On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-11486-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Sabatino.
Salvatore R. and Deborah A. Princiotto (plaintiffs), appeal from the December 2, 2005 order granting summary judgment to Michael and Lynn Scheps (defendants), and denying plaintiffs' cross-motion for equitable relief. Plaintiffs also appeal from the January 20, 2006 order denying their motion for reconsideration. We affirm.
Plaintiffs and defendants are next-door neighbors in Woodcliff Lake. Their properties were developed in the late 1960's or early 1970's. Plaintiffs purchased their home in June 1990 and defendants in 1994. Plaintiffs' property lies lower than defendants' property and receives a larger quantity of rainwater runoff.
Plaintiffs sued defendants, who answered and moved for summary judgment. Plaintiffs cross-moved for equitable relief. The proofs submitted by each party in support of their motion can be summarized as follows. There is a swale on defendants' property. They deny creating the swale or doing anything to alter the topography of their land. Plaintiffs allege that the swale is man-made, not a natural feature of the property, albeit they admit that defendants did not themselves create it. Regarding the origin of the swale, plaintiffs urge:
An examination of the files available within the Borough of Woodcliff Lake and a search conducted by plaintiffs did not reveal any permit for the installation of the swale in question or a drainage plan approved by the Borough Engineer or any as-built surveys indicating the condition that existed at the time of the construction of defendants' home.
Plaintiffs admit to clearing brush and trees from the area now suffering from erosion and flooding and admit to having never suffered erosion or flooding prior to their own elective landscaping. Defendants allege that they have never cleared any vegetation in the same area. According to plaintiffs, professional engineer Richard L. Eichenlaub "examined the property . . . [and] characterized the use of the swale as a channeling of water." Eichenlaub's deposition reveals that he did not consider the swale causative of plaintiffs' problems. Eichenlaub stated that he had not observed any of the deleterious activity that the swale was supposedly creating. Rather, he testified that all of the information about the swale and the concomitant problems came from plaintiffs, not from his own professional observations.
Defendants allege that plaintiffs never hired any engineers of their own, retained no expert engineering testimony and mischaracterized the conclusions and recommendations of Eichenlaub, who was hired by another neighbor.
Plaintiffs also assert that defendants are in violation of Woodcliff Lake's borough code, section 186-11, paragraph F, which provides that an owner of property has a duty to provide "[a]dequate runoff drains . . . to eliminate any recurrent or excessive accumulation of storm water." However, a plain reading of the ordinance indicates that the code addresses the issue of accumulating water, or water that would tend to sit in some kind of basin; not natural runoff water.
Judge Jonathan N. Harris granted summary judgment to defendants and denied plaintiffs' cross-motion. Judge Harris concluded that defendants' use of their land was reasonable and that without any experts proffered, plaintiffs had not met their burden of demonstrating "something that a rational juror could buy into [plaintiffs' case]." Judge Harris found:
On these proofs it is inevitable that a juror would be unable, without speculation, to conclude that the defendants are making an unreasonable use of their land because they're making the exact same use of their land ...