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Bubis v. Kassin

August 10, 2005

SOPHIE BUBIS AND ALCIDES FERREIRA, PLAINTIFFS-APPELLANTS,
v.
JACK A. KASSIN AND JOYCE KASSIN, HUSBAND AND WIFE, DEFENDANTS-RESPONDENTS, AND BOARD OF TRUSTEES OF THE VILLAGE OF LOCH ARBOUR, DEFENDANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This is the third appeal filed in this litigation. The procedural history and facts of the two prior appeals have been set forth in detail in two published opinions (Bubis I), (Bubis II), and an unreported Appellate Division decision (Bubis III). To resolve this ten-year-old dispute, we must determine whether a berm constitutes a fence for the purposes of applying a restrictive covenant and a local zoning ordinance.

In 1978, Sophie Bubis and her late husband purchased property directly across the street from the beach in Loch Arbour, New Jersey. Prior to 1995, Bubis could view the beach and ocean from her home. In 1995, Jack and Joyce Kassin purchased the beach property. Later that year, they erected an eight-foot high sand berm behind the existing six-foot chain link fence. The Kassins topped the berm with bushes and trees. At the time of the complaint, the height of the berm, trees, and shrubbery together measured approximately fourteen to eighteen feet. The berm effectively ensures the Kassins' privacy and prevents Bubis from viewing the beach and ocean from her home.

An 1887 restrictive covenant prohibits the construction of fences higher than four feet on the Kassins' property. Both Bubis and the Kassins bought their properties subject to that covenant. The Bubis and Kassin properties are located in the 'beach" or "B" zone of the village. The purpose of the beach zone is to preserve the existing natural beach area and dunes for their unique beauty and recreational assets. In 1996, Loch Arbour amended its ordinance to require that all fences be made from chain link or similar fencing materials. The maximum height for a fence is set at six feet. New Jersey's Department of Environmental Protection (DEP) regulates the creation and maintenance of dunes, pursuant to the Coastal Area Facility Review Act (CAFRA).

In Bubis II, the Appellate Division remanded to the Chancery Division for consideration of Bubis' argument that the Kassins' berm constituted a fence that violated the zoning ordinance. On remand, Bubis alleged that the berm violated both the restrictive covenant's limitation on fence height and the similar provision in zoning ordinance. The Chancery Division held that the berm was not a fence. Bubis appealed. In Bubis III, the Appellate Division affirmed.

We granted Bubis's petition for certification.

HELD: This berm is a fence as that word is commonly understood. Because it exceeds six feet in height, it violates both the 1887 restrictive covenant and the local zoning ordinance. Even had we found that the berm was not a fence, it is, at least, a wall or hedge -- neither of which are permitted in the beach zone.

1. Because neither the restrictive covenant nor the zoning ordinance defines "fence," we must rely on other sources in deciding whether this berm is a fence. There is no single construct for the word fence. Nonetheless, the varying definitions provide two guideposts. The definitions do not limit the type of material from which a fence can be made. Each definition indicates that the user's intent and the actual function of the structure are dispositive in ascertaining whether a structure is a fence. From the above definitions, and as a matter of common sense, we can conclude that as long as the structure marks a boundary or prevents intrusion or escape, then it is a fence, regardless of the material from which it is forged. (pp. 8-9)

2. The Kassins' berm satisfies the definition of a fence. The Kassins essentially constructed a privacy fence made of sand and trees. Just as the Supreme Court of Rhode Island and the California Court of Appeals found the size and position of trees determinative of whether a structure was a fence, so too, we have considered the span, height, and location of the sand and trees and conclude that this structure is nothing less than a fence. (pp. 11-13)

3. DEP issued a permit allowing the Kassins to create and maintain a dune, but such a permit does not determine whether in fact the Kassins actually constructed a dune, a fence, or both. Regardless of whether the structure is a dune under the CAFRA definition, it is a fence. By choosing to erect a fence that has elements of a dune, the Kassins have merely subjected themselves to an additional set of state regulations. This fence, even if it is a dune, is subject to the requirements of the restrictive covenant and zoning ordinance. (pp. 13-14)

4. The record does not reveal the precise intent of the drafters when they incorporated a height restriction into the covenant in 1887. Common sense suggests that the drafters intended that such a limitation would enable nearby residents and passers-by to view both the seascape and the landscape of the beach. Bubis relied on the covenant when she and her late husband purchased the property in 1978. For over a quarter of a century, she has enjoyed the benefits of the covenant. She now faces an obstruction that runs counter to both her reasonable reliance and the intent of the drafters who created the covenant. We conclude that this structure, which is at least fourteen feet high, violates the covenant. (pp. 15-16)

5. Because the Kassins' structure constitutes a fence and the zoning ordinance applies to this factual circumstance, the Kassins must comply with its provisions. Inasmuch as the fence exceeds the height allowance by no less than eight feet, it violates the Loch Arbour zoning ordinance. (p. 18)

6. Even had we found that the berm was not a fence, it is, at least, a wall or hedge -- neither of which are permitted in the beach zone. (pp. 18-20)

7. State legislation preempts a municipal zoning ordinance when the ordinance expressly forbids something which is expressly authorized by statute or permits something which a statute expressly proscribes. CAFRA and the Loch Arbour zoning ordinance do not govern the same field. CAFRA governs dune creation and maintenance; the ordinance makes no mention of dunes at all but discusses fence height and location. Because the ordinance and CAFRA do not attempt to regulate the same activities, they do not conflict. As a general matter, CAFRA regulations do not preempt local zoning authority. Loch Arbour acted within the traditional purview of a municipality's zoning power and did not impede the DEP's ability to accomplish its goal of protecting New Jersey's coastline from inappropriate development. (pp. 20-22)

8. A determination that CAFRA preempts this type of municipal zoning regulation would allow beach-front property owners to avoid reasonable restrictions on fence height. We do not believe that the Legislature intended landowners to circumvent local zoning ordinances that regulate fences by invoking CAFRA, especially when the so-called dune does not protect the beach from erosion. Because CAFRA and the Loch Arbour zoning ordinance concern different fields and regulate different subject matter, we conclude that preemption is clearly inapplicable and that the ordinance applies to the Kassins' fence. (pp. 22-23)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Superior Court, Chancery Division, to grant relief in compliance with this opinion.

JUSTICE RIVERA-SOTO, with whom JUSTICE WALLACE joins, dissenting, would affirm the Appellate Division's decision because defendants' sand dune was not a "fence" and a vegetated berm along the western portion of defendants' property did not violate a restrictive covenant or a Village of Loch Arbour zoning ordinance limiting fence heights, and because plaintiffs had no right to an unobstructed view across defendants' property.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA and ALBIN join in JUSTICE ZAZZALI's opinion. JUSTICE RIVERA-SOTO filed a separate dissenting opinion in which JUSTICE WALLACE joins.

The opinion of the court was delivered by: Justice Zazzali

Argued February 1, 2005

As this appeal illustrates, good fences do not always make good neighbors. Defendants' creation of an approximately eight-foot high sand berm, topped with six-foot tall trees, for the purpose of ensuring defendants' privacy, has bred extensive litigation and disharmony between these neighbors.

To finally resolve this ten-year-old dispute, we must determine whether the berm constitutes a fence for the purposes of applying a restrictive covenant and a local zoning ordinance. Because the berm is a fence that is more than six feet tall, we conclude that it violates both the restrictive covenant and the ordinance.

I.

A.

In 1978, plaintiff Sophie Bubis and her late husband purchased the property at 1 Ocean Place in the Village of Loch Arbour, New Jersey. That property is directly across the street from the beach. Prior to 1995, Bubis could view the beach and ocean from the first floor of her home through a chain-link fence on the beach property.

In 1995, Jack and Joyce Kassin purchased the beach property. The entire Kassin parcel comprises two-thirds of the beachfront property in Loch Arbour. The Kassins converted it from a privately owned beach that was open to the public for a fee to a private beach for the exclusive recreational use of their family and friends. Later that year, they erected an eight-foot high sand berm behind the existing six-foot chain link fence by pushing sand into a heap along the western boundary of their beach property. To further ensure their privacy, the Kassins topped the berm with bushes and trees. At the time of the complaint, the height of the berm, trees, and shrubbery together measured approximately fourteen to eighteen feet.

Initially, we provide a brief description of the physical layout of the property at issue. Running from east to west are the ocean, the beach, the berm, the chain link fence, the street, and the Bubis home. The berm effectively ensures the Kassins' privacy and prevents Bubis from viewing the beach and ocean from her home.

B.

This appeal implicates both a restrictive covenant and a local zoning ordinance. First, an 1887 restrictive covenant prohibits the construction of fences higher than four feet on the Kassins' property. Both Bubis and the Kassins bought their properties subject to that covenant. Second, a municipal zoning ordinance regulates land use in the Village of Loch Arbour. The Bubis and Kassin properties are located in the "beach" or "B" zone of the village. The ordinance states that the purpose of the beach zone "is to preserve the existing natural beach area and dunes which are present in the Village for their unique beauty and recreational assets." Unlike the sections of the ordinance governing residential and commercial zones, which allow fences and walls as accessory uses to the property, the section relevant to the beach zone did not list any accessory uses prior to 1996. In 1996, Loch Arbour amended its ordinance to include the following language: "All fences shall be made from a chain link or similar fencing material. The use of webbing or any other such material through or attached to a fence of the chain link type is prohibited." Moreover, such fences "shall have a maximum of height of 72" above the ground." The ordinance, in a section that pertains to all zones, reiterates that "[n]o fences or hedges on any interior lot line shall be higher than 6 feet."

Apart from the restrictive covenant and the zoning ordinance, New Jersey's Department of Environmental Protection (DEP) regulates the creation and maintenance of dunes, pursuant to the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -33; N.J.A.C. 7:7E-3A.3. The DEP defines a dune as "a wind or wave deposited or man-made formation of sand (mound or ridge), that lies generally parallel to, and landward of, the beach and the foot of the most inland dune slope." N.J.A.C. 7:7E-3.16(a).

C.

This is the third appeal filed in this litigation, which commenced in 1995. The complex procedural history and facts relating to the two prior appeals have been set forth in detail in published opinions at 323 N.J. Super. 601 (App. Div. 1999) (Bubis I), 353 N.J. Super. 415 (App. Div. 2002) (Bubis II), and in the most recent, unreported Appellate Division decision (Bubis III). Because most of that background is ...


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