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Disch v. Borough of Watchung

August 31, 2007

ROBERT M. DISCH AND JANE M. DISCH, PLAINTIFFS-RESPONDENTS,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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