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Pugh v. Zoning Board of Adjustment of the City of Asbury Park

April 16, 2010

TRENT PUGH, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF ASBURY PARK, DEFENDANT, AND YVONNE CLAYTON, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4758-08.

Per curiam.

FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 9, 2010

Before Judges Carchman and Parrillo.

Plaintiff Trent Pugh appeals from a final judgment of the Law Division finding defendant Yvonne Clayton entitled to a valid pre-existing, non-conforming use of a driveway that encroached partly on plaintiff's property, thereby reversing a contrary determination of defendant Zoning Board of Adjustment of the City of Asbury Park (Board). Clayton cross-appeals that portion of the Law Division order holding that various preclusion doctrines did not bar the parties from litigating the matter despite a Chancery Division final judgment regarding the same driveway, and granting defendant a prescriptive easement. We affirm.

Plaintiff owns residential property at Block 80, Lot 9.01, on Cookman Avenue in Asbury Park (Lot 9.01), which he purchased in 2004. Defendant, Yvonne Clayton (defendant), owns adjoining property located at Block 80, Lot 8.01, on Cookman Avenue (Lot 8.01), purchased by her parents Robert and Lucille Clayton on February 28, 1955, and then later transferred to her on October 6, 1993. Both lots had been commonly owned by the Bariscillo family since 1907. Previous to plaintiff's purchase, Milford and Annette Stanley owned Lot 9.01 since March 1, 1954, and prior to the Stanleys, the property was owned by Elizabeth Wengler since February 27, 1948.

A common driveway running from Cookman Avenue exists between the two properties and has since 1907. According to surveys, the concrete driveway is 7.80 feet wide in the front and 7.60 feet in the rear. It encroaches upon plaintiff's property 3.1 feet at the front and 3.0 feet in the rear. City ordinances in effect since 1945 require a minimum residential driveway width of ten feet.

The concrete driveway leads to a garage at the rear of defendant's property, most likely constructed, barn-style, in 1907 as well. At least as of the time of the Clayton family purchase in 1955, the backyard garage was used to house an automobile and other storage. Defendant continues to use the driveway for vehicular ingress and egress and the garage for storage of her vehicle.

Shortly after purchasing Lot 9.01 in 2004, plaintiff erected a fence along his property line bordering the driveway, without consulting defendant. The fence prevented defendant from using her driveway as she and her family had done since their purchase of the property in 1955, prompting her to file a lawsuit against plaintiff in the Chancery Division seeking mandatory injunctive and declaratory relief.*fn1 Defendant claimed that ever since the Claytons owned the property in February of 1955 until the present, the subject driveway and garage were utilized continuously, openly, notoriously, adversely and exclusively, and sought title to the contested portion of the subject driveway or, alternately, a prescriptive easement or easement by necessity. Plaintiff opposed, arguing that defendant's possession was not hostile, exclusive or uninterrupted, and additionally, the driveway was not a legal driveway in accordance with the City's development regulation requirements.

At a subsequent trial on January 30, 2007, defendant proffered evidence of the age and use of the driveway. In particular, Milford Stanley, son of the Stanleys who owned Lot 9.01 at the time the Claytons purchased Lot 8.01, testified that both the garage and driveway were continuously used for purposes of motor vehicles by defendant, defendant's family, and Adelaide Bariscillo, the original owner of Lot 8.01.*fn2 There was also evidence demonstrating that the entire neighborhood had similar driveways, narrow and leading back to garages behind the homes. In this regard, the Chancery Division judge made a personal inspection of the two properties and the driveway.

In his findings of fact at the close of evidence, the judge concluded that the driveway fit the overall scheme of the neighborhood: "[s]o what I have to presume is that many, many, many years ago when these home[s] were built, that was the size of the driveways and that was pretty much consistent with the neighborhood as it's gone along." He noted that:

[I]t is clear to me from my view that the garage has been there for a long period of time. And it's clear to me from my view that there was the ingress and egress that Mrs. Clayton and everybody else has testified to. And that there is, that a car can get down there with three inches on either side.

The Chancery Division judge made further findings.

The Court finds that on February 28th of 1955, property located at [Lot 8.01 in] Asbury Park, New Jersey, was purchased by Robert and Lucille Clayton from Mrs. Bariscillo by deed and transfer. At the time, there was an existing concrete ...


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