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Old Taunton Colony Club v. Medford Township Zoning Board of Adjustment

Superior Court of New Jersey, Appellate Division

June 5, 2013

OLD TAUNTON COLONY CLUB, Plaintiff,
v.
MEDFORD TOWNSHIP ZONING BOARD OF ADJUSTMENT and ROBERT ELMER, JR., Defendants. OLD TAUNTON COLONY CLUB, Plaintiff-Respondent,
v.
ROBERT ELMER, JR., Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 8, 2013

On appeal from the Superior Court of New Jersey, Law and Chancery Divisions, Burlington County, Docket Nos. L-1167-11 and C-0101-08.

Patrick F. McAndrew argued the cause for appellant.

Jeffrey I. Baron argued the cause for respondent (Baron & Brennan, P.A., attorneys; Mr. Baron, of counsel; Jeffrey M. Brennan, on the brief).

Before Judges Alvarez, Waugh, and St. John.

PER CURIAM

Defendant Robert Elmer appeals the General Equity Part's August 23, 2012 order enjoining the construction of a garage located on his property in the Old Taunton Lake Community (Community), which is located in Medford Township. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In November 2001, Elmer purchased a vacant property in the Community. The deed he received was subject to "all conditions, restrictions and easements" contained in a 1926 deed. One of the restrictive covenants provided as follow: "All streets shall be at least fifty feet wide; no building shall be erected less than twenty-five feet from the street line, nor less than twenty feet from the lake, nor within four feet of land of another owner."

Elmer's property is adjacent to Taunton Lake. He initially constructed a single-family house, having obtained bulk variances from the Medford Township Zoning Board of Adjustment (Board). In 2008, Elmer sought a variance from the Board so he could build a two-level, one-car garage. A variance was required because the proposed garage was to be built close to South Wendover Road (South Wendover), [1] which is unimproved and used primarily by other residents as a path to the lake. The Board granted Elmer's application in May 2008 and allowed a four-foot setback from the South Wendover "property line" instead of the Township's required fifty-foot setback.

Plaintiff Old Taunton Colony Club (Club), the community's homeowners association, filed two lawsuits. The first was an action in lieu of prerogative writs, filed in the Law Division in July. That action challenged the Board's decision to grant Elmer the setback variance. The second action, which was filed in the General Equity Part in August, sought to enforce the 1926 restrictive covenant quoted above. The two actions were consolidated in January 2009.

In October 2009, the trial judge remanded the zoning matter to the Board for reconsideration because of a question about the accuracy of information contained in Elmer's application. The judge denied the Club's motion for summary judgment in the chancery action. The trial judge's denial was based on his analysis of Elmer's 2009 certification asserting that the neighborhood setback scheme had been abandoned. Elmer had averred that

[t]he [Club] has also allowed the restrictive covenants to be violated in many other instances where people in the neighborhood conduct home occupations and do business out of their houses and where garages have been constructed, and other outbuildings, in front of existing homes. Pictures of outbuildings in front of existing homes or within 25' of a street are in the Appendix[.]

In March 2010, following a hearing on the remand, the Board rescinded the earlier variance. Elmer submitted a revised application to the Board, which granted it in 2011. The Club filed a second ...


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