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Todd Gourley and Melissa Gourley, His Wife; Laura Sabarerio v. Township of Monroe

January 8, 2013

TODD GOURLEY AND MELISSA GOURLEY, HIS WIFE; LAURA SABARERIO;
DANIEL CONTE AND ALICE CONTE, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF MONROE, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT,
AND JEFFREY REITZ, ELIZABETH LATHROP,
MARK F. DELANEY AND MICHELLE S. REITZ, THIRD-PARTY DEFENDANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. C-0060-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 23, 2012

Before Judges Fisher, Alvarez and St. John.

Plaintiffs, Todd and Melissa Gourley, appeal from the September 13, 2010 order denying their request for a preliminary injunction, the June 15, 2011 order granting defendant Township of Monroe's cross motion for summary judgment dismissing all counts except the count alleging inverse condemnation, and the July 13, 2011 order dismissing plaintiffs' inverse condemnation claim. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.

I.

The following pertinent facts and circumstances emerge from the record. Plaintiffs reside in Monroe on Newton Avenue, which is a paved dead-end street that has no underground drainage system. Topographically, Newton has high points at each end and a low point at the plaintiffs' south east property line.

Plaintiffs purchased their property in November 2000. At that time they were not aware of any flooding or potential for flooding to the property. Soon after moving in, they noticed that after a "good" rainfall, water would start collecting in their side yard. Plaintiffs installed a French drain and sump pump but this did not alleviate the problem.

Flooding on Newton had likely been a long-standing problem, but increasingly affected plaintiffs' property as additional houses were built on the street. In late 2005 or early 2006, third-party defendant, Jeffery Reitz, cleared his upstream lot and installed a pole barn. After this, plaintiffs experienced increased flooding on their property. The flooding became more frequent when Reitz constructed a home on his lot. Thereafter, plaintiffs began complaining to Monroe.

In 2007, plaintiffs dug a five-foot-deep basin in their side yard. The basin collected the runoff rain water but a Township inspector told plaintiffs to fill in the basin because it was a dangerous condition. Plaintiffs subsequently constructed a detention basin. The cost for the basin was $4295, but it did not alleviate the problem. Plaintiffs then began putting sandbags out on the street during rainstorms and took other steps to try to protect their property from the water which would accumulate on Newton. This included having a drain installed under Newton in 2009 to drain water away from their property. However, the drain had to be taken out because approval from Monroe had not been received prior to its installation. Consequently, plaintiffs resorted to continuing to use sandbags. In September 2009, after receiving a complaint from plaintiffs' neighbor, the police informed plaintiffs they could no longer use sandbags on the street to guard against runoff water. However, they were allowed to keep sandbags on their property near the curb.

On November 17, 2009, plaintiffs filed a complaint against Monroe alleging it had created a dangerous condition, an increase in storm water flooding on or around their home. Monroe filed a motion to dismiss plaintiffs' complaint. Plaintiffs responded by filing an amended complaint, adding their adjacent neighbors as additional plaintiffs. Monroe then filed an answer, separate defenses, and third-party complaint naming plaintiffs' upstream neighbors on Newton as third-party defendants.

On September 13, 2010, plaintiffs' request for a preliminary injunction was denied. We denied plaintiffs' motion for leave to file an interlocutory appeal. Plaintiffs then filed an amended complaint, asserting direct claims against the third-party defendants. On June 15, 2011, plaintiffs' motion for partial summary judgment was denied and Monroe's cross motion for summary judgment dismissing all counts against it except the count alleging an inverse condemnation claim was granted. After a hearing, the motion judge granted Monroe's cross motion for summary judgment, dismissing plaintiffs' inverse condemnation claim. On November 15, 2011, plaintiffs dismissed their complaint against third-party defendants without prejudice.

This appeal ensued. On appeal, plaintiffs raise the following issues:

Point I

MONROE IS LIABLE FOR TRESSPASS AND NUISANCE; PLAINTIFFS ARE ENTITLED TO DAMAGES ...


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