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Bubis v. Kassin

184 N.J. 612, 878 A.2d 815 (2005)

EASEMENTS; FENCES; BERMS—A berm can be a fence because the definition of a fence is not dependant on the materials used, but on its function; therefore, an easement restricting fences can be applied to a berm even if the berm serves some other primary purpose.

In 1978, a couple “purchased a property directly across the street from [a] beach.” Prior to 1995, the wife, now a widow “could view the beach and ocean from her home.” Then, the beach property was bought by a new owner. That new owner then “erected an eight-foot high sand berm behind the existing six-foot chain link fence. [It] topped the berm with bushes and trees.” At the time of suit, the landscaping was approximately fourteen to eighteen feet high. As a result, the berm provided the new owners with privacy, but prevented the woman “from viewing the beach and ocean from her home.” An 1887 restrictive covenant prohibited the “construction of fences higher than four feet” on the beachfront property. Both neighbors bought their property subject to that covenant. Further, both properties were located in a beach zone designed to “preserve the existing natural beach area and dunes for their unique beauty and recreational assets.” In 1964, the municipality “amended its ordinance to require that all fences be made from chain link or similar fencing materials,” and established a maximum height of six feet. After some back and forth between the various levels of court in New Jersey, the Chancery Division held that the berm was not a fence and the Appellate Division affirmed. As a consequence, the widow appealed to the New Jersey Supreme Court.

The Court noted that “neither the restrictive covenant nor the zoning ordinance define[d] ‘fence.’” Therefore, it looked to other sources, finding that there was “no single construct for the word fence.” Reviewing various definitions gave the Court some guidance. It determined that the definitions it reviewed “[did] not limit the type of material from which a fence can be made.” Each of the definitions indicated “that the user’s intent and the actual function of the structure are dispositive in ascertaining whether a structure is a fence.” From the definitions it reviewed, “and as a matter of common sense, [the Court concluded] that as long as the structure marks a boundary or prevents intrusion or escape, then it is a fence, regardless of the material from which it is forged.” Consequently, it found that the berm in question satisfied the definition of a fence. It believed that the owners of the beachfront property “essentially constructed a privacy fence made of sand and trees.” The New Jersey Supreme Court pointed to decisions that also found “the size and position of trees determinative of whether a structure was a fence.” Further, it did not matter to the Court that the New Jersey Department of Environmental Protection (DEP) had issued a permit to the beachfront property owners “to create and maintain a dune.” According to the Court, “[r]egardless of whether the structure [was] a dune under [DEP’s] definition, it [was] a fence.” The fact that it had elements of a dune only subjected the beachfront property owners to an additional set of state regulations.

The Court also considered the height restriction in the 1887 covenant. Although not finding the precise intent within the words, it used common sense to suggest “that the drafters intended that such a limitation would enable nearby residents and passers-by to view both the seascape and the landscape of the beach.” The widow relied on that covenant when she and her husband bought the property. She enjoyed the benefit of the covenant for over twenty-five years. Consequently, the Court concluded that the fourteen-foot high violated the covenant. For the same reason, the Court decided that the height of the berm exceeded the eight foot fence height limitation in the municipal zoning ordinance. As a aside, the Court held that even if it had"found that the berm was not a fence, it [was], at least, a wall or hedge – neither or which [were] permitted in the beach zone.” Lastly, it determined that the Coastal Area Facility Review Act (CAFRA) did not preempt this type of municipal zoning regulation in a way that “would allow beach-front property owners to avoid reasonable restrictions on fence height.” The Court did not “believe that the Legislature intended that landowners could circumvent local zoning ordinances that regulate fences by invoking CAFRA, especially when the so-called dune does not protect the beach from erosion.”


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