KATHLEEN CHERRY VS. ZIAD HADAYA (C-000042-17, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 NO. A-0384-19

KATHLEEN CHERRY,
JONATHAN BESLER and
CARRIE BESLER, DAVID A.
HUSE and JULIA HUSE,
MARTIN KAHN and CANDICE
FEIRING,

Plaintiffs-Respondents,

v.

ZIAD HADAYA and NADA E.
HADAYA,

Defendants-Appellants,

and

MUNICIPALITY OF
PRINCETON, NEW JERSEY,

Defendant.
____________________________

Argued March 15, 2021 – Decided October 29, 2021

Before Judges Sabatino, Gooden Brown, and
DeAlmeida.
 On appeal from the Superior Court of New Jersey,
Chancery Division, Mercer County, Docket No.
C-000042-17.

Wade D. Koenecke argued the cause for appellants
(Stevens & Lee, attorneys; Suzanne M. McSorley and
Wade D. Koenecke, of counsel and on the briefs).

Roger C. Martindell argued the cause for respondents.

The opinion of the court was delivered by

DeALMEIDA, J.A.D.

Defendants Ziad Hadaya and Nada E. Hadaya appeal from the August 14,

2019 order of the Chancery Division granting summary judgment against them

in this action to enforce deed restrictions on their property and directing them to

file a deed consolidating two lots they created through a subdivision. We affirm.

I.

The following facts are derived from the record. In 1928, three property

owners conveyed by deed to William E. Dempsey a 9.43-acre parcel in

Princeton. The property was bounded by Jefferson Road, Cuyler Road, Ewing

Street, and land then owned by Walter B. Howe. Chestnut Street, later renamed

Walnut Lane, crossed a portion of the parcel. At the time of the transfer,

Dempsey owned land abutting the parcel.

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 The 1928 deed contained, in relevant part, the following restrictions on

the land conveyed:

In accepting this deed the party of the second part, his
heirs and assigns agrees that he will not subdivide the
Jefferson Road frontage of this tract into lots of less
than one hundred feet in width nor less than two
hundred feet in depth.

That only single houses shall be built on said road . . .
and that no houses shall be nearer to said road than
[fifty] feet, nor nearer to any party line than [twenty-
five] feet . . . that no subdivision of the frontage on
Cuyler Road into lots of less than [seventy-five] feet
each shall be made, and that no houses shall be built on
Cuyler Road nearer to said road than [fifty] feet, nor
nearer to any party line than [twenty] feet.

That no subdivision of the frontage on Chestnut Street
shall be made into lots which are less than [fifty] feet
wide . . . .

That no houses shall be nearer to Chestnut Street than
[twenty-five] feet.

Prior to 2008, the 9.43 acres conveyed in the 1928 deed was subdivided

into eighteen lots. A nineteenth lot is comprised of land both in the deed-

restricted area and outside the deed-restricted area. All of the lots are developed

with one home and were not subdivided in violation of the deed restrictions.

In 2004, defendants purchased the only parcel in the deed-restricted area

with frontage on Jefferson Road. The parcel, which is the largest in the deed -

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restricted area, had approximately 150 feet of frontage on Jefferson Road and

270 feet of depth on both sides. Their lot was identified in the tax records of the

municipality as Block 7007, Lot 4 (Lot 4). Deeds in the line of title to Lot 4

filed in 1953 and 1959 incorporate the restrictions in the 1928 deed. A title

report and commitment for title insurance obtained by defendants prior to the

purchase reference the restrictions in the 1928 and 1953 deeds. The 2004 deed

transferring the property to defendants does not mention the 1928, 1953, or 1959

deed restrictions.

Plaintiff Kathleen Cherry owns the parcel that is partially in the deed-

restricted area and partially outside the deed-restricted area. Plaintiffs Jonathan

Besler and Carrie Besler own a parcel in the deed-restricted area next to Cherry's

lot. The Cherry and Besler parcels adjoin defendants' property along its rear

property line and have frontage of seventy-five feet or more on Dempsey Road,

which did not exist at the time of the 1928 transfer and was created when the

9.43 acres was subdivided.

Plaintiffs Martin Kahn and Candice Feiring are successors in interest to

the property owned by Dempsey adjoining the 9.43 acres at the time of the 1928

transfer. They own a parcel that adjoins defendants' property. Plaintiffs David

A. Huse and Julia Huse are also successors in interest to the property owned by

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Dempsey adjoining the 9.43 acres at the time of the 1928 transfer. Their

property also adjoins defendants' parcel.

After obtaining Lot 4, defendants applied to the Princeton Regional

Planning Board (Board) for a minor subdivision approval to subdivide Lot 4 into

two lots, Lot 4.01 and Lot 4.02. The subdivision would permit a single-family

house on each of the new lots. In 2008, the Board approved the application.

The 1928 deed restrictions were not discussed at the Board meetings at which

defendants' application was considered. 1

In two deeds dated 2008, but not filed until 2014, defendants created Lot

4.01 and Lot 4.02. Lot 4.01 has 107.5 feet of frontage on Jefferson Road and a

depth of 172.5 feet. Lot 4.02, a flag lot, has 42.5 feet of frontage on Jefferson

Road and a depth of 270 feet. The 2008 deeds did not mention the 1928 deed

restrictions, or incorporation of the restrictions in the 1953 and 1959 deeds .2

In 2015, defendants filed with the Board a major subdivision/site plan

application and a minor subdivision/site plan application seeking to subdivide

Lot 4.01 into two lots, which they proposed to designate as Lot 4.011 and Lot

1
Defendants deny having "actual notice" of the deed restrictions when they
purchased Lot 4, but concede they were aware of the deed restrictions in 2008.
2
The Board conditioned approval of the subdivision on filing the subdivision
deeds in 190 days. The six-year delay in filing is not explained in the record.
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4.012. The subdivision would allow the construction of a single-family house

on Lot 4.011, Lot 4.012, and Lot 4.02, for a total of three single-family homes

on what previously was Lot 4.

While defendants' 2015 application was pending, on May 15, 2017,

plaintiffs filed a complaint in the Chancery Division seeking to enforce the 1928

deed restrictions on defendants' property. Plaintiffs alleged that the deed

restrictions created a neighborhood scheme which they may enforce, either as

successors to the 1928 transfer or as owners of property adjoining Lot 4 . They

also allege that the 2008 subdivision created lots that do not conform with

frontage and depth restrictions in the 1928 deed and must be vacated.

Plaintiffs sought an order declaring the 2008 deeds null and void and

merging Lot 4.01 and Lot 4.02 back into Lot 4. They also sought an order

permanently enjoining defendants from proceeding with any application to

develop Lot 4 in violation of the 1928 deed restrictions, either through the 2008

subdivision or the 2015 application for a subdivision of Lot 4.01.

On August 14, 2019, Judge Paul Innes entered an order granting plaintiffs'

motion for summary judgment and denying defendants' cross-motion for

summary judgment. The judge issued a comprehensive written opinion dated

June 27, 2019 setting forth his findings of fact and conclusions of law.

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 Judge Innes began his analysis with defendants' argument that the 2008

subdivision of Lot 4 did not violate the 1928 deed restrictions. Applying

concepts of contractual interpretation, he found that the 1928 deed clearly and

unambiguously prohibited the subdivision of Lot 4 into lots with less than 100

feet of frontage on Jefferson Road. In doing so, the judge rejected defendants'

claim that the 100-foot limitation in the deed applied to the width of subdivided

lots on Jefferson Road after a subdivision, regardless of the length of their

frontage on the road. Defendants argued unsuccessfully that because Lot 4.01

and Lot 4.02 were wider than 100 feet along their rear property lines, they

complied with the deed restrictions.

The judge then turned to the question of whether plaintiffs had the right

to enforce the deed restrictions on defendants' property. The court found that

the authority to enforce development restrictions on burdened land "depends

primarily on the covenant[] having been made for the benefit of other

encumbered land, either retained by the grantor or [as] part of the perceptible

neighborhood scheme." Judge Innes found that it is undisputed that the parcels

owned by Kahn, Feiring, and the Huses are not in the 1928 deed chain of title

and, as a result, not encumbered by the restrictions contained in the 1928 deed.

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Thus, the judge concluded, "these plaintiffs have no legal right to enforce the

deed restrictions."

With respect to Cherry, and the Beslers, whose property was within the

1928 deed chain of title, Judge Innes examined whether the deed restrictions are

intended to create an enforceable neighborhood scheme. Relying on our holding

in Olson v. Jantausch, 44 N.J. Super. 380, 386 (App. Div. 1957), the judge

concluded that the deed restrictions evidenced a clear intent to establish a

neighborhood scheme because they: (1) applied to all lots of like character

within the scheme; (2) are a benefit to all lots involved that are subject to the

restrictions; and (3) are reasonably uniform as to the restrictions imposed.

The judge found that although the frontage limitations on the nineteen

parcels in the original 9.43 acres differ depending on the roads that the parcels

abut, all lots, except a few, have a minimum frontage requirement expressly

established in the 1928 deed. Complete uniformity, the court concluded, is not

required, provided that restrictions vary in accordance with a design of the

original grantor. Judge Innes found that although the 1928 deed restrictions do

not mention Dempsey Avenue, which did not exist in 1928, or Ewing Street,

which forms the eastern border of the original 9.43-acre parcel, subsequent

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subdivisions conveying lots on those roads, including the Cherry and Besler

properties, honored the neighborhood scheme. 3

In addition, the judge noted that the deed restrictions on frontage have

been honored by successor owners on every street in the deed-restricted area

since 1928, with one exception: the subdivision by defendants. Judge Innes

rejected defendants' contention that the 100-foot frontage limitation on their

property is not uniform because it is the only parcel in the deed-restricted area

with a frontage limitation greater than seventy-five feet. The judge found that

defendants' property is the only parcel in the original 9.43 acres with frontage

on Jefferson Road, a wider street than the others bordering the original grant and

along which adjoining parcels, not in the deed-restricted area, had at least 100

feet of frontage. The judge also found that the longer frontage requirement for

defendants' parcel was necessary to prevent subdivision inconsistent with the

neighborhood scheme.

3
The judge found that lots on Dempsey Avenue have frontages of 100, 100,
135, 105, and 75 feet and lots on Ewing Street have frontages of 102, 102, and
87 feet. During discovery, Cherry admitted that the deed restrictions apply to
her parcel. In addition, defendants admitted that the deed restrictions apply to
the Besler parcel. Although Ewing Street existed at the time of the 1928
transfer, no parcel had frontage only on Ewing Street at that time. Parcels with
frontage only on Ewing Street were later created through subdivision.
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 Having concluded that "[a]ll evidence and surrounding circumstances

point to the establishment of a neighborhood scheme and there are no genuine

issues of material facts that demonstrate otherwise," Judge Innes found that

Cherry and the Beslers had the right to enforce the deed restrictions on

defendants' property.

The judge also found that plaintiffs' conduct, changed circumstances, or

equitable considerations do not preclude enforcement, or warrant modification,

of the deed restrictions. Examining the eight factors established in Davidson

Bros. v. D. Katz & Sons, Inc., 121 N.J. 196, 211-12 (1990), Judge Innes found

that enforcement of the deed restrictions on defendants' property was reasonable.

He concluded that the restrictions represented a reasonable plan to maintain

larger lot sizes, preserve and maintain open space, and limit congestion in a

residential neighborhood. In addition, the court found no changes in the

neighborhood, public policy concerns, or abandonment of the neighborhood

scheme that would warrant modification of the restrictions. The judge agreed

with plaintiffs' argument that while some set back requirements on the nineteen

lots in the neighborhood may have been violated since the 1928 transfer, the

frontage requirements, which are critical to maintaining the character of the

neighborhood, have not.

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 As a result of these conclusions, on August 14, 2019, Judge Innes entered

an order granting summary judgment to Cherry and the Beslers, denying

defendants' cross-motion for summary judgment, and directing defendants to

prepare a deed, to be filed by plaintiffs' counsel, consolidating Lot 4.01 and Lot

4.02 into Lot 4. 4

This appeal followed. Defendants raise the following arguments.

POINT I

THE TRIAL COURT SHOULD BE REVERSED AS
NONE OF THE PLAINTIFFS HAS STANDING TO
ENFORCE THE RESTRICTIONS IN THE 1928
DEED.

A. THE DEED RESTRICTIONS DO NOT
CREATE A NEIGHBORHOOD SCHEME;
THEREFORE, THE RESTRICTIONS ARE NOT
ENFORCEABLE BY PLAINTIFFS BESLER AND
CHERRY.

B. THE COURT BELOW PREDICATED ITS
FINDING OF A NEIGHBORHOOD SCHEME ON
ERRONEOUS FINDINGS WHICH ARE CONTRARY
TO THE RECORD AND THE LAW.

C. PLAINTIFFS BESLER AND CHERRY
CANNOT ENFORCE THE DEED RESTRICTIONS,

4
Although the August 14, 2019 order grants summary judgment to "plaintiffs,"
the parties agree Judge Innes found that Kahn, Feiring, and the Huses lacked the
authority to seek enforcement of the deed restrictions on defendants' property.
That aspect of the judge's decision has not been appealed. The judge stayed the
August 14, 2019 order pending resolution of this appeal.
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 REGARDLESS OF WHETHER THE 1928 DEED
CREATED A NEIGHBORHOOD SCHEME.

D. NOT ONLY DO PLAINTIFFS NOT HAVE
STANDING TO ENFORCE THE DEED
RESTRICTIONS, BUT THE HADAYAS'
SUBDIVISION GENERALLY CONFORMS WITH
THE DEED'S SUBDIVISION RESTRICTION AND
WILL HAVE NO DISCERNABLE EFFECT ON THE
SO-CALLED "NEIGHBORHOOD SCHEME" OR
ANY ASPECT OF THE NEIGHBORHOOD.

II.

We review the trial court's decision granting summary judgment de novo,

using "the same standard that governs trial courts in reviewing summary

judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.

162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant

summary judgment when "the pleadings, depositions, answers to interrogatories

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." "Thus, the movant must

show that there does not exist a 'genuine issue' as to a material fact and not

simply one 'of an insubstantial nature'; a non-movant will be unsuccessful

'merely by pointing to any fact in dispute.'" Prudential, 307 N.J. Super. at 167

(quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995)).

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 In addition, the existence of a neighborhood scheme enforceable through

deed restrictions "is a question of fact to be answered not only by the wording

of the deeds but by the surrounding circumstances and the acts of the parties."

Weinstein v. Swartz, 3 N.J. 80, 85-86 (1949) (quoting Humphreys v. Ibach, 110

N.J. Eq. 647, 652 (1932)). A restrictive covenant is a contract and the terms of

that contract must be interpreted "in accord with justice and common sense."

Homann v. Torchinsky, 296 N.J. Super. 326, 334 (1997). "Generally . . . , a rule

of strict construction should be applied to the provisions, unless such a rule

would defeat the obvious purpose of the restrictions." Id. at 335. "While such

restrictive covenants are not favored and are strictly construed where there is

ambiguity, courts determine and give effect to the intent of the parties expressed

in the deed with reference to the attendant circumstances." Perelman v. Casiello,

392 N.J. Super. 412, 419 (App. Div. 2007). Whether a contract is clear or

ambiguous is a question of law. Nester v. O'Donnell, 301 N.J. Super. 198, 210

(App. Div. 1997).

Having carefully reviewed defendants' arguments in light of the record

and applicable legal principles, we affirm the August 14, 2019 order for the

reasons stated by Judge Innes in his thorough and well-reasoned written opinion.

We add the following comments.

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 We agree with the trial court's conclusion that defendants' strained

interpretation of the 1928 deed restrictions as permitting a subdivision of their

parcel into two lots, one of which has less than 100 feet of frontage, as long as

both are at least 100 feet wide along their rear border to be inconsistent with the

unambiguous intent of the original grantor to maintain minimum frontage

requirements in the neighborhood. The deed restrictions focus on road frontage

limitations, which are a key component of the character of a residential

neighborhood, and not the rear property lines of parcels in the deed-restricted

area.5

We recognize, as did the trial court, that the Cherry and Besler parcels are

not expressly encumbered with frontage limitations in the 1928 deed because

they front Dempsey Avenue, which did not exist at the time of the 1928 transfer.

However, we find sufficient support in the record for the trial court's conclusion

that those parcels, which were subdivided consistent with the neighborhood

scheme in that they had at least 75 feet of frontage – the minimum for the

adjoining Cuyler Road, were intended to be incorporated into the neighborhood

5
In fact, the 1928 deed provides that "no fences shall be built in front of" houses
on Jefferson Road, except where "such fences are made of living shrubs . . . ."
This highlights the original grantor's focus on the characteristics of the street
frontage of the lots in the neighborhood.
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scheme. See Weinstein, 3 N.J. at 85-86. As noted above, Cherry has conceded

that the 1928 deed restrictions apply to her parcel and, during discovery,

defendants admitted that the restrictions apply to the Besler property.

To the extent we have not specifically addressed any of defendants'

remaining claims, we conclude they lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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