SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-3968-14T1

 A-0012-15T1

VICTOR H. BOYAJIAN and

LYNN BOYAJIAN,

Plaintiffs-Appellants/

Cross-Respondents,

v.

MICHAEL CAMMARATA and

GRETEL CAMMARATA,

Defendants-Respondents/

Cross-Appellants.

______________________________

VICTOR H. BOYAJIAN and

LYNN BOYAJIAN,

Plaintiffs-Appellants/

Cross-Respondents,

v.

MICHAEL CAMMARATA, and 

GRETEL CAMMARATA, 

Defendants-Respondents/

Cross-Appellants, 

and

TOWNSHIP OF HARDING; PAUL

FOX, Township Engineer of

NOT FOR PUBLICATION WITHOUT THE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.
2 A-3968-14T1

Harding Township; GAIL McKANE,

Administrator of Harding

Township; and KAREN ZABORSKY,

Zoning Officer of Harding

Township,

Defendants.

______________________________

Argued April 4, 2017 – Decided 

Before Judges Reisner, Koblitz and Sumners.

On appeal from the Superior Court of New 

Jersey, Law Division, Special Civil Part, 

Morris County, Docket No. DC-4957-14 and 

Chancery Division, General Equity Part, Morris 

County, Docket Nos. C-119-13 and 

C-171-14.

Lance J. Kalik argued the cause for 

appellants/cross-respondents (Riker Danzig 

Scherer Hyland & Perretti LLP, attorneys; Mr. 

Kalik, of counsel and on the briefs; Tracey 

K. Wishert and Jeffrey A. Beer, Jr., on the 

briefs).

Bruce H. Snyder argued the cause for 

respondents/cross-appellants (Lasser Hochman, 

LLC, attorneys; Mr. Snyder on the brief).

PER CURIAM

These two consolidated appeals arise from disputes between 

neighbors over landscaping, fencing, and a common driveway. For 

the reasons that follow, we affirm the trial court orders on both 

plaintiffs' appeals and defendants' cross-appeals. 

August 17, 2017
3 A-3968-14T1

I

The parties own adjoining lots in New Vernon, one located 

behind the other. Plaintiffs Victor H. Boyajian and Lynn Boyajian 

own the rear lot (Block 17, Lot 22), which is landlocked except 

for the driveway, which provides them with access to a public road 

pursuant to an easement. Defendants Michael Cammarata and Gretel 

Cammarata, own the lot in front of the Boyajian's property (Block 

17, Lot 20); the easement runs along the western edge of 

defendants' lot.1 Defendants also use the driveway to reach the 

public road. 

The recorded easement, which was created in a 1948 deed and 

restated in a 1981 deed, is limited by its terms to the right to 

use the "road" or driveway. The easement reserved to the sellers 

of Lot 20 and their "heirs and assigns" the following: "the right 

and privilege to use the road now on the premises hereby conveyed 

for the purpose of ingress and egress to and from the premises 

retained by them [Lot 22]." 

The easement has never been the subject of a metes and bounds 

description. However, a 2011 agreement between the parties 

 

1 It appears from the record that at some point along its length, 

the driveway encroaches very slightly onto the property of a third 

set of neighbors, the Dudleys. The encroachment may have existed 

for decades. There is no evidence in this record that the Dudleys 

have ever objected to the encroachment, and they were not parties 

to any of this litigation. 
4 A-3968-14T1

described it as follows: "there presently exists an easement in 

favor of Boyajian over an existing driveway that varies in width 

from approximately 17 feet at its widest point to approximately 8 

feet at its narrowest point . . . ." [emphasis added]. The 2011 

agreement was a settlement, resulting in plaintiffs withdrawing 

their objection to defendants' variance application for the 

construction of a larger house on their property. In addition to 

identifying the driveway easement and its purpose, the 2011 

agreement provided that the parties would share the cost of 

maintaining the driveway. The agreement specifically contemplated 

that damage might occur to the driveway during construction of 

defendants' new house, and defendants agreed to pay to repair any 

such damage. 

The 2011 agreement also provided that defendants would plant 

and maintain "landscaping" along the boundary line between the two 

properties, according to the terms set forth in the approved plans 

defendants had submitted to the Harding Township Zoning Board of 

Adjustment (zoning board or board) with their variance 

application. A copy of the relevant page of the plans was attached 

to the agreement.2 As the board's resolution recognized, the 

 

2 The attached page contains a detailed drawing of the property, 

including the driveway, as well as the location and description 

of the proposed landscaping. 
5 A-3968-14T1

plantings were a buffer, intended to shield defendants' large 

house from view and maintain plaintiffs' bucolic woodland vista 

toward defendants' rear property line. The board included the 

plantings as a condition to the variance approval. 

After defendants' house was built, they began constructing 

a fence along the driveway, at a point about two feet from the 

edge of the driveway on defendants' property. Thus, they left 

about two feet of open space along one side of the driveway. There 

is no fence along the other side of the driveway. Defendants 

claimed they needed to build the fence because plaintiffs and 

their guests drove up and down the driveway at high speeds and 

defendants feared for their children's safety. 

Plaintiffs contended that constructing the fence interfered 

with their access easement. They also argued that it violated the 

implicit terms of the 2011 agreement which, they claimed, precluded 

construction of a fence, although by its terms the agreement was 

silent on the subject. Plaintiffs also believed that defendants 

planned to build a fence along the back lot line, which would have 

denied plaintiffs the bucolic wooded view that the settlement was 

intended to preserve.3

 

3 Defendants never built a fence along the back of their lot and 

consistently denied having any plans to do so. They repeated that 

commitment at the oral argument of this appeal. 
6 A-3968-14T1

On September 8, 2013, plaintiffs filed an action in General 

Equity seeking to enjoin construction of the fence, claiming that 

defendants needed a zoning permit to build it and that the 

construction violated the 2011 maintenance agreement. Their 

complaint also asserted that defendants had damaged the driveway 

during the house construction and failed to make repairs, and that 

defendants failed to install and maintain the landscape buffer. 

Defendants and plaintiffs resolved the preliminary injunction 

application when defendants agreed to apply for a zoning permit; 

Judge Stephen C. Hansbury entered a consent order reflecting that 

agreement. 

Judge Hansbury addressed plaintiffs' remaining claims in an 

order dated May 23, 2014. 4 Construing the 2011 settlement 

agreement, he found no legal or factual basis for plaintiffs' 

claim that defendants agreed not to build a fence along the 

driveway, on their own property. Rather, he held that plaintiffs 

had a right to build the fence, so long as the zoning board 

permitted them to do so. 

 

4 Judge Hansbury concluded that, in light of the age of the case 

and the impending July 2, 2014 trial date, plaintiffs' motion to 

amend the complaint was untimely. In the proposed amended 

complaint, plaintiffs sought, among other things, permission to 

demolish and rebuild the existing driveway to specifications they 

claimed were required by the current zoning code.
7 A-3968-14T1

Interpreting the "plantings" section of the 2011 agreement, 

Judge Hansbury reasoned that defendants had agreed to comply with 

the terms of their variance application as it pertained to the 

types of trees and shrubs to be planted and maintained. He 

therefore directed that plaintiffs submit their landscape-related 

claims in the first instance to the zoning board for a 

determination as to whether defendants had complied with that 

condition of the variance. He also noted that, in responding to 

the complaint, defendants had admitted that some of the plantings 

had died and had agreed to replace them. The judge reasoned that 

any dispute over exactly what needed to be planted or replaced 

should be decided by the zoning board, because the settlement 

agreement essentially incorporated the variance conditions about 

landscaping. 

Finally, Judge Hansbury concluded that the claim for needed 

repairs to the driveway could be remedied through money damages, 

that it involved at most less than $10,000, and that the claim 

should be transferred to the Special Civil Part for trial. 

As they had agreed, defendants applied for and obtained a 

permit from the local zoning officer to build the fence. 

Plaintiffs then filed an appeal with the zoning board in June 

2014, challenging the decision of the zoning officer. They argued 

that the board's prior resolution, granting defendants a variance 
8 A-3968-14T1

to construct their house, required that defendants obtain the 

board's approval to construct the fence. They also argued that a 

municipal ordinance required that all driveways be at least twelve 

feet wide with two-foot shoulders. Thus, they contended that 

their easement should be considered to be sixteen feet wide along 

its entire length and that the fence would encroach on their 

easement. 

The zoning board held four days of hearings on plaintiffs' 

appeal, during which the parties presented engineering experts and 

other testimony. In a February 19, 2015 resolution, the board 

rejected plaintiffs' argument that the prior zoning approval 

required defendants to obtain permission to build the fence. The 

board also construed the municipal ordinance as applying only to 

newly constructed driveways. 

The board resolution specifically "reject[ed] the 

interpretation of the Ordinance requested by [plaintiffs] as 

including a 16-foot 'clearance area' requirement in connection 

with all driveways that would have been violated by the zoning 

permit issued by the Zoning Officer . . . ." In April 2015, 

plaintiffs filed an action in lieu of prerogative writs in the Law 

Division. On February 1, 2016, Judge Stuart Minkowitz agreed with 

the board that the ordinance only applied to newly built driveways 
9 A-3968-14T1

and did not apply to the long-existing driveway that was the 

subject of the easement.5

Meanwhile, plaintiffs' claim for damage to the driveway 

proceeded in the Special Civil Part, culminating in a bench trial 

that lasted three days and featured expert testimony as to the 

scope of the driveway easement and the need for repairs. On March 

17, 2015, Judge Stephen J. Taylor issued a comprehensive written 

opinion addressing, among other things, plaintiffs' claims about 

the width of the driveway which was the subject of the easement. 

Before Judge Taylor, plaintiffs did not claim that the easement 

should be sixteen feet wide, with a twelve-foot roadbed. Instead, 

they argued that the driveway was historically ten feet wide. They 

claimed that defendants heavily damaged the driveway during 

construction and removed some of the paving to make it narrower,

and that defendants should pay $25,000 to tear out and replace the 

entire driveway. 

Defendants argued that they should pay nothing because, they 

asserted, the driveway was in heavily damaged condition before 

they began constructing their house, their construction contractor 

did little or no additional damage, and they did not narrow the 

 

5 Judge Minkowitz's order is not part of this appeal. 
10 A-3968-14T1

driveway. They also presented expert testimony concerning the 

width of the driveway before and after the construction. 

Judge Taylor did not find either side's witnesses entirely 

credible. He determined, as a matter of fact, that the driveway 

had always varied in width over its length, from about eight feet 

across to about seventeen feet at the end where it intersected the 

public road. He found that at one very small portion, there 

appeared a "slight alteration in the width of the driveway" where 

some of the paving had been removed. However, he found that the 

narrowing was de minimus and did not warrant replacing the entire 

driveway or the payment of any compensatory damages: 

The clearly stated purpose of the access 

easement was to allow for ingress and egress 

to and from the rear property along the 

existing road.

There was no testimony presented that the 

slight narrowing of the driveway in an area 

near Defendants' new home impacted the ability 

of the Boyajians to gain access to their 

property. The slight change in dimensions 

does not impact the purpose [of the] easement 

or the purpose of the [2011] contract in any 

important or meaningful way. Certainly, the 

slight change does not require replacement of 

the entire driveway. Accordingly, the breach 

of the Maintenance Agreement was a minor one 

that did not affect the purpose of the 

Agreement in a meaningful way. Therefore, the 

Plaintiffs are not entitled to any 

compensatory damages for the slight narrowing 

of the driveway. 
11 A-3968-14T1

Judge Taylor rejected the testimony of plaintiffs' expert 

that the driveway had to be torn out and replaced, and concluded 

that repaving would suffice. Based on testimony from plaintiff's 

expert as to the relative costs of repaving versus replacement, 

Judge Taylor calculated the repaving costs at $10,000 and ordered 

defendants to pay that amount. 

Meanwhile, plaintiffs filed yet another piece of litigation 

on December 12, 2014 – a General Equity complaint (Docket No. C171-14), seeking to "quiet title" to the easement and contending 

that the fence constituted a nuisance that was interfering with 

quiet enjoyment of their property. Mirroring their claim before 

the zoning board, plaintiffs asserted that they had an easement 

for "access and safety" which required a twelve-foot roadbed with 

two-foot shoulders on either side, allegedly to allow emergency 

vehicles to reach their house if needed. Based on that premise, 

they claimed that the fence was encroaching on their easement. 

They also asked the court to let them install new asphalt on the 

easement to a width of at least twelve feet, and to provide for 

shoulders of at least two feet on each side of the pavement. On 

June 26, 2015, Judge Hansbury granted defendants' motion for 

summary judgment based on issue preclusion. However, he denied 

defendants' application for sanctions, finding that plaintiffs' 

complaint was not frivolous or filed for the purpose of harassment. 
12 A-3968-14T1

II

Before us, plaintiffs appeal from Judge Hansbury's May 23, 

2014 order granting defendants' motion for summary judgment; Judge 

Taylor's March 17, 2015 order awarding plaintiffs only the cost 

to repave the driveway; and Judge Hansbury's June 26, 2015 order 

granting defendants' motion for summary judgment. Defendants 

cross-appeal from the portion of Judge Taylor's March 17, 2015 

order awarding plaintiffs $10,000 to repave the driveway; and the 

provision of Judge Hansbury's June 26, 2015 order denying their 

application for sanctions. 

Our review of a trial court's summary judgment order is de 

novo. See Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 

(2010). We will not disturb a trial judge's factual findings made 

after a bench trial, so long as the findings are supported by 

substantial credible evidence. Rova Farms Resort, Inc. v. 

Investors Ins. Co., 65 N.J. 474, 483-84 (1974). However, our 

review of a trial court's legal interpretations, including the 

interpretation of an easement or a contract, is de novo. Town 

of Kearny v. Brandt, 214 N.J. 76, 92 (2013); Yellen v. Kassin, 416 

N.J. Super. 113, 119 (App. Div. 2010). We review a trial court's 

decision to grant or deny sanctions for abuse of discretion. 

Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 407 (App. Div.), 

certif. denied, 200 N.J. 502 (2009).
13 A-3968-14T1

Having reviewed the record in light of the applicable 

standards of review, we find that Judge Taylor's findings of fact 

are supported by substantial credible evidence. Rova Farms, supra, 

65 N.J. at 483-84. We find no basis to disturb Judge Taylor's 

well-explained evaluation of witness credibility, and based on the 

facts as the judge found them, his determinations as to damages 

are unassailable. Accordingly, we affirm the order of March 17, 

2015 for the reasons set forth in Judge Taylor's written opinion. 

The parties' respective arguments as to that order are without 

sufficient merit to warrant further discussion. R. 2:11-

3(e)(1)(E). 

We likewise find no reason to disturb Judge Hansbury's May 

2014 order. We agree with him that the 2011 agreement, by its 

terms, does not preclude defendants from building a fence along 

the driveway. We have seen pictures of the fence. It is located 

at least a couple of feet away from the driveway and does not 

block access to plaintiffs' property. While the construction of 

a fence along the back of defendants' property might defeat the 

purpose of the landscaping portion of the agreement, and perhaps 

the variance conditions as well, defendants have not built such a 

fence and eschew any intention to do so. Consequently, there is 

no live issue as to a rear-yard fence. 
14 A-3968-14T1

We likewise find no error in Judge Hansbury's decision that 

the dispute over the landscaping should be submitted to the zoning 

board, thus giving the board the first opportunity to construe the 

conditions it imposed on the variance. That decision is consistent 

with the well-established doctrines of exhaustion of 

administrative remedies and primary jurisdiction, and is 

especially appropriate here. See Curzi v. Raub, 415 N.J. Super.

1, 20-21 (App. Div. 2010); Bor. of Haledon v. Bor. of N. Haledon, 

358 N.J. Super. 289, 301-02 (App. Div. 2003). The 2011 agreement 

incorporates by reference the landscaping plan in the variance 

application. In turn, the landscaping plan approved by the board 

lists certain types of trees to be planted but gives defendants 

discretion to make substitutions. Plaintiffs appear poised to 

contest the species and condition of every single tree defendants 

planted. The zoning board's expertise in landscaping concepts 

will be particularly helpful in resolving those issues. 

We add the following comment. In addition to their rights 

under the variance conditions, plaintiffs have contractual rights 

under the settlement agreement. See Tobin v. Paparone Constr. 

Co., 137 N.J. Super. 518, 528-30 (Law Div. 1975). Therefore, if 

the board declines to entertain plaintiffs' complaint about the 

landscaping - or if the board orders defendants to replace dead 

trees or install substitute types of plantings, and if defendants 
15 A-3968-14T1

fail to comply - plaintiffs may return to court to seek relief 

pursuant to the settlement agreement.6 We do not construe the May 

23, 2014 order as precluding further litigation under those limited 

circumstances. 

We find no abuse of Judge Hansbury's discretion in 

transferring the dispute over the driveway repairs to the Special 

Civil Part, which provided the parties with a full and fair 

opportunity to litigate all issues pertinent to the width and 

condition of the driveway. Nor do we find any abuse of discretion 

in his decision to deny sanctions for the filing of the second 

General Equity complaint. Ferolito, supra, 408 N.J. Super. at 

407. 

Finally, we address Judge Hansbury's decision that 

plaintiffs' December 2014 complaint was barred by doctrines of 

claim preclusion. Judge Hansbury concluded that plaintiffs' claim 

- that they had a right to a sixteen-foot easement, based on a 

municipal ordinance governing driveways - had been litigated 

before the zoning board, which rejected the claim. We agree. 

Moreover, plaintiffs have now litigated the issue before Judge 

 

6 In light of defendants' professed willingness to replace 

plantings that have died, as set forth in their submissions before 

Judge Hansbury, perhaps the parties will be able to resolve the 

landscaping issues. 
16 A-3968-14T1

Minkowitz, who confirmed that the municipal ordinance only applies 

to newly-constructed driveways. 

We also conclude that plaintiffs' claim is barred by the 

entire controversy doctrine. See R. 4:30A; McNeil v. Legislative

Apportionment Comm'n, 177 N.J. 364, 394-95 (2003), cert. denied, 

540 U.S. 1107, 124 S. Ct. 1068, 157 L. Ed. 2d 893 (2004). However 

plaintiffs choose to characterize and re-characterize their claim, 

its essence is that defendants have no right to build or maintain 

the fence along the driveway. Plaintiffs already litigated their 

claim against construction of the fence, in the action they filed 

before Judge Hansbury in 2013. He granted summary judgment, 

finding that defendants had the right to build the fence so long 

as they obtained a zoning permit. After defendants obtained the 

permit, plaintiffs litigated their campaign against the fence on 

another theory before the zoning board and before Judge Minkowitz. 

Their "quiet title" action, filed before Judge Hansbury in December 

2014, asserted yet another legal theory (the "safety" easement) 

in support of the same relief against the same parties. 

Moreover, in the damages action before Judge Taylor, 

plaintiffs exhaustively litigated their claim about the alleged 

width of the driveway, because it was central to their contentions 

that defendants had damaged their access easement by removing some 

of the pavement and that the court must order defendants to 
17 A-3968-14T1

completely rebuild the driveway. Plaintiffs could have, but did 

not, raise any claim that the driveway was, or needed to be, 

uniformly twelve feet wide in order to satisfy their access needs 

and therefore should be rebuilt to those specifications. In fact, 

they argued that the driveway had always been uniformly ten feet 

wide and raised no claim that such width was insufficient for 

their access needs. 

Judge Taylor found that in the 2011 agreement, the parties 

had agreed on the dimensions of the driveway and were bound by 

that contract. He also found as fact that, both before and after 

defendants' construction project, the driveway varied between 

eight and seventeen feet wide at various points along its length, 

and that its width was sufficient to serve plaintiffs' access 

needs. Plaintiffs were not entitled to litigate those issues yet 

again before Judge Hansbury, by asserting a new theory that they 

were entitled to an access "and safety" easement. 

Lastly, even if Judge Hansbury had addressed the issue, it 

is plain from the wording of the 1948 and 1981 deeds that the 

plaintiffs' easement is limited to the use of the existing 

driveway. See Borough of Wildwood Crest v. Smith, 210 N.J. Super.

127, 142 (App. Div.) ("the extent of an easement created by a 

conveyance is fixed by the conveyance"), certif. denied, 107 N.J.

51 (1986). "[W]hen the intent of the parties is evident from an 
18 A-3968-14T1

examination of the instrument, and the language is unambiguous, 

the terms of the instrument govern." Rosen v. Keeler, 411 N.J. 

Super. 439, 451 (App. Div. 2010) (citation omitted). In their 

2011 agreement, the parties agreed that the width of the driveway 

varied from eight feet to seventeen feet, and Judge Taylor found 

that the description was accurate. Plaintiffs are not entitled 

to expand the easement to a uniform twelve feet of paved surface 

with four feet of shoulder. 

To the extent not specifically addressed herein, the parties' 

respective additional appellate arguments are without sufficient 

merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). 

Affirmed.