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Kita v. Borough of Lindenwold

October 14, 1997

LUCIEN KITA AND FRANCES KITA, PLAINTIFFS-RESPONDENTS/CROSS-APPELLANTS,
v.
THE BOROUGH OF LINDENWOLD, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Camden County.

Approved for Publication October 17, 1997.

Before Judges Baime, Wefing and Braithwaite. *fn1 The opinion of the court was delivered by Baime, J.A.D.

The opinion of the court was delivered by: Baime

The opinion of the court was delivered by

BAIME, J.A.D.

A jury awarded plaintiffs $112,000 in damages for the diminution in the value of their land allegedly caused by the overflow of water resulting from defendant's negligent maintenance of drainage pipes and ditches. Defendant appeals, contending that the trial court erred by denying its motions for an involuntary dismissal and for a new trial. Defendant also argues that the damage award was excessive. Plaintiffs cross-appeal, asserting that the trial court incorrectly dismissed their claims for inverse condemnation, violations of the federal Civil Rights Act (42 U.S.C. § 1983) and nuisance. We find no basis to disturb the jury's findings respecting defendant's liability. However, the damage award was inconsistent with the undisputed evidence concerning the extent to which the value of plaintiffs' land was diminished by defendant's negligence, and we remand the matter to the Law Division for the offer of a remittitur.

I.

The facts were hotly contested. In 1972, plaintiffs purchased land from defendant intending to build a multi-unit high-rise building. Evidence presented at trial indicated that the property was dry and fully capable of being developed at the time of the purchase. However, Camden County authorities ordered a sewer moratorium in 1977. The moratorium continued until 1987.

In 1989 plaintiffs entered into negotiations with Jahadi Shah, a structural engineer, with the idea of forming a partnership to subdivide the property into twenty-five single family lots. Shah retained Dr. James De Bouno, an environmental scientist, to engage in a feasibility study. Dr. De Bouno determined that the property was largely wetlands with small arid buffer zones. This finding was essentially confirmed by the Department of Environmental Protection (DEP) which informed plaintiffs that the five-acre property was situated within the headwaters of the Cooper River. According to the DEP, "the wetlands on-site [were] not the result of man's activities in the . . . routing of the stormwater system, but [were] the result of natural topographic and hydrologic patterns." However, the genesis of the wetlands problem was sharply disputed.

Dr. De Bouno observed that there were ditches, swales and pipes surrounding the property. He found that a corrugated eighteen inch pipe had been placed under a municipal road, Bryant Street, draining water into plaintiffs' property. The witness also found "manmade" dirt swales and ditches on the property directing the flow of water in several directions, but all channeling into a fifteen inch pipe on Fernwood Road. According to Dr. De Bouno, the fifteen inch pipe was too small, causing "backups" and "overflow" of water from the ditches. Moreover, the witness's inspection of the property disclosed the "inlet [of water] covered with debris." A videotape was played at trial corroborating Dr. De Bouno's account. In addition, plaintiffs presented photographs disclosing various types of debris, including fresh cut trees, sand, fill, silt, pebbles, gravel and concrete, in the ditches and pipes. Dr. De Bouno found that those debris had repeatedly clogged the pipes and ditches, causing the drainage system to back up, creating "ponding" of water on plaintiffs' property. Dr. De Bouno concluded that the drainage system was inadequate in design and was negligently maintained. Using national wetlands inventory maps, Dr. De Bouno determined that the land was dry when originally purchased, but the design and poor maintenance of the drainage system caused the property to become flooded.

Lucien Kita's observations confirmed Dr. De Bouno's testimony. Kita testified that the "ditches filled up with water" when it rained. Frances Kita testified that "the pipes [were] full of water, debris, leaves [and] trash," causing the property to "look[] like a lake."

Charles Poliero, a real estate appraiser, testified respecting damages. He found that the property would be worth $112,000 if single family homes could be constructed. As wetlands, however, the witness estimated that the value of the property was $7,000. Poliero testified that defendant's actions resulted in a diminution of value of $105,000.

Defendant presented Robert Lodovici, the Borough's Director of Public Works. Lodovici testified that the Borough was responsible for maintaining drainage pipes and storm drains. According to his testimony, Borough workers inspect these pipes and drains on a monthly basis and after heavy storms. Lodovici recounted that in 1993 he inspected the pipes leading to plaintiffs' property on at least twenty-five occasions, and found nothing amiss. In addition, the witness visited the area eight or ten times during storms and observed the water flowing freely. On direct examination, Lodovici testified that he never observed water "backing along the ditches" or "ponding" by the pipes on plaintiffs' land. However, on cross-examination, he admitted that "under heavy rains or excess waters," water backed up" in the ditches.

Defendant also presented Frank Seney, the Borough's municipal engineer. Seney testified that the swales and ditches on plaintiffs' land were "natural" and not "manmade." The witness noted that a Camden County soil map indicated that the property consisted "predominantly" of "hydric soil," but that did not necessarily mean that the land constituted wetlands. Seney testified that the water on plaintiffs' ...


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