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Diernisse v. Borough of Westwood

December 24, 2009

HANS V. DIERNISSE AND ANITA R. DIERNISSE, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF WESTWOOD, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-1495-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 7, 2009

Before Judges Reisner and Chambers.

This appeal arises from a long-running dispute between plaintiffs Hans and Anita Diernisse and defendant Borough of Westwood over improvements to a sewage pumping facility. After a plenary hearing, Judge Jonathan Harris determined that the Borough's engineering plans complied with a February 17, 2006 consent order requiring installation of a redundant back-up system to prevent sewage overflows, and he directed the Borough to implement those plans. Plaintiffs appeal from the judge's March 13, 2008 order memorializing his decision, and from the April 25, 2008 order denying their motion for reconsideration.*fn1

We affirm.

I.

We reviewed the history of this case in detail in an earlier opinion, Diernisse v. Borough of Westwood, No. A-2329-03 (App Div. April 13, 2005). In summary, plaintiffs sued the Borough to obtain "damages and injunctive relief as a result of repeated backups of raw sewage in their residence" due to failures in the municipal sewage pumps. (slip op. at 1-2). In our earlier opinion, we affirmed the award of damages to plaintiffs, but reversed the denial of injunctive relief. We remanded the case to a different trial judge for a hearing on the injunction issue. On remand, the matter was assigned to Judge Harris.

On remand, the parties reached a settlement on the injunction application, which was placed on the record on December 5, 2005 and memorialized in a consent order dated February 17, 2006. In the course of putting the settlement on the record on December 5, Mr. Diernisse*fn2 and his counsel both indicated that a gravity system would be best, but because the Borough's engineer had convinced Mr. Diernisse that a gravity system was not practicable, plaintiffs were settling for the Borough's agreement to install a mechanical back-up pumping system. Notably, in explaining to the judge why he was reluctantly accepting his own expert's opinion, Mr. Diernisse stated "of course I haven't done any civil - - and I don't claim to be an expert."

The parties agreed that the Borough's retained engineering firm, Boswell Engineering, would submit its design and specifications to plaintiffs' engineer, Stephen Gamelsky, for approval before the Borough implemented those plans. The consent order provided that if the proposed improvements would cost more than $30,000, Boswell could devise a more cost effective proposal and attempt to obtain Gamelsky's agreement, but if they could not agree, the Borough would install a system acceptable to Gamelsky. The order specifically required installation of "a redundant pump and generator" and could not be a system with only a limited duration capacity.

After the parties were unable to resolve disagreements over Boswell's proposed design, the Borough filed a motion to clarify its obligations under the consent order, and plaintiffs filed a motion to enforce the order. At the oral argument on September 21, 2007, the court construed the consent order as requiring that Gamelsky approve the Borough's plans. The parties disagreed as to whether Gamelsky had reviewed and approved the plans. The judge advised the parties that if they did not settle their differences, he would hold a plenary hearing to determine whether plaintiffs and Gamelsky had unreasonably withheld approval of the Borough's plans. Mr. Diernisse agreed to a plenary hearing, although he indicated that he would prefer that it be held on a more expedited schedule than the court proposed.

At the plenary hearing, the Borough presented extensive testimony from Stephen Boswell, a licensed engineer with extensive experience in designing sewage and water-pumping stations. According to Boswell, he initially designed a system with a third, large-capacity back-up pump, with multiple electric generator back-up systems, so that even if the regular pumps failed, or the regular electric supply failed, the system could still handle up to two and one half times the expected water flow during peak storm conditions. Boswell explained in detailed why the system he had designed would be effective in preventing future sewage back-ups. Boswell testified that the Borough was ready to put that system out for bid, but hesitated to do so because there was a better, non-mechanical system available.

Boswell testified that because the mechanical system would cost $300,000, which was ten times the cost anticipated in the consent order, he had designed an alternate system. Boswell explained the alternate plan as follows. Faced with the large potential cost of a mechanical system, Boswell re-considered the possibility of designing a gravity system, which was what he believed Mr. Diernisse had wanted from the beginning. He explained that a gravity system was preferable because it has no parts that can fail the way a mechanical pumping system can. According to Boswell, a gravity system would cost about the same as the redundant mechanical system, and would eliminate the need for the mechanical pumping station.

Boswell testified that when he discussed the gravity system proposal with Gamelsky in August 2006, "he approved. No engineer . . . would ever prefer to use a mechanical system over gravity if gravity works." However, shortly thereafter, Mr. Diernisse told Boswell that Gamelsky was ...


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