                        NOT FOR PUBLICATION WITHOUT THE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 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
Harding Township; GAIL McKANE,
Administrator of Harding
Township; and KAREN ZABORSKY,
Zoning Officer of Harding
Township,

     Defendants.
______________________________

          Argued April 4, 2017 – Decided August 17, 2017

          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.




                                 2                         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.

                                          3                                 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.

                                         4                               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.

                                 5                          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.

                                         6                                   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

                                          7                                  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



                                     8                               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.

                                    9                                 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.



                                 10                          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. C-

171-14), 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.

                                 11                         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).

                                 12                              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.



                                      13                                  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

                                     14                             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.

                                       15                              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

                                 16                             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

                                   17                                 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.




                               18                          A-3968-14T1
