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Bubis v. Kassin

A-6457-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

EASEMENTS; FENCES — After an appellate court determines that a tree-laden sand berm constitutes a fence under a local law and remands the matter to the lower court to order that the height of the tree-laden berm be reduced, the complaining neighbor cannot insist that the lower court now has jurisdiction over the entire property in question because the matter was only remanded with respect to the height of the berm.

Two homeowners placed a number of six-foot trees on top of their eight-foot high sand berm along their property’s western boundary. A neighbor sued them, arguing that the berm topped with the trees was a fence, which according to a restrictive covenant, was not allowed to exceed six feet in height. The matter eventually went to the Supreme Court which held that, according to the local zoning ordinance, the structure was a fence and that enforcement of the ordinance was not preempted by federal coastal protection statutes. Following the Supreme Court’s decision, the homeowners took down the berm and trees but regraded portions sand on other parts of their property. The neighbor then argued before the lower court, on remand, that the regrading resulted in a new sand berm that also exceeded the six-foot height limit. The lower court agreed, and ordered the homeowners to regrade those portions of their property. On further appeal, the neighbor argued that the lower court’s order should have required the regraded portions to be lower and that another berm on the property, which was located where a street used to be, was also prohibited. Her argument that the Supreme Court’s decision applied to the entire property was rejected since the only issue that it had heard in the earlier visit was whether the berm topped with the trees was a permitted structure. The Court affirmed the lower court’s height specifications in its decision ordering the new sand berms to be lowered.

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