The New Jersey Appellate Division today reaffirmed that deed restrictions on properties, also known as restrictive covenants, are extremely difficult to get lifted in New Jersey - that they even top Americans with Disabilities Act (ADA) accommodations.

The ruling involved a Howell residents lawsuit which sought ADA and other accomodations to be permitted to keep an underground irrigation system and a swing set structure on a Farmland and Perimeter Buffer and Conservation Easement.

Julian Leone and his wife purchased a single-family home on property in a new residential development in Freehold in December 2015. Because the development is adjacent to a farm, as a condition of the major subdivision approval for the development, the Township required the developer to grant a farmland and perimeter buffer and conservation easement to the Township.

The easement was intended to protect the property from any type of development or disturbance. Therefore, the deed granting the easement states that it is intended that said property remain in its natural state in perpetuity, and the current and future owners shall be prohibited from constructing anything in said easement area, including fences, sheds or any structures of any kind whatsoever.

In 2017, the Township sought a State grant of $750,000 in order to build an outdoor recreational area. To be eligible for this grant, the Township agreed to participate in the New Jersey Department of Environmental Protection's Green Acres Project. Under this program, all lands held by the Township for conservation - including the easement on Leone's property - became additionally encumbered by the Green Acres laws. This encumbrance prohibited the Township from conveying, disposing, or diverting for any use other than recreation and conservation purposes any lands held by the Township for those purposes at the time of receipt of Green Acres funding.

(Essentially, in order to receive a $750,000 grant from the State, the Township agreed that all conservation easements already granted to the Township will additionally be granted to the State as well. The purpose of this is for the State to have an additional pair of eyes of lands which are supposed to be conserved.)

After Leone purchased his property, he installed an underground irrigation system and a swing set structure on the easement. In September 2018, the Township's Code Inspector informed him that he had to stop cutting the grass in the area of the easement and remove the irrigation system and swing set.

Thereafter, Leone met with Township officials and informed them of his medical condition - asthma - and requested an accommodation for his disability. The municipal representatives suggested he file an appeal with the Township's Zoning Board as they did not have the power to grant an accommodation.

In January 2019, Leone and his wife filed an application with the Board for a bulk variance to permit them to mow and water the easement area and maintain the swing set and irrigation system as erected on the easement. He requested the accommodations under the Americans with Disabilities Act (ADA). He advised he sought to mow and irrigate the lawn area "to control the growth of the grass and weeds so as not to affect his breathing disability." He stated the swing set "was placed in an area where he could see his children and not be exposed to conditions which potentially could affect his health." During the Board hearing, he acknowledged he could relocate the swing set elsewhere on his property.

The Board presented a letter from the DEP's Director of the Green Acres Program informing the Board of its opposition to plaintiff's application for a variance permitting the swing set and irrigation system to remain within the easement area.

The letter stated:
The Easement provides that the property is to remain in its natural state and the construction of anything, including structures of any kind whatsoever, is prohibited in the Easement Area. As these improvements were installed after they purchased the property, and they were on notice that "constructing anything," including structures, was prohibited in the Easement Area, the irrigation system and swing set must be removed to avoid an unauthorized diversion.

The Board ultimately granted the application to water and mow the easement but denied the application to permit the swing set and underground sprinkler system to remain on the easement area. The swing set and underground irrigation system had to be moved off the easement, however the easement could be watered from other areas of the yard outside the easement.

The Resolution stated the Board "did not find that retaining the swing set and irrigation system within the farmland buffer/conservation easement met the reasonable and necessary accommodations analysis under the ADA." The swing set did not relate "in any way to Leone's ability to breathe properly," and it "could be easily moved to an area closer to the residence, and out of the easement area." Therefore, he did not demonstrate that "the requested accommodations were reasonable and necessary or otherwise related to the full use and enjoyment of his property."

Leone filed a lawsuit in New Jersey Superior Court in Monmouth County, naming as defendants the Township, the Township Zoning Board, the State, and the DEP.

The complaint alleged violations of the ADA; the Fair Housing Act, the Rehabilitation Act of 1973, and the New Jersey Law Against Discrimination.

The Superior Court judge dismissed the complaint, finding that it failed "to explain or assert how the State excluded Leone from a service, program or activity of the State" as required to establish a claim under the ADA or RHA. The judge further found the FHA was not applicable to the circumstances "because Leone did not dwell in or on the easement, but rather maintained it for use of his children and for their enjoyment."

The judge also dismissed the LAD claims because "the easement was not a place of public accommodation to which he must be afforded equal access, and the LAD did not even refer to conservation easements or any similar such property being protected under that legislation."

Furthermore, Leone had not followed the process required under the Conservation Restriction and Historic Preservation Restriction Act. The judge noted that Leone had not applied "to the State for disposal or diversion in accordance with Green Acres," and "because DEP had not taken any actions directly affecting him or his property, any
review of his claims was premature."

In a written ruling released today, Appellate Division Judges Currier, Mayer and Enright were not persuaded to reverse the Superior Court's ruling.


The LAD ensures that "all persons shall have the opportunity to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing accommodation and other real property without discrimination."

A "place of public accommodation" includes hotels, retail stores, restaurants, public conveyances, hospitals, and public schools. Although the list is not exhaustive, it demonstrates that a conservation easement, designed to protect an area from a place where the public gathers by safeguarding its natural state, would not be included.

Plaintiff contended that the LAD applies to land use and is not limited to public accommodations. He also asserted that "governmental entities are 'public accommodations' and are thus bound by the LAD. However, the State did not directly regulate land use and it is not responsible for the actions and decisions of the Board.


Plaintiff does not challenge the validity of the easement itself as violative of the LAD. And plaintiff has presented no statutory or case law permitting a cause of action under this provision of the LAD grounded on a municipal land use entity's denial of a variance request.

We are satisfied the easement included in plaintiff's deed when he purchased the property is not subject to the LAD and is not a public accommodation. The statute does not reference anything similar to a conservation easement and the area is not one for public use.


Under the FHA, it is unlawful "to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap.

A dwelling is defined as: "any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof."

The easement area is not a dwelling or common area. The easement does not deny plaintiff access to his dwelling. Moreover, plaintiff did not allege defendants denied his right to use and enjoy his dwelling in denying the variance application.

To pursue a reasonable accommodation claim under the FHA, a plaintiff must establish the requested accommodation is (1) reasonable and (2) necessary to (3) afford handicapped persons an equal opportunity to use and enjoy housing.

ADA and RHA:

The ADA forbids discrimination in the form of "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling."

The RHA provides that "no otherwise qualified individual with a disability in the United States shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Thus, "the ADA and the RHA prohibit all discrimination based on disability by public entities," specifically State and local entities.

Although it is unclear, plaintiff appears to allege that the service or activity at issue here is "land use" or "zoning," or "one's backyard." If we assume plaintiff's reference is to the Board's resolution that partially denied his variance request, that would constitute a service, program, or activity under the broad interpretation of the statute.

However, plaintiff does not state how he was excluded from this service, or how he was excluded based on his disability. To the contrary, plaintiff was accorded the full breadth of due process regarding his variance application. Moreover, all of the property owners in the development were subject to the easement and therefore, plaintiff cannot show he was excluded from a program or service based on his disability.

As recently explained more fully here on FAA News, deed restrictions will only be extinguished by a court if you can sufficiently argue that there has been a "change in circumstances" which causes that "the purpose of the restriction can no longer be accomplished."

Deed restrictions which restrict the use of certain properties are very prevalent in Lakewood.

These court ruling highlight the importance of reviewing deed restrictions with a competent attorney prior to purchasing a property.

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