Bubis v. Kassin

• Decision Date: 10 August 2005
• Citation: 184 N.J. 612,878 A.2d 815
• Parties: 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.
• Court: New Jersey Supreme Court

878 A.2d 815

184 N.J. 612

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.

Supreme Court of New Jersey.

Argued February 1, 2005.

Decided August 10, 2005.

Leonard S. Needle, Fair Haven, argued the cause for appellants.

David C. Apy, Newark, 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 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."

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 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. 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 barrier, usually made of posts, boards, wire, or...