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Bubis v. Kassin

July 26, 2002

SOPHIE BUBIS AND ALICIDES FERREIRA, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS, AND JACINTO RODRIGUES, PLAINTIFF,
v.
JACK A. KASSIN AND JOYCE KASSIN, HUSBAND AND WIFE, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS, AND BOARD OF TRUSTEES OF THE VILLAGE OF LOCH ARBOUR, DEFENDANTS-RESPONDENTS, AND STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANT.
FRANKLIN R. REMONDELLI, TERESA J. KUCHON, WILLIAM KUCHON, ARLENE DEE ROSE, JEFFERY J. GILL, WILLIAM E. ROBERTSON, MYRTLE P. ROBERTSON, MARY GOSLINE, CHARLES P. HOFFMAN, JUDITH L. HOFFMAN, AND DIANNE S. WILLIAMS, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
JACK A. KASSIN AND JOYCE KASSIN, HUSBAND AND WIFE, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS, AND BOARD OF TRUSTEES OF THE VILLAGE OF LOCH ARBOUR, DEFENDANTS-RESPONDENTS, AND STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANT.



On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket Nos. C-296-95, C-84-00.

Before Judges Skillman, Wallace Jr. and Carchman.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 4, 2002

In Bubis v. Kassin, 323 N.J. Super. 601, 609-14 (App. Div. 1999), we concluded that the deeds to the predecessors in title of owners of inland lots in the Village of Loch Arbour had conveyed implied private easements over Edgemont and Euclid Avenues to afford access to the beach and ocean. Accordingly, we reversed the dismissal of plaintiffs' claims to private easements over those roads and remanded the case to the trial court to determine an appropriate remedy against defendants Jack and Joyce Kassin, who own the land that the Edgemont Avenue easement and half of the Euclid Avenue easement cross, and Loch Arbour, which owns the other half of the land that the Euclid Avenue easement crosses. In addition, we concluded that the trial court had failed to consider plaintiffs' claim that a six-foot-high chain link fence constructed along the western boundary of the Kassins' property on Ocean Place violates a restrictive covenant that prohibits any fence more than four feet high within fifty feet of Edgemont Avenue or Ocean Place. Id. at 615-16. Consequently, we also remanded this claim.

After our remand of Bubis, twelve other Loch Arbour property owners filed a second complaint, which also sought enforcement of the implied private easement over Edgemont and Euclid Avenues recognized in our prior opinion. Remondelli v. Kassin, C-84-00. This new complaint also asserted a claim of a right of access to the beach and ocean under the public trust doctrine. See Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 303-10 (1972). The trial court consolidated the Remondelli plaintiffs' claim for enforcement of the implied private easement over Edgemont and Euclid Avenues with Bubis and severed their public trust doctrine claim. *fn1

The Bubis plaintiffs asked the trial court to expand the scope of the issues on remand to include whether a sand berm the Kassins had erected on their property constituted a fence within the meaning of the restrictive covenant that prohibits any fence more than four feet in height within fifty feet of Edgemont Avenue or Ocean Place. However, the court denied this application on the ground that permitting assertion of this claim would "fall[] outside the Appellate Division's mandate."

Before trial, Loch Arbour served an offer of judgment upon both the Bubis and Remondelli plaintiffs under the offer of judgment rule, R. 4:58, offering to install a new pedestrian gate at the entrance to the beach at the end of Euclid Avenue in exchange for plaintiffs' dismissal of their claims. Plaintiffs did not accept this offer.

The primary contested factual issues at trial were whether Loch Arbour residents enjoyed unimpeded access to the beach and ocean along Edgemont Avenue before the Kassins acquired their property in 1995 and whether the Kassins' predecessors in title maintained a fence along the western boundary of the property on Ocean Place that was greater than the four foot height allowed under the restrictive covenant.

Plaintiffs' witnesses testified that the Kassins' predecessors had operated the property as a private beach club since sometime in the 1960s. The beach club blocked access to the beach along Edgemont Avenue by means of a gate, and Loch Arbour residents were required to belong to the club to gain access to the beach during daylight hours in the summer. However, according to plaintiffs' witnesses, the gate was left unlocked at other times, and thus Loch Arbour residents enjoyed unimpeded access to the beach and ocean along Edgemont Avenue during evening hours in the summer and at all times the rest of the year. On the other hand, the Kassins' witnesses testified that the gate blocking access to the beach and ocean along Edgemont Avenue was kept locked except when the beach club was open. These witnesses acknowledged that there were occasions when the gate may have been left unlocked, but they asserted that the Kassins' predecessors would promptly address any such lapse in security and that ordinarily the gate was kept locked outside the beach club's normal business hours.

The trial court resolved this factual dispute in favor of the Kassins, finding that "the Kassins' predecessors exerted exclusive control and dominion over the gate and sought to prevent Loch Arbour's residents, or anyone else, from gaining access to the beach through Edgemont Avenue . . . by locking the gates on Edgemont Avenue when the beach club was not in operation."

In support of their claim to direct access to the beach and ocean along Edgemont Avenue, plaintiffs also presented evidence that plaintiff Bubis would have to walk approximately an additional three hundred feet to gain access to the beach if the court declined to compel access along Edgemont Avenue and that some of the other plaintiffs would be required to walk lesser additional distances. In opposing plaintiffs' claim, defendant Jack Kassin testified that enforcement of plaintiffs' implied private easement along Edgemont Avenue would impose a severe burden upon him and his family by interfering with their peaceful enjoyment of the property and creating a security risk.

Based on this evidence, the trial court concluded that plaintiffs' easement along Edgemont Avenue should not be enforced. Initially, the court rejected plaintiffs' argument that our prior opinion required enforcement of the easement along Edgemont Avenue, regardless of what the evidence showed concerning past usage of this easement or the relative hardship upon the parties of granting such relief. The court then concluded that a balancing of equities required the denial of a mandatory injunction compelling the Kassins to provide access to the beach along Edgemont Avenue:

The reopening of Edgemont Avenue over [the Kassins'] property would have the material, substantial and devastating impact of dividing the property in half and drastically limiting the beneficial use of the property by the Kassins, their children, family and friends, and doubtlessly have a negative impact upon the value of the property and its marketability. . . .

A comparison of the inconvenience to plaintiffs Bubis and Ferreira of an additional short walk to access the beach if Edgemont Avenue remains closed with the Kassins' harm . . . if the gate at Edgemont were to be reopened clearly demonstrates that the relief which plaintiffs seek must be refused. . . . This court is quite satisfied that this is a situation where the granting of the maximum relief sought by plaintiffs would lead to an inequitable decree. . . . [D]espite the fact that they have an established implied easement in the location in question, as the Appellate Division has determined, they were also required to demonstrate their hardship, if equitable relief is not awarded, is not merely a matter of inconvenience but of sufficient magnitude as to call for the application of the strong arm of the court of equity. This they have failed to do. The court further concluded that ...


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