OLD TAUNTON COLONY CLUB v. MEDFORD TOWNSHIP ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5134-11T2

OLD TAUNTON COLONY CLUB,

Plaintiff,

v.

MEDFORD TOWNSHIP ZONING

BOARD OF ADJUSTMENT and

ROBERT ELMER, JR.,

Defendants.

________________________________

OLD TAUNTON COLONY CLUB,

Plaintiff-Respondent,

v.

ROBERT ELMER, JR.,

Defendant-Appellant.

__________________________________

Argued January 8, 2013 Decided June 5, 2013

Before Judges Alvarez, Waugh, and St. John.

On appeal from the Superior Court of New Jersey, Law and Chancery Divisions, Burlington County, Docket Nos. L-1167-11 and C-0101-08.

Patrick F. McAndrew argued the cause for appellant.

Jeffrey I. Baron argued the cause for respondent (Baron & Brennan, P.A., attorneys; Mr. Baron, of counsel; Jeffrey M. Brennan, on the brief).

PER CURIAM

Defendant Robert Elmer appeals the General Equity Part's August 23, 2012 order enjoining the construction of a garage located on his property in the Old Taunton Lake Community (Community), which is located in Medford Township. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In November 2001, Elmer purchased a vacant property in the Community. The deed he received was subject to "all conditions, restrictions and easements" contained in a 1926 deed. One of the restrictive covenants provided as follow: "All streets shall be at least fifty feet wide; no building shall be erected less than twenty-five feet from the street line, nor less than twenty feet from the lake, nor within four feet of land of another owner."

Elmer's property is adjacent to Taunton Lake. He initially constructed a single-family house, having obtained bulk variances from the Medford Township Zoning Board of Adjustment (Board). In 2008, Elmer sought a variance from the Board so he could build a two-level, one-car garage. A variance was required because the proposed garage was to be built close to South Wendover Road (South Wendover),1 which is unimproved and used primarily by other residents as a path to the lake. The Board granted Elmer's application in May 2008 and allowed a four-foot setback from the South Wendover "property line" instead of the Township's required fifty-foot setback.

Plaintiff Old Taunton Colony Club (Club), the community's homeowners association, filed two lawsuits. The first was an action in lieu of prerogative writs, filed in the Law Division in July. That action challenged the Board's decision to grant Elmer the setback variance. The second action, which was filed in the General Equity Part in August, sought to enforce the 1926 restrictive covenant quoted above. The two actions were consolidated in January 2009.

In October 2009, the trial judge remanded the zoning matter to the Board for reconsideration because of a question about the accuracy of information contained in Elmer's application. The judge denied the Club's motion for summary judgment in the chancery action. The trial judge's denial was based on his analysis of Elmer's 2009 certification asserting that the neighborhood setback scheme had been abandoned. Elmer had averred that

[t]he [Club] has also allowed the restrictive covenants to be violated in many other instances where people in the neighborhood conduct home occupations and do business out of their houses and where garages have been constructed, and other outbuildings, in front of existing homes. Pictures of outbuildings in front of existing homes or within 25' of a street are in the Appendix[.]

In March 2010, following a hearing on the remand, the Board rescinded the earlier variance. Elmer submitted a revised application to the Board, which granted it in 2011. The Club filed a second action in the Law Division to challenge the new variance.

At the Board's remand hearing, Elmer's architect, Randy Holberg, testified that out of 160 lots in the Taunton Lake area, there were fourteen or fifteen lots that did not conform to the restrictive covenant's twenty-five foot setback requirement. When asked for details, however, Holberg did not know whether those non-conforming structures had been built before or after the imposition of the restrictive covenant or whether variances had been granted for their construction. In addition, he did not know how many were residences as opposed to garages.

In May 2012, the trial judge issued a tentative disposition in advance of trial on the second prerogative-writ action and in response to a renewed motion for summary judgment in the 2008 chancery case. The judge heard argument on May 9, at which time he upheld the second variance but ruled in favor of Old Taunton on the restrictive covenant, relying primarily on the reasons set forth in his tentative decision.

With respect to the restrictive covenant, the judge wrote:

Elmer seeks to erect his proposed structure four feet from South Wendover Road (also known as Wyetta Road), which is an unpaved trail that leads to the lake behind Elmer's house ("South Wendover Road/Wyetta Road"). However, Elmer's Property is subject to deed dated October 20, 1926, which sets forth ten restrictions, including the following: "no building shall be erected less than twenty-five [feet] from the street line" (1926 Deed, 2., Da4). Moreover, the deed states, "By acceptance of this deed, it shall become the deed of the grantee, and all conditions, restrictions and easements herein mentioned shall be binding upon the grantee and all persons claiming hereunder, which conditions, restrictions and covenants the grantee hereby agrees to keep and perform." (1926 Deed, 10., Da5).

Elmer contends that the restrictive covenant is not enforceable against him because the South Wendover Road/Wyetta Road, a paper street, was never improved and therefore does not constitute . . . a "street." Elmer further argues that South Wendover Road/Wyetta Road has never been constructed in front of the area of the Property and has never been constructed across the lake, as originally proposed and which would now require Pinelands approval, Medford approval, and NJ DEP approval because of wetlands issues, among other issues. The [Club] disagrees.

The 1926 deed does not provide a definition of a street. However, the Medford Township Land Development Ordinance, Section 203 defines a street as follows:

Any street, avenue, boulevard, road, parkway, viaduct, drive or other way (1) which is an existing State, County, or municipal road way or (2) which is shown on a plat therefore approved, pursuant to law, whether publicly or privately owned, or (3) which is approved by N.J.S.A. 40:55D-1 et seq., or (4) which is shown on a plat duly filed in the office of the County Recording Officer prior to the appointment of a Planning Board and the grant to such Board of the power to review plats; and includes the land between the street lines, whether improved or unimproved, and may compromise pavement shoulder, gutters, sidewalks, parking areas and other areas within the street line. For purposes of the paving design and setback requirements of this Ordinance for and related to streets, all "private roads" shall be considered "streets." Medford Township Land Development Ordinance, Section 203.

As applied here, the Court finds that South Wendover Road/Wyetta Road has not been vacated, and therefore, the restrictive covenant is enforceable against Elmer. Vacation of streets must be accomplished by ordinance. N.J.S.A. 40:67-1(b). Although Elmer argues that South Wendover Road/Wyetta Road was never improved, Elmer has not established that South Wendover Road/Wyetta Road has been vacated by an ordinance. As such, Elmer's argument that South Wendover Road/Wyetta Road will remain as an unimproved "paper street" forever is unconvincing. Therefore, since South Wendover Road/Wyetta Road has not been vacated, the restrictive covenant requiring Elmer to construct his proposed structure at least 25 feet from a street is enforceable.

. . . .

The New Jersey Supreme Court in American Dream considered the standards that the trial court must apply when considering an application to eliminate a deed restriction based on changed circumstances and the manner in which the proofs should be evaluated. [Am. Dream at Marlboro, L.L.C. v. Plan. Bd.], 209 N.J. 161, 169 (2012). The Court stated,

[]The essential test that applies to such a claim of changed circumstances requires the applicant to demonstrate that it has become "'impossible as a practical matter to accomplish the purpose for which'" a servitude or restrictive covenant was created. [Citizens Voices Ass'n v. Collings Lakes Civic Ass'n, 396 N.J. Super. 432, 446 (App. Div. 2007)] (quoting Restatement (Third) Property: Servitudes, 7:10(1) (2000)); see also Leasehold Estates, Inc. v. Fulbro Holding Co., 47 N.J. Super. 534, 564-65 (App. Div. 1957) (commenting that equity will allow a court to terminate covenant "which can no longer do the land intended to be benefited thereby any good.").

[Ibid.]

. . . .

As applied here, Elmer argues that the condition imposed in American Dream implicated a public interest because it was imposed by a planning board as a condition of approval which effectively made the public a third party beneficiary to the condition and deed restriction. In contrast, there is no similar planning board genesis or public interest in this case for the purely private 1926 restrictive covenant in issue. Moreover, Elmer contends that he is trying to preclude the enforcement of the 1926 deed restriction by a court of equity and its selective application to his specific lot by the [Club] since the street was never constructed, which is different than setting aside a deed restriction.

The Court finds that the restrictive covenant prohibiting the construction of a building within 25 feet of a street has not been abandoned and rejects the arguments raised by Elmer for the following reasons. First, American Dream has set forth a strict standard for a trial court to eliminate a deed restriction based on changed circumstances. Here, Elmer has not shown that it is impossible as a practical matter to accomplish the purpose for which the restrictive covenant was created, that is, to maintain the rural character of the Taunton Lake community. Second, Elmer has not shown that he will experience unnecessary harm by complying with the restrictive covenant. Furthermore, this Court disagrees with Elmer's assertion that there is no public interest. In this case, the restrictive covenant at issue was recorded at the same [time] as nine other restrictions, all of which have a purpose to establish a neighborhood scheme for a residential community of approximately 150 homes. For the reason explained above, Elmer has not established abandonment of a neighborhood scheme.

The judge entered an order dismissing the in-lieu action and enforcing the restrictive covenant on June 11. An amended final order was entered on August 23. This appeal followed.

II.

On appeal, Elmer argues that the trial judge erred (1) in deciding the chancery action without trial because there were disputed issues of fact and (2) in finding that the restrictive covenant was still viable. The Club has not filed a cross-appeal, so we do not consider the judge's decision with respect to the second variance.

We review a grant of summary judgment under the same standard as the trial judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41. "The inquiry is 'whether the evidence presents a sufficient disagreement to require submission to a [finder of fact] or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)) (internal quotation marks omitted). "[T]he legal conclusions undergirding the summary judgment motion itself" are reviewed "on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).

We employ an abuse of discretion standard to evaluate a trial judge's grant or denial of injunctive relief. Brown v. City of Paterson, 424 N.J. Super. 176, 182 (App. Div. 2012); see also Horizon Health Ctr. v. Felicissimo, 135 N.J. 126, 137 (1994).

Elmer makes two basic, and somewhat related, arguments with respect to the viability of the restrictive covenant. He first argues that changed circumstances have made it impossible to accomplish the purposes of the restriction because Wendover South is essentially a paper street with a narrow path and there is virtually no likelihood that it will become a paved roadway. Second, he argues that the Club's failure to enforce the restrictive covenants in the past precludes it from doing so with respect to his property. In making these arguments, however, he maintains that he is not seeking to have the restrictive covenants invalidated in entirety, but merely arguing that a court of equity should not issue an injunction under the specific circumstances of this case.

Courts "have the 'equitable power to modify or terminate'" restrictive covenants under certain circumstances, including changed circumstances. Am. Dream, supra, 209 N.J. at 169 (quoting Citizens Voices, supra, 396 N.J. Super. at 446). As the Supreme Court observed in American Dream,

[t]he doctrine of changed circumstances is narrowly applied and "the test is stringent: relief is granted only if the purpose of the servitude can no longer be accomplished." Citizens Voices, supra, 396 N.J. Super. at 446 (citing Restatement (Third) Property: Servitudes, supra, 7:10 comment a). That is, when a "servitude[ ] [is] terminated under this rule, it is ordinarily clear that the continuance of the servitude would serve no useful purpose and would create unnecessary harm to the owner of the servient estate." Restatement (Third) Property: Servitudes, supra, 7:10 comment a.

[Ibid. (alterations in original).]

Restrictive covenants should generally be strictly construed. Homann v. Torchinsky, 296 N.J. Super. 326, 335 (App. Div.), certif. denied, 149 N.J. 141 (1997). However, a court "must examine not only the language of the restriction, but the circumstances surrounding its creation." Murphy v. Trapani, 255 N.J. Super. 65, 72 (App. Div.), certif. denied, 130 N.J. 17 (1992). A covenant's "apparent purpose should not be defeated by a technical construction of the language used." Ibid. (finding that a deck which hung "over the water" violated a restrictive covenant prohibiting "obstructions" built "in or on the water").

A heavy burden of proof is placed upon the party seeking "to establish an abandonment or modification of a reciprocal restrictive deed covenant based on past violations." Steiger v. Lenoci, 323 N.J. Super. 529, 534 (App. Div. 1999). Minor violations are not dispositive signs of abandonment; instead the violations must be widespread enough to indicate a change in the neighborhood scheme. Homann, supra, 296 N.J. Super. at 336; Steiger, supra, 323 N.J. Super. at 534 ("[E]vidence of isolated or minor violations is insufficient to establish an abandonment or modification of a restrictive covenant.").

In Steiger, supra, 323 N.J. Super. at 535-36, we held that

[t]wo essential features of such covenants are that the restrictions must be "universal" -- "applying to all lots of like character brought within the scheme" -- and "reciprocal" -- "constituting a benefit to all lots . . . subject to the burden imposed." Homann v. Torchinsky, supra, 296 N.J. Super. at 334, 686 A.2d 1226 (quoting Olson v. Jantausch, 44 N.J. Super. 380, 386, 130 A.2d 650 (App. Div. 1957)). The universality of restrictive covenants, and the right of all covered property owners to enjoy their benefits, would be seriously undermined if violations within a small section of the overall development were found to constitute an abandonment or modification in that limited area. Moreover, the recognition of an abandonment or modification of a restrictive covenant in one area of a development would be likely to result in an erosion of its effectiveness in immediately adjoining areas. Therefore, in the absence of evidence that one area of a development subject to a restrictive deed covenant has some significant feature, such as physical separation by a waterway or location on a major thoroughfare, see Weinstein v. Swartz, 3 N.J. 80, 89-90, 68 A.2d 865 (1949), which distinguishes it from the rest of the development, the question whether a covenant has been abandoned or modified should be determined on the basis of development patterns in the entire neighborhood subject to the restriction.

Elmer contends that the judge's decision to grant summary judgment in 2012 was "inconsistent with [his] 2009 ruling that there were factual issues concerning abandonment." We find no such inconsistency. In the October 6, 2009 order denying the Club's first motion for summary judgment, the judge outlined a schedule for discovery in the chancery case. By the time of the hearing on the second motion for summary judgment, over two years later, the judge had every reason to expect that Elmer would present specific facts to support his legal position.

Although Holberg's testimony during the remand hearing supplemented the record on the second motion, it offered little detail to support Elmer's conclusory argument that the Club was not enforcing the covenant. Out of the approximately 160 properties in the Community, Holberg testified that he had identified approximately fifteen with covenant violations. However, he did not know when the structures he cited were built, what sort of planning authorizations applied to them, or what type of buildings were involved. The motion judge was understandably skeptical during oral argument. "So over 90 years if something happens 15 times not necessarily exactly alike, you think that there's law that says that's the equivalent of abandonment?" We are satisfied that the actual facts, as opposed to conclusory assertions of fact before the judge on the second motion for summary judgment, if taken as true, did not support a finding that the Club had abandoned the covenant as it relates to the issues in this case.

Elmer also points to the fact that South Wendover, which is fifty feet wide on paper, has not been paved since the restriction was created in 1926 and that there is nothing in the record to suggest that it will be in the future. Even if true, that fact would not be determinative.

In general, "the purpose of yard setbacks is to protect adjoining properties from intrusions of sound, light, glare, and other objectionable factors . . . ." Cox & Koenig, N.J. Land Use & Zoning Administration 160 (2013). We have held that violations of restrictive covenants governing areas such as the Community

must be such as "to indicate an abandonment or modification of the original general plan which makes an enforcement of the plan inequitable because of changed conditions. The violations must be so pervasive as to indicate either a change in the neighborhood or a clear intent on the part of the property owners generally to abandon or modify the original plan."

[Citizens Voices, supra, 396 N.J. Super. at 442 (quoting Murphy v. Trapani, supra, 255 N.J. Super. at 74).]

"The essential test that applies to such a claim of changed circumstances requires the applicant to demonstrate that it has become 'impossible as a practical matter to accomplish the purpose for which' a servitude or restrictive covenant was created." Am. Dream, supra, 209 N.J. at 169 (quoting Citizens Voices, supra, 396 N.J. Super. at 446).

In such a case, the court may draw upon its "reservoir of equitable power to modify or terminate a servitude." Citizens Voices, supra, 396 N.J. Super. at 446. However, the changed-conditions doctrine requires a stringent test in which "relief is granted only if the purpose of the servitude can no longer be accomplished." Am. Dream, supra, 209 N.J. at 169 (quoting Citizens Voices, supra, 396 N.J. Super. at 446) (internal quotation marks omitted).

The fact that South Wendover has not been improved and might never be paved is not determinative because it was a street, albeit unpaved, existing at the time the setback requirement was imposed and it is currently being used as a path for access to the lake. There is nothing in the record to support a finding that the setback requirement serves a meaningful purpose in the Community only if a road is paved. The unpaved road clearly preserves the rural setting while providing a pedestrian route within the Community.

We have reviewed Elmer's remaining arguments and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

Elmer's contention that the Club has unclean hands is not supported by any facts that, even if true, would support application of the doctrine. The "essence of [the unclean hands] doctrine . . . is that '[a] suitor in equity must come into court with clean hands and he must keep them clean after his entry and throughout the proceedings.'" Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, 169 N.J. 135, 158 (2001) (quoting A. Hollander & Son, Inc. v. Imperial Fur Blending Corp., 2 N.J. 235, 246 (1949)). The fact that other residents of the Community oppose the building of a garage that is inconsistent with the restrictive covenant and that they seek to do so by enforcing the restrictive covenant is not surprising. That is, in large part, the purpose of a restrictive covenant that seeks to place limits on the use of property in a residential setting. In terms of weighing equities, we note that Elmer was fully aware of the covenant when he purchased the property. We see nothing in the record to support his assertion that other property owners are wrongfully providing financial support for the Club's litigation.

We conclude that Elmer has not made a prima facie case for relief such that a trial was required, and that the judge did not abuse his broad discretion in awarding the injunctive relief sought by the Club. Consequently, we affirm essentially for the reasons set forth by Judge Ronald E. Bookbinder, as amplified in our opinion.

A

1 South Wendover is sometimes referred to as Wyetta Road. For the sake of consistency, we will refer to it only as South Wendover.