Opinion
DOCKET NO. A-4088-13T1 DOCKET NO. A-4163-13T1
08-15-2016
JAMES O. and VIRGINIA WELCH, THE ROBERT DWYER TRUST and S. ALEXANDER and JESSICA HAVERSTICK, Plaintiffs-Respondents/Cross-Appellants, v. CHAI CENTER FOR LIVING JUDAISM, INC. and HARRY GROSS, Defendants-Appellants/Cross-Respondents.
Elliot D. Ostrove argued the cause for appellant/cross-respondent Chai Center for Living Judaism, Inc. (Epstein Arlen & Ostrove, LLC, attorneys; Mr. Ostrove, of counsel and on the joint briefs; Andres Acebo, Kathleen A. Trawinski, Vahbiz P. Karanjia and Philip Pfeffer (Herbert Smith Freehills, LLP), on the joint briefs). Fred R. Gruen argued the cause for appellant/cross-respondent Harry Gross (Gruen & Goldstein, attorneys; Mr. Gruen, on the joint briefs). Kevin J. Coakley and Nicole B. Dory argued the cause for respondents/cross-appellants (Connell Foley LLP, attorneys; Mr. Coakley, of counsel and on the briefs; Ms. Dory and Genevieve L. Fairclough, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Nugent and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-0153-12. Elliot D. Ostrove argued the cause for appellant/cross-respondent Chai Center for Living Judaism, Inc. (Epstein Arlen & Ostrove, LLC, attorneys; Mr. Ostrove, of counsel and on the joint briefs; Andres Acebo, Kathleen A. Trawinski, Vahbiz P. Karanjia and Philip Pfeffer (Herbert Smith Freehills, LLP), on the joint briefs). Fred R. Gruen argued the cause for appellant/cross-respondent Harry Gross (Gruen & Goldstein, attorneys; Mr. Gruen, on the joint briefs). Kevin J. Coakley and Nicole B. Dory argued the cause for respondents/cross-appellants (Connell Foley LLP, attorneys; Mr. Coakley, of counsel and on the briefs; Ms. Dory and Genevieve L. Fairclough, on the briefs). PER CURIAM
In these zoning disputes, consolidated by our order dated June 25, 2014, defendants Chai Center for Living Judaism (the Center) and Harry Gross (Gross) appeal from an April 2, 2014 judgment upholding a 1949 deed restriction found to limit defendants' Millburn realty solely for residential use, therefore barring proposed construction of a house of worship. The reviewing judge rendered an oral opinion denying plaintiffs' and granting defendants' motion for summary judgment, dismissing plaintiffs' complaint. We affirm.
Rabbi Mendel Bogomilsky, his wife, and family purchased a three-story home on Jefferson Avenue in Millburn Township as their personal residence (Lot 10). In 2009, the Bogomilskys deeded the property to the Center, an orthodox Jewish shul, which conducted religious services, hosted social gatherings, offered adult Jewish studies, extended child care and provided Sunday school activities. The Center qualified for a real estate tax exemption in 2010 and 2011. Gross owns the adjacent property, Lot 9.
In 2009, the Center filed an application for development. It proposed to demolish the existing structures on Lots 9 and 10 to construct a 16,350 square foot house of worship, classrooms, social hall and play rooms.
This matter is separate from the zoning matter. Plaintiffs James and Virginia Welch, Alexander and Jessica Haverstick, and the Robert Dwyer Trust, all of whom are neighbors who own homes on the street or on streets adjacent to the Center, objected to the Center's current activities as well as the proposed construction and use. Plaintiffs argue Bogomilsky's and Gross's lots are subject to deed restrictions, which limit the property's use solely for single family residences. We recite the facts regarding the origination of the deed restrictions.
A group of developers obtained a fifty-six acre parcel, which was transferred to the Short Hills Park Association (SHPA). By deed dated October 10, 1899, recorded on November 21, 1899, SHPA conveyed two tracts of land to William Hill and Charles F. Herr. A covenant was attached to the lots, which provided in relevant part:
And the said party of the second part do for themselves, their heirs, executors, administrators and assigns, covenant to and with the said party of the first part, its successors and assigns, as follows: That there shall not be erected on said land or
any part thereof any brewery, slau[gh]ter-house, glue or chemical factory of any kind; that no business of any kind shall be conducted on these premises, that no beer saloon, garden or cellar or place in which beer, wine or liquors shall be sold or any building in which shall be carried on any business offensive, noxious or detrimental to the use of said land or the adjoining or contiguous land or any part thereof for private residences, nor shall said land be used for any purpose which could create a nuisance and that any houses to be erected on the land thereby conveyed shall cost not less than five thousand dollars each, and that but two dwelling houses shall be erected on the premises hereby conveyed and that such houses shall be used as private and for two families only.
Between 1899 and 1902, forty of the fifty-two lots carved from the fifty-six acre parcel contained this or similar deed restrictions. The predecessor deeds transferring the lots now held by the parties contained this restriction. The lot now occupied by the Center was the first to erect a single-family home in 1865. Notably, each lot, whether subject to the restriction or not, contained a single-family home.
Some lots created from the parcel did not have this restriction.
Subsequent transfers generally continued the residential restrictions. Over time, Dorothy S. and Carl W. Badenhausen obtained ownership of the land that now is composed of defendants' lots 9 and 10 along with the two lots now owned by the Welches. In 1949, the Badenhausen family and William K. and Gertrude S. Wallbridge, who owned tracts subject to the 1899 deed restrictions, agreed to release and discharge one another from the restrictions of the 1899 deed to facilitate the subdivision of their respective properties. Their agreement was recorded on October 19, 1949, and provided:
And whereas, [Badenhausen] and [Wallbridge] hereto are desirous of releasing and discharging all of the above described lands and premises from the [e]ffect of any covenants, conditions and restrictions which may appear of record purporting to affect said land and premises;
Now, therefore, in consideration of One Dollar ($1.00) and other good and valuable consideration, each to the other in hand paid, the receipt whereof is hereby acknowledged, the said parties of the first and second part hereto do each and severally release and forever discharge all the lands and premises hereinbefore described, of and from any and all rights which they or either of them may have by virtue of any covenants, conditions or restrictions contained in any conveyances or agreements of record purporting to affect said lands and premises;
And the said parties of the first part and second part do by these presents, for themselves, their heirs, executors, administrators and assigns, release, remise and forever discharge all the hereinbefore described lands and premises and each other, their respective heirs, executors, administrators, and assigns of and from all, and all manner of action and actions, cause and causes of action, suit, covenants and controversies, agreements, damages and
demands whatsoever, in law or in equity, which against said land and premises and each other they or either of them ever had, nor have or which their heirs, executors or administrators hereinafter can, shall or may have by virtue of any covenants, conditions and restrictions of record purporting to affect the aforesaid lands and premises.
On the same day, the Badenhausens recorded the conveyance of what is now Lot 10 to Thomas and Virginia Riggs. The deed was subject to
easements and restrictions of record only insofar as same are now valid and effectual, and the said parties of the second part . . . agree with the said parties of the first part . . . that the premises hereby conveyed shall be restricted to one private dwelling house for one family with garage appurtenant thereto.
In 1953, Riggs conveyed Lot 10 to Ralph and Barbara Terrace, continuing the 1949 restriction, limiting use "to one private dwelling house for one family with garage appurtenant thereto." The parties' agreement also contained a clause addressed to Dr. Terrace's dental practice, stating:
Contract is conditional upon the present existence of proper authority or permission to use the property in the following manner: The building, structure, premises, or alteration, enlargement or extension of same may be used for the offices of a physician, surgeon, or dentist when situated in the same dwelling, structure, premises, or alteration, enlargement or extension thereof, provided the dwelling is used by such physician, surgeon or dentist as his private residence.
The Terraces sold the property to L & P Jefferson, LLC, which demolished the dental office and reconstructed the building for residential use. The Bogomilskys purchased Lot 10 from Jefferson on February 16, 2005.
The Center sought to construct a house of worship on Lots 9 and 10. A zoning application was pending at the time this matter was considered.
Plaintiffs filed this complaint, seeking declaratory and injunctive relief. Ultimately, plaintiffs moved for summary judgment, citing the two deed restrictions. Plaintiffs maintained use of the property was limited solely to single family residences, as clearly intended by the restrictions, which plaintiff asserted precluded operation of a house of worship. Plaintiffs sought an order precluding the Center's current and proposed operations.
The Center cross-moved for summary judgment, disputing plaintiffs' interpretation of the scope of the deed restrictions. Examining the 1899 restriction, the Center argued "the drafter was looking to . . . exclude certain things." If an entity was not among the list of exclusions, it was not precluded. With reference to the 1949 deed restriction, the Center argued, "it appears that somebody tried to extinguish the 1899 restriction and any other restrictions that had been placed on the land." The Center concludes the land was released from the 1899 restriction and was deeded subject only to a personal restriction between grantor and grantee regarding use of a single dwelling. Alternatively, the Center suggests, if the restriction was found to run with the land, it was abandoned when the dental office was constructed on the property in 1953.
The judge agreed with defendants regarding the breadth of the 1899 restriction, determining the language used was ambiguous and "not clearly restrict[ing] the use of the property to residential purposes." The absence of clarity distinguishes the facts at hand from authorities cited by plaintiffs, and mandated the court construe the language narrowly. In doing so, the judge found the provision precluded various business operations, but these limitations did not encompass a house of worship. Moreover, a house of worship was not a business and, thus, not proscribed by the deed restriction. He concluded:
[U]nder the [d]octrine ejusdem generis, the phrase, "No business of any kind" must be interpreted narrowly applying to only things in the same general class enumerated. Here, the only businesses enumerated are those that are industrial[,] produce noxious or toxic chemicals and businesses that sell alcohol.
. . . .
[W]hen you look closely at the 1899 restriction, it contains a list of specifically precluded uses of the
property[:] brewery, slaughterhouse, glue or chemical factory, beer saloon, garden, cellar or place in which beer, wine or liquors are sold, does not include a place of worship.
Moving to review of the 1949 restriction, which was incorporated into the deed transferring Lot 10 owned by the Center but not into the deed transferring the property owned by Gross, the judge concluded enforceability was not dependent on the 1899 restriction. Further, he determined, unlike the 1899 restriction, the 1949 clause incorporated in the Center's deed was "not part of the neighborhood scheme." However, the judge concluded "a neighborhood plan is not required," if the original parties intended to burden the land of the grantee and benefit the land of the grantor. Considering the unambiguous language of the covenant, the judge found the 1949 restriction directly limited the use of the premises, was not incidental to a promise between the parties, and identified the burdened (Lot 10) and benefited property (Lots 9 and 11) held by a common grantor. Accordingly, the restriction was "not part of a personal covenant, but was intended to run with the land[,] binding subsequent owners, such as [the] Center."
The judge rejected defendants' claims the restriction was abandoned or its enforcement was waived when home office use was permitted. He also concluded laches did not apply. The judge entered the April 2, 2014 judgment for plaintiffs on count two of their complaint seeking to enforce the 1949 deed restriction to single family residential use.
On appeal, defendants challenge the interpretation and application of the 1949 deed restriction as prohibiting construction and use as a house of worship. Additionally, defendants maintain the 1949 restriction is unenforceable as a personal covenant or because it violates public policy and thwarts the Center's constitutionally protected use to practice religion in a residential home.
Plaintiffs filed a cross-appeal, challenging the denial of judgment on the first count of their complaint seeking enforcement of the 1899 deed restriction as prohibiting a place of worship. These matters are filed under Docket Number A-4088-13. A separate appeal was filed by Gross raising the same challenges to summary judgment for plaintiffs regarding the 1949 deed restriction, to which plaintiffs applied their arguments raised in their cross-appeal to the Center's appeal.
An appellate court reviews an order granting summary judgment in accordance with the same standard as the motion judge. Qian v. Toll Bros. Inc., 223 N.J. 124, 135 (2015). Our review is de novo as the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). In doing so, we, like the trial judge, "must review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014); R. 4:46-2(c).
That standard compels the grant of summary judgment "if 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." R. 4:46-2(c)."It [is] not the court's function to weigh the evidence and determine the outcome but only to decide if a material dispute of fact existed." Gilhooley v. Cnty. of Union, 164 N.J. 533, 545 (2000).
[Globe Motor Co. v. Igdalev, ___ N.J. ___, ___ (2016) (slip op. 11).]
In our review, the facts must be construed in a light most favorable to the non-moving party, id. at 544; Robinson v. Vivirito, 217 N.J. 199, 203 (2014), keeping in mind "[a]n issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). "The practical effect of this rule is that neither the motion court nor an appellate court can ignore the elements of the cause of action or the evidential standard governing the cause of action." Bhagat, supra, 217 N.J. at 38. "With the factual record construed in accordance with Rule 4:46-2(c), 'the court's task is to determine whether a rational factfinder could resolve the alleged disputed issue in favor of the non-moving party[.]'" Globe Motor Co., supra, at ___ (slip op. 13-14) (alteration in original) (quoting Perez v. Professionally Green, LLC, 215 N.J. 388, 405-06 (2013)). Accordingly, if no genuinely disputed fact exists, we decide whether the trial court's legal determination was correct, W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012), a review which is not deferential.
Before addressing the deed restrictions involved here, we recite the general principles governing deed restrictions. "Restrictions on the use to which land may be put are not favored in law because they impair alienability." Bruno v. Hanna, 63 N.J. Super. 282, 285 (App. Div. 1960). However, such restrictions are not prohibited and must be "be strictly construed." Ibid. This rule, mandating strict construction, "will not be applied to defeat the obvious purpose of a restriction." Id. at 287. Accordingly, enforcement of provisions by one person restricting another in the use of his land occurs when "the right to restrict is made manifest and clear in the restrictive covenant." Id. at 285; see also Caullett v. Stanley Stilwell & Sons, Inc., 67 N.J. Super. 111, 114 (App. Div. 1961) (holding that "[w]hile restrictive covenants are to be construed realistically in the light of the circumstances under which they were created . . . incursions on the use of property will not be enforced unless their meaning is clear and free from doubt").
Restrictive covenants at their core are contracts, "subject to the interpretative doctrines of contract law which focus on the parties' mutual purpose." Caullett, supra, 67 N.J. Super. at 115; see also Cooper River Plaza E., LLC v. Briad Grp., 359 N.J. Super. 518, 527 (App. Div. 2003) (holding a restriction in a deed "is regarded in New Jersey as a contract, and its enforcement constitutes a contract right"). "The polestar of contract construction is to find the intention of the parties as revealed by the language used by them." Homann v. Torchinsky, 296 N.J. Super. 326, 334 (App. Div.), certif. denied, 149 N.J. 141 (1997).
A court cannot enhance a restrictive covenant, but must be confined by the parties' express agreement. Also, "[i]t is well settled that a covenant should not be read in such a way that defeats the plain and obvious meaning of the restriction." Bubis v. Kassin, 184 N.J. 612, 624 (2005) (quoting Lakes at Mercer Island Homeowners Ass'n v. Witrak, 810 P.2d 27, 30 (1991)). Therefore, the "agreement must be construed in the context of the circumstances under which it was entered into and it must be accorded a rational meaning in keeping with the express general purpose." Homann, supra, 296 N.J. Super. at 334 (quoting Tessmar v. Grosner, 23 N.J. 193, 201 (1957)).
Addressing the issues presented on appeal, we initially reject plaintiffs' challenge to the judge's analysis of the 1899 deed restriction. We affirm the summary judgment dismissal of count one of plaintiffs' complaint substantially for the same reasons stated by the trial judge in his oral opinion. R. 2:11-3(E)(1)(A). We too conclude the terms are ambiguous and cannot be found to solely restrict use of the property to a single family residence.
"An ambiguity in a contract exists if the terms of the contract are susceptible to at least two reasonable alternative interpretations." Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997) (quoting Kaufman v. Provident Life and Cas. Ins. Co., 828 F. Supp. 275, 282 (D.N.J. 1992), aff'd, 993 F.2d 877 (3d Cir. 1993)). Here, as the judge noted, the 1899 restriction was directed to exclude specified businesses, leaving for conjecture whether the design included all businesses; such doubt defeats certainty and creates ambiguity. See De Gray v. Monmouth Beach Clubhouse Co., 50 N.J. Eq. 329, 330, 341, 348 (Ch. 1892) (interpreting a similar deed restriction, the court concluded the intent of the parties was to "secure the whole from objectionable features and business," that would "depreciate the value of neighboring property for dwelling purposes," but did not exclude all businesses), aff'd 67 N.J. Eq. 731 (E. & A. 1894).
We next reject defendants' opening argument suggesting the judge erred in applying these principles when he failed to strictly construe the 1949 restriction against plaintiffs' action seeking enforcement. Defendants maintain the deed provisions, although restrictive, did not specifically prohibit construction of a house of worship. Defendants urge reversal arguing unless a use is proscribed, it may be permitted. We are not persuaded.
The deed restriction straightforwardly states "the premises hereby conveyed shall be restricted to one private dwelling house for one family with garage appurtenant thereto." (Emphasis added). The language is more restrictive than the clause contained in Ritter v. Jersey City Dist. Missionary Soc. of M. E. Church, 105 N.J. Eq. 122, 124 (Ch. 1929), which defendants rely on as authority for their position. In Ritter, several paragraphs were contained in the deed restriction and the one defendants here rely upon provided: "Not more than one (1) house shall be erected on each lot of fifty-feet frontage, nor shall any such house be designed for use by more than one (1) family." Ibid. This phrase was found to be interpreted as suggesting other structures were permissible. The deed restriction under review, however, includes the limiting language of "shall be restricted to one private dwelling house for one family," succinctly circumscribing the only permissible structure.
Also, unlike the 1899 restriction's exclusion of specified business uses, suggesting some business use other than the types identified was permitted, the 1949 clause does not suffer from ambiguity. Historically, plaintiffs presented facts showing Lot 10, when conveyed, abutted Lots 9 and 11, which were retained by the common grantor. The restriction sought to ensure the grantor's continued quiet enjoyment of the two retained lots. Cf. Weinstein v. Swartz, 3 N.J. 80, 83 (1949) (affirming dismissal of complaint by homeowner seeking to erect business on property, where neighboring properties were "a residential oasis of first class private dwellings detached from the annoyances of commercial activity -- a comfort for which the defendants have presumably paid enhanced prices.").
We will not torture the language of a covenant to create ambiguity, as defendants suggest. Stiefel v. Bayly, Martin & Fay of Conn., Inc., 242 N.J. Super. 643, 651 (App. Div. 1990). The judge properly concluded the language of the 1949 deed restriction meets the requirements of being manifest and clear. The 1949 restriction prohibits all structures, religious or otherwise, that are not private residential dwellings. We do not find the interpretations of the 1899 and 1949 restrictions incompatible or interdependent.
Defendants also urge reversal stating the 1949 deed restriction violates public policy and is "unenforceable per se because such a restriction imposes a hardship on the community's residents" who have demonstrated the "strong public need" for a house of worship. Defendants rely on Davidson Bros., Inc. v. D. Katz & Sons, Inc., 274 N.J. Super. 159 (App. Div. 1994), as support for this argument. Defendants have plucked statements from Davidson without reference to their substantive context. We conclude Davidson is inapposite because it addressed the enforceability of restrictive covenants, imposed on commercial property, which were designed to restrain competition.
Instead, we are guided by the principle that clearly defined "covenants will be enforced in equity only so long as they remain reasonable in light of their purpose." Citizens Voices Ass'n v. Collings Lakes Civic Ass'n, 396 N.J. Super. 432, 446 (App. Div. 2007). Here, the covenant was reasonably designed to limit use and did not include a house of worship.
We are unpersuaded by defendants' suggestion the Center must be permitted to conduct prayer groups and social gatherings as a free exercise of religion. We reject the suggestion the deed restriction unconstitutionally prohibits private religious observances within the confines of one's own home. State v. Cameron, 100 N.J. 586, 604 (1985). This assertion ignores the scope of the Center's current and intended use, which cannot be characterized as "a few folks gathering at someone's home." Id. at 604. The intensity of defendants' current and proposed use is dissimilar to "the humble residence of [the] minister," which was the subject of review in Cameron. Here, the Center serves approximately 100 families and generally remains open to the public, hosts 150 congregants on High Holidays, and proposes construction of a 16,350 square foot building, which surely would transform the bucolic residential neighborhood.
"The Supreme Court has never implied that every law that imposes some burden on the exercise of religion is unconstitutional." Id. at 614. We borrow a phrase articulated by then Judge Cardozo noting, when reviewing a valid restrictive covenant "[n]either at law nor in equity is it written that a license has been granted to religious corporations, by reason of the high purpose of their being, to set covenants at naught." Evangelical Lutheran Church of Ascension v. Sahlem, 172 N.E. 455, 457 (N.Y. 1930).
Defendants also maintain the judge erroneously concluded the 1949 restrictive covenant was "intended to run with the land." Defendants reason the prior use as a dental office within a few years of the inclusion of the 1949 restriction, which was not challenged, shows there was no intention the restriction was to "last in perpetuity." We disagree.
"To constitute a real rather than a personal covenant, the promise must exercise direct influence on the occupation, use or enjoyment of the premises." Caullett, supra, 67 N.J. Super. at 116. Further, a covenant properly affecting the subject property, requires "the deed provision must define in some measurable and reasonably permanent fashion the proscriptions of and limitations upon the uses to which the premises may be put." Id. at 117. Stated another way, "covenants that the parties intend to burden one property for the benefit of another property are deemed to be servitudes that run with the land benefited and burdened and transfer with its ownership" unless (1) the parties intended for the burden to be of limited duration or for the benefit of an individual; (2) changed conditions frustrate the purpose of the restriction; or (3) equities make enforcement of the restriction unjust, or require its modification. Perelman v. Casiello, 392 N.J. Super. 412, 419 (App. Div. 2007).
The previous discussion demonstrates the restrictions touch and affect the subject property, limiting the allowable use of the realty. Caullett, supra, 67 N.J. Super. at 116. Further, the 1949 restriction specifies the limitations "are now valid and effectual" against the parties "for themselves, their heirs, executors, administrators and assigns[,]" which unequivocally reflects an intention to bind not only the agreeing parties, but also future owners in perpetuity. See Khalil v. Motwani, 376 N.J. Super. 496, 502 (App. Div. 2005) (concluding the right to an easement expressly extended to grantee's heirs and assigns was intended to require the easement to run with the land). In light of the covenant's unmistakably clear language, we reject defendants' unsupported assertion the prior grantor intended the 1949 restriction to be personal.
Application of waiver, abandonment and laches is also rejected, substantially for the reasons articulated by the judge, R. 2:11-3(e)(1)(A), and otherwise because the arguments lack merit, R. 2:11-3(e)(1)(E). "Our law imposes a heavy burden upon a party who seeks to establish an abandonment or modification of a reciprocal restrictive deed covenant based on past violations," Steiger v. Lenoci, 323 N.J. Super. 529, 534 (App. Div. 1999), a burden defendants were found not to have met.
The criteria for abandonment are (1) pervasive violations that (2) indicate either a change in the neighborhood or the intent to abandon or modify the original plan:
As to abandonment of the neighborhood scheme, minor violations do not necessarily indicate an abandonment, nor impair complainant's right to enforce it. Before violations can constitute an abandonment they must be so general as to indicate either a change in the neighborhood or a clear intent on the part of the property owners generally to abandon the original plan.
[La Fetra v. Beveridge, 124 N.J. Eq. 24, 34 (1938).]
As to laches, it too is inapplicable. Laches requires "not only inaction by plaintiffs for an unreasonable length of time but prejudice to the party asserting it." Silverstein v. ABCO Vending Serv., Inc., 37 N.J. Super. 439, 447 (App. Div. 1955). "The core equitable concern in applying laches is whether a party has been harmed by the delay." Knorr v. Smeal, 178 N.J. 169, 181 (2003). In this matter, the restrictions were clearly present, defendants always knew of the restrictions and plaintiffs preserved their rights by timely objecting to perceived violations, commencing in 2005.
In summary, we have fully considered the legal arguments presented by defendants on their separate appeals and by plaintiffs on cross-appeal. We reject all arguments advanced, as we determine the motion judge properly applied the law to the facts in this matter.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION