In Hidden Lake Area Homeowners Association v. Township of North Brunswick, the Appellate Division of the New Jersey Superior Court found that the North Brunswick zoning officer incorrectly determined that the construction of a fence was allowed. Accordingly, his approval of the permit was ultra vires.
The Facts of the Case
The dispute revolves around the construction of a chain-link fence along the property line separating a 500-unit condominium complex and single-family homes. Defendant Governor’s Pointe Condominium Association, Inc. (GPCA) sought to erect the fence after several single family homeowners were found to have encroached onto the condominium’s property. 
The North Brunswick zoning officer issued the permit to construct the six-foot high fence on January 5, 2010, after concluding it was not prohibited by the terms of the master deed or planning board resolution. The master deed states:
No owner shall be permitted to erect or have erected any fence, partition, wall, divider or similar structure exterior to their Unit other than any such structure erected by the Sponsor…. Under no circumstances, may the Condominium Association permit the construction of fences, decks and patios within one-hundred and five (105′) feet of any property line adjoining single-family homes, nor may it permit the installation of flood lights in the rear of properties adjoining single-family homes.
With roughly forty-five percent of the fence installed, the Hidden Lake Area Homeowners Association (HLAHA) filed its first complaint, seeking an order to rescind the permit, and enjoin the construction. Eventually, the trial court dismissed the complaint without prejudice on the grounds that the homeowners had not exhausted their administrative remedies by appealing the zoning officer’s action to the North Brunswick Township Board of Adjustment.
The HLAHA then proceeded to seek board of adjustment review. After a hearing, the board denied the appeal, finding it was time-barred by N.J.S.A. 40:55D-72. After examining the 1986 planning board hearing and resolution, the board of adjustment further concluded that the master deed language did not bar construction of the fence, reasoning that the deed’s restriction on fence construction pertained only to individual unit owners, and did not limit GPCA’s power to construct common elements of the Condominium.
The Court’s Decision
The Appellate Division affirmed the trial court’s ruling that the construction of the fence was prohibited by the GPCA master deed and the HLAHA’s prerogative writ action was not time barred because the zoning officer’s approval of the permit was ultra vires.
With regard to the zoning officer’s conclusion that a fence was not precluded under the master deed, the panel found his interpretation to be at odds with the plain language of the master deed, the planning board resolution, and the history of the provisions, all of which reflected the intent to create a natural, vegetative buffer between the complex and the single-family homes. It also cited similar restrictions regarding the installation of floodlights and the construction of decks, which applied equally to the homeowners and GPCA. As explained by the court, “It would undermine the apparent purpose of the buffer zone if the GPCA could breach it at will, even if it were off limits to individual unit owners.”
The court also rejected GPCA’s argument that HLAHA’s complaint was time-barred. While the court acknowledged that an action in lieu of a prerogative writ must generally be filed no later than forty-five days after accrual of the right to the review, it noted that where the zoning officer’s action is ultra vires, a collateral attack may be brought without regard to these time limitations.
With regard to the HLAHA’s challenge, the court concluded, “This is not a case of a zoning officer who, in good faith, misinterprets a zoning ordinance or map. Rather, it is the case of a zoning officer who has attempted to construe a deed restriction; he has done so in error; and he has done so in response to a permit applicant imputed with knowledge of the restrictions embodied in its master deed. We view the zoning officer’s approval of a permit that contravenes the deed restriction to be without legal authority.”
For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.