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Tobin v. Paparone Construction Co.

Decided: November 20, 1975.


King, J.s.c.


This case was initially brought in the Chancery Division but an amended count converted the complaint in part to one in lieu of prerogative writs to review the action of the township zoning board of adjustment. The entire matter was then transferred to the Law Division.

Plaintiffs Leo Tobin and his wife (Tobin) seek equitable and legal relief from defendants, each of whom they allege are responsible for the construction and presence of a tennis court on their adjacent neighbor's property. The side fence of this 106' X 50' court comes to within one foot of plaintiffs' property line. The court is surrounded by a 10'-high chain link fence.

Defendants include Paparone Construction Corporation, a large-scale, experienced developer (Paparone), Lawrence Shefter and his wife, the adjacent tennis court owners (Shefter), the Zoning Board of Adjustment of the Township of Cherry Hill (zoning board), and the Mayor and Council of the Township of Cherry Hill. The mayor and council were subsequently dropped from the suit. Defendant Shefter also crossclaims against defendant Paparone for indemnity.

On October 12, 1973 Tobin agreed in writing to buy a lot and new home for $54,000 in this affluent Cherry Hill development from defendant Paparone, the builder and developer. The agreement of sale was not recorded. Settlement on the Tobin property (1918 Country Club Drive) was concluded on March 25, 1974 and Tobin took immediate occupancy. By deed dated December 6, 1973 defendant Paparone had previously conveyed to defendants Shefter the adjoining lot and house (1916 Country Club Drive). Defendants Shefter, with defendant Paparone's encouragement and assistance, had their house constructed in a special position on the lot to allow room for the construction of a tennis court. The testimony indicates that Paparone used

the tennis court feature as an inducement to Shefter in order to sell him the lot and house. However, Paparone never disclosed the plans for a tennis court to Tobin during his negotiations. The conveyances made by Paparone to Tobin and to Shefter were subject to several declarations of restrictions not recited in their deeds but properly recorded in prior deeds. Both residents deny knowledge of the restrictive covenants because they were not recited in the deed and no report of title was provided at settlement. Neither buyer was represented by counsel during the negotiations for purchase or at final settlement.

On March 22, 1974, three days before Tobin settled and took possession, defendant Shefter filed a petition with the zoning board of adjustment requesting a variance to permit construction of a tennis court to within one foot of the common boundary line, and also to obtain relief from fence height requirements (six feet maximum) to permit a ten-foot fence. Defendant Paparone was served with notice of the Shefter petition for variance on March 27, 1974, two days after closing on Tobin's property. The hearing was scheduled for April 9, 1974. The Tobins were never served with any notice as they were not record owners on March 22, 1974, the date the variance application was filed. Paparone did not notify Tobin of the notice of application for variance, nor did he oppose the application for variance. The unopposed application for variance was granted by the zoning board on the hearing date of April 9, 1974. Prior to the hearing date defendant Shefter, although denying that he had knowledge of the restrictive covenants running with his land, inquired of his neighbors, with the exception of Tobin, to be certain the tennis court would not meet with their objections. The restrictive covenants forbid fences above four feet in height and structures forward of the front building line. The tennis court is lightly forward of the front of defendant Shefter's house, as well as violative of the fence height restriction. Defendant Shefter never spoke with plaintiffs regarding the

construction of the court, apparently because Tobin moved in just shortly before the hearing date.

During July 1974 defendant Shefter installed the tennis court and fence. Plaintiffs filed this suit on August 29, 1974, after the court was completed. No publication of the award of variance was ever made. The court rules, R. 4:69-6(f)(3), require such publication before the statute of limitations will begin to toll for actions in lieu of prerogative writs to review a determination of a grant of variance.

Pursuant to the variance conditions the tennis court is not illuminated for night play. Between the tennis court fence and Country Club Drive defendant Shefter has planted some fairly tall trees which partially shield the court from the street. Along the common boundary between Shefter and Tobin a small hedge has been started, comprised of bushes planted about one foot apart and now standing between two and three feet in height. This present side planting screen is inadequate to shield Tobin's view. The boundary line between the properties is marked by railroad ties. There is also a drainage problem at the property line which is not within the pleadings in this case.

Plaintiff alleges that the tennis court interferes with his right to the quiet enjoyment of his property and asserts that the tennis court and fence constitute a nuisance. Plaintiff asserts that defendant Paparone's failure to enforce the restrictions and failure to notify plaintiff of the application for variance was a constructive breach of their contractual relations justifying an award of money damages. Plaintiff also requests that the variance be set aside as arbitrary, capricious and violative of the restrictions, and that the tennis court be ordered removed and the fence surrounding it be taken down. Initially plaintiff Tobin demanded rescission of the transaction and return of the purchase price but this theory was abandoned at trial.

We are faced here with a decision regarding whether any of the defendants have breached their duties to the plaintiff and, if so, what remedy ...

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