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Berger v. State

Decided: September 21, 1976.

BRUCE S. BERGER AND FREDERICKA NOLDE BERGER, HIS WIFE, ROBERT B. LEWIS AND MARGARET MCE. LEWIS, HIS WIFE, JOHN MCMULLEN AND JACQUELINE MCMULLEN, HIS WIFE, AND FREDERIC GUSMER AND PATRICIA GUSMER, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
THE STATE OF NEW JERSEY, MAURICE G. KOTT, ACTING COMMISSIONER OF THE DEPARTMENT OF INSTITUTIONS AND AGENCIES OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS, AND WILLIAM GRAESSLE AND FLORENCE A. GRAESSLE, HIS WIFE, AND THE BOROUGH OF MANTOLOKING, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS



For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman and Schreiber. For reversal -- Judge Conford. The opinion of the court was delivered by Mountain, J. Conford, P.J.A.D., Temporarily Assigned (dissenting).

Mountain

This case presents the question of whether a group home for multi-handicapped, pre-school children must cease its operation either because of restrictive covenants in deeds of record or because of zoning provisions limiting the area to single family dwellings.

By deed dated July 9, 1973 William and Florence A. Graessle conveyed their premises in the Borough of Mantoloking

as a gift to the New Jersey State Department of Institutions and Agencies. The deed specified that the premises, on which were located a well-maintained, 12 room ocean-front house and three-car garage, were to be known as the Graewill House and were to be devoted exclusively to the care of disadvantaged pre-school children under the age of nine. If the property were not so used, it would revert to the grantors. Moreover, the deed specified that the conveyance was subject to easements, covenants and restrictions of record as well as to the Borough's zoning provisions.

Pursuant to these conditions, the State formulated plans to utilize the property. The State intended that 8 to 12 multi-handicapped, pre-school children, most of whom would be wards of the State, would reside in the home with a married couple having 22 years of experience as foster parents. This arrangement would enable the children, who would otherwise be confined to hospitals, to grow and develop in a family environment. Supportive services would be provided by an educational specialist, two paraprofessionals, a cook-housekeeper and a maintenance man, none of whom would reside on the premises.

The children would neither attend local public schools nor participate in local community programs such as the Little League. Rather, most of their activities including school instruction, as well as play, training and physical therapy sessions, would take place at Graewill House. Their length of stay in the home, to be determined by individual progress, was anticipated to average between 12 and 18 months. Ultimately, it was hoped that the children, having learned adequately to cope with their individual handicaps, would be able either to return to their own homes or be placed in adoptive or foster homes.

In formulating these plans, the State also engaged in negotiations with the Mayor and Borough Attorney of Mantoloking and conducted a public meeting attended by concerned residents of the municipality. Ultimately, in the fall of 1973, the State agreed to execute a binding agreement

with the Borough, which was to provide, among other things, that no more than 12 children and the appropriate staff would reside at Graewill House at any one time, that the State would maintain the structure to conform with the appearance of the neighborhood, and that a community advisory committee would be established to participate in the implementation of the project. This agreement was to be effective for a period of fifteen years. The record is not clear as to whether such an agreement was actually executed and delivered.

Four couples owning property either adjacent or in close proximity to the Graessle premises instituted this action on October 30, 1973 to restrain the use of the facility proposed by the State. Named as defendants were the State of New Jersey, Maurice G. Kott, Acting Commissioner of the Department of Institutions and Agencies, William and Florence A. Graessle, and the Borough of Mantoloking. Plaintiffs predicated their challenge on two bases: first, that the intended use of the Graessle premises would constitute a clear violation of the negative reciprocal covenants contained in deeds of record establishing a neighborhood scheme of single family residences, and second, that the proposed use would contravene Mantoloking's zoning ordinance restricting the area to single family dwellings.

Plaintiffs' application for a preliminary injunction was denied on November 29, 1973. At approximately the same time, the State officially began using Graewill House to care for handicapped children in the manner set forth above, a use which presently continues. Cross motions for summary judgment were made by the parties, culminating in a decision rendered July 26, 1974 denying plaintiffs' motion and granting summary judgment to defendants. The trial court's decision was based upon findings that the restrictive covenants regulated only the type of structure, not the occupancy or use of the premises, and that in any event the house was being used as a dwelling. It was also held that the zoning ordinance was invalid and that the State enjoyed immunity

from its provisions. We certified plaintiffs' appeal prior to argument in the Appellate Division. 68 N.J. 175 (1975). For reasons hereinafter set forth we affirm.

Plaintiffs' first contention is that the use of the Graessle premises as a group home violates restrictive covenants in deeds of record establishing a neighborhood scheme of single family residences. Title to the premises of the plaintiffs and the Graessles, as well as title to much other adjoining land, derives from a common grantor, Bayhead-Mantoloking Land Co. (Bayhead). About the year 1925, Bayhead plotted a large tract of land into numerous lots and filed a map of the tract as plotted. In conveying the lots, Bayhead included restrictions in each deed limiting the permissible structures on the premises to dwelling houses with private garages and prohibiting manufacturing or any dangerous, noxious or offensive use.*fn1 Plaintiffs allege Graewill House fails to conform to these restrictions.

Analytically, these covenants impose three types of restriction. First, they prohibit the use of the property for certain non-residential purposes. Secondly, except for a private garage, no building may be erected that is not a dwelling house. Finally, the number of buildings (dwelling houses) that may be built on each lot is limited -- apparently to a single such structure, with or without private garage. It will be noted that the covenants do not restrict the usage of the buildings to one-family residences. This being so, our decisional law holds that multi-family occupancy will not violate the covenant.

Bruno v. Hanna, 63 N.J. Super. 282 (App. Div. 1960) is in point. There the covenants read as follows:

That no more than one residence or dwelling house shall be erected on any lot hereby conveyed. . . .

That the premises hereby conveyed shall be used for dwelling purposes only. . .

[63 N.J. Super. at 284]

These are essentially the same covenants we consider here. In Bruno, plaintiffs proposed to construct duplex dwellings for two or more families. In finding that such use would not violate the covenants, Judge (now Justice) Sullivan pointed out that

The covenants under consideration, insofar as use is concerned, provide nothing more than that the premises 'shall be used for dwelling purposes only.' There is no attempt to restrict the use to single family occupancy. The other covenant specifies 'That no more than one residence or dwelling house shall be erected on any lot.' The word 'one' obviously refers to the number of buildings, and the words 'residence or dwelling house' indicate the permissible type of structure.

[63 N.J. Super. at 285]

It will be observed that the court looked to the literal language of the covenants and refused to ...


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