On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Union County, Docket No. C-8-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Lihotz and Messano.
Defendant Bouras Properties, L.L.C. (Bouras), appeals from an April 11, 2008 order granting summary judgment to plaintiff Exxon Mobil Corporation (Exxon). We affirm.
We present the facts derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
Soil and groundwater contamination were discovered at a former Exxon-branded service station site, known as Flynn's Garage, located on Euclid Avenue, in the City of Summit (Summit). The groundwater contamination invaded the abutting realty located across the street, which was owned by Bouras. In its efforts to comply with New Jersey Department of Environmental Protection (NJDEP) regulations to effectuate the clean-up of the contamination, Exxon engaged the assistance of environmental consultants, Kleinfelder, and commenced preparation of the necessary remediation work.
Exxon contacted Bouras' legal counsel to negotiate the terms of an agreement allowing Exxon access to Bouras' site to perform its remedial efforts. A "Site Access Agreement" (the Agreement) was executed by Kassandra Romas, Managing Director of Bouras, and Gary A. Stumpf, Senior Project Manager for Exxon.
Subsequent to the Agreement's execution, representatives of Exxon or Kleinfelder communicated with Romas regarding the work. James Killen, a Kleinfelder project engineer, requested site plans for Bouras' property to design the remediation system and prepare submittals to Summit. On June 15, 2005, Killen wrote Romas, informing her the consultants were "proceeding with the design and eventual installation of the remediation system as described in your access agreement with Exxon." Killen advised a survey of Bouras' property would be conducted on July 6 and 7, 2005 to obtain the approvals for "installing the remediation system." The various communications between Bouras and Exxon's consultants were confirmed by an email to Romas.
On August 29, 2005, Exxon's project manager, Maureen Forlenza, wrote to Romas to advise of groundwater testing results, which revealed levels of benzene, toluene, ethyl benzene, xylenes and lead that exceeded the State's groundwater quality standards. Exxon prepared a Classification Exception Area (CEA), designating the area where use of the groundwater was temporarily prohibited until the clean-up's completion. The CEA included a portion of Bouras' property.
On October 14, 2005, a meeting between Exxon, its consultants and Bouras was held to review the remediation system's scope of installation work and address any concerns raised by Bouras. The group, which included Killen, Pat West, another Kleinfelder consultant, and Forlenza, met with Romas in her office. Romas maintained the meeting was brief and she "did not put it together" that a remedial system was to be put on Bouras' property.
Exxon began preparation for trenching activities by purchasing remedial equipment and installing piping in November 2005. On November 9, 2005, an on-site meeting was held between Romas and Kleinfelder's project manager to review the installation of the trenching and the identification of the location of the remediation system to be installed pursuant to the Agreement. From November to December 2005, and March to April 2006, there were a minimum of five personnel, including police detail, heavy equipment, and orange fencing on or around Bouras' property. During the trenching and piping activities, the intersection of Euclid Street and Maple Street was closed to traffic. Photographs in the record exhibit Exxon's presence on Bouras' site and surrounding properties during this time period.
In April 2006, Kleinfelder contacted Romas while she vacationed in Greece, to ascertain the location of Bouras' sprinkler system prior to the installation of the remedial system piping. In May 2006, Killen contacted Romas to inquire of Bouras' preferences regarding the privacy fence to surround the remediation system shed. Romas questioned the length of time for the system's operation and expressed concern about possible complaints from local residents regarding the installation of a remedial system. Killen met with Romas and Bouras' real estate advisor, George Paras, to discuss the recently raised concerns. At that meeting, Romas asked Exxon to "'hold off' on submitting its permit application related to the remediation system's installation and operation" because Bouras awaited City approvals for installation of a back-up generator.
In June 2006, Bouras formally objected to installation of the remedial system. Romas stated installation "would make Bouras appear as the public face responsible for an environmental cleanup of a condition created by someone else." Additionally, the system "would be obtrusive and would unreasonably interfere with the ...