Syrian Antiochian Orthodox Archdiocese of New York and All North America v. Palisades Associates

• Decision Date: 13 April 1970
• Citation: 264 A.2d 257,110 N.J.Super. 34
• Parties: SYRIAN ANTIOCHIAN ORTHODOX ARCHDIOCESE OF NEW YORK AND ALL NORTH AMERICA, a Corporation of the State of New York, Plaintiff, v. PALISADES ASSOCIATES, a Limited Partnership, Defendant.
• Court: New Jersey Superior Court

Page 34

110 N.J.Super. 34

264 A.2d 257

SYRIAN ANTIOCHIAN ORTHODOX ARCHDIOCESE OF NEW YORK AND ALL NORTH AMERICA, a Corporation of the State of New York, Plaintiff, v. PALISADES ASSOCIATES, a Limited Partnership, Defendant.

Superior Court of New Jersey Chancery Division.

April 13, 1970.

J. Mortimer Rubenstein, Paterson, for plaintiff (Allan M. Harris, on the brief, Rubenstein, Albert & Loukedis, Paterson, attorneys).

Samuel J. Davis, Saddle River, for defendant.

Milton Prigoff, Englewood, for intervenors (Lebson & Prigoff, Englewood, attorneys).

MOUNTAIN, J.S.C.

This is a declaratory judgment action in which other incidental relief is sought. On April 7, 1969 plaintiff acquired by deed from defendant Palisades Associates a tract of land in the Borough of Alpine, Bergen County. By the terms of the deed plaintiff-grantee covenanted as follows:

FIRST: That there shall not be erected or maintained on the premises hereinabove described and hereby conveyed any buildings whatsoever except a private dwelling and except a garage appurtenant thereto for use by not more than one family.

SECOND: That no portion of said premises shall be used for any trade or business purposes whatsoever, except as an office or offices of professional persons residing on the premises, nor shall any nuisance on, or any use of, said premises be permitted which shall be noxious or dangerous to health.

THIRD: That there shall not be erected any building, fence, wall, advertising sign or other structure or improvement on said premises, nor any exterior addition to, or change or alteration therein, be made, unless and until the plans and specifications therefor, and the grading plan of the plot to be built upon, showing the location of the proposed improvement upon the plot, shall have been submitted to and approved in writing by the Grantor, and a copy thereof, as finally approved, filed permanently with the Grantor. The Grantor shall have the right to refuse to approve any such plans or specifications or grading plan, or location or the proposed improvement, which are not suitable or desirable in its opinion.

FOURTH: That the said premises shall not be sold without first giving the grantor an option in writing for ten (10) days to purchase the same at the price and upon the same terms offered by the proposed purchaser; and that neither the said premises, nor any part thereof, shall be conveyed, leased or mortgaged without making specific reference in such instrument to the said covenants and restrictions, and conveying, leasing or mortgaging the premises subject thereto, but this requirement shall not apply to any sale pursuant to a judgment of foreclosure of any mortgage hereafter placed on said premises, nor to the delivery of a deed to a mortgagee in lieu of foreclosure of such a mortgage.

FIFTH: That these covenants and restrictions and each of them are hereby declared and agreed to be, and they shall be, taken and construed as covenants attached to and running with the land, and said covenants and restrictions shall remain in force until * * *.

In October 1969 pursuant to the third covenant set forth above, plaintiff submitted plans to defendant for the erection of a building on the property to be used as the residence and professional office of its archbishop. Defendant refused to give its approval, indicating as reason that some of the neighbors objected. Several landowners in the immediate neighborhood, claiming to be entitled to the benefit of the covenants, have been granted leave to intervene. In fact, the covenants were exacted by defendant from all grantees of property the whole of which was at one time owned by it. It was the common grantor. The existence of a neighborhood scheme is clear, and hence there is no doubt as to the standing of the intervenors to seek enforcement of the covenants.

It is initially argued that the building for the construction of which permission is sought will not be a 'private dwelling' and will therefore, both as to its erection and maintenance, be in violation of the first covenant.

Plaintiff proposes to erect a building to be used as the private residence of its archbishop in which he will also maintain professional offices. In addition to providing a dwelling for the archbishop himself, the residence will be occupied by a priest to serve as his personal attendant and by a cook and housekeeper. A personal secretary, who apparently will not live on the premises, will be present about 40 hours a week. There will be eight bedrooms. Those on the first floor, three in number, are designed for the accommodation of the domestic staff. Of those on the second floor, two will be used by the archbishop personally, one by the attending priest and the remaining two as guest rooms for visiting dignitaries. A small chapel is intended for purposes of private devotion and will not be available for public worship. There will be a dining room, dinette, library, kitchen, various utility areas and a three-car garage, as well as the archbishop's office and an adjoining room for his secretary. As already mentioned, the intervenors contend that the structure will not be 'a private dwelling * * * for use by not more than one family.' For the reasons set forth below, I do not agree.

A building is no less a private dwelling because it is the residence of one holding a position of prominence in an ecclesiastical hierarchy. It is the use to which the structure is put that is of significance. For there to be a violation of such a covenant, '(t)he house must be used for some other purpose than a residence.' Hunter Tract Imp. Co. v. Corp. of Catholic Bishop, 98 Wash. 112, 167 P. 100, L.R.A.1918A, 297 (Sup.Ct.1917). Here the only permitted use other than as a residence is 'as an office or offices of professional persons residing on the premises.' This is the only other use projected by plaintiff: the building, in addition to its intended purpose as a private residence, will contain the professional offices of the archbishop. It hardly needs reminding that '(t)he ministry is one of the * * * professions.' Missionaries of Our Lady of LaSalette v. Village of Whitefish Bay, 267 Wis. 609, 66 N.W.2d 627, 632 (Sup.Ct.1954).

The cases presenting this question have generally dealt either with a zoning ordinance or a restrictive covenant prescribing single-family use. A situation similar to that before the court involving a restrictive covenant arose in Hunter Tract Imp. Co., Supra. The deed provided that '(n)othing but a single detached residence * * * shall be built on any one lot described in this deed and when so built shall be used for residence purposes only.' A group of 12 or 15 members of the Catholic sisterhood of the Ursulines had taken up residence in a large dwelling house on the property which was subject to the covenant. One room had been altered to become a private chapel where services were held every morning. The court pointed out that restrictive covenants are to be strictly construed and added that '(t)he fact that religious services are held in the house every morning by a priest, or that a small altar has been erected, does not take away from these premises their character as the home or residence of the women who live there.' In Boston-Edison Protective Ass'n v. Paulist Fathers, Inc., 306 Mich. 253, 10 N.W.2d 847 (Sup.Ct.1943) the covenantor had agreed that she would 'not use or occupy said lots except for a single dwelling house and (for) dwelling house purposes only.' The residence contained six bedrooms and five smaller rooms, and was occupied by five priests of the defendant order and two servants. As is the case before this court, there were no religious services to which the public was invited, no lectures, nor was any missionary work undertaken. The court held that this utilization of the property did not offend the covenant.

In Village of Whitefish Bay, supra, the premises were zoned for one-family use only. The ordinance defined a family as 'one or more individuals living, sleeping, cooking or eating on premises as a single housekeeping unit.' Three priests and two lay brothers were in residence in a 20-room (10-bedroom) dwelling with a private chapel. The court held...