On appeal from the Superior Court, Chancery Division, Ocean County.
Michels, Havey and Conley. The opinion of the court was delivered by Havey, J.A.D.
Defendants appeal from a judgment entered in the Chancery Division ordering them to remove a portion of a cantilevered deck extending over a lagoon adjacent to their home. Plaintiffs cross-appeal, contending that the trial court erred in not ordering defendants to remove the entire portion of the deck built extending over the lagoon. We conclude that the deck was an "obstruction" which was in clear violation of a neighborhood scheme and pertinent restrictions designed to prohibit navigational hazards in and over the lagoon. We therefore affirm on defendants' appeal and reverse and remand on plaintiffs' cross-appeal for the entry of an order requiring the removal of that portion of the deck extending over the lagoon.
The parties are homeowners in Section II of Mantoloking Shores, a Brick Township development situate on the Barnegat
Bay. Adjacent to the properties is a 90-foot wide lagoon which leads to the bay. Plaintiffs own lots 19 and 20 on the Brick Township tax map. The lots form a 90-degree angle where the lagoon makes an easterly turn. Defendants own lot 21, which is south of plaintiffs' property, and closer to the mouth of the lagoon which allows access into the bay. Defendants' lot has 70-feet frontage on the lagoon and is 90 feet deep from the street to rear property line.
The properties, being part of Section II of Mantoloking Shores, are subject to restrictions which in part regulate the use of the lagoons and structures in and on the lagoons. Pertinent to this appeal, is paragraph 6 of the restrictions, which provides in part:
Boats moored in lagoons must be moored only parallel and adjacent to the side lines of the lagoons. No piling or stakes or stays or mooring or other obstructions are permitted in the lagoons. However, bulkheads or docks of a design approved by the developers may be erected 85 feet toward the water from the street line of the lot. (Emphasis added).
The former president of the Mantoloking Shores Property Owners Association, John J. Flood, testified that the purpose of these restrictions concerning pilings, docks and "other obstructions," was to prevent the appearance of adverse "Coney Island" type structures along the waterfront, as well as to prevent navigational hazards in the lagoons.
Notwithstanding the 85-foot setback restriction, it is undisputed that the property owners in the development were allowed to construct a bulkhead or dock from 3.5 feet to 5 feet beyond the setback limitation. Thirteen of the 70 lots in Section II had bulkheads or docks which were built in violation of paragraph 6. For example, when defendants purchased their property in 1970, the builder had already constructed a common bulkhead along the waterfront property line which extended 5 feet beyond the rear of defendants' property.
In 1984, defendants constructed a permanent dock supported by pilings, 5 feet wide and 5 feet below the bulkhead. No objection was raised to the ...