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September 8, 2014


Argued March 18, 2014 Decided


Before Judges Alvarez, Ostrer and Carroll.


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3487-12.


Jeffrey S. Mandel argued the cause for appellant (Cutolo Mandel LLC, attorneys; Mr. Mandel, of counsel and on the briefs; Jeffrey S. Paige, on the brief).


Ronald S. Gasiorowski argued the cause for respondent Hidden Lake Area Homeowners Association (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, of counsel; Cathy S. Gasiorowski, on the brief).


Ronald H. Gordon argued the cause for respondent Township of North Brunswick and Zoning Officer of the Township of North Brunswick, Michael Proietti (DeCotiis, FitzPatrick & Cole, LLP, attorneys, join in the brief of appellant).


This prerogative writ action involves the disputed construction of a six-foot-high chain-link fence along 2000 feet of the property line separating a 500-unit condominium complex and single-family homes. Defendant Governor's Pointe Condominium Association, Inc. (GPCA or the Condominium) appeals from the trial court's order overturning the North Brunswick Township zoning officer's issuance of a permit, allowing GPCA to erect the fence. The trial judge found that construction of the fence was prohibited by the GPCA master deed, which in turn embodied restrictions included in the township planning board's 1986 resolution authorizing construction of the condominium complex. The court also held that the prerogative writ action by plaintiff Hidden Lake Area Homeowners Association (HLAHA), an unincorporated group of single-family homeowners, was not time-barred, because the zoning officer's approval of the permit was ultra vires. Having reviewed GPCA's arguments in light of the record and applicable principles of law, we affirm.


The complex is separated from neighboring single-family homes by a seventy-five-foot-wide buffer of trees on the Condominium property. GPCA sought construction of the fence to address instances of encroachment upon Condominium property by some homeowners. In 2009, an inspection determined that several homeowners had erected fences beyond their own property lines; felled Condominium trees to expand backyard space; installed a playset on Condominium property; and dumped piles of logs and debris in the wooded area. The dumping and disturbance of the buffer caused some pools of stagnant water to form, prompting the local health department to fine the Condominium.

The zoning officer issued the permit to construct the fence on January 5, 2010. The zoning officer maintained that the fence was not prohibited by the terms of the master deed or planning board resolution, which we review in detail below. Sometime thereafter, GPCA sent letters to some homeowners notifying them of its plans. Some homeowners objected to the construction of the fence. They communicated their concerns to the mayor and local officials in person and through written communications. They also sought an opportunity to address the issue with GPCA. Ultimately no favorable resolution was reached as a result of these informal efforts.

With roughly forty-five percent of the fence installed, HLAHA filed its first complaint in October 2010, seeking an order to rescind the permit, and enjoin the construction. Eventually, the trial court dismissed the complaint without prejudice on the grounds that the homeowners had not exhausted their administrative remedies by appealing the zoning officer's action to the North Brunswick Township Board of Adjustment.

HLAHA then proceeded to seek board of adjustment review. After a hearing, the board denied the appeal in April 2012. The board found the appeal was time-barred by N.J.S.A. 40:55D-72. Also, after examining the 1986 planning board hearing and resolution, the board of adjustment concluded that the master deed language did not bar construction of the fence. HLAHA then filed its second complaint in May 2012.1 After a non-testimonial hearing, Judge James P. Hurley granted HLAHA the relief sought.


On appeal, GPCA renews the arguments it presented to the trial court that the zoning officer correctly interpreted the deed and resolution, and, in any event, the homeowners' complaint was time-barred. We disagree.

Interpretation of the master deed's restriction is a question of law. Belmont Condo. Ass'n v. Geibel, 432 N.J. Super. 52, 86 (App. Div.), certif. denied, 216 N.J. 366 (2013); Cooper River Plaza E., LLC v. Briad Grp., 359 N.J. Super. 518, 528 (App. Div. 2003). We exercise de novo review of legal questions. State v. Gandhi, 201 N.J. 161, 176 (2010); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The master deed states:

No owner shall be permitted to erect or have erected any fence, partition, wall, divider or similar structure exterior to their Unit other than any such structure erected by the Sponsor. . . . Under no circumstances, may the Condominium Association permit the construction of fences, decks and patios within one-hundred and five (105') feet of any property line adjoining single-family homes, nor may it permit the installation of flood lights in the rear of properties adjoining single-family homes.


The zoning officer maintained, and the zoning board agreed, that the deed's restriction on fence construction pertained only to individual unit owners, and did not limit GPCA's power to construct common elements of the Condominium. That interpretation is at odds with the plain language of the master deed, the planning board resolution, and the history of the provisions.

We apply basic principles of contract interpretation. Cooper River Plaza, supra, 359 N.J. Super. at 527. See also Weinstein v. Swartz, 3 N.J. 80, 86 (1949) ("A restrictive covenant is a contract."); Homann v. Torchinsky, 296 N.J. Super. 326, 334 (App. Div.), certif. denied, 149 N.J. 141 (1997). The prime consideration in determining the meaning of a deed is the intent of the parties. Normanoch Ass'n, Inc. v. Baldasanno, 40 N.J. 113, 125 (1963).

It is apparent from the 1986 hearings before the planning board that the proposed construction of the condominium complex sparked concern among neighboring property owners. The planning board recognized that "[t]he applicant proposes a 125 foot minimum setback from the rear lot line of the single family lots; within that 125 foot setback, a 75-foot wide buffer of forest vegetation shall be preserved where indicated on the plans." The planning board noted that this buffer and setback exceeded the existing legal requirements of a seventy-five-foot setback and thirty-foot vegetative buffer. The planning board enforced the developer's proposal for a seventy-five-foot buffer, and provided in its resolution that "[t]he construction of fences, decks and patios shall be prohibited within 105' of the property line adjoining single family homes; said prohibition to be incorporated in the master deed." The resolution did not expressly limit the restriction to unit owners only.

The resolution also required the developer to plant additional trees, to supplement existing forest vegetation where the wooded area was less than seventy-five feet wide. In addition, the resolution provided "[t]hat the installation of flood lights to the rear of the properties adjoining single family homes shall be prohibited." The lighting restriction was not expressly limited to unit owners.

The discussion of the vegetative buffer at the 1986 planning board hearings leaves little doubt that the Condominium's construction of a fence along the property line was prohibited. The developer's representative was critical of fencing on aesthetic grounds. In connection with whether to fence detention basins, the developer's representative stated:

I would like to address the question that came up in a previous meeting regarding buffers and fences. The question was asked about fencing the detention ponds. We do not propose to fence around the detention ponds. We think it's detrimental to the esthetics to the site. There is a saying that says a fence keeps rescuers out, they don't keep children out. I think to some extent that may make sense in a case like this. We don't propose to put a fence.


The representative then addressed the buffer between the complex and the single-family homes.

Regarding the buffers along the south and west side of the Village One abutting the single family development, as stated previously, we propose a 75-foot vegetated buffer, a 125-foot setback.


Some considerations and discussions about the integrity of that vegetative buffer and various alternatives means by which to improve upon the existing vegetation. What we are proposing is to add clusters of evergreen, six to eight feet in height, and two staggered rows sizing eight foot for the existing vegetation and is significantly less than the 75 feet. I think this would entail taking one of the township professionals out on the site and identify particular areas where this situation occurs [amenable] to that. In addition to that, we would propose to install further screens to reduce the impact on single-family homes, would propose to install a hedge, variety of plantings.

The witness then discussed the deed restriction.

A question was raised as far as what the proposed townhouses which back to the Hidden Lake-Thatchwood Court area would be able to do with the backs of their units regarding fencing, decks, patios. What we are proposing is a deed restriction that would prevent the construction of fence deck or patio at the rear of proposed buildings within 105 feet of the property line. Those are the items I listed on the buffer and fences. . . .


[(Emphasis added).]


Although the witness referred to the deed restriction in the course of addressing what unit owners might do, subsequent comments made it clear that the deed restriction governed the Condominium and improvements in its common areas. The witness stated that the deed restriction would prohibit construction of a property line fence, if the township at some point in the future determined that such a fence was needed.

[Township Planner]: I am not sure if I heard the deed restrictions would be no construction of a fence, patio, deck or anything within a hundred and five feet of the property line?


[Developer's Representative]: Fence, deck or patio or whatever else that the homeowners might construct. I don't know but I didn't want to speculate that at some point if you desire we had to put a fence along the property line that would be restricted a deed restriction.


[(Emphasis added).]

GPCA's suggested interpretation of the master deed would also lead to unintended consequences. For example, if the master deed provision regarding fences applied only to unit owners, then so would the provision dealing with flood lights. But, one cannot reasonably conclude that the planning board or the developer intended to vest the Condominium with the power to erect intrusive flood lights facing the single-family homes. Also, if the Condominium retained the power to build a fence along the property line, then it would also have retained the power to build sprawling decks and patios for the common use of the complex's residents, without regard to the 105-foot restriction. It would undermine the apparent purpose of the buffer zone if the GPCA could breach it at will, even if it were off limits to individual unit owners. See Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 301 (1953) (stating that in interpreting a contract, a court must consider "the situation of the parties, the attendant circumstances, and the objects they were thereby striving to attain"). In sum, the master deed and the planning board's resolution prohibited GPCA's construction of a property line fence.

We also reject GPCA's argument that HLAHA's complaint was time-barred. An action in lieu of a prerogative writ must generally be filed no later than forty-five days after accrual of the right to the review, R. 4:69-6(a), although a court may enlarge the period "where it is manifest that the interest of justice so requires." R. 4:69-6(c). The Municipal Land Use Law imposes a twenty-day deadline for the filing of "[a]ppeals to the board of adjustment . . . by any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the zoning ordinance or official map." N.J.S.A. 40:55D-72(a).2 The deadline is intended "to insulate the recipient of a building permit or other favorable disposition from the threat of unrestrained future challenge." Sitkowski v. Zoning Bd. of Adjustment of Lavallette, 238 N.J. Super. 255, 260 (App. Div. 1990).

However, where the zoning officer's action is ultra vires, a collateral attack may be brought without regard to these time limitations. "'[W]here there is no semblance of compliance with [or] authorization in the ordinance, the deficiency is deemed jurisdictional and reliance will not bar even a collateral attack after the expiration of time limitation applicable to direct review.'" Id. at 261 (quoting Jantausch v. Borough of Verona, 41 N.J. Super. 89, 94 (Law Div. 1956), aff'd 24 N.J. 326 (1957)).

In other words, "if the permit is 'utterly void[,]' then it may be subject to 'collateral attack' at any time," although a direct attack through an action in lieu of prerogative writs "must be made within the limitations period [provided by R. 4:69-6(a)] whether the permit be merely 'irregular' or 'utterly void.'"


[Ibid. (quoting Schultze v. Wilson, 54 N.J. Super. 309, 321 (App. Div.), certif. denied, 29 N.J. 511 (1959)).]


See also Thornton v. Village of Ridgewood, 17 N.J. 499, 510 (1955) (stating that an "utterly void act of a municipal body is subject to collateral attack at any time") (internal quotation marks and citation omitted). HLAHA asserts both direct and collateral attacks. It seeks a declaration voiding the permit, a direct attack, and an order enjoining the Condominium from seeking a permit and from constructing a fence within 105 feet of the property line, a collateral attack.

This is not a case of a zoning officer who, in good faith, misinterprets a zoning ordinance or map. Rather, it is the case of a zoning officer who has attempted to construe a deed restriction; he has done so in error; and he has done so in response to a permit applicant imputed with knowledge of the restrictions embodied in its master deed. We view the zoning officer's approval of a permit that contravenes the deed restriction to be without legal authority. It therefore was void ab initio and has no legal effect. See Hilton Acres v. Klein, 35 N.J. 570, 581 (1961) (stating that a municipal land use action that directly violates law or lacks legal authority is "void ab initio and has no legal efficacy"); Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 48 (App. Div. 2004) (same). The decision vested no rights in the Condominium. See ibid. Consequently, HLAHA's challenge to the construction of the fence was not time-barred.





1 Although plaintiff also named the Township, its board of adjustment, and zoning officer, only GPCA appeals from the trial court's judgment.

2 Nothing in the zoning ordinance or official map has been presented that would have barred erection of the disputed fence. The zoning officer admitted that the permit application implicated the master deed, and his decision was "based on" his interpretation of the master deed. Thus, it is questionable whether the terms of section 72 which refer to decisions "based on the zoning ordinance or official map" even apply.