On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1684-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Payne and Waugh.
Plaintiffs, Brian and Stephanie McGrath, appeal from a judgment entered on October 8, 2008, following a bench trial that was held to determine the scope of a restrictive covenant or easement placed on the land of plaintiffs' neighbors, defendants Jeffrey and Cynthia Edwards. The judgment provided in relevant part:
1. Plaintiffs' demands for a declaratory judgment that Defendants' home is in an "unauthorized location" and for equitable relief limiting landscaping in relation to the location of Defendants' home and drive are DENIED with prejudice.
2. There are no limitations on the use of the property presently designated Lot 7 Block 27, Borough of Bernardsville, Somerset County, New Jersey (the "servient estate"), arising from the easement, "Schedule B" and/or deed language at issue in this action . . . other than the specific limitations set forth in paragraphs three through five herein as to the "defined field" in Lot 7 Block 27 . . . . It shall be the obligation of the owners of the "defined field" in Lot 7 Block 27 (i.e., the "servient estate"), and their heirs, successors and assigns, to comply with said obligations.
3. Plaintiffs' demand in the Amended Complaint for the removal of and/or the prohibition of planting of all trees, shrubs, bushes, and the like in the "defined field" is DENIED with prejudice, except that anything planted in the "defined field" cannot exceed a height above an imaginary plane above the "defined field" located at an elevation of approximately 595-600 feet above mean sea level (defined as the ground level of Plaintiffs' current home on Lot 17 Block 27 facing the "defined field"). Any trees growing above the imaginary plane shall be trimmed or removed, at the discretion of the owners of the "defined field."
4. There are no limitations on fencing in, or at the boundaries of, the "defined field" except that such fencing must be consistent with natural growth of vegetation or agricultural uses.
5. No structures with a roof for occupancy by livestock, humans or machinery may be built in the "defined field." This prohibition does not preclude the fencing permitted in paragraph 4, above, or animal feeding cribs or watering troughs without roofs. No roads, swimming pools or tennis courts may be built in the "defined field."
6. Defendants' request for an equitable exception to paragraph 3, above, with respect to trees planted by Defendants in the Northwest corner of the "defined field" is DENIED with prejudice.
7. All requests for attorneys fees and costs are DENIED.
8. Defendants' request for sanctions is DENIED.
Defendants cross appeal from the judge's denial of sanctions sought as the result of the filing by plaintiffs of an allegedly frivolous summary judgment motion.
The facts of this matter follow. In or around 1997, David Kane and his wife purchased fifty-five acres of property in Bernardsville, consisting primarily of farmland and woods, with the intention of developing it for themselves or others. The property included a Tudor-style house on a flag lot with a rear view of adjoining fields and, in the distance, the Watchung Mountains. Shortly after the purchase of the property by the Kanes, they subdivided it so as to create new lot 7 block 27, an eight and one-half acre piece of property containing the Tudor house, and contracted to sell it to John and Linda Canavan. In connection with that sale, the Kanes agreed to place an easement on the remaining property as set forth on "Schedule B" that was appended to the deeds memorializing the subdivision of the property and its sale to the Canavans.
The deed to the Canavans stated that it conveyed the property Together with the right of the Grantee herein to enforce the sight restrictions set forth on Schedule B a[pp]ended hereto, against the Grantor, the current owner of Lot 7, Block 27, the lot upon which the restrictions are imposed, and which shall also be binding upon said Owner/Grantor, their heirs and assigns.
"Schedule B" was a site plan depicting the Kanes' property together with that to be conveyed to the Canavans. Lines were drawn on the plan at the rear of the Canavans' house, extending to the southeast from the sides of the house in a cone that covered land designated as "field" and ending in a wooded area. Inside the cone (referred to in the litigation as the "defined field") was written: "We will not build anything in this field and will protect view by only building off Douglas Ave. on the other side of slope not visible from his and her house." The plan also had marked upon it one rectangle, beyond the trees where the defined field stopped, but within its area, if the field were extended beyond the woods, which was marked: "Possible building of house not visible approved by Mr. Canavan." A second rectangle, slightly above the defined field, if extended, bore the legend: "Possible building of house approved by Mr. Canavan would be in view." As a final matter, a parcel of land off Douglass Avenue, a road depicted at the bottom of the site plan, was labeled: "Possible sale to Tuffnell 2-3 AC has been approved by Mr. Canavan."
In 2001, the Canavans sold their property to the McGraths, who extensively renovated the house, increasing its size to over 9,000 square feet, and landscaped the property, both by eliminating and adding trees and bushes. Brian McGrath testified at the trial of the matter that he discussed the sight easement with the Canavans at closing, but that ...