EDWARD RABBITT VS. JOHN GREED (C-000032-18, CAPE MAY COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0474-19
EDWARD RABBITT,
EILEEN RABBITT, and
GERARD SWEENEY,
Plaintiffs-Respondents,
v.
JOHN GREED and
THERESA GREED,
Defendants-Appellants.
_________________________
Argued October 15, 2020 – Decided April 12, 2021
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Cape May County, Docket No.
C-000032-18.
Anthony Argiropoulos argued the cause for appellants
(Epstein Becker & Green, PC, attorneys; Anthony
Argiropoulos, of counsel and on the briefs; Robert M.
Travisano and William Gibson, on the briefs).
Mark P. Asselta argued the cause for respondents
(Brown & Connery, LLP, attorneys; Mark P. Asselta,
on the brief).
PER CURIAM
This appeal requires that we determine the validity of the trial court's
interpretation of a setback deed restriction. Defendants John Greed and Theresa
Greed argue the court erroneously interpreted the deed restriction, the restriction
is ambiguous and therefore unenforceable, and the court erred by considering
extraneous evidence to support its interpretation of the restriction. We affirm.
I.
In 2017, defendants purchased a home on beachfront property located on
the south side of the eastern terminus of East 15th Street in Avalon. 1 The
existing home on the property was set back twenty-five feet from the right-of-
way line of East 15th Street. Defendants planned to demolish the home and
replace it with a substantially larger home, a portion of which was to be
constructed less than twenty-five feet from East 15th Street's right-of-way line.
1
Defendants' property is designated as Block 15.01, Lots 19.02/20.02 on
Avalon's tax map.
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Defendants' property is subject to a 1967 deed restriction that is at the
center of the dispute between the parties. The deed restriction requires that the
property have "a 25[-]foot streetside setback from 15th Street."2
Following their purchase of the property, defendants demolished the
existing home and applied to the New Jersey Department of Environmental
Protection and the Borough of Avalon for permits for the construction of the
planned larger home. As part of the permit application process, the owners of
nearby properties were notified about the planned construction of defendants'
new home.
Plaintiff Gerard Sweeney owns the property immediately to the west of
defendants' property on the south side of East 15th Street, and plaintiffs Edward
Rabbitt and Eileen Rabbitt own the property immediately to the west of
Sweeney's property. 3 Plaintiffs objected to the planned construction of
defendants' new home. Plaintiffs claimed the home violated the 1967 deed
2
The deed further provides the restriction "shall be binding upon the . . . heirs
and assigns" of the grantees to whom the deed conveyed title to the property i n
1967. Defendants do not dispute they are assignees of the setback deed
restriction as subsequent grantees of the property conveyed by the 1967 deed.
3
Sweeney's property is designated on Avalon's tax map as Block 15.01, Lots
19.01/20.01 (previously designated as Block 15A, Lots 19A/20A), and the
Rabbitts' property is designated as Block 15.01, Lot 16 (previously designated
as Block 15A, Lot 16).
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restriction because defendants planned to construct part of the home within the
twenty-five-foot setback.
Plaintiffs asserted construction of a home within the setback established
by the 1967 deed restriction would block the ocean views from their homes.
They further claimed the original owners of the three properties included setback
restrictions in the deeds conveying title to the three lots to ensure that the home
on the lot closest to the beach, now owned by defendants, was built farthest from
the street; the home on the second lot from the beach, now owned by Sweeney,
was built second farthest from the street; and the home on the third lot, now
owned by the Rabbitts, was built closest to the street. Plaintiffs contended the
deed restrictions for the three lots established staggered setbacks that ensured
the homes on Sweeney's and the Rabbitts' properties enjoyed ocean views
unobstructed by the homes closer to the beach.
Plaintiffs filed a complaint and order to show cause seeking a declaratory
judgment that the 1967 deed restriction on defendants' property required a
twenty-five-foot setback "from the right of way line of 15th Street." Plaintiffs
also sought a preliminary and final injunction prohibiting defendants from
constructing their home within the designated setback. Plaintiffs further
asserted a claim for monetary damages.
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Defendants interpret the deed restriction differently. They filed an answer
to the complaint and a counterclaim seeking a declaratory judgment that their
planned new home complied with the 1967 deed restriction. They asserted the
setback should be measured from the curb line of 15th Street, and they claimed
their planned home complied with the deed restriction because it was set back
twenty-seven and one-half feet "from the south curb line of 15th Street."
Defendants also claimed plaintiffs' homes violated the setback deed
restrictions applicable to their properties, and that the Rabbitts waived their right
to enforce the 1967 deed restriction because Sweeney's home violated a setback
restriction in a 1968 deed to his property, and the Rabbitts failed to enforce that
deed restriction against Sweeney.
With plaintiffs' application for a preliminary injunction pending,
defendants commenced the construction of their new home. The court then
heard argument on plaintiffs' request for a preliminary injunction barring
defendants from constructing any part of their new home within twenty-five feet
of the right-of-way-line of 15th Street. The court granted the requested
preliminary injunction, finding plaintiffs satisfied their burden of establishing
an entitlement to the relief under the Crowe v. De Gioia, 90 N.J. 126, 132-35
(1982), standard. The court preliminarily enjoined defendants from building on
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any part of their property "that is set back less than [twenty-five] feet from the
right of way line of 15th Street."
At the start of the subsequent bench trial on the parties' claims, defendants
moved "to bar [the] introduction of extrinsic evidence at the trial." Defendants
argued that because they were not a party to the 1967 deed, the court's
interpretation of the deed restriction must be based solely on the deed's plain
language and the court could not properly consider extrinsic evidence to
determine the intent of the grantor in the 1967 deed. Defendants also claimed
the deed restriction is ambiguous as to the place from which the setback should
be measured, and the court could not consider extrinsic evidence to resolve the
ambiguity. Defendants further argued an ambiguous deed restriction could not
be enforced against them.
The court rejected defendants' arguments and denied their motion to bar
extrinsic evidence at trial. The court reasoned that it could consider extrinsic
evidence as an aid in defining the meaning of the deed restriction's plain
language. The court determined it could not consider extrinsic evidence to add
to, or change, the terms of the deed restriction as expressed in its plain language.
Following the bench trial, the court issued a detailed and comprehensive
opinion summarizing the testimony of the parties and their respective experts.
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The court found the term "from 15th Street" is the "operative" portion of the
deed restriction and that it defines the point from which the setback is measured.
The court also found the 1967 deed restriction is not ambiguous and the "plain
and obvious" meaning of "from 15th Street" is that the twenty-five-foot setback
is measured from the "right of way line" of 15th Street. The court in part relied
on plaintiffs' and defendants' experts, who agreed that "15th Street" itself was
unambiguous and meant 15th Street as defined by its right-of-way lines.
The court rejected defendants' claim the term "streetside" in the deed
restriction means the setback is measured from the curb or the "edge of [the]
pavement" or otherwise creates an ambiguity concerning the meaning of "from
15th Street." The court found "streetside" was directional, meaning "'alongside'
or 'near the street,'" and that the term did not define the point from which the
setback was measured. The court noted defendants had changed their position
concerning the meaning of the term at trial, and the court found, based on the
unambiguous language of the deed restriction alone, the twenty-five-foot
setback should be measured from the right-of-way line of 15th Street.
The court separately considered and analyzed extrinsic evidence
concerning the prior transfers of title to the three properties from the original
grantees, setback deed restrictions applicable to each of the properties , and the
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language used in the prior deeds for the properties. The court concluded the
extrinsic evidence provided separate and independent support for its
determination the 1967 deed restriction required a twenty-five-foot setback from
East 15th Street's right-of-way line fronting defendants' beachfront property.
The court entered a final judgment, which it later amended, granting
plaintiffs a declaratory judgment enforcing the 1967 deed restriction and
enjoining defendants and their successors in title from "constructing any
building or part of any building on [their] property . . . that is less than twenty-
five . . . feet from the nearest right of way line of [East] 15th Street." The court
transferred plaintiffs' damages claim to the Law Division, and, based on
defendants' request, dismissed the counterclaims with prejudice. Defendants
appeal from the amended final judgment and from the court's denial of their
motion to bar the introduction of extrinsic evidence at trial.
II.
Prior to addressing defendants' arguments, we review the legal principles
applicable to our consideration of the issues presented. "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). As a
result, "courts will not aid one person to restrict another in the use of his [or her]
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land unless the right to restrict is made manifest and clear in the restrictive
covenant." Berger v. State, 71 N.J. 206, 215 (1976) (quoting Bruno, 63 N.J.
Super. at 285).
Deed restrictions "are to be construed realistically in the light of the
circumstances under which they were created," but "incursions on the use of
property will not be enforced unless their meaning is clear and free from doubt."
Caullett v. Stanley Stilwell & Sons, Inc., 67 N.J. Super. 111, 114-15 (App. Div.
1961). However, the "primary objective" in construing a restrictive covenant in
a deed "is . . . determin[ing] the intent of the parties to the agreement," Bubis v.
Kassin, 184 N.J. 612, 624 (2005) (quoting Lakes at Mercer Island Homeowners
Ass'n v. Witrak, 810 P.2d 27, 28-29 (Wash Ct. App. 1991)), and "strict
construction [of a deed restriction] will not be applied to defeat the obvious
purpose of [the] restriction," Bruno, 63 N.J. Super. at 287.
The interpretation and construction of a deed is a matter of law that we
review de novo. Cooper River Plaza E., LLC v. Briad Grp., 359 N.J. Super. 518,
528 (App. Div. 2003). We analyze a deed restriction "in accordance with the
principles of contract interpretation, which include a determination of the
intention of the parties as revealed by the language used by them." Id. at 527;
see also Homann v. Torchinsky, 296 N.J. Super. 326, 334 (App. Div. 1997)
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(explaining "[a] restrictive covenant [in a deed] is a contract" (first alteration in
original) (quoting Weinstein v. Swartz, 3 N.J. 80, 86 (1949))). Where, as here,
we are required to interpret a deed restriction intended to bind purchasers of
property who are strangers to the transaction in which the restriction was
imposed, "the intent of the restriction must manifest itself in the language of the
document itself. If ambiguity remains, it cannot be resolved, as would be the
case if the initial signatories disputed an ambiguous term, by resort to extrinsic
evidence . . . ." Cooper River Plaza, 359 N.J. Super. at 527 (footnote omitted);
see also Freedman v. Sufrin, 443 N.J. Super. 128, 131-32 (App. Div. 2015).
"An intention disguised by an ambiguity cannot bind a subsequent
purchaser who, as the result of an absence of clarity in the instrument of
conveyance, lacks notice of restrictions that the initial parties have attempted to
place on the property . . . conveyed." Cooper River Plaza, 359 N.J. Super. at527: see also Sullivan v. Port Auth. of N.Y. & N.J., 449 N.J. Super. 276, 283
(App. Div. 2017) ("We review issues of law de novo and accord no deference to
the trial court's legal conclusions."). That principle is consistent with our
contract law, "which require[s] sufficient definiteness of terms so that the
performance required of each party can be ascertained with reasonable certainty,
as well as knowledge of and acquiescence in the stated terms." Ibid. The
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principle also honors "the central public policy underlying New Jersey's
Recording Act: that 'a buyer . . . of real property should be able to discover and
evaluate all of the . . . restrictions on the property' from a review of the public
record." Id. at 527-28 (alterations in original) (quoting Aldrich v. Schwartz, 258
N.J. Super. 300, 307 (App. Div. 1992)).
Ambiguity arises "if the terms of the contract are susceptible to at least
two reasonable alternative interpretations." Id. at 528 (quoting Assisted Living
Assocs. of Moorestown, L.L.C. v. Moorestown Twp., 31 F. Supp. 2d 389, 398
(D.N.J. 1998)). It is for the court to decide as a matter of law whether the terms
of a contract are "clear or ambiguous." Schor v. FMS Fin. Corp., 357 N.J. Super.
185, 191 (App. Div. 2002) (citing Nester v. O'Donnell, 301 N.J. Super. 198, 210
(App. Div. 1997)).
Guided by these principles, we discern no basis to reverse the court's
determination that the plain and unambiguous language of the restrictive
covenant requires a twenty-five-foot setback measured from the right-of-way
line of East 15th Street. Defendants do not dispute the deed restriction requires
a twenty-five-foot setback. Nor could they. The plain language of the restriction
– "a 25[-]foot streetside setback from 15th Street" – requires it. Thus, the
grantors in 1967 intended a twenty-five-foot setback on the property, and we
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will not apply a strict construction of the deed restriction that defeats their
clearly stated purpose. Bruno, 63 N.J. Super. at 287.
Defendants do not dispute a setback is a designated area on a property
within which no building may be constructed, and which is measured from a
particular point or place. See, e.g., Roehrs v. Lees, 178 N.J. Super. 399, 401
(App. Div. 1981) (determining the enforceability of a deed restriction requiring
a twenty-five-foot setback from a property line); Graves v. Bloomfield Plan.
Bd., 97 N.J. Super. 306, 312 (Law Div. 1967) (measuring the setback point
"from the street line"); Tambone v. Bd. of Appeal of Stoneham, 203 N.E.2d 802,
804 (Mass. 1965) ("[I]n general, setback requirements . . . refer to distances
from street lines, lot lines, or existing structures, rather than from zoning
boundaries."); see also Black's Law Dictionary 1648 (11th ed. 2019) (defining a
setback as "[t]he minimum amount of space required between a lot line and a
building line"). Defendants argue only that the setback required by the 1967
deed restriction is ambiguous because the particular point or place from which
the setback is measured cannot be clearly determined from the restriction's plain
language.
We agree with the court's determination that the term "from 15th Street"
is the operative language in the 1967 deed restriction because it defines the point
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or place from which the twenty-five-foot setback is measured. "[F]rom 15th
Street" are the only words in the deed restriction specifying a point or place
"from" which the setback is measured. The language provides the essential
starting point for measuring the required twenty-five-foot setback. In addition,
inclusion of the operative language, "from 15th Street," in the deed restriction
is consistent with what defendants concede is the plain meaning of a setback
restriction—an area measured from a point or place within which no building
construction is permitted on their property. As the trial court found, the deed's
plain and unambiguous language requires a twenty-five-foot setback measured
"from 15th Street."
Defendants claim the deed restriction is ambiguous because the term "15th
Street" is not defined. They also contend the deed restriction is ambiguous
because, although the setback is clearly to be measured "from 15th Street," the
deed restriction does not identify the specific portion of 15th Street from which
the twenty-five-foot setback must be measured.
Defendants' argument ignores the plain meaning of the language used in
the deed restriction. In their brief on appeal, defendants concede that "the legal
definition of '15th Street' . . . includes the entire 60[-]foot area between [its] two
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right-of-way lines, or property lines."4 Thus, as defendants recognize, by
definition, "15th Street" exists between its right-of-way lines which, along
defendants' property facing the street, are contiguous with defendants' property
lines. The court found, and we agree, application of this definition of "15th
Street" to the deed restriction permits only a single reasonable and logical
conclusion: the twenty-five-foot setback on defendants' property is measured
from 15th Street's right-of-way line that is contiguous to defendants' property
line.
Defendants attempt to infuse ambiguity into the deed restriction's plain
language by arguing that since 15th Street includes a sixty-foot swath between
its right-of-way lines that includes a sidewalk, gutter, curbing, and a paved
roadway, the deed restriction's reference to "15th Street" can be logically read
to refer to any of those physical features within 15th Street's sixty-foot width.
Defendants claim the deed restriction's reference to "15th Street" ambiguously
permits the conclusion that the curb, sidewalk, gutter, or other places within the
4
This definition of "15th Street" is further supported by the testimony of
plaintiffs' and defendants' respective experts at trial. They each testified "15th
Street" by itself is defined by its "right-of-way" lines that are contiguous with
defendants' property lines fronting 15th Street.
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street's sixty-foot-wide area may be reasonably used as the point from which the
setback should be measured.
We will not torture the language of a restrictive covenant to create
ambiguity, as defendants' proffered interpretation of the deed would require.
See Stiefel v. Bayly, Martin & Fay of Conn., Inc., 242 N.J. Super. 643, 651
(App. Div. 1990) (explaining a court "should not torture" the reading of a
contract "to create [an] ambiguity"). We must interpret the deed restriction
reasonably and in context, and to give effect to its plain language. See, e.g.,
Schor, 357 N.J. Super. at 191 (explaining interpretation of a contract requires
consideration of "the document as a whole" and application of the plain and
ordinary meaning of its terms). Defendants' interpretation of the restriction
ignores that the setback must be twenty-five feet "from 15th Street." To give
effect to this plain language, the setback must necessarily be "from" the street's
right-of-way lines. A point within the street's right-of-way lines could not
logically provide the starting point or place from which to measure the setback
because using such a measure necessarily results in a setback that is less than
twenty-five feet "from" the street or, under certain circumstances, within the
sixty-foot width of the street itself.
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For example, a setback measured from ten feet inside the street's right-of-
way line, perhaps from a curb or gutter line, would result in a setback that is
only fifteen feet "from 15th Street." A setback measured from the center line of
the sixty-foot-wide street would result in no setback at all because twenty-five
feet from the street's center would place a portion of the setback within the
street's right-of-way lines. Those examples illustrate the illogic and
unreasonableness of defendants' proffered interpretation of the deed restriction's
plain and unambiguous language. The required setback can only be twenty-five
feet "from 15th Street" if the setback is measured from 15th Street's right-of-
way lines. To hold otherwise would violate the deed restriction's clear and
unambiguous requirement that there be a twenty-five-foot setback "from 15th
Street."
Defendants also claim the term "streetside" in the deed restriction creates
an ambiguity rendering the restriction unenforceable against them. The
argument ignores the simple sentence structure of the deed restriction. The deed
restriction defines the starting point for the measurement of the setback; it is
"from 15th Street." The term "streetside" is not included within the deed
restriction's delineation of the setback's starting point. The restriction does not
provide that the twenty-five-foot setback is "from the streetside." To the
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contrary, and as we have explained, the setback is measured "from 15th Street."
The deed restriction permits no other reasonable conclusion. We therefore reject
defendants' claim the term "streetside" renders the deed restriction's operative
language—"from 15th Street"—ambiguous.
Defendants illogically argue "streetside" is a word that lacks any clear
meaning and, at the same time, contend it should be interpreted to mean that the
setback is measured from the curb or street's gutter because they are to the side
of the paved roadway or street. Again, defendants ignore that "streetside" is not
included within the deed restriction's operative language—"from 15th Street"—
defining the place from which the setback is measured.
In addition, in their effort to contort the plain language of the deed
restriction into an alleged ambiguity, defendants ignore that even if "streetside"
in part defined the location from which the setback is measured, "streetside" can
only logically be interpreted to mean to the side of 15th Street. Thus, a setback
that is to the side of 15th Street must, for the reasons we have explained,
necessarily be to the side of the right-of-way lines that define 15th Street. There
is no language in the deed restriction suggesting the setback should be measured
from some interior part the street, such as a curb or gutter, and, therefore,
defendants' argument is founded on an attempt to inject into the deed restriction
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language the grantor opted not to include and that the court is without authority
to incorporate. See, e.g., James v. Fed. Ins. Co., 5 N.J. 21, 24 (1950) (explaining
a court may not remake or alter a contract to make it different than the contract
made by the parties). The deed restriction simply, clearly, and unambiguously
refers only to 15th Street, which, by definition, exists between its right-of-way
lines.
Giving effect to the deed restriction's plain language, a "streetside"
setback "from 15th Street" must, for the reasons we have explained, be measured
from the street's right-of-way lines. Indeed, the setback could only be alongside
the street if it exists next to the street, and, here, 15th Street is defined by its
right-of-way lines. The deed restriction's plain language does not support any
other interpretation. Defendants' effort to convert that simple and
straightforward language into something vague or ambiguous strains credulity
and is unavailing. As noted, an ambiguity exists where the terms of the deed
restriction "are susceptible to at least two reasonable alternative interpretations."
Cooper River Plaza, 359 N.J. Super. at 528 (quoting Assisted Living Assocs.,
31 F. Supp. 2d at 398). Defendants do not offer a reasonable alternative
interpretation of the deed restriction here.
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In any event, the deed restriction's plain language does not permit a
reasoned conclusion "streetside" defines the place from which the setback is
measured. If that result had been intended, the term "streetside" would have
followed the word "from." We agree with the trial court that "streetside" simply
provides directional context for the setback the deed restriction otherwise
expressly and plainly provided would be measured "from 15th Street." That is,
"streetside" means nothing more or less than that on the side of defendants'
property along 15th Street, there is a twenty-five-foot setback "from 15th
Street." But cf. Cooper River Plaza, 359 N.J. Super. at 528 (finding ambiguous
a deed restriction providing for a setback from a "building line" because the
building had four sides and it was not possible to determine whether the
"building line" facing the street was the building line intended).
There is nothing in the deed restriction supporting defendants' claim that
"streetside" means alongside the curb, next to the gutter, or near the paved street,
and, as we have explained, the deed restriction's plain language alone supports
the trial court's conclusion that the 1967 deed reserved a twenty-five-foot
setback measured from 15th Street's right-of-way line. We therefore affirm the
trial court's determination and final judgment.
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Defendants also argue the trial court erred by denying their motion to
exclude extrinsic evidence at trial. They correctly contend extrinsic evidence is
inadmissible to resolve ambiguities in a deed restriction where, as here, the
purchasers of the property were not parties to the original deed containing the
restriction. See id. at 527-28; see also Freedman, 443 N.J. Super. at 131 ("'[T]he
meaning of a restrictive covenant will not be extended by implication and all
doubts and ambiguities must be resolved in favor of the owner's unrestricted use
of the land.' This standard remains unchanged." (quoting Bruno, 63 N.J. Super.
at 287)).
In Bubis, however, the Supreme Court relied on extrinsic evidence,
including various dictionary definitions, to determine the "plain and obvious
meaning" of the word "fence" in a deed restriction limiting the use of property
of a purchaser who was not party to the deed containing the restriction. 184 N.J.
at 617, 620-24. The Court noted the requisite strict construction of a deed
restriction "has its limitations" and must yield to an interpretation that does not
"defeat[] the plain and obvious meaning of the restriction." Id. at 624 (quoting
Lakes, 810 P.2d at 29. The Court relied on extrinsic evidence to "interpret [the
word 'fence'] consistent with the general understanding of the word." Ibid. As
explained in Cooper River Plaza, where there is a clear, plain meaning to a term,
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it is sufficient to bind subsequent purchasers because the term provides adequate
notice of the restriction. 359 N.J. Super. at 527.
Here, we find no error in the trial court's admission of the extrinsic
evidence—the testimony of the parties' respective experts—establishing the
plain and ordinary meaning of the term "15th Street." The testimony was not
admitted to resolve an ambiguity in the deed restriction. It was properly
admitted to establish the plain and ordinary meaning of "15th Street." See
generally Bubis, 184 N.J. at 624.
The trial court determined the deed restriction was not ambiguous and, for
that reason alone, concluded defendants are required to maintain a twenty-five-
foot setback from 15th Street's right-of-way line. The court separately
considered extrinsic evidence—including the history of the prior transfers of the
parties' properties, the deed restrictions applicable to the properties, and the
development of 15th Street—and determined the evidence independently
supported its interpretation of the 1967 deed restriction. Defendants argue the
court erred by denying its motion to bar the extrinsic evidence and by relying
on it to support its decision.
It is unnecessary that we address defendants' argument because, for the
reasons we have explained, the court correctly determined the deed restriction's
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plain language requires enforcement of the twenty-five-foot setback from 15th
Street's right-of-way line.5 The court's reliance on the extrinsic evidence as an
alternative basis for its conclusion is therefore of no moment. On appeal, we
determine the validity of the court's order, not its reasoning. See Do-Wop Corp.
v. City of Rahway, 168 N.J. 191, 199 (2001) (explaining "appeals are taken from
orders and judgments and not from . . . reasons given for the ultimate
conclusion"). Here, we affirm the court's final judgment based on the deed
restriction's plan language alone.
Affirmed.
5
For the same reason, we do not address plaintiffs' claim defendants are
judicially estopped from arguing extrinsic evidence should have been barred at
trial because defendants relied on the extrinsic evidence during the pretrial
proceedings, including the proceedings that resulted in the court's entry of a
preliminary injunction against defendants' construction within the twenty-five-
foot setback.
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