July 24, 2009
TOWNSHIP OF NORTH BERGEN, A MUNICIPAL CORPORATION IN THE COUNTY OF HUDSON AND STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS L. SENGER, DEFENDANT-APPELLANT, AND MRS. THOMAS SENGER, HIS WIFE, ITT SMALL BUSINESS FINANCE CORPORATION, ALICE J. SENGER; JOHN APPELLO, UNITED STATES OF AMERICA, ANNETTE SENGER, PANEPINTO, PAOLINO, DOHERTY & MANGIN, MARGOLIS CHASE AND STATE OF NEW JERSEY, DEFENDANTS, AND NORTH BERGEN MUNICIPAL UTILITIES AUTHORITY, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4235-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 22, 2009
Before Judges Stern, Rodríguez and Espinosa.
Defendant Estate of Thomas L. Senger*fn1 appeals from orders of November 26, 2007 granting summary judgment to the Township of North Bergen (Township) and the North Bergen Municipal Utilities Authority (NBMUA) dismissing Senger's counterclaims and cross-claims in response to a complaint filed in an in rem tax foreclosure action by North Bergen (which is still pending in General Equity).*fn2 Defendant Senger claimed that the Township and NBMUA polluted his property causing loss of value and other damages, and resulted in non-payment of taxes. His claims sound in inverse condemnation, nuisance, trespass, negligence, conspiracy and a violation of 42 U.S.C. § 1983. The dismissals were based on a statement of reasons attached to each of the orders granting summary judgment, stating that there was a lack of evidence "that Mr. Senger's property was in fact contaminated during the time frames ... applicable to the various claims raised here," and that the reports of Senger's experts were insufficient to reflect the extent or cause of contamination on the property and the amount of damages.
Senger's Estate asserts that summary judgment was wrongly entered, "[a] prima facie case of inverse condemnation has been established," that he "sustained prima facie claims for property loss, civil rights and conspiracy" (particularly when supported by the common law doctrine of quare clausum fregit), the "law of the case" doctrine does not apply, and the New Jersey Tort Claims Act does not preclude the action because it is not applicable to "taking/condemnation" or civil rights violations.
Factually, the Estate contends that Senger "has established that approximate[ly] 2.54 million gallon[s] per day of untreated sewage flowed upon this property for a period spanning over 10 years." Senger sought the cost of remediation, the loss of fair market value of the property, and the loss of the lease by a sandwich store.*fn3 Neither the Township nor the NBMUA dispute that the NBMUA operated a Township-owned pipe under the property that discharged effluent prior to construction of a new sanitary pipe as a result of the condemnation action in 1996.*fn4 But they dispute it contaminated or caused injury to the Senger property. However, Senger never tested the property for contamination or the source of any contamination. In fact, he was advised by counsel not to do so because it could be said to affect the property value. Thus, because Senger's experts relied on reports of others, but none involved actual testing or identification of a contaminant, Judge Baber properly dismissed the case in the absence of proof of any loss or injury.
The case was originally removed to the Bankruptcy Court in 1999. Pursuant to a comprehensive opinion on October 21, 2005, Judge Gambardella "abstain[ed] from hearing" the matter in Bankruptcy Court and "remanded" it "back to the State Court pursuant to 28 U.S.C. Section 1542(b) for full adjudication." Before doing so, she had previously ruled that the notice provisions of the New Jersey Tort Claims Act were "not applicable to the Debtor's claims for damages under a Taking and Inverse Condemnation" or a U.S.C. Section 1983 claim, but applied to other claims. She also held that the "Taking and Inverse Condemnation Actions were subject to a six-year Statute of Limitations, so that as to the Debtor's Counterclaim" in the 1996 NBMUA condemnation occurring "prior to April 1, 1990 would be time-barred," and that because of the two-year statute of limitations the "1983 claims," and "Breach of Contract, Tort Claims, Intentional and Negligent Tort Claims remain subject to the New Jersey Tort Claims Act," occurring before April 1, 1994 were also "time-barred."
We agree with Judge Mark Baber that Senger never produced evidence of contamination on his property, much less the source of any contamination, and affirm the judgments substantially for the reasons he gave with respect to the period not barred by the relevant statutes of limitations.*fn5
Moreover, Senger used the property after the installation of the new runoff system was completed, and he continued to operate his restaurant there until the year 2000 when the property was condemned by the New Jersey Department of Transportation which eliminated access to the property and for which he was compensated.
A February 7, 2000 report of Malcolm Pirnie prepared for Senger's attorney was "based on the limited information provided," and "no investigations [were] ... completed on the subject property." The report recommended that "soil, groundwater, surface water and creek sediment samples be collected from the subject property." A June 21, 2002 report of Neglia Engineering concluded:
In our opinion, the constant discharge of untreated sewerage had an impact on the property in question, and both the Township and the NBMUA, and possibly unknown contributors, are strictly liable for the damage and the cleanup. We cannot make an accurate evaluation of the extent of this contamination without performing additional testing. Furthermore, due to the nature of these contaminants, and the time frame which has lapsed since the property was exposed to said, further complicates the testing efforts.
The report continued:
[T]hat the accumulation of untreated sewerage, for a period of 10 years, or possibly longer, would have potentially impacted the subject property. Furthermore, a portion of the sewerage was generated from light industrial, and storm water from parking lots, which was likely to contain sludge, oil products, residuals and hazardous materials.
Judge Baber's statement of reasons explains why the beneficial aspects of the Neglia report were not sufficient to withstand summary judgment ― the material on which it relied, without testing, did not support the findings. Simply stated, there was no evidence that Senger's property (as opposed to adjacent properties) was contaminated or that any actual contamination was caused by North Bergen or its NBMUA.
In sum, Senger took no legal action for years despite his knowledge of the discharge and alleged condition of his property. He acknowledged that he believed the property was contaminated by 1988 and stopped paying property taxes. Hence, there is no proof of contamination or decreased property value caused by the Township and its NBMUA, much less that an action was timely commenced. The condemnation action was filed in March 1996, and the counterclaim was filed on April 3, 1996. The foreclosure action was filed by the Township on October 27, 1998, and the counterclaim and cross-claim were not filed until February 8, 1999.