December 2, 2008
SOPHIE BUBIS, PLAINTIFF-APPELLANT.
JACK KASSIN AND JOYCE KASSIN, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-296-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 28, 2008
Before Judges Skillman, Graves and Grall.
This is an appeal from the final judgment entered by the Chancery Division on the remand from the Supreme Court in Bubis v. Kassin, 184 N.J. 612 (2005) (Bubis III).
The question presented in Bubis III was whether an approximately eight-foot high sand berm, topped with six-foot tall trees, which the defendants Jack and Joyce Kassin had erected along the western boundary of their property on Ocean Place in the Village of Loch Arbour, constituted a "fence" within the intent of an 1887 restrictive covenant prohibiting construction of fences higher than four feet within fifty feet of certain specified streets, and/or a municipal zoning ordinance prohibiting fences that are more than six feet in height. Id. at 616-17. The Court concluded that the sand berm topped with trees was a "fence" within the intent of both the restrictive covenant and the zoning ordinance. Id. at 620-29. In reaching this conclusion, the Court held that "a fence is defined primarily by its function, not by its composition[,]" and therefore, "[a]s long as [a] structure marks a boundary or prevents intrusion or escape, . . . it is a fence regardless of the material from which it is forged." Id. at 621. The Court concluded that the sand berm along the western boundary of defendants' property fit within this definition because "[i]t is a partition that separates [defendants'] property from the street" and it "'prevents intrusion from without'" their property. Id. at 622 (quoting Black's Law Dictionary 429 (6th ed. 1990)). The Court also concluded that the zoning ordinance, as applied to this fence, was not preempted by the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -44. Id. at 629-31.
Following the remand from the Supreme Court and further proceedings before the trial court, defendants removed the fourteen-foot high sand berm and tree fence along the western boundary of their property that had been the subject of the Bubis III opinion. Defendant also regraded some of the sand located on other parts of their property. There is no evidence that the regrading resulted in the creation of a new sand berm fence that could be found to violate the 1887 restrictive covenant or the Loch Arbour zoning ordinance.
Nevertheless, plaintiff Sophie Bubis argued, and the trial court on remand seemingly agreed, that the Court's opinion in Bubis III requires defendants to maintain their property in such a way that plaintiff and other residents of Ocean Place will have a totally unobstructed view of the entire beach and oceanfront. Proceeding on the assumption that Bubis III imposed such a requirement, the trial court conducted proceedings on the remand, including a site visit, the results of which it subsequently placed on the record, to confirm that plaintiff now has such a view. Thereafter, the trial court proposed, and defendants apparently acceded to, certain additional regrading of their property, particularly in the area immediately in front of plaintiff's residence. As a result, on July 3, 2007, the trial court entered a final judgment on the remand from the Supreme Court which denied plaintiff's motion for relief in aid of litigant's rights on the ground that defendants had removed the sand berm and tree fence along Ocean Place, but nevertheless provided:
b. Defendants shall lower and grade the Subject Beach so that the elevation does not exceed 14' NGVD, which shall include removal of the berm and/or dune immediately adjacent to the fence located along the southerly line of Euclid Avenue. If lower than 14 feet grade shall not be raised.
c. However, within that portion of the Subject Beach located directly across from the property owned by plaintiff Sophie Bubis at 1 Ocean Place, Loch Arbour, New Jersey (encompassing an area on the Subject Beach whose width equals the corresponding width of plaintiff's property measured from north to south, Defendants shall lower the elevation to the lesser of (i) an elevation of 13' if the peak or highest elevation identified on the survey prepared pursuant to Paragraph 2a above in that area is 14' or higher; or (ii) an elevation which is 1' lower than the peak elevation if same is less than 14' NGVD. (E.g. If the survey shows a current peak height of 16' NGVD in the area directly across from plaintiff's property; then the elevation shall be lowered by 3 feet to 13' NGVD so that no elevation exceeds 13' NGVD; if the survey shows a current peak height of 14', then the highest elevation shall be lowered by 1 foot to 13' NGVD so that no elevation exceeds 13' NGVD.) Said regrading shall be gently sloped so as not to create a 1 foot drop.
Elevation in front of Bubis property 13' then slope north of Bubis property gently from 13' to 14'.
Plaintiff appeals from this judgment. Defendants did not cross-appeal, and we were advised at oral argument that they had performed the additional regrading required by the judgment.
On appeal, plaintiff argues that the trial court erred in not requiring defendants to regrade their entire beach to "a maximum topographical level of 11 feet NGVD"*fn1 because such regrading is required to provide plaintiff and other persons residing on Ocean Place the same view of the beach and seashore that they had before defendants purchased their property in 1995. In support of this argument, plaintiff relies upon a part of the Bubis III opinion in which the Court stated:
As noted, the record does not reveal evidence of the precise intent of the drafters when they incorporated a height restriction into the covenant in 1887. But common sense suggests that the drafters most likely intended and expected that such a limitation would enable nearby residents and passers-by to view both the seascape and the landscape of the beach. Our conclusion is reinforced by the later-created ordinance which, in describing the beach zone, recognizes the value of the area's "unique beauty" and "recreational assets." [Id. at 625.]
However, the Court's comments regarding the probable intent of the drafters of the restrictive covenant was made in the context of determining the sole issue presented in Bubis III, which was whether the fourteen-foot high sand berm and tree structure along the western boundary of defendants' property constituted a "fence" with the intent of the 1887 restrictive covenant and zoning ordinance. Except for the sand berm structure along this western boundary, there was no issue before the Court in Bubis III regarding any obligation of the defendants with respect to the general topography of their oceanfront property. The Court's remand to the trial court was limited to enforcement of the requirement that the sand berm along defendants' western boundary be removed, which has now occurred. Therefore, we reject plaintiff's argument that the Court imposed an obligation on defendants to regrade the beach on other parts of their property so as to provide plaintiff with the same view of the ocean and beach that she had when defendants purchased the property.
For similar reasons, we reject plaintiff's argument, presented in a two-sentence excerpt of her brief, that a sand berm running in an east-west direction in the middle of defendants' property in the area of what was Edgemont Avenue violates the restrictive covenant and zoning ordinance prohibitions against fences above a certain height. As previously discussed, the Court's remand that resulted in the judgment from which this appeal has been taken involved solely the sand berm fence located along the western boundary of defendants' property. This issue was brought before the Court as a result of the part of our decision in Bubis v. Kassin, 353 N.J. Super. 415, 428 (App. Div. 2002), which concluded that plaintiff should be allowed to pursue her "claim that the sand berm in back of the chain link fence [along Ocean Place] . . . violates the . . . restrictive covenant" and therefore should be removed. Our opinion did not mention any other sand berms located in the interior of defendants' property. Moreover, the Supreme Court's opinion in Bubis III also only addressed the sand berm fence located on the western boundary of defendants' property. Therefore, plaintiff's claim regarding the interior sand berm located in the area of what was Edgemont Avenue was not within the scope of the remand from the Supreme Court.*fn2 See Flanigan v. McFeely, 20 N.J. 414, 420 (1956) (noting that "the trial court is under a peremptory duty to obey . . . the mandate of the appellate court precisely as it is written.")