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Homann v. Torchinsky

January 13, 1997

ALFRED HOMANN, MARIE HOMANN, AUGUSTUS C. BUZBY, DERITH B. BUZBY, GLEN P. SAMPSON, SANDRA T. SAMPSON, DARCEL SANGIACOMOTANO, EUGENE D. TANO, CHARLES F. PRATT, GAIL H. PRATT, WILLIAM THOMAS SCHLUTH, JEAN SCHLUTH, STEPHEN M. WILUS AND PATRICIA A. WILUS, PLAINTIFFS-RESPONDENTS,
v.
WARREN TORCHINSKY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County.

Approved for Publication January 15, 1997.

Before Judges Michels, Kleiner and Coburn. The opinion of the court was delivered by Michels, P.j.a.d.

The opinion of the court was delivered by: Michels

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Defendant Dr. Warren Torchinsky appeals from a judgment of the Chancery Division which enforced the restrictive covenant in a deed concerning a neighborhood scheme plan covering his property in the Birchwood Lake residential development in Medford Township, New Jersey, and restrained him from conducting his oral surgery practice in his home except for medical emergencies.

Defendant purchased a home in the Birchwood Lakes development on August 15, 1994. Birchwood Lakes is a private residential community, consisting of approximately 198 homes. The subdivision plan for Birchwood Lakes was filed in September 1953 by Timber Lakes Corporation, a New Jersey corporation. By deed dated November 12, 1953, Timber Lakes Corporation transferred the property which was subsequently acquired by Dr. Torchinsky to Dr. Charles F. Kutteroff, Sr. and Louise Kutteroff, his wife. The 1953 deed to the property included certain "Covenants and Restrictions" imposed by Timber Lakes Corporation which ran with the land and bound the purchasers, their heirs, successors, and assigns. The Covenants and Restrictions, in pertinent part, provided:

Under and subject to the following covenants and restrictions which shall run with the land and shall bind the purchasers, their heirs, successors and assigns, until September 1, 1978, after which time said covenants and restrictions shall be automatically extended for successive periods of ten years until abrogated by a duly recorded agreement executed by the owners of a majority of the area affected by the said restrictions, which are binding as to all lots as shown on presently filed plans of Birchwood Lakes, Medford Township, Burlington County, New Jersey, excepting thereout the area shown on said plans as recreation areas and land which may now or hereafter belong to Birchwood Lakes Colony Club.

No. 1 - No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one (1) detached single or duplex family dwelling not to exceed two families and not to exceed one and one-half stories in height with a private attached garage for not more than three (3) cars.

No. 7 - No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other out building shall be used on any lot at any time as a residence, either temporarily or permanently, and no gasoline or oil stations or other business structure shall be used or erected on any lot.

No. 9 - No sign of any kind shall be displayed to the public view on any lot except one professional sign of not more than one square foot, one sign of not more than five square feet advertising the property for sale or rent, or signs used by a builder to advertise the property during the construction and sales period, or a decorative signboard with the name of the residence or its owner inscribed thereon.

Dr. Kutteroff, who was a physician, cut back on his private practice after he purchased the property. However, he continued to treated patients in his home, which had an office. In February 1973, Dr. Kutteroff and his wife sold the property to a husband and wife, Thomas R. Sandman and Madeleine A. Sandman. The Sandmans never used the property for any nonresidential purpose. In August 1994, the Sandmans sold the property to Dr. Torchinsky.

Dr. Torchinsky is a dentist with a specialty in oral and maxillofacial surgery. He maintains his principal office in Pennsauken, New Jersey. The Pennsauken office consists of three operating rooms, two of which are equipped like hospital operating rooms, with electrocardiographic monitoring equipment and a defibrillator, and permit the doctor to perform general anesthesia. Dr. Torchinsky also has large X-ray equipment, to do panoramic radiographs, and a developing room. The Pennsauken office also has a private office for Dr. Torchinsky, a business area for the manager, and a waiting room with ten chairs. These offices occupy approximately 1,000 square feet. The doctor employs two full-time and three part-time staff, including an office manager. He has a chair-side assistant who does suctioning, cleans instruments, seats patients, and performs other general work related to oral and maxillofacial surgery. His part-time employees do the same thing. Dr. Torchinsky practices oral surgery three full days and one half day at the Pennsauken office. Dr. Torchinsky also practices oral surgery for Health Insurance Plan (HIP) of New Jersey on a contractual basis, using the latter's facility in Cherry Hill, New Jersey.

After he purchased the Birchwood Lakes property, Dr. Torchinsky applied to the Medford Township Planning Board for a home occupation conditional use permit to operate a part-time oral surgery practice in his home; he also sought a waiver of the required minor site plan. The Medford Township Zoning Code § 403 (B)(5) restricts available "home occupations as conditional uses" to various uses including the "professional office of a . . . dentist . . . ."

On September 26, 1994, the Planning Board approved Dr. Torchinsky's conditional use permit and waived the site plan requirement. The Planning Board's resolution limited Dr. Torchinsky's accessory home occupation use to an ancillary office of no more than 20% of the entire residential structure with the understanding that the doctor's principal office for oral surgery would remain in Pennsauken, New Jersey. It also limited the maximum number of routine hours to approximately ten per week with specific daily limits as well. Under the terms of the resolution, Dr. Torchinsky could only see one patient at a time for a minimum of one-half hour. The resolution, however, permitted Dr. Torchinsky to see patients on an emergency basis. Finally, the resolution waived any site plan requirement because Dr. Torchinsky did not propose exterior alterations.

When Dr. Torchinsky opened his oral surgery office in his home, plaintiffs instituted this action in the Law Division by filing a complaint in lieu of prerogative writs against the Medford Township Planning Board and Dr. Torchinsky seeking to restrain the use of the doctor's home as an office for the practice of oral surgery. Before an answer was filed by Dr. Torchinsky, the trial court entered a consent order that dismissed the action against the Planning Board and transferred the matter to the Chancery Division. Thereafter, Dr. Torchinsky filed an answer and then moved for summary judgment on the issue of whether his home oral surgical practice was prohibited by the Covenants and Restrictions. The trial court denied the motion and the matter proceeded to trial.

At the Conclusion of the proofs, Judge Gottlieb in the Chancery Division held that plaintiffs had "proven clearly and convincingly that [Dr.] Torchinsky's non-residential use of his property is too intense to be incidental to the residential use of the property," and violated the "Neighborhood Scheme" established by the Covenants and Restrictions that ran with the property. In reaching this Conclusion the trial court found that the goal of the Covenants and Restrictions was clearly to establish a neighborhood scheme, that is, a single-family, lakeside residential community. The trial court determined that inconsistencies in the covenants between the residential use restriction and the additional specific prohibition on gas stations was the result of an "amateur hour" drafting, and that the express sanction for professional signs was only an effort to promote "snob appeal" for a community of professional families and that such sanctions indicated neither acceptance of nor opinion regarding professional home offices. Finally, the trial court found that the neighborhood scheme had not been abandoned despite some infractions over the years. However, in this regard the trial court strongly warned the Birchwood Lake community that totally subjective enforcement of the residential covenants based on caprice would not be tolerated. After stating that the development residents were on notice, the trial court continued that "if there is not appropriate action taken [against others who violated the retroactive covenants] . . . I will deem it to be purposeful . . . and will allow, after an appropriate period of time, Dr. Torchinsky to come back to me and reapply [to use the property for his dental surgery practice]." The trial court thereupon entered judgment permanently restraining Dr. Torchinsky from conducting regular office hours at his property or from seeing patients at his property except for actual medical emergencies. Dr. Torchinsky appealed.

Dr. Torchinsky seeks a reversal of the judgment, the vacation of the injunction, and the entry of a judgment permitting him to operate an oral surgical practice nine hours per week in his home at the rate of one patient per half hour as approved by the Planning Board. He contends generally that (1) the trial court inappropriately denied his motion for summary judgment since the relevant facts were uncontroverted and the restrictive covenants were impermissibly vague; (2) the trial court should have reassigned the case because reasons existed which would lead the parties and others to believe that a fair and unbiased hearing and judgment would be precluded; (3) the trial court's decision to enjoin him from operating his home dental practice during the routine hours approved by the Planning Board was not supported by ...


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