August 31, 2007
ROBERT M. DISCH AND JANE M. DISCH, PLAINTIFFS-RESPONDENTS,
THE BOROUGH OF WATCHUNG,*FN1 A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT, AND NELLIE FITTIPALDI, PATRICK FITTIPALDI, JOHN J. VOGEL, II, AND NEILL E. SILVERMAN, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1190-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 14, 2006
Before Judges Kestin, Payne and Graves.
Defendant, the Borough of Watchung, appeals from three orders: (1) an order dated November 17, 2000, permitting plaintiffs to file a notice of late claim, pursuant to N.J.S.A. 59:8-9; (2) an order dated June 4, 2003, denying defendant's motion for summary judgment; and (3) an order for judgment dated May 2, 2005, entered after a six-day bench trial, granting injunctive relief and awarding counsel fees to plaintiffs. After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm.
Plaintiffs, Robert M. Disch and Jane M. Disch, own a single-family residence at 52 Stanie Glen Road in the Borough of Watchung, in Somerset County. Plaintiffs' residence is located on a corner lot, which contains 1.483 acres. Stanie Glen Road forms the southerly and westerly borders of plaintiffs' property. Because plaintiffs' property and the surrounding land slopes downward from south to north, the portion of Stanie Glen Road forming the southerly border is situated at a higher elevation than plaintiffs' property. In their complaint filed on August 2, 2001, plaintiffs alleged flooding of their property was caused by water that flowed through a water drainage pipe under Stanie Glen Road, which connected with an underground pipe located on their property. Plaintiffs sought damages under the Tort Claims Act, N.J.S.A. 59:1-1 to 14-4, and injunctive relief.
Plaintiffs' property was part of a subdivision that received final approval on November 12, 1957. At the time of the approval, defendant's subdivision ordinance required "subdividers" to provide for "storm water drainage." The ordinance also required storm drain installations to be "adequate for all present and probable future development" and they were to be "constructed in accordance with the New Jersey State Highway Standard Specifications." In addition, defendant's subdivision ordinance required water courses and other drainage channels to be preserved: "Where a subdivision is traversed by a water course, drainage way channel or street, there shall be provided a storm water easement or drainage right-of-way conforming substantially with the lines of such water course, and such further width or construction, or both, as will be adequate for the purpose." The ordinance also stated its standards represented "the minimum requirements for the protection of the public health, safety and welfare of the citizens of the Borough of Watchung," and any action taken under the ordinance "shall give primary consideration to the above mentioned matters and to the welfare of the entire community."
The same subdivision ordinance required the preliminary subdivision plat to show enough elevation or contour markings to indicate "the general slope and natural drainage" of the tract, plus the location of existing and proposed "water courses, . . . culverts, [and] drain pipes," and the final subdivision plat had to show "easements and other rights-of[-]way" with a notation of their purpose. The ordinance defined a "[d]rainage right-ofway" as including the lands "required along a natural stream or watercourse for preserving the channel and providing for the flow of water therein to safeguard the public against flood damage in accordance with chapter one of Title 58 of the Revised Statutes."
Sigfrid Hauck submitted a preliminary subdivision plat for the subdivision at issue here ("the tract") dated June 28, 1957, with September 1957 revisions. The contour lines showed the tract was lower in elevation than the property south of it, and the tract's own elevation progressively decreased from its southern to northern borders. Hauck proposed a road, Stanie Glen Road, that would be L-shaped and run east-west along the tract's eastern-half of the southern border and north-south in the center of the tract. The road would pass a corner lot and four others on their westerly sides before ending in a cul-desac. Stanie Glen Road would thus form both the southerly and westerly borders of the southeastern corner lot, subdivision lot ten (tax lot seven), which plaintiffs would eventually purchase.
The preliminary plat also showed two drainage swales, with the notation: "Drainage swales carry water only after heavy rains." One of the swales, which originated to the south of the tract, crossed proposed Stanie Glen Road in the east-west segment, and flowed north across subdivision lot ten. Hauck proposed the installation of a forty-foot-long pipe of reinforced concrete, eighteen inches in diameter, to accommodate the flow of water under the proposed roadway. The preliminary plan showed the pipe ending at the southern border of subdivision lot ten, and discharging into the swale, which continued northward across subdivision lot ten and six other subdivision lots before exiting the tract.
On October 8, 1957, defendant's planning board granted preliminary subdivision approval, on the condition that the "[d]rainage swails [sic] shall be designated as natural water courses and insertion be made in all deeds applicable to the lots involved." This condition was incorporated into the final subdivision plat dated October 28, 1957, which showed a "natural watercourse" running under Stanie Glen Road, across subdivision lot ten, and across the subsequent six lots.
On November 12, 1957, the Watchung Borough Planning Board granted final subdivision approval, on the condition "[t]hat the natural watercourses shown on the Final Plat be retained and that all deeds given by the Owner of the property shall contain reference to the watercourses as applicable to the lots involved." The final subdivision plat was filed with the Somerset County Clerk's Office on December 18, 1957, as Map No. 538.
Hauck conveyed subdivision lot ten to Clarence and Marion Menzer by deed dated September 8, 1958, however, the deed did not indicate the presence of a watercourse or an easement. On November 10, 1960, defendant passed a resolution accepting the dedication of Stanie Glen Road to the municipal road system. The resolution made no mention of any matter related to drainage. The Menzers conveyed the lot to Nellie and Joseph Fittipaldi*fn2 by a deed dated March 9, 1964, and that deed, like their own, did not mention a watercourse or easement.
In 1964, the Fittipaldis constructed a house on the lot. During the course of constructing their home, the Fittipaldis encapsulated the natural watercourse and channeled it through a reinforced subsurface concrete pipe. As a result, the natural surface watercourse that had previously crossed the property was replaced by subsurface pipe that passed beneath the house and extended to the north property line.
In 1986, the owner of the lot to the north, subdivision lot nine (tax lot eight), submitted a "plot plan" survey in support of a construction permit application. That survey showed a "ditch" crossing the lot closely behind a house, with arrows next to it pointing northward to indicate the flow. The ditch was shown as beginning in lot ten near the common properly line, and as emerging from twin six-inch pipes on lot ten at its northern border. The owner of subdivision lot nine also submitted a survey based on the tax map, which renamed the "ditch" as a "swale" and showed it as bowing eastward to accommodate a deck behind the house, but it still crossed the lot's southern and northern borders at the same locations. Like the plot-plan survey, this survey depicted the twin six-inch pipes on lot ten with nothing else to suggest other pipes or a watercourse on that lot.
On February 6, 1995, plaintiffs signed a contract to purchase the property from Nellie Fittipaldi, widow. Prior to closing of title, plaintiff obtained a home inspection report, which identified "seepage from the exterior of the house" at the "front left basement area," and suggested grading the property and directing the gutter discharge pipes away from the house as preventive measures. A May 26, 1995, "location survey" of plaintiffs' lot, showed only the house and driveway, with no mention of a swale, watercourse, ditch, or the pipes installed by the Fittipaldis.
Plaintiffs purchased the property on June 30, 1995, and they did not experience any water problems until September 1999, when three inches of water entered their basement as a result of Hurricane Floyd. An unidentified municipal employee or official told Jane Disch's father there might be a pipe under the house, so Jane contacted Richard Moody, the municipal engineer, and inquired about the possibility of a municipal drainage system on plaintiffs' property.
Moody reviewed the tax map, and he checked the lot's permit history to identify the subdivision map. He then visited plaintiffs' property and observed two pipes about six inches in diameter on the northern lot line, which were located approximately where the map for the 1986 construction permit for subdivision lot nine indicated the start of a natural watercourse. He inferred that the pipe under Stanie Glen Road south of plaintiffs' lot was connected to a piping system on plaintiffs' property, and he also realized the tax map failed to indicate a watercourse on either of the two lots.
On October 15, 1999, Moody wrote to Jane to confirm the existence of a pipe beneath plaintiffs' house and to disclaim municipal involvement or responsibility for it:
You are correct in that a stormwater drainage system exists on your property passing beneath your home. It culminates at your north property line in a discharge from two 6" pipes. The line was subsequently extended from your property line [north] onto [tax] lot 8 within two 4" lines.
Please note, there is no municipal storm drainage easement on your property and the stormwater drainage system was neither constructed by the developer of the Stanie Glen Subdivision nor by the Borough of Watchung.
Moody referenced the subdivision map filed with the county and then explained it was the preliminary subdivision plat which showed "the developer proposed the construction of a single culvert under Stanie Glen Road to maintain the drainage flow within the designated natural watercourse area." Moody noted the subdivision was approved on the condition that the original drainage swales "were to be designated as natural watercourses such that they would remain open." He observed "[t]he water course on your property has not remained open" and stated he had "no records on file for the improvements to your property."
Moody also noted defendant had accepted the dedication of Stanie Glen Road as a municipal street. Because Jane had not asked at that time for defendant's assistance, and had only inquired about defendant's responsibility for maintaining the stormwater drainage system on her property, Moody referred her to the borough administrator, who in turn referred her to Al Ellis, the head of public works.
Jane told Ellis there was a piping system beneath her house, and that plaintiffs had a problem with "the town water coming from the street" onto their property. She asked him to address it, and he replied defendant was "planning to do some road work" in Spring 2000 and "would look into it at that time," but nothing was done.
In August 2000, plaintiffs returned from a weekend trip to find about five inches of water and mud in the same area of the basement as the previous flooding. They learned a very heavy rain had occurred during the weekend, and they thought the French drain, which they had installed inside the basement along with a sump pump after the first flooding, had failed. They called the person who had installed the drain; he tested it by pouring detergent in it and then looking for a soapy discharge in the yard. He found some behind the house, so he directed digging at that spot, which revealed a six-inch pipe about five feet below the surface.
Plaintiffs informed Moody about the pipe, stated their belief that it was clogged, and asked for help from defendant.
Moody and a municipal crew came and tested the pipe, by running water into it from the stormwater inlet on the south side of Stanie Glen Road, and also from the six-inch pipes at plaintiffs' northern property line.
Defendant did not have a camera system for inspecting pipes, so Moody borrowed another town's sewer jet to identify the location of the problem, although, to avoid causing further damage, he did not attempt to flush out whatever blockage might be present. Moody's crew inserted the sewer jet cable into the inlet on the south side of the road and let it advance until it stopped.
The crew repeated the process starting from the pipes on plaintiffs' northern lot line, one of which was a six-inch-diameter PVC pipe not connected to anything, while the other was actually a four-inch-diameter PVC pipe connected to an eight-inch-diameter concrete pipe. The eight-inch pipe would have "collapsed immediately" from an attempt to operate the jet inside it, due to its deteriorating and saturated state, so the crew followed the piping farther south (toward the road) until the point where the eight-inch pipe connected to a six-inch clay tile pipe, and inserted the cable there.
Measurements during the two insertions yielded results for the location of the problem, which was 170 to 175 feet from the inlet on the south side of the road. Moody advised plaintiffs that the problem could be a blockage or a break in the pipe. He would later testify this work represented defendant's assistance to a resident in identifying a problem, but not the assumption of responsibility for repairing it.
On September 12, 2002, plaintiffs had a sewer and drain service company perform a video-camera inspection of the piping system under their property, which finally confirmed the presence of a blockage. Thomas Fuccello, a field supervisor for the service company, testified he inserted a "tractor cam[era]" through an eighteen-inch storm drain on Stanie Glen Road and ran it toward plaintiffs' property. The camera traveled for approximately 109 feet until it struck debris that "traveled down the storm drain over the years from the catch basin. . . . at the top of the street."
On appeal, defendant presents the following arguments:
THE TRIAL COURT INCORRECTLY PERMITTED PLAINTIFF TO FILE A TORT CLAIM NOTICE OUT OF TIME.
NEITHER THE PRIVATELY INSTALLED PIPE NOR THE WATER FLOWING THERETHROUGH CONSTITUTED THE PUBLIC PROPERTY OF THE BOROUGH OF WATCHUNG AND THE COURT'S CONCLUSION ON THAT ISSUE WAS ERRONEOUS.
PLAINTIFF FAILED TO PRESENT ANY EXPERT TESTIMONY WITHIN ANY DEGREE OF ENGINEERING PROBABILITY TO SUSTAIN THE CLAIM FOR INJUNCTIVE RELIEF, AND THE COURT IMPROPERLY ORDERED THE BOROUGH TO UNDERTAKE REMEDIAL WORK ON STANIE GLEN ROAD.
UNDER THE FACTS OF THIS CASE AND BOTH STATUTE AND COMMON LAW, PLAINTIFF HAD NO VIABLE CLAIM FOR COUNSEL FEES AGAINST THIS DEFENDANT, AND THE COURT IMPROPERLY AWARDED ATTORNEY[']S FEES AND COSTS, AND USED AN INCORRECT METHOD TO ESTABLISH THE QUANTUM TO BE AWARDED.
A. UNDER THE FACTS AND CIRCUMSTANCES OF THIS CASE, PLAINTIFF WAS ENTITLED TO NO ATTORNEY FEE AWARD AGAINST THE BOROUGH OF WATCHUNG.
B. IF ANY ATTORNEY FEE IS AWARDED, THE COURT SHOULD HAVE TAKEN INTO ACCOUNT THE LIMITED SUCCESS OF THE PLAINTIFF AND OTHER BALANCING FACTORS.
C. PLAINTIFFS' COUNSEL FEE APPLICATION IS LIMITED TO THE $100 PER HOUR FEE CHARGED UNDER THE RETAINER AGREEMENT.
After reviewing the record and applicable law in light of the contentions advanced on appeal, we perceive no basis to interfere with the pre-trial orders entered on November 17, 2000, and June 4, 2003, or the final judgment entered by the trial court on May 2, 2005. R. 2:11-3(e)(1)(E). We therefore affirm, adding only these brief comments.
Photographs of Stanie Glen Road at the location of the culvert that discharges storm waters onto plaintiffs' property confirms Stanie Glen road is crowned. Thus, as noted by Richard Moody, the municipal engineer for the Borough of Watchung, all of the drainage that would have naturally flowed from south to north onto the Stanie Glen subdivision is "intercepted by Stanie Glen Road." And, unless the flow exceeds "the four inch crown on the roadway," the water flows along the southerly side of Stanie Glen Road, into the culvert, and onto plaintiffs' property. Accordingly, the record fully supports the trial court's determination that plaintiffs are entitled to injunctive relief. See Lyons v. Twp. of Wayne, 185 N.J. 426, 434 (2005) ("When analyzing a nuisance . . . wrongful conduct is not limited to the creation of the condition. Rather, a failure to physically remove or legally abate that condition, resulting in the physical invasion of another's property, also constitutes wrongful conduct."); Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 175 (2002) ("[A] public entity may be liable for a dangerous condition on private property that is proximately caused by the public entity's activities on public property, in this case, directing storm-drainage water onto private property."); Gould & Eberhardt, Inc. v. City of Newark, 6 N.J. 240, 243 (1951) ("[A] municipality does not have the right to collect surface water and discharge it upon private property in greater quantity and with greater force than would occur from natural flow, so as to cause substantial injury."); Sheppard v. Twp. of Frankford, 261 N.J. Super. 5, 8 (App. Div. 1992) (noting that injunctive relief was appropriate because unreasonable discharge of storm waters by township onto plaintiffs' property created continuing nuisance). Moreover, we perceive no abuse of discretion in the award of counsel fees to plaintiffs.