June 14, 2007
NELSON AND JOAN FERNANDES, PLAINTIFFS-APPELLANTS,
SPARTA TOWNSHIP COUNCIL, SPARTA TOWNSHIP MANAGER, AND SPARTA TOWNSHIP ENGINEER, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Morris County, No. L-1106-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 18, 2007
Before Judges Wefing and Yannotti.
Plaintiffs appeal from a trial court order granting summary judgment to defendants. After reviewing the record in light of the contentions advanced on appeal, we affirm.
In 1988 plaintiffs purchased a vacant lot in Sparta known as Block 149, Lot 1. Prior to closing, they were in receipt of a survey which disclosed the existence of a storm water drainage pipe and a well pumphouse. The deed plaintiffs received at closing reserved to The Lake Mohawk-Sparta Water Company a perpetual easement to operate, maintain, repair and replace the well pumphouse, mains and distribution pipes. The Township of Sparta subsequently took over The Lake Mohawk-Sparta Water Company and succeeded to its rights under this easement.
In 1990 plaintiffs began to explore the possibility of developing the lot, but they did not actively pursue the idea. In 1999 they had the property surveyed with an eye to potential development. Plaintiff Nelson Fernandes met with the Township Engineer to discuss the ramifications of the drainage pipe and well pumphouse in terms of future development of the lot, and he was pointed to the Safe Drinking Water Act, N.J.S.A. 58:12A-1 to -37, particularly the regulation that all land within a minimum of fifty feet from a new or modified well water system be acquired or controlled by the owner of the public community water supply system. N.J.A.C. 7:10-11.7(b)1. Nelson Fernandes reviewed the applicable statute and regulations without consulting with counsel, and he came to the same conclusion. Neither Nelson Fernandes nor the Engineer realized this regulation did not bear upon plaintiffs' situation because the well, having been built in 1937, did not fit within the statute.
N.J.A.C. 7:10-11.1. Based upon that erroneous reading of the statute and regulations, plaintiffs' application for a building permit was denied.
Plaintiffs did not appeal that denial. Rather, Nelson Fernandes met with the Township Manager to discuss the situation. The Manager subsequently wrote to plaintiffs, indicating that perhaps the Township could be flexible with regard to the fifty-foot requirement. Rather than pursuing that avenue, plaintiffs filed an inverse condemnation action in 1999. That matter was tried before Judge Bozonelis, and on July 21, 2004, he filed an order and eleven-page written opinion dismissing plaintiffs' suit. Plaintiffs filed two motions for reconsideration, both of which were denied. Plaintiffs then appealed to this court, but their appeal was dismissed for lack of prosecution. Their attempts to obtain review in the Supreme Court were also unsuccessful.
In April 2006 plaintiffs filed the present action in which they assert the same claims which they unsuccessfully pressed in their 1999 suit. Defendants moved for summary judgment, which Judge Bozonelis granted. Plaintiffs have appealed from that order.
Having reviewed the record, we are satisfied the order granting summary judgment to these defendants should be affirmed substantially for the reasons stated by Judge Bozonelis in his statement of reasons appended to the order of June 23, 2006.
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