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Township of East Brunswick v. Miller

September 2, 2010

TOWNSHIP OF EAST BRUNSWICK, PLAINTIFF,
v.
JEFF MILLER, MILLER BUILDING COMPANY, AFFILIATED BUILDING CORP., ZURICH SURETY NORTH AMERICA, MOUNT BATTEN SURETY COMPANY, AND FIDELITY & DEPOSIT COMPANY OF MARYLAND, DEFENDANTS, AND JEFF MILLER, MILLER BUILDING COMPANY, AND AFFILIATED BUILDING CORP., THIRD-PARTY PLAINTIFFS-APPELLANTS/CROSS-RESPONDENTS,
v.
COUNTY OF MIDDLESEX, THIRD-PARTY DEFENDANTRESPONDENT/CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4396-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 27, 2010

Before Judges Axelrad and Espinosa.

Third-Party Plaintiffs Jeff Miller, Miller Building Company and Affiliated Building Corp.*fn1 appeal from a judgment of $12,000 entered following a jury trial of their inverse condemnation claim. Third-party Defendant County of Middlesex (County) cross-appeals from the denial of its motion for summary judgment. We affirm.

In April 1985, the Township of East Brunswick issued a Resolution of Subdivision permitting Miller to subdivide the property in question for the construction and sale of single-family houses. In accordance with that resolution, Miller was required to build and service a retention basin for the benefit of the sixty-seven lots, solely for allowing storm water to flow from the property into the retention basin.

A duly recorded Declaration of Covenants and Restrictions for the property provided that Miller was required to maintain the retention basin.*fn2 The County had the right to "enter upon and maintain" the drainage system and any and all detention/retention/recharge facilities in order to preserve and maintain the facilities in the event that Miller failed to maintain them and failed to cure deficiencies upon written notice from the County. The Declarations further authorized the County to seek reimbursement for the costs it incurred in maintaining the retention basin.

The retention basin is dedicated as Open Space and is restricted from any other use, development and construction. No homes or any other structure can be built on this property. As a result, Miller is not assessed taxes for this property.

In 1999, the County employed an engineering consulting firm to design traffic improvements the intersection of Ryders Lane and Peach Orchard (the road project) and address drainage problems on Ryders Lane near the East Brunswick Jewish Center (EBJC). The firm's report, a copy of which was received in evidence, included the engineering consultants' conclusion that the retention basin built to service the development was not constructed in accordance with the approved plans and that, as a result, 80% of the flow from the property was discharged onto Ryder's Lane and the EBJC.

In May 2002, Miller entered into an agreement to sell a portion of his 2.02-acre lot on Ryders Lane in lieu of a condemnation to the County to allow County to make necessary road improvements to the intersection. The total purchase price for the taking of 0.016 acre and an 0.013 slope easement was $2925.

The County did not provide written notice to Miller of any deficiencies in the retention basin. However, as part of the road project, the County also made improvements to the retention basin. It took approximately six months to complete the improvements, which introduced a large number of concrete pipes onto the property in several different locations of the property that were not part of the 2002 sale. The County did not seek reimbursement for the $112,222 cost of the improvements.

In December 2006, Miller filed a third-party complaint against County, that was later amended to assert a claim for inverse condemnation.*fn3

The County filed a motion for summary judgment, and Miller filed a cross-motion for summary judgment. The motion judge granted summary judgment to Miller "on the liability issue on the grounds of inverse condemnation." In a subsequent case management order, the court limited the trial "to value of property after taken by County" with a valuation date of October 30, 2002.*fn4

At trial, the County argued that the taking was temporary in nature and Miller argued that the taking was permanent. Both sides presented the testimony of expert appraisers and stipulated to the qualifications of the experts. John Zennario testified on behalf of the County that the property's value was $6,000 if the taking was temporary and $288,000 if it was a permanent taking. Zennario acknowledged that he was not qualified to determine whether the taking was permanent or temporary. However, Zennario testified that he believed the taking was temporary because Miller retained title to the property; the basin still serviced the ...


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