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Bubis v. Kassin

A-5697-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

FENCES—Unless a relevant ordinance defines it as such, a vegetated berm is not a fence and the height restriction for fences does not apply to the berm.

A homeowner sued a neighbor that lived across the street for building a tall sand dune topped with shrubbery (a vegetated berm) and a surrounding fence on its property. The Department of Environmental Protection (DEP) authorized the neighbor’s construction of the vegetated berm. The properties were located in a beach zone and the homeowner contended that the neighbor’s vegetated berm blocked her view of the ocean. She filed an action against the neighbor claiming that: 1) the berm and surrounding fence interfered with her easement for a right of way to the beach; 2) the berm interfered with her right to an unobstructed view of the beach; 3) the fence violated a restrictive covenant prohibiting fences of more than four feet in height; and 4) the DEP should be enjoined from issuing a permit authorizing the berm.

The lower court dismissed the homeowner’s claims. It ruled that the homeowner’s right of way to the beach was extinguished because it was located below the mean highwater line. The homeowner appealed the lower court’s ruling regarding the easement. The Appellate Division ruled that there was substantial evidence to support the lower court’s finding that the easement was located below the mean highwater line. On the other hand, it held that the homeowner retained an implied easement for a right of way to the beach and remanded the case to determine the appropriate remedy.

The lower court concluded that the homeowner’s implied right of way to the beach should not be enforced because the neighbor could provide a substitute access to the beach. It then ordered the neighbor to construct a walkway to the beach along its property for the homeowner. The lower court also ruled that the restrictive covenant limiting fence heights had been abandoned and dismissed the homeowner’s claim that the fence violated the covenant. The homeowner appealed

The Appellate Division affirmed the lower court’s ruling. The Court held that the homeowner’s easement had not been extinguished and that it could be enforced in the future. The Court remanded the matter to the lower court to address whether the berm violated a local zoning ordinance regulating fence heights. On remand, the homeowner filed an amended complaint alleging that the neighbor’s berm was a “fence” and therefore violated a local zoning ordinance and restrictive covenant which limited fence heights to four feet. The lower court held that the berm was not a fence because the zoning ordinance defined a fence as “made from a chain link or similar fencing material.” It held that the berm was not subject to the zoning ordinance or restrictive covenant because it was not a fence. The homeowner appealed.

The Appellate Division affirmed the lower court’s determination. It noted that the word “fence” is commonly used to describe a structure made from materials such as wood or metal. The Court ruled that a vegetated berm is not included in the ordinary definition of the term “fence” and therefore it did not violate the restrictive covenant or zoning ordinance limiting fence heights because it was not a fence.


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