding statute preempted ordinance where both contained
detailed regulations as to structure, location, and size of
recreational docks).
Moreover, the purposes and subject matters of the statute and
ordinance are distinct. The legislative purpose of CAFRA is to
"preserve□ the most ecologically sensitive and fragile area from
inappropriate development and provide□ adequate environmental
safeguards for the construction of any developments in the
coastal area" in a manner that is "in the best long-term, social,
economic, aesthetic and recreational interests of all people of
the State." N.J.S.A. 13:19-2. The ordinance operates on a
smaller scale and simply sets forth a general objective for the
beach zone in Loch
Page 630
Arbour: "to preserve the existing natural beach area and dunes
which are present in the Village for their unique beauty and
recreational assets." Thus, neither the purpose nor the specific
provision of the ordinance at issue usurps the DEP's authority
over dunes.
We have held that, as a general matter, CAFRA "regulations do
not preempt local zoning authority." Lusardi v. Curtis Point
Prop. Owners Ass'n, 86 N.J. 217, 229, 430 A.2d 881 (1981).
Rather, CAFRA "embod[ies] carefully considered policies for the
use of coastal resources that local officials must take into
account in zoning shoreline property within their communities."
Ibid. By limiting fence height to six feet, Loch Arbour acted
within the traditional purview of a municipality's zoning power
and did not impede the DEP's ability to accomplish its goal of
protecting New Jersey's coastline from inappropriate development
on a statewide basis.
Finally, a determination that CAFRA preempts this type of
municipal zoning regulation would allow beach-front property
owners to avoid reasonable restrictions on fence height, to the
detriment of their neighbors, by building fences out of sand and
trees and calling them dunes. We do not believe that the
Legislature intended landowners to circumvent local zoning
ordinances that regulate fences by invoking CAFRA, especially
when, as in this appeal, the so-called dune does not protect the
beach from erosion as dunes generally should.
Because CAFRA and the Loch Arbour zoning ordinance concern
different fields and regulate different subject matter, we
conclude that "preemption is clearly inapplicable," Overlook,
supra, 71 N.J. at 461, 366 A.2d 321, and that the municipal
provision at issue in this matter applies to the Kassins' fence.
VI.
For the reasons discussed above, we hold that this berm is a
fence as that word is commonly understood. Because it exceeds six
feet in height, it violates both the 1887 restrictive covenant
and
Page 631
the local zoning ordinance. Accordingly, we reverse the Appellate
Division and remand to the Superior Court, Chancery Division, to
grant relief in compliance with this opinion.
[fn1] The dissent points out that the 1887 restrictive covenant
permitted the construction of a large hotel on the site and,
further, that sand dunes were present on the property at the
time. But that hotel was never constructed and we cannot know
where on the site it would have been placed. Moreover, the record
does not reflect the extent and nature of any dunes that might
have existed there in the nineteenth century. What we do know is
that, today, the Kassins maintain an illegal fence on their
property.
[fn2] We note that this fence violates the zoning ordinance in
another way. The ordinance provides that "[a]ll fences shall be
made from a chain link or similar fencing material." Contrary to
the Appellate Division's ruling, this provision does not prevent
the Kassins' berm from being considered a fence under the
ordinance. Instead, the fence also violates the ordinance because
of its composition.
Justice RIVERA-SOTO, dissenting.
This appeal requires that we determine whether a sand dune in
the form of a berm lawfully erected by a property owner on beach
property constitutes a "fence," either under a restrictive
covenant or under a municipal ordinance, both of which restrict,
in their respective terms, the height and composition of a
"fence." After hearing the witnesses and considering the evidence
before him, the Chancery Division judge ruled that the sand berm
erected in this case by defendants Jack and Joyce Kassin did not
constitute a "fence," and thus denied the application of
plaintiffs Sophie Bubis and Alcides Ferreira. The Appellate
Division similarly held that defendants' sand berm was not a
"fence" and also denied relief to plaintiffs. The majority now
holds that both the Chancery Division judge and the Appellate
Division were wrong as a matter of law. According to the
majority, defendants' sand dune is a "fence," ante,
184 N.J. 622, 878 A.2d at 821, and, although it is subject to the
provisions of the Coastal Area Facility Review Act (CAFRA)
governing sand dunes, see N.J.S.A. 19:9-3; N.J.A.C.
7:7E-3.16(a), defendants' sand dune nonetheless is subject to
fence restrictions in both a restrictive covenant and a municipal
ordinance. Ante, 184 N.J. 624-25, 626-27,
878 A.2d at 822-23, 823-24 (2005).
Because I would affirm the determination of both the Chancery
Division judge and the Appellate Division that defendants' sand
dune was not a "fence" and that "a vegetated berm, a man-made
sand dune topped with trees and shrubbery, along the western
portion of defendants' property did not violate a restrictive
covenant or a Village of Loch Arbour zoning ordinance limiting
fence heights," and because plaintiffs had no right to an
unobstructed view across defendants' property, I respectfully
dissent.
Page 632
I.
With respect to the application of the restrictive covenant
discussed by the majority — that "no fence shall ever be erected
on said lot nearer the line of said Edgemont Avenue higher than
four feet" — the Appellate Division, in an unpublished opinion,
held that
[t]he judge's conclusion that the vegetated berm is
not a fence is supported by the record. It is also a
commonsense interpretation of the term "fence," in
the geographic location and context of the property
involved.
As defendants point out, it is significant that the
property is a beachfront and at the time the
restrictive covenant was executed, the property
contained sand dunes. . . . Thus, under the factual
circumstances which existed at the time the
restrictive covenant was adopted, if the drafters had
meant to equate fences with sand dunes, we would have
expected them to so state. The fact they were not
explicit indicates that they did not consider sand
dunes to be fences at the time.
Finally, the judge's conservative interpretation of
the word "fence" is consistent with the general
principle that private restrictions on the use of
land are generally disfavored. Restrictive covenants
must always be strictly construed.
I would adopt the panel's cogent, reasonable and straightforward
analysis in its entirety, noting solely that the majority ignores
the fact that, to me, is dispositive in this analysis: the
existence of sand dunes at the time the restrictive covenant was
adopted.
II.
On the question whether defendants' sand dune violates the
municipal ordinance restricting the height and composition of a
"fence," I also concur with the Appellate Division's analysis
that "the vegetated berm is a man-made sand dune; it is not a
traditional `fence.' Language from the zoning ordinance supports
this interpretation." The panel rejected plaintiffs' strained
interpretation of the municipal ordinance thusly:
plaintiffs' interpretation of the pre-1996 ordinance
is unreasonable because it would have the illogical
effect of making a man-made sand dune an
impermissible use on a beach. It also conflicts with
the intent of the drafters, who expressed clearly
that the very purpose of the beach zone is "to
preserve the existing natural beach area and dunes
which are present in the Village for their unique
beauty and recreational assets." (emphasis added).
Therefore, plaintiffs' interpretation must be
avoided. State, Tp. of Pennsauken v. Schad,
160 N.J. 156, 170 [733 A.2d 1159] (1999) (municipal
ordinance should be interpreted to effectuate
legislative intent in light of language used and
objects sought to be achieved, and should not be
construed in
Page 633
manner that leads to absurd results). The vegetated
berm does not violate the Loch Arbour Land
Development Regulations Ordinance.
I am in complete accord with the panel's reasoning and adopt it
as my own.
I also agree with the Appellate Division when it held that
"[w]e need not address the preemption issue" for the following
reasons:
Here, CAFRA preemption was only an alternative basis
for the Chancery Division's judgment on the question
of whether the vegetated berm was prohibited under
the Village zoning ordinance. Moreover, the judge's
opinion on CAFRA preemption was theoretical because
he concluded that the Village zoning ordinance did
not regulate the height of sand dunes.
That reasoning is, to me, dispositive of the question.
III.
Finally, it is important to recognize precisely what is at
issue here. Implicitly, the majority subordinates a beach owner's
property rights to the following concept: plaintiffs' purported
right to "view□ the beach and ocean from [their] home." Ante,
184 N.J. 617, 878 A.2d at 818 (2005). I find that concept
unpersuasive, particularly in these circumstances where such
"right to view the beach and ocean" was ephemeral, at best.
"[I]n the absence of a restrictive covenant, a property owner
has no right to an unobstructed view across a neighbor's
property." Bubis v. Kassin, 323 N.J.Super. 601, 616,
733 A.2d 1232 (App.Div. 1999) (citing Harwood v. Tompkins,
24 N.J.L. 425, 427 (Sup.Ct. 1854)). The very restrictive covenant
on which plaintiffs and the majority rely to require the
demolition of defendants' sand dune — the deed recorded on
September 5, 1887 from Stout and Johnson to Fields — specifically
provides, in the clause immediately preceding the restrictive
covenant concerning the fence, that the owner of defendants'
lands may build a hotel on those premises, but that hotel must
accommodate a minimum of 200 guests. If plaintiffs' acquired
their property on notice of and subject to the fence restriction
— something the majority concedes, ante 184 N.J. 617,
878 A.2d at 818 (2005) — then plaintiffs perforce also acquired
their adjacent property on notice of and subject to the deed
restriction
Page 634
concerning the construction of a hotel accommodating not less
than 200 guests.[fn1] Clearly, plaintiffs could not have had
any reasonable expectation that the beach and ocean view they
enjoyed was a right to be enjoyed in perpetuity; that view was
subject to the same restrictive covenant plaintiffs here sued to
enforce and which, in my view, defeats, as a matter of simple
logic, plaintiffs' claim of an unobstructed view across
defendants' property.
IV.
For the foregoing reasons, I dissent.
Justice WALLACE joins in this opinion.
For reversal and remandment.
For affirmance.
[fn1] The majority rejects the import of this part of the
restrictive covenant by asserting that the "hotel was never
constructed and we cannot know where on the site it would have
been placed." Ante, 184 N.J. at 625 n. 1, 878 A.2d at 823
n. 1 (2005). The majority also asserts that "the record does not
reflect the extent and nature of any dunes that might have
existed there in the nineteenth century." Ibid. Although those
lapses in the record do not affect the majority's conclusion that
"[w]hat we do know is that, today, the Kassins maintain an
illegal fence on their property[,]" ibid., I reach the opposite
result: because I conclude that defendants' sand dune is not an
illegal "fence," those lapses in the record caution against
expanding the property rights of an adjoining landowner into
dominant rights of what is now subservient property. In the final
analysis, the source of those "rights" must lie squarely within
the restrictive covenant; here they simply do not and lack of
knowledge cannot bridge that chasm.