NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3968-14T1
A-0012-15T1
VICTOR H. BOYAJIAN and
LYNN BOYAJIAN,
Plaintiffs-Appellants/
Cross-Respondents,
v.
MICHAEL CAMMARATA and
GRETEL CAMMARATA,
Defendants-Respondents/
Cross-Appellants.
______________________________
VICTOR H. BOYAJIAN and
LYNN BOYAJIAN,
Plaintiffs-Appellants/
Cross-Respondents,
v.
MICHAEL CAMMARATA, and
GRETEL CAMMARATA,
Defendants-Respondents/
Cross-Appellants,
and
TOWNSHIP OF HARDING; PAUL
FOX, Township Engineer of
Harding Township; GAIL McKANE,
Administrator of Harding
Township; and KAREN ZABORSKY,
Zoning Officer of Harding
Township,
Defendants.
______________________________
Argued April 4, 2017 – Decided August 17, 2017
Before Judges Reisner, Koblitz and Sumners.
On appeal from the Superior Court of New
Jersey, Law Division, Special Civil Part,
Morris County, Docket No. DC-4957-14 and
Chancery Division, General Equity Part, Morris
County, Docket Nos. C-119-13 and
C-171-14.
Lance J. Kalik argued the cause for
appellants/cross-respondents (Riker Danzig
Scherer Hyland & Perretti LLP, attorneys; Mr.
Kalik, of counsel and on the briefs; Tracey
K. Wishert and Jeffrey A. Beer, Jr., on the
briefs).
Bruce H. Snyder argued the cause for
respondents/cross-appellants (Lasser Hochman,
LLC, attorneys; Mr. Snyder on the brief).
PER CURIAM
These two consolidated appeals arise from disputes between
neighbors over landscaping, fencing, and a common driveway. For
the reasons that follow, we affirm the trial court orders on both
plaintiffs' appeals and defendants' cross-appeals.
2 A-3968-14T1
I
The parties own adjoining lots in New Vernon, one located
behind the other. Plaintiffs Victor H. Boyajian and Lynn Boyajian
own the rear lot (Block 17, Lot 22), which is landlocked except
for the driveway, which provides them with access to a public road
pursuant to an easement. Defendants Michael Cammarata and Gretel
Cammarata, own the lot in front of the Boyajian's property (Block
17, Lot 20); the easement runs along the western edge of
defendants' lot.1 Defendants also use the driveway to reach the
public road.
The recorded easement, which was created in a 1948 deed and
restated in a 1981 deed, is limited by its terms to the right to
use the "road" or driveway. The easement reserved to the sellers
of Lot 20 and their "heirs and assigns" the following: "the right
and privilege to use the road now on the premises hereby conveyed
for the purpose of ingress and egress to and from the premises
retained by them [Lot 22]."
The easement has never been the subject of a metes and bounds
description. However, a 2011 agreement between the parties
1
It appears from the record that at some point along its length,
the driveway encroaches very slightly onto the property of a third
set of neighbors, the Dudleys. The encroachment may have existed
for decades. There is no evidence in this record that the Dudleys
have ever objected to the encroachment, and they were not parties
to any of this litigation.
3 A-3968-14T1
described it as follows: "there presently exists an easement in
favor of Boyajian over an existing driveway that varies in width
from approximately 17 feet at its widest point to approximately 8
feet at its narrowest point . . . ." [emphasis added]. The 2011
agreement was a settlement, resulting in plaintiffs withdrawing
their objection to defendants' variance application for the
construction of a larger house on their property. In addition to
identifying the driveway easement and its purpose, the 2011
agreement provided that the parties would share the cost of
maintaining the driveway. The agreement specifically contemplated
that damage might occur to the driveway during construction of
defendants' new house, and defendants agreed to pay to repair any
such damage.
The 2011 agreement also provided that defendants would plant
and maintain "landscaping" along the boundary line between the two
properties, according to the terms set forth in the approved plans
defendants had submitted to the Harding Township Zoning Board of
Adjustment (zoning board or board) with their variance
application. A copy of the relevant page of the plans was attached
to the agreement. 2 As the board's resolution recognized, the
2
The attached page contains a detailed drawing of the property,
including the driveway, as well as the location and description
of the proposed landscaping.
4 A-3968-14T1
plantings were a buffer, intended to shield defendants' large
house from view and maintain plaintiffs' bucolic woodland vista
toward defendants' rear property line. The board included the
plantings as a condition to the variance approval.
After defendants' house was built, they began constructing
a fence along the driveway, at a point about two feet from the
edge of the driveway on defendants' property. Thus, they left
about two feet of open space along one side of the driveway. There
is no fence along the other side of the driveway. Defendants
claimed they needed to build the fence because plaintiffs and
their guests drove up and down the driveway at high speeds and
defendants feared for their children's safety.
Plaintiffs contended that constructing the fence interfered
with their access easement. They also argued that it violated the
implicit terms of the 2011 agreement which, they claimed, precluded
construction of a fence, although by its terms the agreement was
silent on the subject. Plaintiffs also believed that defendants
planned to build a fence along the back lot line, which would have
denied plaintiffs the bucolic wooded view that the settlement was
intended to preserve.3
3
Defendants never built a fence along the back of their lot and
consistently denied having any plans to do so. They repeated that
commitment at the oral argument of this appeal.
5 A-3968-14T1
On September 8, 2013, plaintiffs filed an action in General
Equity seeking to enjoin construction of the fence, claiming that
defendants needed a zoning permit to build it and that the
construction violated the 2011 maintenance agreement. Their
complaint also asserted that defendants had damaged the driveway
during the house construction and failed to make repairs, and that
defendants failed to install and maintain the landscape buffer.
Defendants and plaintiffs resolved the preliminary injunction
application when defendants agreed to apply for a zoning permit;
Judge Stephen C. Hansbury entered a consent order reflecting that
agreement.
Judge Hansbury addressed plaintiffs' remaining claims in an
order dated May 23, 2014. 4 Construing the 2011 settlement
agreement, he found no legal or factual basis for plaintiffs'
claim that defendants agreed not to build a fence along the
driveway, on their own property. Rather, he held that plaintiffs
had a right to build the fence, so long as the zoning board
permitted them to do so.
4
Judge Hansbury concluded that, in light of the age of the case
and the impending July 2, 2014 trial date, plaintiffs' motion to
amend the complaint was untimely. In the proposed amended
complaint, plaintiffs sought, among other things, permission to
demolish and rebuild the existing driveway to specifications they
claimed were required by the current zoning code.
6 A-3968-14T1
Interpreting the "plantings" section of the 2011 agreement,
Judge Hansbury reasoned that defendants had agreed to comply with
the terms of their variance application as it pertained to the
types of trees and shrubs to be planted and maintained. He
therefore directed that plaintiffs submit their landscape-related
claims in the first instance to the zoning board for a
determination as to whether defendants had complied with that
condition of the variance. He also noted that, in responding to
the complaint, defendants had admitted that some of the plantings
had died and had agreed to replace them. The judge reasoned that
any dispute over exactly what needed to be planted or replaced
should be decided by the zoning board, because the settlement
agreement essentially incorporated the variance conditions about
landscaping.
Finally, Judge Hansbury concluded that the claim for needed
repairs to the driveway could be remedied through money damages,
that it involved at most less than $10,000, and that the claim
should be transferred to the Special Civil Part for trial.
As they had agreed, defendants applied for and obtained a
permit from the local zoning officer to build the fence.
Plaintiffs then filed an appeal with the zoning board in June
2014, challenging the decision of the zoning officer. They argued
that the board's prior resolution, granting defendants a variance
7 A-3968-14T1
to construct their house, required that defendants obtain the
board's approval to construct the fence. They also argued that a
municipal ordinance required that all driveways be at least twelve
feet wide with two-foot shoulders. Thus, they contended that
their easement should be considered to be sixteen feet wide along
its entire length and that the fence would encroach on their
easement.
The zoning board held four days of hearings on plaintiffs'
appeal, during which the parties presented engineering experts and
other testimony. In a February 19, 2015 resolution, the board
rejected plaintiffs' argument that the prior zoning approval
required defendants to obtain permission to build the fence. The
board also construed the municipal ordinance as applying only to
newly constructed driveways.
The board resolution specifically "reject[ed] the
interpretation of the Ordinance requested by [plaintiffs] as
including a 16-foot 'clearance area' requirement in connection
with all driveways that would have been violated by the zoning
permit issued by the Zoning Officer . . . ." In April 2015,
plaintiffs filed an action in lieu of prerogative writs in the Law
Division. On February 1, 2016, Judge Stuart Minkowitz agreed with
the board that the ordinance only applied to newly built driveways
8 A-3968-14T1
and did not apply to the long-existing driveway that was the
subject of the easement.5
Meanwhile, plaintiffs' claim for damage to the driveway
proceeded in the Special Civil Part, culminating in a bench trial
that lasted three days and featured expert testimony as to the
scope of the driveway easement and the need for repairs. On March
17, 2015, Judge Stephen J. Taylor issued a comprehensive written
opinion addressing, among other things, plaintiffs' claims about
the width of the driveway which was the subject of the easement.
Before Judge Taylor, plaintiffs did not claim that the easement
should be sixteen feet wide, with a twelve-foot roadbed. Instead,
they argued that the driveway was historically ten feet wide. They
claimed that defendants heavily damaged the driveway during
construction and removed some of the paving to make it narrower,
and that defendants should pay $25,000 to tear out and replace the
entire driveway.
Defendants argued that they should pay nothing because, they
asserted, the driveway was in heavily damaged condition before
they began constructing their house, their construction contractor
did little or no additional damage, and they did not narrow the
5
Judge Minkowitz's order is not part of this appeal.
9 A-3968-14T1
driveway. They also presented expert testimony concerning the
width of the driveway before and after the construction.
Judge Taylor did not find either side's witnesses entirely
credible. He determined, as a matter of fact, that the driveway
had always varied in width over its length, from about eight feet
across to about seventeen feet at the end where it intersected the
public road. He found that at one very small portion, there
appeared a "slight alteration in the width of the driveway" where
some of the paving had been removed. However, he found that the
narrowing was de minimus and did not warrant replacing the entire
driveway or the payment of any compensatory damages:
The clearly stated purpose of the access
easement was to allow for ingress and egress
to and from the rear property along the
existing road.
There was no testimony presented that the
slight narrowing of the driveway in an area
near Defendants' new home impacted the ability
of the Boyajians to gain access to their
property. The slight change in dimensions
does not impact the purpose [of the] easement
or the purpose of the [2011] contract in any
important or meaningful way. Certainly, the
slight change does not require replacement of
the entire driveway. Accordingly, the breach
of the Maintenance Agreement was a minor one
that did not affect the purpose of the
Agreement in a meaningful way. Therefore, the
Plaintiffs are not entitled to any
compensatory damages for the slight narrowing
of the driveway.
10 A-3968-14T1
Judge Taylor rejected the testimony of plaintiffs' expert
that the driveway had to be torn out and replaced, and concluded
that repaving would suffice. Based on testimony from plaintiff's
expert as to the relative costs of repaving versus replacement,
Judge Taylor calculated the repaving costs at $10,000 and ordered
defendants to pay that amount.
Meanwhile, plaintiffs filed yet another piece of litigation
on December 12, 2014 – a General Equity complaint (Docket No. C-
171-14), seeking to "quiet title" to the easement and contending
that the fence constituted a nuisance that was interfering with
quiet enjoyment of their property. Mirroring their claim before
the zoning board, plaintiffs asserted that they had an easement
for "access and safety" which required a twelve-foot roadbed with
two-foot shoulders on either side, allegedly to allow emergency
vehicles to reach their house if needed. Based on that premise,
they claimed that the fence was encroaching on their easement.
They also asked the court to let them install new asphalt on the
easement to a width of at least twelve feet, and to provide for
shoulders of at least two feet on each side of the pavement. On
June 26, 2015, Judge Hansbury granted defendants' motion for
summary judgment based on issue preclusion. However, he denied
defendants' application for sanctions, finding that plaintiffs'
complaint was not frivolous or filed for the purpose of harassment.
11 A-3968-14T1
II
Before us, plaintiffs appeal from Judge Hansbury's May 23,
2014 order granting defendants' motion for summary judgment; Judge
Taylor's March 17, 2015 order awarding plaintiffs only the cost
to repave the driveway; and Judge Hansbury's June 26, 2015 order
granting defendants' motion for summary judgment. Defendants
cross-appeal from the portion of Judge Taylor's March 17, 2015
order awarding plaintiffs $10,000 to repave the driveway; and the
provision of Judge Hansbury's June 26, 2015 order denying their
application for sanctions.
Our review of a trial court's summary judgment order is de
novo. See Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330
(2010). We will not disturb a trial judge's factual findings made
after a bench trial, so long as the findings are supported by
substantial credible evidence. Rova Farms Resort, Inc. v.
Investors Ins. Co., 65 N.J. 474, 483-84 (1974). However, our
review of a trial court's legal interpretations, including the
interpretation of an easement or a contract, is de novo. Town
of Kearny v. Brandt, 214 N.J. 76, 92 (2013); Yellen v. Kassin, 416
N.J. Super. 113, 119 (App. Div. 2010). We review a trial court's
decision to grant or deny sanctions for abuse of discretion.
Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 407 (App. Div.),
certif. denied, 200 N.J. 502 (2009).
12 A-3968-14T1
Having reviewed the record in light of the applicable
standards of review, we find that Judge Taylor's findings of fact
are supported by substantial credible evidence. Rova Farms, supra,
65 N.J. at 483-84. We find no basis to disturb Judge Taylor's
well-explained evaluation of witness credibility, and based on the
facts as the judge found them, his determinations as to damages
are unassailable. Accordingly, we affirm the order of March 17,
2015 for the reasons set forth in Judge Taylor's written opinion.
The parties' respective arguments as to that order are without
sufficient merit to warrant further discussion. R. 2:11-
3(e)(1)(E).
We likewise find no reason to disturb Judge Hansbury's May
2014 order. We agree with him that the 2011 agreement, by its
terms, does not preclude defendants from building a fence along
the driveway. We have seen pictures of the fence. It is located
at least a couple of feet away from the driveway and does not
block access to plaintiffs' property. While the construction of
a fence along the back of defendants' property might defeat the
purpose of the landscaping portion of the agreement, and perhaps
the variance conditions as well, defendants have not built such a
fence and eschew any intention to do so. Consequently, there is
no live issue as to a rear-yard fence.
13 A-3968-14T1
We likewise find no error in Judge Hansbury's decision that
the dispute over the landscaping should be submitted to the zoning
board, thus giving the board the first opportunity to construe the
conditions it imposed on the variance. That decision is consistent
with the well-established doctrines of exhaustion of
administrative remedies and primary jurisdiction, and is
especially appropriate here. See Curzi v. Raub, 415 N.J. Super.
1, 20-21 (App. Div. 2010); Bor. of Haledon v. Bor. of N. Haledon,
358 N.J. Super. 289, 301-02 (App. Div. 2003). The 2011 agreement
incorporates by reference the landscaping plan in the variance
application. In turn, the landscaping plan approved by the board
lists certain types of trees to be planted but gives defendants
discretion to make substitutions. Plaintiffs appear poised to
contest the species and condition of every single tree defendants
planted. The zoning board's expertise in landscaping concepts
will be particularly helpful in resolving those issues.
We add the following comment. In addition to their rights
under the variance conditions, plaintiffs have contractual rights
under the settlement agreement. See Tobin v. Paparone Constr.
Co., 137 N.J. Super. 518, 528-30 (Law Div. 1975). Therefore, if
the board declines to entertain plaintiffs' complaint about the
landscaping - or if the board orders defendants to replace dead
trees or install substitute types of plantings, and if defendants
14 A-3968-14T1
fail to comply - plaintiffs may return to court to seek relief
pursuant to the settlement agreement.6 We do not construe the May
23, 2014 order as precluding further litigation under those limited
circumstances.
We find no abuse of Judge Hansbury's discretion in
transferring the dispute over the driveway repairs to the Special
Civil Part, which provided the parties with a full and fair
opportunity to litigate all issues pertinent to the width and
condition of the driveway. Nor do we find any abuse of discretion
in his decision to deny sanctions for the filing of the second
General Equity complaint. Ferolito, supra, 408 N.J. Super. at
407.
Finally, we address Judge Hansbury's decision that
plaintiffs' December 2014 complaint was barred by doctrines of
claim preclusion. Judge Hansbury concluded that plaintiffs' claim
- that they had a right to a sixteen-foot easement, based on a
municipal ordinance governing driveways - had been litigated
before the zoning board, which rejected the claim. We agree.
Moreover, plaintiffs have now litigated the issue before Judge
6
In light of defendants' professed willingness to replace
plantings that have died, as set forth in their submissions before
Judge Hansbury, perhaps the parties will be able to resolve the
landscaping issues.
15 A-3968-14T1
Minkowitz, who confirmed that the municipal ordinance only applies
to newly-constructed driveways.
We also conclude that plaintiffs' claim is barred by the
entire controversy doctrine. See R. 4:30A; McNeil v. Legislative
Apportionment Comm'n, 177 N.J. 364, 394-95 (2003), cert. denied,
540 U.S. 1107, 124 S. Ct. 1068, 157 L. Ed. 2d 893 (2004). However
plaintiffs choose to characterize and re-characterize their claim,
its essence is that defendants have no right to build or maintain
the fence along the driveway. Plaintiffs already litigated their
claim against construction of the fence, in the action they filed
before Judge Hansbury in 2013. He granted summary judgment,
finding that defendants had the right to build the fence so long
as they obtained a zoning permit. After defendants obtained the
permit, plaintiffs litigated their campaign against the fence on
another theory before the zoning board and before Judge Minkowitz.
Their "quiet title" action, filed before Judge Hansbury in December
2014, asserted yet another legal theory (the "safety" easement)
in support of the same relief against the same parties.
Moreover, in the damages action before Judge Taylor,
plaintiffs exhaustively litigated their claim about the alleged
width of the driveway, because it was central to their contentions
that defendants had damaged their access easement by removing some
of the pavement and that the court must order defendants to
16 A-3968-14T1
completely rebuild the driveway. Plaintiffs could have, but did
not, raise any claim that the driveway was, or needed to be,
uniformly twelve feet wide in order to satisfy their access needs
and therefore should be rebuilt to those specifications. In fact,
they argued that the driveway had always been uniformly ten feet
wide and raised no claim that such width was insufficient for
their access needs.
Judge Taylor found that in the 2011 agreement, the parties
had agreed on the dimensions of the driveway and were bound by
that contract. He also found as fact that, both before and after
defendants' construction project, the driveway varied between
eight and seventeen feet wide at various points along its length,
and that its width was sufficient to serve plaintiffs' access
needs. Plaintiffs were not entitled to litigate those issues yet
again before Judge Hansbury, by asserting a new theory that they
were entitled to an access "and safety" easement.
Lastly, even if Judge Hansbury had addressed the issue, it
is plain from the wording of the 1948 and 1981 deeds that the
plaintiffs' easement is limited to the use of the existing
driveway. See Borough of Wildwood Crest v. Smith, 210 N.J. Super.
127, 142 (App. Div.) ("the extent of an easement created by a
conveyance is fixed by the conveyance"), certif. denied, 107 N.J.
51 (1986). "[W]hen the intent of the parties is evident from an
17 A-3968-14T1
examination of the instrument, and the language is unambiguous,
the terms of the instrument govern." Rosen v. Keeler, 411 N.J.
Super. 439, 451 (App. Div. 2010) (citation omitted). In their
2011 agreement, the parties agreed that the width of the driveway
varied from eight feet to seventeen feet, and Judge Taylor found
that the description was accurate. Plaintiffs are not entitled
to expand the easement to a uniform twelve feet of paved surface
with four feet of shoulder.
To the extent not specifically addressed herein, the parties'
respective additional appellate arguments are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
18 A-3968-14T1