NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendants Jill Smithson and Nathan Greiner appeal from a November 30, 2012 final judgment upholding the boundary line agreement affecting their property, which was recorded on July 16, 2002. They also appeal from an order dismissing their counterclaim against plaintiffs John Blain and Eileen T. Blain,1 the owners of the adjoining realty.

The parties stipulated to the facts, and submitted the matter for determination in lieu of testimony. The stipulations and documents were approved by all parties as providing the foundation to allow the trial court to enter legal conclusions. Following our review, we conclude the facts in this record substantially support the trial court's conclusions and we affirm.

The parties are neighbors, whose adjoining properties are located on Monmouth Road in Freehold Township (the Township). As drawn on the municipal tax map, plaintiffs own Lot 20 and defendants own Lots 21 and 22. The municipal tax map shows Lots 21 and 22 are not side by side, but one contained within the other. Also, there is no dispute Lots 21 and 22 have merged. See Jock v. Zoning Bd. of Adj., 184 N.J. 562, 578 (2005) (stating the term "merger" is used to describe "the combination of two or more contiguous lots of substandard size, that are held in common ownership, in order to meet the requirements of a particular zoning regulation") (citation omitted).

Originally, John's parents, John V. Blain, Jr. and Katherine Blain (senior Blains) owned all three lots. In 1964, the senior Blains transferred Lot 21 to William C. and F. Loretta Greiner (senior Greiners), Nathan's grandparents.2 Five days later, the senior Blains transferred Lot 22 to the senior Greiners.

William passed away on January 6, 2001; Loretta had predeceased him. Donna Frank, William's daughter and defendants' aunt, administered his estate.

John, on behalf of Katherine, approached Frank about relocating the boundary line between their respective properties. A proposed survey was drawn, relocating the western lot line of Katherine's property twenty feet beyond its current location into what was then part of the property owned by William's estate. Frank presented the proposed subdivision to the municipal zoning official to request approval, who informed her: "It will never happen."

On July 12, 2002, Katherine and Frank executed an agreement to adjust the boundary line between their properties, adding twenty feet to Lot 20 and reducing adjoining Lots 21 and 22 by twenty feet. Among the conditions are statements that the modification was designed to correct a mistake when Lots 21 and 22 were originally transferred. The boundary line agreement was recorded on July 16, 2002, with the Monmouth County Clerk's Office in Deed Book 8125 at page 4374.

The change imposed by the boundary line agreement reduced the side-yard setback of Lots 21 and 22 from 31.54 feet to 11.54 feet and reduced the overall lot size and the frontage of Lots 21 and 22.3 There is no record of payment being transferred or that Frank sought minor subdivision approval or variances.4 By executor's deed dated October 28, 2003, Frank transferred Lots 21 and 22 to Smithson. The deed did not reference the recorded boundary line agreement.

In this litigation, the parties stipulated "defendants are assignees of all interest in Lots 21 and 22. Defendants claimed they understood the boundary line agreement was unenforceable because "they went down to the Township and specifically asked whether it was enforceable" and the Township "said that it wasn't." Also, the title policy issued following the transfer by executor's deed, included an exception from insurance coverage of the boundary line agreement.

By deed dated November 14, 2003, Katherine transferred Lot 20 to plaintiffs. This deed does reference the boundary line agreement.

An April 28, 2006 letter from the Township's engineer advised plaintiffs the Planning Board attorney had concluded the "boundary line agreement did not constitute an illegal subdivision and the municipal tax maps would be amended to reflect the changes." Subsequently, the Township returned the tax map to reflect the original lot lines, showing the boundary line between Lot 20 and Lots 21 and 22 to be in its location prior to the recording of the boundary line agreement.

Defendants disregarded the boundary line agreement and installed a fence around Lots 21 and 22. Plaintiffs formally requested defendants to remove the fence. When defendants refused, plaintiffs filed this action to enforce the terms of the boundary line agreement (Docket No. MON-L-5758-08). Defendants counterclaimed, seeking a declaratory judgment that the boundary line agreement is void. Defendants also filed a separate action against the Township and its zoning official, alleging they failed to enforce the zoning laws (Docket No. MON-L-1575-10). The third action, filed against counsel who represented defendants when Lots 21 and 22 were transferred, alleged professional negligence (Docket No. MON-L-1402-09).

Defendants moved for summary judgment, which a different Law Division judge denied (motion judge). The Township moved for its dismissal from the litigation, asserting there was no legal basis to compel it to enforce a private boundary line agreement, which binds the property owners and their heirs, but does not bind the Township. The motion judge agreed the dispute did not implicate the Township and granted its motion to dismiss.

In lieu of trial, the parties submitted to the trial judge a list of agreed exhibits and a statement of stipulated facts. Each side also filed a statement of contentions based on the agreed upon evidence. The trial judge considered oral argument. Thereafter, she entered an oral opinion upholding the boundary line agreement between the parties and filed a conforming order for judgment on November 30, 2012.

Defendants appeal from the order denying their motion for summary judgment and the judgment enforcing the boundary line agreement. Plaintiffs have not participated in this appeal. We consider defendants' arguments, which are inter-related.

The focus of defendants' challenge to the denial of their motion for summary judgment is the boundary line agreement violates the municipal zoning laws by ignoring the lot requirements for the zone; modifies the side-yard setback and reduces the lot size without zoning board variance approval; and effectively imposes an unapproved subdivision. Consequently, defendants argue the motion judge should have entered judgment dismissing plaintiffs' complaint to enforce the boundary line agreement.

Defendants identify those zoning ordinances applicable if subdivision approval of Lots 20, 21 and 22 had been sought. Certainly, Frank should have filed for subdivision approval if she intended the change to be a permanent one, recognized by the Township on its tax map. However, even if all assertions regarding the resultant nonconformity of the lots after imposition of the boundary line agreement are accurate, defendants' arguments fail to address the legal ability of adjoining landowners to reach boundary line agreements that bind each other.

N.J.S.A. 46:3A-5 states:

Although aged, this statute has not been repealed or rendered ineffective by the adoption of the Municipal Land Use Law, N.J.S.A. 40:55D-1 to-163. The statute allows parties to draft and record boundary line agreements, such as the one at issue.

We examine the language used in the statute, as guided by principles of statutory interpretation.

Here, plaintiffs were gifted Lot 20, subject to the boundary line agreement executed by Katherine. Defendants are assignees of Lots 21 and 22 from the estate who were fully apprised that Frank executed and recorded the boundary line agreement. In her review, the motion judge recognized factual disputes advanced by each side regarded the scope of the boundary line agreement, which needed to be resolved, thus summary judgment was inappropriate. She fully understood the parties may legally bind themselves to such an agreement, but found these parties disputed the nature of the transaction, necessitating a hearing.

Further, that the Township took no action after the boundary line agreement was recorded does not mean the lots are converted and the modification was a validated change to the lots as listed on the tax map. See Dalton v. Ocean Tp. Zoning Bd. of Adj., 245 N.J.Super. 453, 462-463 (App. Div. 1991) (holding township's failure to act after sale of one lot, which had been legally merged with others was sold separately did not alter the merger or allow the sold lot to become buildable). Here, the Township took no position on the private agreement. That assertion is much different than the suggestion by defendants that it ignored apparent zoning violations.

The authority cited by defendants is distinguishable, as the cases they cite involve municipal actions to enforce or ignore its zoning laws. The facts at hand are dissimilar. Obviously, enforceability of the agreement between these parties under the current circumstances is different from one party undertaking development of the lot, as modified, without approval, which should trigger the Township's interest or action.

The trial judge examined the issues presented, which were limited to whether these parties were bound by the family boundary line agreement. In doing so, she declined to again consider arguments that the agreement was void because it violated municipal zoning laws. As we have noted, there is no dispute regarding the nature of the applicable zoning requirements. However, the boundary line agreement does not equate to a subdivision or liken itself to bulk variance approval. Indeed, N.J.S.A. 46:3A-5 allows parties to agree to abide by boundary lines that differ from those drawn on the municipal tax map. Moreover, the statute requires "the parties thereto, their heirs, successors and assigns" to be bound by their agreement.

On this record, defendants provide no basis to defeat their compliance with the boundary line agreement. We need not consider whether the legal boundary lines as altered will be maintained in the event of a transfer of ownership to a non-related third-party. That problem is deferred to another day. Here, what was once family harmony between the Blains and the Greiners has turned to discord among Katherine's son and daughter-in-law and William's grandson and his wife. Although potential future legal entanglements seem likely at the time either owner attempts to sell the property to an unrelated third party, the current circumstances require plaintiffs and defendants to honor the boundary line agreement.

Based on our review, we reject defendants' argument that their motion for summary judgment should have been granted. We review summary judgment in accordance with the same standard as the motion judge. Maimone v. City of Atlantic City, 188 N.J. 221, 233 (2006). Therefore, we apply the standard articulated in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995):

To prevail on a summary judgment motion, defendants must show plaintiffs' claims were so deficient as to warrant dismissal of their action. See Butkera v. Hudson River Sloop "Clearwater," Inc., 300 N.J.Super. 550, 557 (App. Div. 1997). Defendants did not sustain this burden. As we noted, the summary judgment record presented a factual dispute regarding the nature and extent of the boundary line agreement. In that light, the motion judge denied the motion as the dispute needed to be resolved in a hearing.

Subsequently, the parties agreed to stipulate the facts and advance their arguments without testimony. The evidence supports the trial judge's determination that the family members struck and recorded the boundary line agreement. Defendants' deed was issued on behalf of the estate, which had advanced and recorded the agreement. Defendants had full notice of the terms of the boundary line agreement when title was assigned to them. We disagree that the nonconformance with applicable zoning laws, which resulted in the Township's statement that the agreement is unenforceable, is determinative. By law, the parties agreed to bind themselves and their heirs and assigns by the terms of this neighbors' boundary line agreement.

Affirmed.