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Adler v. Craft

A-1-03T5 (N.J. Super. App. Div. 2004) (Unpublished)

RETAINING WALLS; ORDINANCES—A retaining wall can be covered within the scope of a municipal fence ordinance, but ordering that an oversize wall be reduced in height is not always a required remedy.

A property owner proposed to build a retaining wall that would have encroached on a municipality’s sewer easement encumbering part of its property. To maximize the amount of usable land, the owner wished to locate the retaining wall over the sewer easement. The owner approached the municipality’s council and proposed that, in return for being allowed to place his retaining wall over the easement, it would take over responsibility for maintaining it. The council declined the offer.

The owner then submitted site plans to the municipal planner for approval. A staff member notified him that the plans were approved, and that the owner could begin any site work that did not require building department approvals. Accordingly, the owner began to build the wall. While it was being built, a neighbor sued to stop the construction. The neighbor claimed that the wall violated a fence ordinance’s seven-foot height limitation. The lower court refused to issue a temporary restraining order. Therefore, by the time the matter was heard, the retaining wall had been completed and was twelve to sixteen feet high. Also, by then, the municipality had adopted a new ordinance specifically governing the construction of retaining walls.

The lower court held that retaining walls were subject to the municipality’s fence ordinance and that the owner’s wall would have to be reduced to a height of less than seven feet. It also held that the municipality acted properly when it refused to allow the owner to encroach upon the sewer easement. On appeal, the owner contended that at the time the retaining wall was built, it was not governed by the municipality’s fence ordinance, and that the municipality had acted arbitrarily and unreasonably when it refused to permit the retaining wall to be built over the sewer easement that ran through the property.

The Appellate Division disagreed, holding that retaining walls were within the scope of the fence ordinance, despite its “poorly articulated” wording. According to the Court, the overall purpose of the fence ordinance was to protect adjoining property owners from the impact of massive structures. The municipality had not excluded retaining walls from the seven foot limitation, but the ordinance covered other types of solid walls. Accordingly, it would have defeated the overall purpose of the ordinance if a solid concrete retaining wall could be built to any height but an open wooden fence could only be seven feet high.

Nonetheless, the Court held that the lower court erred in ordering the owner to cut the wall to seven feet. It would have cost the owner approximately $120,000 and take four months to comply with the lower court’s order. Also, by the time the lower court decided this matter, the municipality had adopted its retaining wall ordinance governing their design and construction. The Court thought the new, specific ordinance appeared to provide for retaining walls higher than seven feet if designed and built on a staggered basis. As a result, the Court concluded that the lower court’s remedy was too drastic. It did not express its view as to an appropriate remedy and did not foreclose the lower court from coming to the original result, if, after hearing the parties’ proofs and arguments, the lower court deemed that reducing the wall’s height was the only feasible remedy.

The Court also held that the municipality did not act arbitrarily and unreasonably when it denied the owner permission to build over the sewer easement. The easement had been granted to the municipality in 1977 by the owner’s predecessor. It gave the municipality the right to reconstruct and maintain a sewer line. The new owner’s proposal would have significantly changed its character. Therefore, in light of the municipality’s fundamental responsibility to the rest of its citizens, it was not unreasonable to permit encroachment on the easement.


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