DANIEL MATTHIES VS. CHARLES DIETRICH Â (C-0146-13, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0765-15T3
DANIEL MATTHIES and
HEATHER MATTHIES,
Plaintiffs-Respondents,
v.
CHARLES DIETRICH and
MARY DIETRICH,
Defendants-Appellants.
______________________________________
Argued December 15, 2016 – Decided August 3, 2017
Before Judges Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket
No. C-0146-13.
Gary E. Fox argued the cause for appellants
(Fox & Melofchik, LLC, attorneys; Mr. Fox,
on the briefs).
R.S. Gasiorowski argued the cause for
respondents (Gasiorowski & Holobinko,
attorneys; Mr. Gasiorowski, of counsel and
on the brief; Cathy S. Gasiorowski, on the
brief).
PER CURIAM
Defendants Charles Dietrich and Mary Dietrich appeal from a
September 11, 2015 General Equity Part judgment entered in favor
of plaintiffs Daniel Matthies and Heather Matthies following a
non-jury trial.1 Among other things, the judgment mandated
defendants to remove trees from an easement. We reverse.
I
The salient evidence that emerged from the trial was as
follows. In 2004, defendants purchased property in Middletown
Township (municipality) in order to build a home. Later that
year, defendants obtained approval from the municipality's
Planning Board to subdivide their property into two lots, on the
condition the lots be subject to a conservation easement
(easement). Defendants agreed and, in October 2004, recorded a
"Deed to Perfect Conservation Easement" (deed restriction or
restrictive covenant). This document states:
The [defendants], in consideration of the
requirements of the minor subdivision
approval referred to above, and the sum of
One ($1.00) Dollar, the receipt of which is
hereby acknowledged, do[] hereby give, grant
and convey unto [the municipality], its
successor and assigns forever, a
conservation easement, as defined by the
Planning and Development Regulations of the
Township of Middletown, as being an area of
land upon which a deed restriction is placed
1
For ease of reference, when we use the singular "plaintiff,"
we refer to Daniel Matthies, and when we use the singular
"defendant," we refer to Charles Dietrich.
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limiting disturbance, clearing, construction
and other activities.
THIS EASEMENT is dedicated to the TOWNSHIP
OF MIDDLETOWN for any and all of the
following purposes: (1) of protecting steep
slopes from erosion; said easement is
intended to be an uninterrupted and
unobstructed easement, under, across and
over the area described, consisting of the
right to restrict the removal of trees and
ground cover except for the purposes of
removing dead or diseased trees, thinning of
trees and growth, and (2) of maintaining
open space in as close to its natural state
as possible.
The pertinent municipal regulation defines a conservation
easement in relevant part as:
An area of land upon which a deed
restriction is placed limiting disturbance,
clearing, construction and other activities.
Conservation easements are generally
utilized to protect environmentally
sensitive areas, including but not limited
to . . . steep slopes.
[Middletown Twp., N.J., Planning and Dev.
Ordinance § 540-203.]
At the time defendants bought their property in 2004, grass
covered the area comprising the easement. In April 2008,
defendant hired a landscaper to plant ten to twelve Leyland
Cypress trees in the easement, for the purpose of creating
privacy and to control erosion. When first planted, the trees
were six feet high. Defendant did not know if or how much grass
was removed in order to insert each tree into the ground;
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however, there was evidence grass remained between the trees.
Defendant claimed no soil was removed.
In October 2008, plaintiffs moved into a house on an
adjacent lot. Plaintiffs were aware of the deed restriction
affecting defendants' home when they bought their own home.
Plaintiffs did not complain to defendants about the trees until
2012, when the trees began to block their view of the Verrazano
Bridge. Plaintiffs did not object to trees being in the
easement, merely that the trees were obstructing their view.
In response to plaintiffs' complaints, defendants trimmed
the trees back, and did so on three or four occasions
thereafter. Plaintiffs offered to pay for trimming the trees or
to remove the trees and put in a slower-growing type of tree,
but defendants declined both offers.
In 2013, defendants put their house on the market.
Defendant testified plaintiffs asked him to include in any
contract of sale a provision the buyers agreed to trim the trees
on a periodic basis. Defendants refused, because at that time
they were already under a contract to sell their home. The sale
price was $1,185,000. Plaintiffs then advised they would
consult with an attorney about taking legal action.
Shortly thereafter, in September 2013, plaintiffs filed a
complaint. In their complaint, plaintiffs alleged defendants
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violated the terms of the deed restriction by planting the
subject trees. They demanded the trees be removed and the area
in the easement restored to its natural condition. There is
some indication in the complaint plaintiffs were alleging
defendants wrongfully allowed the trees to interfere with their
view but, just before trial, plaintiffs clarified they were not
asserting such claim. In addition, plaintiffs stated they were
seeking as a remedy either the trees be removed or defendants
ordered to maintain the trees at a certain height.
After the complaint was filed, the buyers declined to
complete the sale. There is evidence the buyers retreated from
the contract upon learning of the conservation easement, but
there is also evidence plaintiffs advised the prospective buyers
of their intention to litigate over the trees, and the buyers
backed out of the contract to avoid being involved with any
litigation.
Defendants filed a counterclaim. They contended plaintiffs
wrongfully and intentionally induced the buyers to renege on
their agreement to purchase defendants' home. However, at
trial, defendant conceded the house was sold approximately six
months later for $1,835,000.2 Defendants claimed $27,042 in
2
The record informs the purchasers of defendants' house agree
to be bound by any judgment entered against them.
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damages, the money they had to pay toward the carrying charges
on their home during those six months, but it is undisputed
defendants had the benefit of living in their home during this
period.
Plaintiff's testimony was in many respects consistent with
defendant's. However, plaintiff did add the trees were eighteen
to twenty feet in height in 2012. He also testified there is
grass on either side of and "foliage" underneath the trees.
Michael LeMana, plaintiffs' expert arborist, testified
Leyland Cypress trees were created in the 1800s, when cross-bred
with two species of trees native to the northwestern part of the
United States. This tree has become very popular in New Jersey
over the last twenty years because it grows at a rate of three
feet per year, and can exceed fifty feet in height.
LeMana testified Leyland Cypress trees are not commonly
used for soil erosion control, but grass is. He further stated
this kind of tree is not stable in high winds, because they have
shallow root systems and can be pulled out of the ground. The
expert did not state at what wind speeds these trees can be
uprooted. Finally, he stated when he observed the site in 2013,
he noticed "tree foliage" between the trees, which were planted
very close to each other.
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Plaintiffs' planning expert, Peter G. Steck, testified
photographs taken in 2002 revealed the easement was a wooded
area comprised of deciduous trees. Photographs taken in 2007
demonstrated most of the trees had been removed and replaced
with grass, although some deciduous trees remained. At some
point thereafter, the grass and deciduous trees were replaced
with the Leyland Cypress trees, which were planted in two rows
in a staggered, geometric pattern.
Although qualified as an expert in the field of planning,
over defendants' objection, Steck was permitted to provide
various opinions about Leyland Cypress trees; the court reasoned
he could do so because he had an engineering degree.3 Steck
noted this tree is not native to New Jersey, and is not
"typically" used to protect "steeper" slopes. However, Steck
noted the subject slopes are not in the "steepest" category,
being only "fifteen to twenty percent."
Steck also opined putting "tall" trees on a steeply sloped
area may cause them to tilt in a wind storm and be partially
uprooted. He did not say how high a Leyland Cypress tree must
be in order to be vulnerable to tilting in a wind storm. He
conceded when he examined the site in 2014, he did not see any
erosion or instability of the easement and, with the passage of
3
Defendants do not challenge this ruling on appeal.
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time since planted, the roots to the trees were deeper. At that
time, the trees were thirteen feet in height.
Although not qualified as a legal expert, Steck provided
his legal interpretation of both the language in the deed
restriction and an ordinance referencing conservation easements.
We do not recount this testimony, as his legal opinion is not
entitled to any deference from either the trial court or from
us. "As with other legislative provisions, the meaning of an
ordinance's language is a question of law that we review de
novo." Bubis v. Kassin, 184 N.J. 612, 627 (2005) (citing In re
Distribution of Liquid Assets, 168 N.J. 1, 11 (2001)).
The interpretation of the language in the deed restriction
is also one to be decided by the court. It is well-established
"[e]xpert witnesses simply may not render opinions on matters
which involve a question of the law." Healy v. Fairleigh
Dickinson Univ., 287 N.J. Super. 407, 413 (App. Div.), certif.
denied, 145 N.J. 372, cert. denied, 519 U.S. 1007, 117 S. Ct.
510, 136 L. Ed. 2d 399 (1996)).
At the conclusion of the trial, the court found the
planting of the Leyland Cypress trees violated the deed
restriction, because its purpose is to protect steep slopes from
erosion and the "testimony is uncontroverted that Leyland
Cypress trees do not prevent erosion." The court further
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determined the deed restriction "restricts the right to remove
trees and ground cover. Although defendants did not remove any
trees, they planted them. The planting of the trees removed the
ground cover, thereby violating the easement."
The court also noted another purpose of the deed
restriction was to maintain open space in as close to its
natural state as possible. According to the court, the area in
which the easement is located is no longer maintained in its
natural state, because the Leyland Cypress tree is "not natural
to the area[, and] [t]hey are planted in a geometric pattern
which is not natural. The trees have caused the ground cover to
die. They do not prevent erosion on steep slopes."
As a result of the deed restriction being violated, the
court ordered the trees removed, and efforts undertaken to
restore the area to its natural state, which the court
determined was "grass cover."
II
On appeal, defendants present the following arguments for
our consideration:
POINT I - THE COURT BELOW ERRED IN
CONCLUDING THAT THE EASEMENT PROHIBITS THE
PLANTING OF TREES WITHIN ITS RESTRICTED AREA
POINT II - PLAINTIFFS COMPLAINT SHOULD HAVE
BEEN DISMISSED FOR FAILURE TO JOIN
INDISPENSIBLE PARTIES
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POINT III - THE COURT BELOW SHOULD HAVE
DENIED PLAINTIFFS' REQUEST FOR RELIEF
BECAUSE OF THE EQUITABLE DOCTRINE OF LACHES
POINT IV - THE COURT BELOW ERRED IN NOT
DENYING PLAINTIFFS RELIEF BECAUSE OF THE
AFFIRMATIVE DEFENSE OF EQUITABLE ESTOPPEL
POINT V - BECAUSE PLAINTIFFS HAVE COME INTO
COURT WITH "UNCLEAN HANDS" THE COURT SHOULD
DENY THEM THE RELIEF THEY REQUEST
POINT VI - THE COURT BELOW ERRED IN NOT
FINDING THAT PLAINTIFFS UNLAWFULLY
INTERFERED WITH THE DEFENDANTS' CONTRACTUAL
RELATIONS
Our standard of review of a trial court's decision
following a bench trial is well-settled. The trial court's
factual findings are to be upheld if supported by sufficient
credible evidence in the record. Brunson v. Affinity Fed.
Credit Union, 199 N.J. 381, 397 (2009). However, we do not owe
the trial court such deference when we review its legal
conclusions. Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495
(App. Div.), certif. denied, 177 N.J. 224 (2003).
Here, the parties do not dispute the deed restriction is a
restrictive covenant. Restrictive covenants are contracts,
"subject to the interpretative doctrines of contract law which
focus on the parties' mutual purpose." Caullett v. Stanley
Stilwell & Sons, Inc., 67 N.J. Super. 111, 115 (App. Div. 1961);
see also Cooper River Plaza E., LLC v. Briad Grp., 359 N.J.
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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).
If "the intent of the parties is evident from an
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) (citing Hyland v. Fonda,
44 N.J. Super. 180, 187 (App. Div. 1957)). The words in a
covenant are given their ordinary meaning. Citizens Voices
Ass'n v. Collings Lakes Civics Ass'n, 396 N.J. Super. 432, 443
(App. Div. 2007).
However, if the language in a document creating an easement
is ambiguous or in dispute, a court may resort to extrinsic
evidence to inform the court's interpretation of the parties'
intent in the case of an ambiguity. Boylan v. Borough of Point
Pleasant Beach, 410 N.J. Super. 564, 569 (App. Div. 2009). "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
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(App. Div. 1997) (quoting Kaufman v. Provident Life and Cas.
Ins. Co., 828 F. Supp. 275, 283 (D.N.J. 1992), aff'd, 993 F.2d
877 (3d Cir. 1993)).
The relevant portions of the deed restriction state:
The [defendants], . . . do[] hereby give,
grant and convey unto [the municipality]
. . . a conservation easement, as defined by
the Planning and Development Regulations of
the Township of Middletown.
THIS EASEMENT is dedicated to the TOWNSHIP
OF MIDDLETOWN for . . . the following
purposes: (1) . . . protecting steep slopes
from erosion; said easement is intended to
be an uninterrupted and unobstructed
easement, under, across and over the area
described, consisting of the right to
restrict the removal of trees and ground
cover except for the purposes of removing
dead or diseased trees, thinning of trees
and growth, and (2) of maintaining open
space in as close to its natural state as
possible.
Simply stated, the purpose of the deed restriction is to
protect steep slopes in the easement area from erosion, and to
maintain the open space in the easement in as close to its
natural state as possible. The deed restriction includes the
right to limit the removal of trees and ground cover, except as
permitted by the language in the deed restriction.
The court found the planting of the Leyland Cypress trees
was a violation of the deed restriction, because this kind of
tree does not prevent erosion. However, this finding is not
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supported by the evidence. LeMana merely stated this kind of
tree is not commonly used as a form of soil erosion control, not
that this tree cannot prevent erosion. He did state at high
winds this tree might be uprooted, but he failed to provide the
wind speed that would cause a tree of this kind to be dislodged
from the ground, and did not state how likely and often such
speed would occur.
When the trees were inspected by Steck in 2014, they had
been in place for six years, and there was no sign of soil
disruption or erosion. Steck opined a tall Leyland Cypress on a
steep slope may tilt in a wind storm and be partially uprooted.
But he, too, failed to clarify how tall the tree, strong the
wind, and steep the slope must be to cause a tree of this kind
to tilt and upend. On balance, we are not persuaded the
evidence supports the finding the planting of the Leyland
Cypress trees violated the deed restriction. In addition, the
court did not provide a reason why all of the trees should be
removed and those areas where the trees had stood replaced with
grass, when there was no evidence the integrity of the slope was
being compromised.
The court noted the deed restriction limits the right to
remove trees and ground cover. Although the court found
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defendants did not remove any trees, it did find they violated
the deed restriction by removing grass from the easement.
As previously stated, the words in a covenant are given
their ordinary meaning. Citizens Voices Ass'n, supra, 396 N.J.
Super. at 443. Webster's II New College Dictionary defines
"ground cover" as:
1. Low-growing plants that form a dense,
extensive growth and tend to prevent weeds
and soil erosion. 2. Small plants other than
saplings, such as mosses and undershrubs,
growing on a forest floor : UNDERGROWTH.
[Webster's II New College Dictionary 502
(3rd ed. 2005).]
The applicability of the first definition of ground cover
is questionable, because it is common knowledge grass does not
tend to prevent weeds. The second definition is inapplicable.
But more important, there is no conclusive evidence grass was
removed. Defendant did not know what happened to the grass when
his landscaper inserted the trees into the ground, although
defendant was able to say the soil was not removed. Plaintiff
testified there is grass on either side of and foliage
underneath the trees. When LeMana visited the easement in 2013,
he observed "foliage" between the trees. In the final analysis,
there is insufficient evidence defendants removed ground cover
from the easement.
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The court observed another purpose of the deed restriction
is to maintain open space in as close to its natural state as
possible. The court determined planting Leyland Cypress trees
violated the deed restriction because this tree is not native to
the area and was planted in a geometric pattern, which is not
found in nature.
The term "open space" is defined in the Municipal Land Use
Law as follows:
[A]ny parcel or area of land or water
essentially unimproved and set aside,
dedicated, designated or reserved for public
or private use or enjoyment or for the use
and enjoyment of owners and occupants of
land adjoining or neighboring such open
space; provided that such areas may be
improved with only those buildings,
structures, streets and offstreet parking
and other improvements that are designed to
be incidental to the natural openness of the
land or support its use for recreation and
conservation purposes.
[N.J.S.A. 40:55D-5.]
There is no evidence the planting of the subject trees in this
easement is inconsistent with the definition of "open space."
Neither the Municipal Land Use Law nor the deed restriction
defines the term "natural." Thus, we resort to the dictionary
to ascertain its meaning. Webster's II New College Dictionary
defines the term "natural" as "present in or produced by
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nature."4 Webster's II New College Dictionary 746 (3rd ed.
2005).
The trees that were planted in the easement are present in
and produced in nature. The fact they are not native to the
area or were planted in a certain pattern is irrelevant. The
second purpose of the easement is to maintain open space in as
close to its natural state as possible. A "natural" state is
merely one that is present in or produced by nature. Thus, an
easement that contains Leyland Cypress trees is in a natural
state.
To the extent it was the court's reasoning the deed
restriction compelled the easement area be returned to a state
before touched by human hand, the remedy ordered - to remove the
current trees and maintain only grass throughout the entire
easement - would not achieve the desired result. The grass was
deliberately put in place by some entity or individual after the
removal of the deciduous trees. It is not known if the
deciduous trees came into existence as the result of human
intervention, as that question was not explored, or what existed
before the latter trees. But, at the least, if the trial
4
There are other definitions of "natural," but none is
applicable to the issues before us.
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court's reasoning governed, the correct remedy would not have
been to order that only grass be maintained in the easement.
In light of our disposition, we need not address
defendants' remaining arguments.
Reversed.
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