NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0088-24
PAUL SAVAS,
Plaintiff-Appellant,
v.
NEW JERSEY AMERICAN WATER COMPANY, INC.,
Defendant-Respondent. _________________________
Argued November 19, 2025 – Decided December 15, 2025
Before Judges Mayer, Vanek and Jacobs.
On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. C-012023-24.
Christopher J. Marino argued the cause for appellant (Giordano, Halleran & Ciesla, PC, attorneys; Christopher J. Marino, of counsel and on the briefs; Benjamin S. Weisburg, on the briefs).
Patrick M. Flynn argued the cause for respondent (Archer & Greiner, PC, attorneys; Christopher R. Gibson, of counsel and on the brief; Patrick M. Flynn, on the brief). PER CURIAM
Plaintiff Paul Savas appeals from a July 30, 2024 order dismissing his
two-count complaint against defendant New Jersey American Water Company,
Inc. (NJAW) without prejudice. We affirm.
We recite the facts relevant to the issues on appeal. NJAW plans to
demolish an existing water tank on property it owns in Bernardsville, New
Jersey (Tank Property). NJAW intends to replace that tank with a newly
constructed and significantly larger tank (Proposed Tank).
Savas owns a lot adjacent to NJAW's lot (Savas Property). The Savas
Property and the Tank Property were previously part of a single lot owned by
Mary Stevens Baird.
In 1953, Baird sold the Tank Property to the Borough of Mendham
(Mendham) for one dollar. Baird retained ownership of the lots surrounding the
Tank Property, including the lot that became the Savas Property. Because the
Tank Property was "landlocked" after the transaction between Baird and
Mendham, Baird included a twenty-foot-wide right-of-way easement over the
portion of land eventually purchased by Savas.
As part of the sale of the Tank Property, Baird and Mendham signed a
written agreement (Indenture) in 1953. The Indenture required the Tank
A-0088-24 2 Property to be used "for public water utility purposes" and Mendham to
"construct, operate and maintain a public water utility" on that property. In the
event Mendham or its successors in interest failed to do so, ownership of the
Tank Property reverted to Baird or her successors.
Additionally, the Indenture contained covenants imposing various
restrictions and obligations. The Indenture's covenants required construction of
a water tank and a water main for Mendham's residents. The covenants allowed
Baird to connect the water main to existing cottages on her property. The
covenants required Mendham to provide 4,000 cubic feet of water per quarter to
those cottages at no cost to Baird. Mendham also agreed to allow Baird access
to the water main for any new structures that might be built on her property.
However, Baird would be required to pay for water service to any new buildings.
Of significance here, the Indenture's eleventh covenant stated Mendham
would "not construct any well or pump upon the right of way or tank site without
the written consent" of Baird or her "heirs and assigns."
In 1954, Mendham constructed a twenty-one-foot-high, 250,000-gallon
water tank on the Tank Property, known as the Fenwick Tank. The Fenwick
Tank, which NJAW plans to demolish, currently remains on the Tank Property.
A-0088-24 3 According to Savas, the Fenwick Tank is "barely visible" from the Savas
Property.
On October 27, 1992, Mendham transferred the Tank Property to NJAW.
Since that date, NJAW has operated and maintained the Fenwick Tank. In April
2017, Savas purchased a lot adjacent to the Tank Property.
In or around 2020, NJAW determined the Fenwick Tank needed to be
replaced with a larger tank to continue providing sufficient and reliable water
service to residents in Mendham and Bernardsville and to comply with
regulatory requirements governing public water utilities. See re Petition of N.J.
Am. Water Co. for a Determination Concerning Fenwick Water Tank Pursuant
to 40:55D-19, No. A-3903-22 (App. Div. Nov. 20, 2024) (slip op. at 2-7).
According to Savas, the design plans for the Proposed Tank depicted a roof
height of seventy-four feet, an antenna height of eighty-three feet, and the
capacity to hold 750,000 gallons of water. The plans included the tank, a
retaining wall, a silt fence, and a "dry well with type E inlet." The dry well had
a diameter of ten inches and a depth of six feet, with a "minimum of [six inches]
of stone (1½" aggregate) at bottom and all sides."
In 2022, NJAW filed a petition with the New Jersey Board of Public
Utilities (BPU) seeking a determination that municipal approvals were not
A-0088-24 4 required for construction of the Proposed Tank. Id. at 3. The BPU transferred
the petition to the Office of Administrative Law and assigned the matter to an
Administrative Law Judge (ALJ) for a hearing. Id. at 4. The ALJ allowed Savas
to intervene and to contest NJAW's petition. Ibid.
At the conclusion of the hearing, the ALJ granted NJAW's petition. Id. at
10. The ALJ concluded any local zoning or land use ordinances precluding
construction of the Proposed Tank were inapplicable. Ibid. The ALJ found the
Proposed Tank was reasonably necessary to provide safe and reliable water
services to residents; alternatives to construction of the Proposed Tank were
considered; the location of the Proposed Tank was reasonable after considering
the alternatives; and the Proposed Tank was not adverse to the environment or
the public's health and welfare. Id. at 9-10. Savas filed exceptions to the ALJ's
initial decision. Id. at 10.
The BPU approved the NJAW's Proposed Tank on July 12, 2023. Ibid. at
4-10. The BPU adopted the ALJ's findings that: (1) the Proposed Tank would
not have "any adverse impact on the ambient noise levels or air quality in the
neighborhood" or "result in an increase in truck or foot traffic"; (2) NJAW had
considered forty-six alternate sites; (3) there was "no evidence" that the
Proposed Tank would reduce property values in the community; and (4) NJAW
A-0088-24 5 "considered alternate methods to augment the water supply" before filing its
petition. Id. at 8-9. The BPU also adopted the ALJ's finding that the Proposed
Tank was "reasonably necessary for the service, convenience, and welfare of the
public." Id. at 9-10.
Savas appealed the BPU's decision, arguing NJAW failed to establish it
was "reasonably necessary for the water tank to be constructed on the [Tank]
[P]roperty," as required by N.J.S.A. 40:55D-19 to bypass Bernardsville's local
zoning ordinances which would otherwise prohibit its construction. Id. at 10.
We affirmed the BPU's decision to allow construction of the Proposed Tank. Id.
at 15-20.
While his appeal of the BPU's decision remained pending, Savas filed a
complaint in the Superior Court of New Jersey, Chancery Division, Somerset
County, to halt construction of the Proposed Tank. In his complaint, Savas
raised issues separate from his arguments challenging the BPU's decision.
Savas's complaint asserted the Indenture prohibited NJAW from
constructing "any well or pump" on the Tank Property. According to Savas,
NJAW's plans for construction of the Proposed Tank included "a significant dry
well" and he did not consent to the construction of "any well." Further, he
alleged the restrictive covenants in the Indenture "specifically protect[ed] the
A-0088-24 6 Savas Property from both noise nuisances and the construction of any large
structures" on the Tank Property. Additionally, he claimed the Indenture does
not allow the Tank Property's owner to overburden the easement granted to
neighboring property owners.
NJAW moved to dismiss Savas's complaint for failure to state a claim for
relief under Rule 4:6-2(e). NJAW argued the Indenture's covenant against
construction of "any well" did not apply "because "NJAW's plan . . . [did] not
include any well." NJAW claimed "[a] 'well' is a device used to extract water
(or another liquid resource) from the ground and bring it to the surface for human
use," while the "dry well" depicted in its plans was "a stormwater management
tool, used to dispose of surface stormwater runoff (i.e., excess water from heavy
rains) by funneling it underground where it infiltrates and disperses into the
soil." Because the Indenture's covenant "only refers to 'wells'—not dry wells—
and the two are dramatically different in purpose and function," NJAW asserted
the Indenture should not be read "expansively" to prohibit the Proposed Tank.
In support of its argument, NJAW relied on several dictionary definitions
of the word "well," including the Cambridge Dictionary, the Merriam-Webster
Dictionary, and Dictionary.com. According to NJAW, the dictionary definitions
A-0088-24 7 denoted a "well" as a hole or shaft bored into the earth to obtain water or other
things such as petroleum, natural gas, brine, or sulfur.
On the other hand, NJAW argued a "dry well" is a "stormwater
management tool." According to NJAW, the New Jersey Department of
Environmental Protection, in its Stormwater Best Management Practices
Manual, defines a dry well as "a subsurface storage facility, consisting of either
a structural chamber or an excavated vault that is only used to collect and
temporarily store stormwater runoff." N.J. Dep't of Env't Prot., New Jersey
Stormwater Best Management Practices Manual, ch. 9.2 at 2 (Mar. 2021).
Because a "well" and a "dry well" have "opposite purposes and functionality,"
NJAW asserted Savas could not "take advantage of the happenstance that the
word 'well' appears in the phrase 'dry well'" to prevent construction of the
Proposed Tank.
Savas opposed the dismissal motion, relying in part of several dictionary
definitions to argue the terms "well" and "dry well" are interchangeable. Savas
argued that because construction of a larger water storage tank would "require
some form of stormwater runoff management in the form of a dry well," the
Indenture's "common sense" purpose in prohibiting wells was "to protect the
owner of the Savas Property from the construction of any larger structures on
A-0088-24 8 the NJAW Tank Site requiring the installation of any dry wells." Savas further
argued he did not consent to the construction of "any well" on the Tank Property
as required under the Indenture.
During oral argument on the dismissal motion, the judge asked whether
Savas was truly concerned about the well. The judge noted Savas appeared to
"care[] about . . . stopping the construction of the new water tank by any means."
In response to the judge's question, counsel for Savas replied,
[A]bsolutely, one hundred percent. My client's primary goal and motivation here is the fact that the—there is an enormously increased size water tower beyond that that's reflected in the filing with the Indenture that's going to be built—or that [NJAW] is trying to build on this property.
Counsel further explained the significant size of the Proposed Tank "impact[ed
the Savas P]roperty negatively."
After hearing the parties' arguments and reviewing the written
submissions, the judge granted NJAW's motion and dismissed Savas's complaint
without prejudice for failure to state a claim under Rule 4:6-2(e). In an
accompanying fourteen-page written decision, the judge, citing Bubis v. Kassin,
184 N.J. 612 (2005), found "the functionality or purpose of a well or dry well"
was the key consideration in determining whether NJAW's dry well for
construction of the Proposed Tank violated the Indenture. In Bubis, the Court
A-0088-24 9 considered various dictionary definitions to determine whether a sand berm with
planted trees constituted a fence higher than four feet tall which was prohibited
under a restrictive covenant. Id. at 616-17.
Guided by the Court's decision in Bubis, the motion judge carefully
reviewed the dictionary definitions cited by the parties to determine the
functionality or purpose of a "well" versus a "dry well." The judge found the
first listed definitions for the word "well" established that "a well draws water
or other fluids out of the ground and brings them to the surface ." On the other
hand, the judge found the first listed definitions for the term "dry well" indicated
a structure that "brings water down from the surface." The judge found a dry
well collects water and allows it to percolate into the land.
Based on the various dictionary definitions, the judge concluded "a dry
well does not fit within 'any well'" for purposes of the Indenture, because a
"well" and a "dry well" have "different purpose[s] or function[s]." As the judge
explained, "[r]egardless of which dictionary the parties pull off the shelf or
internet or which definition they consult, the two terms describe different
objects."
Applying the reasoning in Bubis, the judge concluded a dry well and a
well have different functions. She explained a "well" is "a fixture that obtains
A-0088-24 10 or removes water or another liquid from the subterranean surface, and brings it
through the ground to above the surface for human use. A dry well does the
exact opposite." Because a dry well "brings water into the ground," the judge
found "it cannot be considered a 'well,' even in an expansive sense." Further,
the judge noted "dry wells existed at the time of the Indenture, but nowhere in
the Indenture did it mention a dry well." The judge determined a "dry well" was
not contemplated by the Indenture and "cannot serve as a basis to block
construction of a larger water tank."
Additionally, the judge commented that Savas's arguments related to the
construction of a dry well appeared to be "merely a foothold argument to prevent
the construction of a larger water tank." Because the Indenture did not prohibit
dry wells on the Tank Property, the judge concluded the complaint failed to state
a claim and dismissed Savas's complaint without prejudice.
Moreover, the judge addressed Savas's allegation that the Proposed Tank
would result in increased usage of the right-of-way resulting in an
overburdening of the easement. In addressing the allegation regarding an
overburdening of the easement, the judge stated the Indenture "permits NJAW
to use the right of way as a means of ingress and egress for construction" and
"does not prohibit the activities described" in the complaint. Further, the judge
A-0088-24 11 found the complaint failed to "explain[] how construction that creates noise
overburdens the right of way and violates the Indenture." However, nothing in
the judge's July 30, 2024 order addressed the overburdening of the easement.
Rather, the order merely granted NJAW's motion and dismissed Savas's
complaint without prejudice.
On appeal, Savas argues the judge erred by finding that the dry well for
the Proposed Tank was not a "well" under the Indenture. He further argues the
judge's decision regarding the overburdening of the easement denied him due
process and an opportunity to be heard. We reject these arguments.
We first address Savas's argument that the judge erred in dismissing his
complaint without prejudice under Rule 4:6-2(e). Rule 4:6-2(e) permits a
defendant to seek dismissal of a complaint for "failure to state a claim upon
which relief can be granted." A motion judge's inquiry on a dismissal motion
under this rule is "limited to examining the legal sufficiency of the facts alleged
on the face of the complaint" to determine "whether a cause of action is
'suggested' by" those facts. Printing Mart-Morristown v. Sharp Elecs. Corp.,
116 N.J. 739, 746 (1989). The judge should search the complaint "in depth and
with liberality to ascertain whether the fundament of a cause of action may be
A-0088-24 12 gleaned even from an obscure statement of claim." Di Cristofaro v. Laurel
Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957).
In opposing a Rule 4:6-2(e) motion, a plaintiff need only demonstrate the
complaint contains "allegations, which, if proven, would constitute a valid cause
of action." Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001).
The motion judge must accept "the allegations of the pleading are true" and
afford the plaintiff "all reasonable factual inferences." Seidenberg v. Summit
Bank, 348 N.J. Super. 243, 249-50 (App. Div. 2002).
A motion judge must examine the allegations in the plaintiff's complaint
in a manner that is "at once painstaking and undertaken with a generous and
hospitable approach." Printing Mart, 116 N.J. at 746. Because Rule 4:6-2(e)
motions to dismiss are "usually brought at the earliest stages of litigation, they
should be granted in 'only the rarest instances.'" Lieberman v. Port Auth. of
N.Y. & N.J., 132 N.J. 76, 79 (1993) (quoting Printing Mart, 116 N.J. at 772).
Nevertheless, dismissal is "mandated where the factual allegations are palpably
insufficient to support a claim upon which relief can be granted," Rieder v. State,
221 N.J. Super. 547, 552 (App. Div. 1987), or if "discovery will not give rise to
such a claim." Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman &
Stahl, P.C., 237 N.J. 91, 107 (2019).
A-0088-24 13 We review a motion judge's decision on a Rule 4:6-2(e) motion de novo.
Dimitrakopoulos, 237 N.J. at 108. We also accept the facts alleged in the
complaint "only for the purpose of reviewing the motion to dismiss" and "pass
no judgment on the truth of the facts alleged." Banco Popular N. Am. v. Gandi,
184 N.J. 161, 166 (2005).
Savas argues the judge erred in finding the dry well included in NJAW's
design plans for the Proposed Tank did not fall under the Indenture's preclusion
against construction of "any well" on the Tank Property. He contends the judge
"focus[ed] narrowly on a limited number of entries in certain dictionary
definitions for the word 'well,'" and should have consider broader definitions of
the term "well" which include the use of a dry well for drainage purposes. Savas
also contends the word "any" preceding "well" in the Indenture must be read
expansively such that the term "well" includes any "hole[] or pit[]" that
"involves the collection of water or another resource." In support of his
argument, Savas relies on federal and out-of-state regulations defining a "dry
well" as "a well."
"The interpretation of a contract is subject to de novo review by an
appellate court." Kieffer v. Best Buy, 205 N.J. 213, 222 (2011). In interpreting
a contract, the judge must "determine the intent of the parties." Id. at 223.
A-0088-24 14 "[U]nless specialized language is used peculiar to a particular trade, profession,
or industry," terms in a contract should be given "their plain and ordinary
meaning." Ibid. In determining the meaning of contract terms, the judge
"should examine the document as a whole and . . . 'should not torture the
language of [a contract] to create ambiguity.'" Schor v. FMS Fin. Corp., 357
N.J. Super. 185, 191 (App. Div. 2002) (quoting Nester v. O'Donnell, 301 N.J.
Super. 198, 210 (App. Div. 1997)). "Nor may the courts remake a contract better
than the parties 'themselves have seen fit to enter into, or alter it for the benefit
of one party to the detriment of the other.'" Homann v. Torchinsky, 296 N.J.
Super. 326, 336 (App. Div. 1997) (quoting James v. Fed. Ins. Co., 5 N.J. 21, 24
(1950)).
"A restrictive covenant is a contract." Weinstein v. Swartz, 3 N.J. 80, 86
(1949). However, such covenants are not favored under New Jersey law,
because they "impair alienability," Berger v. State, 71 N.J. 206, 215 (1976), and
"affect the use and enjoyment of the land." Highland Lakes Country Club &
Cmty. Ass'n v. Franzino, 186 N.J. 99, 112 (2006). Thus, "covenant language
must be construed strictly." Ibid.
While restrictive covenants are interpreted "realistically in the light of the
circumstances under which they were created," we have held such covenants
A-0088-24 15 "will not be enforced unless their meaning is clear and free from doubt."
Caullett v. Stanley Stilwell & Sons, Inc., 67 N.J. Super. 111, 114-15 (App. Div.
1961). "[T]o qualify as a covenant properly affecting the subject property," the
contract term "must define in some measurable and reasonably permanent
fashion" the limitations on the uses of that property. Id. at 117. In other words,
the "courts will not aid one person to restrict another in the use of his land unless
the right to restrict is made manifest and clear in the restrictive covenant."
Bruno v. Hanna, 63 N.J. Super. 282, 285 (App. Div. 1960).
We reject Savas's argument that the Indenture's covenant against wells
should be interpreted expansively to include NJAW's dry well simply because
the Indenture contains the word "any" preceding the word "well." In general,
"any" in a contract is understood to mean "all or every." Atlantic Cas. Ins. Co.
v. Interstate Ins. Co., 28 N.J. Super. 81, 91 (App. Div. 1953). However, while
the word "any" may be said to "allow[] for no exception," this breadth applies
"only with regard to those types of things thereafter mentioned." Isetts v.
Borough of Roseland, 364 N.J. Super. 247, 256 (App. Div. 2003). Because
restrictive covenants must be construed strictly, the prohibition on "any well"
should only apply to types of things that are "manifest[ly] and clear[ly]" "wells,"
A-0088-24 16 Bruno, 63 N.J. Super. at 285, according to the "ordinary understanding" of that
word, Bubis, 184 N.J. at 621.
Savas cites federal and out-of-state regulations to determine the plain and
ordinary meaning of the term "well" in the Indenture. We decline to consider
federal and out-of-state regulations defining "well." First, the federal regulation
cited by Savas, 40 C.F.R. § 144.3, was promulgated three decades after the
Indenture was recorded. Second, while some states adopted the language of this
federal regulation in their own environmental regulations, these out-of-state
regulations fail to establish that a dry well is a "well" within the context of the
Indenture. Moreover, nothing in New Jersey's regulations define a "dry well"
as a "well."
Here, the judge reviewed the first listed dictionary definitions cited by the
parties as "guideposts," Bubis, 184 N.J. at 621, to determine the meaning of the
term "well" under the Indenture. We discern no error in the judge's
consideration of the first listed dictionary definitions, rather than the lower listed
dictionary definitions, to conclude a "well" is commonly a structure used to
obtain water or other liquids from the ground. Each of the cited dictionaries
first define the term "well" as referring to water drawn from the earth. In
construing the Indenture, the judge properly considered as controlling the
A-0088-24 17 "ordinary understanding" of the words therein, ibid., rather than esoteric and
specialized meanings under the less common dictionary definitions. The judge
expressly read the Indenture's restrictive covenant to harmonize the parties'
intentions at the time of the Indenture. See id. at 625. Additionally, the judge's
conclusion regarding the definition of a "well" under the Indenture as not
including the term "dry well" imposed the least restrictions on the use,
enjoyment, and alienability of the Tank Property.
Because we are satisfied the motion judge properly dismissed Savas's
complaint without prejudice, we need not exercise original jurisdiction.
We next consider Savas's argument that he was denied due process as a
result of the judge's finding the construction of the Proposed Tank would not
overburden the easement. We review orders on appeal rather than statements of
reasons. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001).
Nothing in the July 30, 2024 order addressed overburdening of the easement.
Additionally, because NJAW had not begun construction when Savas filed his
complaint, any claim the Proposed Tank overburdened the easement was
premature and speculative. Thus, there was no viable claim regarding an
overburdening of the easement at the time of the dismissal motion.
A-0088-24 18 On this record, the judge's dismissal of the complaint without prejudice
would permit Savas to assert this claim when it ripens—namely, after NJAW's
construction of the Proposed Tank. We express no opinion regarding any future
claims of overburdening of the easement based on NJAW's activities related to
the construction of the Proposed Tank.
Affirmed.
A-0088-24 19