Opinion
DOCKET NO. A-2327-11T3 DOCKET NO. A-5095-11T3 DOCKET NO. A-0558-12T3 DOCKET NO. A-0625-12T3
07-29-2015
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Appellant, v. GLOUCESTER COUNTY; BENNY A. SORBELLO FAMILY, LLC; TIMOTHY AVSEC; and DIANNE AVSEC, Defendants-Respondents. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent, v. DAVID DUFFIELD, SR., Defendant-Appellant, and GLOUCESTER COUNTY, Defendant-Respondent. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Appellant(A-0558-12)/Respondent(A-0625-12), v. GLOUCESTER COUNTY and ROBERT and RUTH GRAY, Defendants-Respondents, and ESTATE OF WILLIAM F. BLACKMAN; PETER E. DRISCOLL; J. THOMAS DUNLEVY AND THE GLENMEDE TRUST COMPANY, N.A., TRUSTEES OF THE WILLIAM F. BLACKMAN CHARITABLE FARM TRUST, Defendants-Respondents(A-0558-12)/Appellants(A-0625-12).
Daniel A. Greenhouse, Deputy Attorney General, argued the cause for appellant State of New Jersey, Department of Environmental Protection in A-2327-11 and A-5095-11; Susan Savoca, Deputy Attorney General, argued the cause for appellant in A-0558-12 and respondent in A-0625-12 State of New Jersey, Department of Environmental Protection (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel in A-2327-11, A-5095-11, A-0558-12 and A-0625-12; Jennifer Fradel, Assistant Attorney General, of counsel in A-2327-11; Mr. Greenhouse, on the briefs in A-2327-11; Ms. Savoca, on the briefs in A-5095-11, A-0558-12, and A-0625-12). Michael E. Sullivan argued the cause for respondent County of Gloucester in A-2327-11, A-5095-11, A-0558-12, and A-0625-12 (Parker McCay, P.A., attorneys; Mr. Sullivan, on the briefs). Anne G. Krell argued the cause for respondent Benny A. Sorbello Family, LLC, in A-2327-11. James M. Carter argued the cause for appellant David Duffield, Sr., in A-5095-11 (Hoffman DiMuzio, attorneys; Mr. Carter, on the briefs). Michael A. Iannucci argued the cause for respondents Robert and Ruth Gray in A-0558-12 and A-0625-12 (Blank Rome, LLP, attorneys; Kevin J. Bruno, of counsel; Mr. Iannucci, of counsel and on the brief). Craig J. Huber argued the cause for respondents in A-0558-12 and appellants in A-0625-12 Estate of William F. Blackman and Peter E. Driscoll, J. Thomas Dunlevy and The Glenmede Trust Company, N.A., Trustees of William F. Blackman Charitable Farm Trust (Archer & Greiner, attorneys; Mr. Huber, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Simonelli, and Leone. On appeal from the Superior Court of New Jersey, Chancery Division and Law Division, Gloucester County, Docket Nos. C-0087-08, L-0520-07 and L-1014-08. Daniel A. Greenhouse, Deputy Attorney General, argued the cause for appellant State of New Jersey, Department of Environmental Protection in A-2327-11 and A-5095-11; Susan Savoca, Deputy Attorney General, argued the cause for appellant in A-0558-12 and respondent in A-0625-12 State of New Jersey, Department of Environmental Protection (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel in A-2327-11, A-5095-11, A-0558-12 and A-0625-12; Jennifer Fradel, Assistant Attorney General, of counsel in A-2327-11; Mr. Greenhouse, on the briefs in A-2327-11; Ms. Savoca, on the briefs in A-5095-11, A-0558-12, and A-0625-12). Michael E. Sullivan argued the cause for respondent County of Gloucester in A-2327-11, A-5095-11, A-0558-12, and A-0625-12 (Parker McCay, P.A., attorneys; Mr. Sullivan, on the briefs). Anne G. Krell argued the cause for respondent Benny A. Sorbello Family, LLC, in A-2327-11. James M. Carter argued the cause for appellant David Duffield, Sr., in A-5095-11 (Hoffman DiMuzio, attorneys; Mr. Carter, on the briefs). Michael A. Iannucci argued the cause for respondents Robert and Ruth Gray in A-0558-12 and A-0625-12 (Blank Rome, LLP, attorneys; Kevin J. Bruno, of counsel; Mr. Iannucci, of counsel and on the brief). Craig J. Huber argued the cause for respondents in A-0558-12 and appellants in A-0625-12 Estate of William F. Blackman and Peter E. Driscoll, J. Thomas Dunlevy and The Glenmede Trust Company, N.A., Trustees of William F. Blackman Charitable Farm Trust (Archer & Greiner, attorneys; Mr. Huber, on the brief). PER CURIAM
These consolidated appeals concern the scope of parties who may be liable for the maintenance and safety of dams in New Jersey under the Safe Dam Act ("SDA"), N.J.S.A. 58:4-1 to -14. The appeals respectively involve three dams located in Gloucester County ("the County"): Kincaid Lake Dam, Sterling Lake Dam, and Basgalore Lake Dam. Each of those dams has a culvert, spillway, and bridge connected to a County road. The Department of Environmental Protection ("DEP") has alleged that a number of the other parties in these cases, including the County, are liable under the SDA for certain repair, removal and other costs and penalties. The contested liability issues were resolved on summary judgment by the same trial judge in separate lawsuits involving the three dams, and these appeals ensued.
Applying this court's recent precedential opinion construing the SDA in New Jersey Department of Environmental Protection v. Alloway Township, 4 38 N.J. Super. 501 (App. Div.), certif. denied, ___ N.J. ___ (2015), ("Alloway Township"), we affirm the trial court's rulings in part and reverse them in part. In particular, consistent with Alloway Township, we conclude that any "owner or person having control of a reservoir or dam," N.J.S.A. 58:4-5(a) (emphasis added), bears responsibility for a dam under the SDA and its associated regulations, and that ownership or control are alternative grounds for imposing such liability.
Hence, in the present appeals, some named defendants are liable under the SDA as reservoir owners and persons who own and have some control over the upstream portion of a dam. The County is liable under the SDA because it has some control over the embankment and other portions of a dam as a result of its right-of-way easement for the road and bridge surmounting the dam. Finally, certain other defendants are potentially liable under the SDA because they own the downstream portion of a dam. We emphasize, however, that the liability of these defendants for remedial efforts and costs to repair or remove a dam may not be equal, and that the trial court on remand shall equitably apportion the costs and efforts accordingly.
I.
A.
The general contours of the applicable statute, the SDA, were summarized as follows in our recent Alloway Township opinion:
[The SDA is] a statute enacted upon the Legislature's specific finding "that the condition of many dams, lakes, and streams throughout the State has been deteriorating at an alarming rate due to a chronic lack of maintenance," and "that these conditions have led to the collapse of dams, polluted lakes, stream flooding and property damage to homes, businesses, lake communities and public utilities." N.J.S.A. 58:4-11. The SDA casts a "broad net" of liability, New Jersey Department of Environmental Protection v. Mercer County Soil Conservation District, 425 N.J. Super. 208, 221 [] (Ch. Div. 2009), so that its remedial purpose — "to protect the public from the
loss of life and property in the event a dam fails, regardless of whether it is privately or publicly owned" — is served. Id. at 218.
Under the SDA, the Commissioner (the Commissioner) of the Department of Environmental Protection (DEP) is vested with sweeping regulatory and enforcement powers. See, e.g., N.J.S.A. 58:4-3 (permitting the Commissioner to request surveys and plans of dams and reservoirs); N.J.S.A. 58:4-4 (permitting the Commissioner to inspect any dam or reservoir); N.J.S.A. 58:4-5(b), (d) (granting the Commissioner broad remedial powers regarding unsafe dams, including the power to enter onto lands and remove the dam).
The SDA also imposes significant obligations upon "[a]n owner or person having control of a reservoir or dam." N.J.S.A. 58:4-5(a) (emphasis added). Such person must "[i]mplement all measures" required by the SDA or its accompanying regulations, provide any reports or information requested by DEP, and "[i]mplement any action ordered by the Commissioner" to rectify unsafe conditions. N.J.S.A. 58:4-5(a)(1)-(3).
The Commissioner is vested with broad enforcement powers whenever the SDA, "or any rule or regulation adopted, or permit or order issued pursuant thereto" is violated. N.J.S.A. 58:4-6(a). The remedies available to the Commissioner are numerous and include the right to file a summary civil action seeking injunctive relief, costs and civil penalties. N.J.S.A. 58:4-6(c).
[Alloway Township, supra, 438 N.J. Super. at 504-05.]
In Alloway Township we were asked to decide which among three named defendants in that case, i.e., the Township of Alloway, the County of Salem, and a private landowner, were liable under the SDA for alleged violations involving a dam which formed a private lake. Id. at 505. We held that the SDA essentially identifies four classes of parties subject to the DEP's regulatory authority: (1) dam owners; (2) reservoir owners; (3) those who control a dam; and (4) those who control a reservoir. Id. at 512.
We disagreed in Alloway Township in part with an earlier published opinion of the Chancery Division in New Jersey Department of Environmental Protection v. Mercer County Soil Conservation District, 425 N.J. Super. 208, 220-21 (Ch. Div. 2009) ("Mercer County Soil"), which had held that an "owner" of a dam or reservoir, in order to be liable under the SDA, had to have "constructed or exercised some degree of control over the dam or reservoir, or have had the legal authority to exercise control." Id. at 513. Rather, we concluded in Alloway Township that an owner need not have more than legal ownership of a dam or reservoir "to be brought under the enforcement umbrella of the SDA." Id. at 512-13. Accordingly, we overruled the Chancery Division's opinion in Mercer County Soil in that discrete regard. Id. at 511.
Applying these basic principles, we ruled in Alloway Township that Alloway Township was liable under the SDA on the facts presented in that case, because the Township had maintained the road which ran atop the dam and thereby exercised control over a structure or work appurtenant to the dam. Id. at 508-09, 515-16. Co-defendant Salem County was also liable because it too had exercised control over the dam by repairing the spillway, maintaining the bridge and installing a culvert. Id. at 508-09, 516. Finally, we concluded that an individual defendant who had admitted to owning the dam (which was built by his ancestor) and all the land around it, as well as the private lake it contained — and who had acknowledged maintaining the dam and its environs and operating the spillway — was also liable under the SDA. Id. at 507-08, 514-15.
With this legal framework in mind, we now describe the pertinent facts and procedural history in the three dam cases now before us.
Kincaid Lake Dam (A-0558-12 & A-0625-12)
This appeal concerns Kincaid Lake Dam, which is located in Harrison Township in Gloucester County along County Road 623 ("Route 623"). Route 623, which is also known in the area as Clems Run Road, has been maintained as a public road since 1820 and has been part of the County's roadway system since 1939.
Many years ago, Route 623 crossed the stream known as Big Clems Run by means of a bridge (County Bridge No. 6-H-5) with a culvert. The County maintained the roadway and bridge pursuant to a right-of-way easement over the privately-held land underneath them. This easement was originally 49.5 feet wide and extended 24.75 feet in either direction from the center line of Route 623.
In January 1926, the Gloucester County Bridge Committee (the "Committee") recommended to the Gloucester County Board of Chosen Freeholders (the "Freeholders") that County Bridge No. 6-H-5 be replaced. At the same time, William Kincaid, who was then the owner of the lands "adjoining on the up stream side of" the bridge, approached the Freeholders. Kincaid stated that he wanted to build, at his own cost, a "concrete dam and spillway" at the location of the bridge. The dam and spillway were to be built to create Kincaid Lake, a private twenty-acre lake on Kincaid's property. The Committee authorized the County Engineer to prepare plans for such a "concrete bridge and spillway" and also to
advertise for bids for the construction of the same and that the concrete spillway be constructed in connection therewith providing a satisfactory contract can be made by the Owner with the person who receives the contract for the construction of the bridge in order to insure the County against any extra expense.
[(Emphasis added).]
In February 1926, the Freeholders awarded a contract for the construction of the bridge to Just F. Eriksen for the sum of $10,894.10, that "being the County's share of the cost of [Eriksen's] lump sum bid of" $13,790. The Freeholders also authorized Kincaid "to have a [s]pillway constructed in connection with the bridge in accordance with the plans bid upon provided he enter[ed] into his part of the contract with the [c]ontractor for the payment of the same," i.e., the balance of $2,895.90.
That same month in 1926, the County and Kincaid entered into a contract with each other and with Eriksen for the construction of the bridge and spillway. In July 1926, the dam was inspected and approved by the County Engineer and an engineer from the DEP's predecessor State agency, even though the plans for the project had not been submitted previously to that agency for approval.
The plans subsequently submitted by the County to that predecessor agency included an affidavit from Eriksen, stating that he was the "Contractor on the construction of BRIDGE AND SPILLWAY NO. 6-H-5" and "that the construction of said bridge and spillway [was] strictly in accordance with the plans and specifications herewith. That the construction of the Bridge was for the COUNTY OF GLOUCESTER, and the construction of the SPILLWAY was for WILLIAM KINCAID, owner of the proposed lake[.]" There was no indication on the plans that the roadway embankments for Route 623 needed to be or were re-graded to accommodate the spillway or lake.
The spillway constructed by Eriksen was a box-shaped reinforced concrete spillway with a water level control structure made of wooden boards typically referred to as a weir. Excess water flowed over the spillway and through the bridge via the culvert. The water level in Kincaid Lake could be controlled by manually removing or replacing the boards in the weir to release more or less water. Slightly over eight feet of the spillway was located within the County's right of way over Kincaid's property.
Since their construction in 1926, the County has maintained its bridge and culvert, as well as Route 623, pursuant to its right-of-way easement. The County has also maintained the roadway embankments, to the extent needed for the operation of the road. The County has not undertaken any maintenance with regard to the spillway or the lake. It contended that, when facilities were constructed or placed within the County's right-of-way, the maintenance of these facilities remained the responsibility of the facility owner.
In 1926, Kincaid owned all of what was designated as Block 17, Lot 1, on the tax map of Harrison Township. His 141-acre property extended east from the center line of Route 623 and included the lake, the spillway and the upstream portion of the bridge and the upstream roadway embankments.
On September 30, 1940, the engineer who was then in charge of the State Water Policy Commission (another predecessor to the DEP) wrote to Kincaid regarding the failure of Kincaid's dam during a recent storm. The engineer advised Kincaid of his obligation to obtain a permit from that state agency before reconstruction work could begin.
Over the years, the County continued to be involved in the dam's maintenance and safety issues. In 1946, the County complained to the DEP's predecessor agency that repairs had been made to the spillway "by the owner" without the County's permission, and asked the agency to advise whether the work had been performed satisfactorily in accordance with the agency's requirements. On another occasion in 1948, Kincaid obtained the approval of the County Engineer to perform work within the County's right-of-way on the dam and upstream embankment. In particular, Kincaid intended to re-grade and stabilize a portion of the upstream embankment.
William Blackman purchased Block 17, Lot 1 in 1953. As it had been since its creation, Kincaid Lake remained a private lake throughout Blackman's ownership. In 1964, Blackman allowed the County Soil Conservation Service (a "special purpose subdivision of the State" and not a County agency) to dredge the lake and replace rotten spillway boards. Blackman and the County split the cost of the work.
In 1981, the Legislature adopted the current version of the SDA. That same year, the United States Army Corps of Engineers ("Army Corps") published an inventory of dams in New Jersey. The inventory indicated that there would be a "significant" downstream hazard in the event the Kincaid Lake Dam failed. Thereafter, in 1985, the DEP adopted new regulations pursuant to the SDA known as the Dam Safety Standards. See N.J.A.C. 7:20-1.1 to -2.9.
In 1986, defendants Robert and Ruth Gray ("the Grays") purchased property adjacent to Blackman's parcel and downstream from the lake, extending west from the center line of Route 623. Downstream portions of the bridge and culvert, plus the downstream portion of the embankment supporting the roadway, were situated on their property. This portion of their property was subject to the County's right-of-way easement. The Grays had no access to, and did not use, the lake.
The Grays eventually sold their property to their son in December 2010 while this litigation was pending.
In 1988, the County wrote to the DEP in connection with another dam and expressly disavowed "responsibility for dams and water impoundments created by privately and/or municipality owned spillways." The County took the position that, "[i]f the spillways were removed or opened, there would be no dam or water impoundment. If the spillways are to remain, the owner must accept complete responsibility for mainten[an]ce, inspection, and liability."
In September 2000, the DEP ordered the County to have a licensed professional engineer prepare and submit a dam safety inspection report for the Kincaid Lake Dam by December 1, 2000. In 2001, the Grays, at the County's request, agreed to increase the width of the County's right-of-way easement on their property to thirty-two feet. Also in 2001, the Grays attempted to cede to the County that portion of their property that was under Route 623 by re-deeding the other part of their property to themselves with a new legal description. The new legal description described the Grays' property as running along "the Southwesterly line of [Route 623]" rather than to its centerline.
In August 2001 and again in February 2002, the DEP ordered the County and the Grays to submit a dam safety inspection report. The Grays responded by denying responsibility for the dam. The County also apparently did not submit the requested report.
On July 3, 2002, the DEP inspected the dam and determined that it was in "poor condition[.]" The concrete spillway structure was "severely spalled"; the embankments, both upstream and downstream, required a re-grading and vegetation removal; and the spillway boards were severely deteriorated, allowing water to seep through the spillway. The Harrison Township Fire District, without seeking a permit, had placed metal sheeting in front of the spillway boards in an attempt to stop the seepage.
By letter dated July 11, 2002, the DEP ordered the County, Blackman, and the Grays to have a licensed professional engineer inspect the dam, to evaluate repairs that had been made on the dam, and to prepare an emergency action plan ("EAP"). In response, Blackman denied responsibility for the dam. However, the DEP subsequently advised Blackman that it had determined that he was, in fact, a part owner of the dam.
In a subsequent letter dated June 30, 2004, the DEP again directed the County and the Grays to submit an EAP and "inundation maps." Approximately three months later, the DEP ordered the County and the Grays to retain a licensed professional engineer to either submit a dam safety inspection report or to submit a "permit application for repairs and/or a hydrologic and hydraulic study" of the dam. The DEP re-inspected the dam in June 2005, and April 2007, and on both occasions found the dam to be in poor condition.
Meanwhile, Blackman died in January 2005. Thereafter, in September 2006, a Deputy Attorney General ("DAG") wrote on behalf of the DEP to the County, Blackman's estate ("the Estate"), and the Grays and directed them to take all actions necessary to bring the dam into compliance with the SDA. The DAG advised that, if they failed to act, they would be subject to a civil action for injunctive relief and penalties.
The DAG's letter failed to produce immediate remedial action. The Estate denied any responsibility for the dam. The Grays likewise continued to take the position that they were not responsible for the dam. Meanwhile, County Counsel advised the DEP that the County was conducting a comprehensive analysis of the dams in the County, and expected to be better able to answer the DEP's questions regarding ownership and responsibility in the near future.
In May 2007, the DEP filed its complaint in the Chancery Division against the County, the Grays, and the Estate. Among other things, the DEP sought an order requiring that Kincaid Lake Dam be either inspected and repaired or removed by defendants. The DEP also sought penalties for defendants' alleged violation of the SDA and the related Dam Safety Standards, N.J.A.C. 7:20-1.1 to -2.9. The DEP further sought daily monetary penalties, starting from October 4, 2004, for defendants' failure to comply with the DEP's compliance directive issued on that previous date. Defendants all denied liability and asserted various cross-claims against one another.
The case was transferred to the Law Division. The County filed an initial summary judgment motion. The trial court denied that motion in October 2010, preliminarily finding that the County appeared to be an entity having control over the dam.
The DEP learned that the Estate had transferred to the William F. Blackman Charitable Farm Trust ("the Trust") the property on which the Kincaid Lake Dam was located. Pursuant to a consent order, the DEP amended its complaint, adding the Trust as an additional defendant.
Thereafter, the County, the Grays, and the DEP each filed motions for summary judgment. After oral argument, the trial court granted the DEP's motion as to the Estate, the Trust, and the County, but denied the DEP relief as to the Grays. The court additionally found that the Estate and Trust were required to indemnify the County "for any expenses [the County] incur[red] in complying with the [SDA]." At that same time the court also granted the Grays' summary judgment motion but denied the County's motion for similar relief.
In March 2012, the Estate and the Trust entered into a judicial consent order with the DEP, in which they agreed to remove the dam and to pay a penalty. Taking into consideration those parties' earlier payment for a hydrologic and hydraulic study, and their agreement to decommission the dam, the DEP accepted a penalty of $12,500 to settle those defendants' share of the alleged liability for violations of the SDA. The DEP also subsequently approved the joint application of the Estate and the Trust for a permit to decommission the dam by removing the spillway.
Meanwhile, in March 2012, the Estate and the Trust moved for reconsideration of the trial court's ruling that they were required to indemnify the County. The County cross-moved for reconsideration of the court's ruling that the dam included more than just the spillway and finding that the County had responsibility under the SDA for the dam.
After reflecting upon the case further, the trial court granted the County's reconsideration motion but denied the reconsideration motion of the Estate and the Trust in an order dated August 17, 2012.
In its successive rulings as to the Estate and the Trust, the trial court was satisfied that those parties were responsible for the dam under the SDA because they owned the lake and the privately-funded spillway portion of the dam through their predecessors-in-title. The court was further persuaded that the Estate and the Trust were required to indemnify the County for any expenses that the County incurs in complying with the SDA because "the [1926] agreement between the County and Kincaid" included a provision that the County would incur no expense.
By contrast, the trial court ruled that the Grays were not responsible for the dam because: (1) they did not own the spillway; (2) the downstream portion of the embankment, although on their property, did not impound water; (3) the County, as the owner of the dominant tenement, had the duty to repair its structures, here the bridge and downstream embankment, within its right-of-way; (4) the Grays had no easement or beneficial use of the lake; and (5) the Grays had no control over the dam.
In her reconsideration decision, the judge found that the County was not responsible for the dam under the SDA, based upon her ultimate conclusion that the County had not maintained or exercised control of the dam's privately-owned spillway. In this regard, the court relied upon the Chancery Division's published opinion in Mercer County Soil, supra, which interpreted the SDA in a manner that placed emphasis upon an alleged owner's "control" over a dam in order to be subject to the statute.
The DEP appeals the dismissal of its claims against the Grays and the County. The Estate and the Trust have conditionally appealed only that aspect of the trial court's rulings requiring them to indemnify the County.
In the event that the orders appealed from were not final because of any open issues, we grant leave to appeal pursuant to Rule 2:4-4(b)(2) in the interests of justice and without opposition by any of the other parties. Gill v. N.J. Dep't of Banking & Ins., 404 N.J. Super. 1, 8 (App. Div. 2008).
Sterling Lake Dam (A-5095-11)
The subject of this second set of appeals before us, Sterling Lake Dam, was located on the Duffield's Run tributary of Mantua Creek in Washington Township in Gloucester County. The dam was constructed in 1926 by H. Lee Fisher & Sons on private property owned by Sterling Farm Agency, Inc. ("Sterling Farm"). The dam was built pursuant to plans approved by the DEP's predecessor state agency, with no apparent County involvement, in order to impound a new private lake, Sterling Lake.
The dam was built adjacent to existing County Bridge No. 5-J-14, which was constructed by the County in 1922 with a culvert to allow Duffield's Run to pass under it and into Wadsworth Lake. Pitman-Downer Road, also known in this area as County Road 658 ("Route 658"), traverses the top of County Bridge No. 5-J-14.
At the time the dam was constructed, Sterling Farm was required by the DEP's predecessor agency to add two upstream dikes, one at each end of the bridge to restrain Duffield's Run and "produce a head of 2 feet on the spillway without overtopping the highway." Later, after the spillway crest was determined to be only six, rather than eighteen, inches below the roadway (in violation of the approved plan), Sterling Farm was required by the DEP's predecessor agency to increase the height of the embankment on both sides of the culvert wall, in order to protect the road.
In 1979, the dam was described as follows:
Sterling Lake Dam is an ill-defined 150 foot long highway embankment structure with
a bridged spillway. The spillway is a concrete arch weir 22 feet in length with a 2' [by] 2' wood gate in the center of the arch. Gloucester County Bridge #5-J-14 spans the 16 foot discharge opening. . . . At the upstream face of the embankment are situated 3 foot high dikes with stone masonry walls keyed into the earth and supporting remnants of a boardwalk.
The landowners on either side of County Bridge No. 5-J-14 own the land under the road which traverses the bridge and also the roadway embankments to the centerline of Route 658. The County maintains the road and the embankments needed to stabilize it, as well as the bridge and culvert, pursuant to a right-of-way easement it insists is thirty-three feet wide.
Although at least three feet and five inches of the spillway were within the County's easement, the County never performed any maintenance on the spillway or on the upstream or downstream embankments to ensure that water remained impounded in Sterling Lake. According to the County Engineer, the County takes the position that facilities placed in a county right-of-way remain the responsibility of their owner.
The DEP asserts that, according to numerous deeds and tax maps, the County's right-of-way easement was actually fifty feet wide, and would have encompassed the entire spillway.
The County also has a storm water drainage easement, dating back to 1971, in order to give it access to the streambeds, that extends upstream from the bridge and encompassed the area occupied by the spillway. This specific easement does not address any maintenance of the spillway.
In September 1940, the spillway failed during a storm and a portion of the highway embankment and road were "overtopped and washed out." The DEP's predecessor agency at that time identified Joseph T. Wilson, the then-owner of Sterling Lake and the spillway, as the person responsible for making repairs and modifications. Among other things, the agency directed Wilson to "construct or repair a d[i]ke along the upstream side of the road embankment with the top of the d[i]ke at least 2.5 feet higher than the crest of the spillway." Wilson confirmed with the agency that he would construct the dike.
In February 1941, the predecessor agency inspected the dam, and confirmed that the washout had been refilled and that "the embankment [had been] raised above its former elevation by the construction of an earth dike on the upstream side[.]" The agency noted that Wilson had also complied with the County's separate demand that two timber gates be installed near the bottom of the spillway.
In 1979, pursuant to an agreement with the Army Corps, the State contracted with the firm of Louis Berger and Associates, Inc. ("Berger") to visually inspect the Sterling Lake Dam in accordance with the federal Dam Inspection Act. The Berger firm's resulting inspection report classified the dam as "high hazard" because the Lake Wadsworth Dam and an Atlantic City Electric substation were all located downstream. The report indicated that Ray Contarino owned Lake Sterling and "possibly portions of" the spillway, but that the "roadway/dam embankment and the culvert [were] the property of [the] County."
It did not appear to Berger that any "maintenance is carried out on the spillway but that Gloucester County performs continuous maintenance on the roadway elements of the dam." The dam was deemed by Berger to be in "fair overall condition[,]" although some "remedial actions" were then needed. The DEP provided the Berger inspection report to the County in January 1980, and directed it to take the "corrective actions" set forth therein, but the County declined to do so.
In April 1982, defendant David Duffield, Sr. and his wife purchased over forty-five acres of property, including Sterling Lake and the dam embankments. Thereafter, Duffield "occasionally" maintained the spillway, and he and his family enjoyed private recreational use of the lake.
Later, in June 1988, three years after adopting the Dam Safety Standards, N.J.A.C. 7:20-1.1 to -2.9, the DEP wrote to the County to remind it of what the DEP contended was its obligation, under N.J.A.C. 7:20-1.2, .8 and .11, to have a licensed professional engineer perform: (1) regular visual inspections of the "Class I - High Hazard" Sterling Lake Dam every two years; and (2) formal inspections of the dam every six years to confirm the dam's safety and integrity. The DEP also reminded the County that it needed to repair the dam as had been previously directed in 1980.
In its letter response to the DEP, the County refused to accept responsibility for "dams and water impoundments created by privately and/or municipality owned spillways." The County noted that, if such "spillways were removed or opened, there would be no dam or water impo[u]ndment." It asserted that it had no intention of assuming the obligation of the actual spillway owners to inspect and maintain their structures. In its reply to the County, the DEP advised the County that, if Sterling Lake Dam was not inspected, the DEP would consider the County to be in violation of the SDA and its implementing regulations.
In late 1988, the County hired Lippincott Engineering Associates, Inc. ("Lippincott") to visually inspect the bridge, road base, spillway, and embankment. The resulting inspection report, dated April 27, 1989, indicated that the dam was "safe[,]" but that repairs were needed in the short and long term. The County forwarded the Lippincott report to the DEP.
On October 12, 1990, the DEP directed the County and, for the first time, Duffield, to retain a licensed professional engineer to prepare plans for implementation of the recommendations contained in the 1979 Army Corps report and the 1989 Lippincott report. The DEP also directed the County and Duffield to submit a corresponding work schedule.
In January 1991, the County Engineer wrote to Duffield to advise that the County was in the process of "designing their necessary repairs and improvements to the . . . jointly owned dam/spillway structure." Specifically, the County Engineer noted that the County was planning to repair the bridge/roadway. He asked Duffield to "submit [his] respective engineer's plans for [his] portion of the work which is required per" the DEP, so that all the work could be completed at the same time and at less cost to Duffield. If Duffield decided not to incorporate his engineer's plans into the County's contract, then the County would proceed with its work "without delay."
The County responded to the DEP that it was ready to begin its "portion" of the repairs specified in the 1989 Lippincott report, i.e., the bridge/roadway repairs, and submitted a proposed work schedule. However, the DEP denied that work schedule as unacceptable.
In June 1991, the County asked Duffield whether he intended to drain Sterling Lake, rather than proceed with the necessary repairs. The County advised Duffield that it would only undertake "normal" bridge/roadway repairs, and that it would not expend "any more resources regarding spillway work coordination unless a decision to keep the lake is made." Duffield ultimately informed the County Engineer that he planned to turn Sterling Lake Dam over to the Township of Washington by non-payment of taxes, and that he did not intend to either repair the spillway or drain the lake.
Also in June 1991, the County submitted a revised work schedule to the DEP. The DEP determined that the revised schedule was acceptable, provided that a draft Operations and Maintenance Plan ("OMP") and a draft EAP for the dam was submitted to the agency by September 1, 1991. The County declined to prepare either document.
On December 20, 1991, the DEP inspected the dam and observed that a low-level sluicegate had failed. Four days later, in a letter to both the County and Duffield, the DEP again requested a draft OMP and EAP, and also directed defendants to obtain a permit before making the needed repairs to the sluice gate. The County Engineer forwarded this letter to the County's attorney, indicating that the preparation of these documents was not, in his view, the County's responsibility.
The DEP inspected the dam again on December 26, 1991, and observed that the sluicegate had been replaced without a permit. The DEP consequently directed defendants to remove the replaced gate and to comply with the directive letter of December 24, 1991. The County advised the DEP that it would continue to repair the road, but reiterated its position that it did not have any obligation to maintain or repair the spillway.
In October 1992, the County submitted an application to the DEP for grant funding for "Engineering Studies/Design of Dam Rehabilitations" for several dams including Sterling Lake Dam. The application indicated the dam was jointly owned with Duffield and that a "map or copies of plans verifying the embankments as being owned by the County of Gloucester with right-of-way shown" was attached to the cover letter. Notably, the grants were available pursuant to local government matching provisions of certain 1992 federal appropriations, under which a dam in which a local government unit held a right-of-way for a roadway would be considered "publicly owned." According to the County Engineer, the work the County intended to perform with the grant funding was to the roadway embankments.
In March 1993, the DEP advised the County that, in order to complete its grant application, it had to submit an engineering proposal by June 4, 1993. When the County did not submit the required proposal by that date, the DEP advised that the County had been deemed ineligible for grant funding under the program and that no further action would be taken on its application.
In August 1996, the DEP again directed the County and Duffield to retain a licensed professional engineer to prepare plans for the implementation of the recommendations identified it the 1979 Army Corps report and the 1989 Lippincott report, and to submit a work schedule. When defendants failed to respond, DEP further advised that the spillway was "inadequate[,]" and that defendants' "lack of cooperation" was "unacceptable[.]"
In November 1997, the firm of Remington & Vernick Engineers prepared a "Regular Biennial Inspection" report regarding the dam on behalf of the Township of Washington. The report described the dam as an "[e]arth embankment with concrete semi-circular spillway[.]" It listed the County as the "owner" of the "[r]oadway, dam embankment [and] culvert[,]" and Duffield as the "owner" of the "lake [and] portions of [the] spillway[.]" The report concluded that the dam was in "safe" condition, but that immediate repairs were needed, as well as long term improvements.
The DEP subsequently directed defendants to submit an EAP. The County resisted, asserting that it would not prepare an EAP because it did not "accept partial ownership of this dam facility as it relates to the impoundment of Sterling Lake." The County only accepted responsibility for the "bridge structure, roadway surface and drainage structures and the guiderail[,]" contending that the "spillway ownership and embankment maintenance for the purposes of impoundment is the sole responsibility" of Duffield. Duffield, however, apparently did submit draft EAPs to the DEP, which the DEP found deficient in some respects.
In October 2001, the DEP inspected the dam and noted that none of the recommendations made in the 1979 Army Corps report, the 1989 Lippincott report, or the 1997 inspection report had been implemented.
Almost two years later, in March 2003, a Hydrologic Analysis report of the dam was submitted to the DEP on behalf of Duffield. The report concluded that the existing spillway was "undersized" and was not capable of containing the lake in the event of its design storms. Consequently, in March 2003, the Attorney General's Office, on behalf of the DEP, directed Duffield to drain Sterling Lake, as the dam had not been brought into compliance with the SDA.
In July 2004, the DEP approved Duffield's proposed drawdown of the lake, and also reminded Duffield that he could not demolish the dam without a permit. In August 2004, Duffield advised the DEP that the lake had been drained by removal of the spillway boards.
In an ensuing September 2004 letter, the DEP instructed defendants to advise whether they intended to repair or remove the spillway and to submit the appropriate permit application. The County responded that, since it neither owned nor operated the spillway, it was not bound by the DEP's order.
The DEP thereafter advised the County and Duffield that the dam was in violation of the SDA and directed them to retain a licensed professional engineer to address the needed repairs and provide their compliance status to the DEP. Defendants did not comply. Consequently, in March 2007 the DEP filed suit against the County and Duffield in the Chancery Division. As with the Kincaid Lake Dam litigation, this case also was transferred to the Law Division.
In August 2007, DEP directed defendants to submit a visual inspection report regarding the dam. In April 2008, the DEP conducted a field inspection of the dam and noted that it was still in "poor overall condition" and that the left upstream slope embankment required stabilization.
In September 2009, Duffield applied for a permit to decommission the dam by removing the spillway. The DEP issued the required permit to Duffield in November 2010 and by March 31, 2011, the spillway had been removed.
In the meantime, the County filed a motion for summary judgment. The DEP filed its own motion for summary judgment, seeking a finding that Duffield and the County were both responsible for the dam and that they had violated the SDA. The DEP also sought a determination of the penalties owed for defendants' violation of the SDA.
Duffield did not dispute his liability under the statute. He therefore filed no papers in connection with either motion, anticipating that the County's motion would be denied and that he would then have the "opportunity to address the apportionment of responsibility [under the SDA] at trial."
Following oral argument, the trial court issued a decision on August 30, 2011, granting the DEP's summary judgment motion as to Duffield, but denying it as to the County, and also granting the County's motion. The court reasoned, as it had in the Kincaid Lake Dam case, that the County did not have sufficient "control" of the dam to be liable under the SDA. As part of her analysis, the judge relied upon the Chancery Division's statutory analysis in Mercer County Soil, supra.
On May 2, 2012, the court imposed a civil penalty of $56,000 against Duffield for his violations of the SDA.
Duffield now appeals. He does not challenge the liability finding against him, nor the amount of the penalty. Instead, he contends that the trial court erred in granting summary judgment to the County, and argues that the County should share responsibility with him for the dam under the SDA. The DEP has not cross-appealed, but takes the legal position in its brief that Duffield is correct that the County should not have been granted summary judgment because it has ownership or control over a portion of the dam within the meaning of the statute.
Basgalore Lake Dam (A-2327-11)
The Basgalore Lake Dam, the subject of the third case on appeal, is located on Basgalore Creek, a tributary of Raccoon Creek in Woolwich Township, Gloucester County. There has been a bridged dam at that location for many years, impounding a multi-acre private body of water presently known as Basgalore Lake.
In 1915, the Committee determined that the existing Basgalore Lake bridge (County Bridge No. 5-E-8) was in "very dangerous" condition. The Committee directed the County Engineer to prepare plans for a new "reinforced concrete bridge[.]" Apparently, the Committee also consulted with John C. Vogel, who was then apparently the private owner of the adjacent spillway. Ultimately, the County entered into a contract with both Vogel and contractor Louis Redrow for the replacement of both the bridge and spillway, with the County paying $3355 for its portion of the work, and Vogel paying $961 for his portion of the work.
Although the bridge and spillway of Basgalore Lake appear to have been constructed as a single unit, the County Engineer insisted that the two were not structurally connected. Even if they were connected, the County Engineer certified that the spillway could still be "partially or wholly removed," "without affecting the integrity of the bridge."
The spillway structure of Basgalore Lake Dam has been described in the record as follows:
The spillway is a concrete drop box inlet, approximately 42 feet (weir length); the size of the rectangular structure is approximately 18 feet (upstream wall) by approximately 12 feet (side walls); the walls are approximately 18 inches thick; the upstream wall is braced by three sloped piers; two sets of wood weirs, on the upstream face, form part of the drop inlet spillway; water discharges through a rectangular concrete culvert which extends from the drop inlet to the downstream side of the dam; approximately 12 feet from the downstream channel, the culvert drops down approximately 2 feet into a plunge pool; from the plunge pool, there is another 1Notably, the lake could be drained simply by "manually removing the wooden weir boards" within the spillway structure.
foot drop at the downstream channel. There are no signs of erosion protection or energy dissipation material in the stream channel at the discharge culvert outlet.
Swedesboro-Franklinville Road, also known as County Road 538 ("Route 538"), traverses the top of a 260-foot long embankment and County Bridge No. 5-E-8. The embankment supports the roadway but not the bridge. The roadway and the bridge's culvert also serve as the dam's embankment and outlet structure, respectively.
The County maintains the bridge, culvert and roadway pursuant to a right-of-way easement. The County collects the water runoff from the road in drainage channels and discharges it downstream via metal pipes pursuant to a drainage easement. The spillway structure and a portion of the upstream and downstream embankments are within the County's right-of-way.
In 1981, the year the Legislature adopted the current version of the SDA, Benny A. Sorbello purchased the property downstream of the bridge. His purchase included the land under the downstream portion of the bridge as well as portions of the downstream embankments. Lake Basgalore was in existence when Sorbello purchased the property.
Sorbello denied having any "involvement with the dam, the lake or any of the structures across the creek that created the lake." He had no access to, and never used, the lake. He claimed he never inspected or maintained the dam or any of the embankments.
In July 1986, defendants Timothy and Dianne Avsec ("the Avsecs") purchased a 147-acre parcel of property containing the lake, the spillway, the upstream earthen embankments and half of the bridge. Their property extends to the centerline of Route 538. Like their predecessors-in-interest, the Avsecs have not allowed any public access to the lake. They confirmed that the spillway maintained the level of the lake and allowed excess water to flow out. Each year, they removed boards from the spillway's sluicegates to lower the level of the lake in the winter and then replaced them in the spring to bring the lake back to its normal level.
At the time the Avsecs purchased their parcel, the dam was classified as a "Class III" dam, under N.J.A.C. 7:20-1.8(a)(3), as it was considered at that time to have "low hazard potential" since little or no property damage was likely in the event the dam failed. However, in June 2007, the dam was apparently reclassified as a "Class II" dam under N.J.A.C. 7:20-1.8(a)(2), i.e., one that had a "significant hazard potential," because failure could likely cause significant property damage but no loss of life. According to the Avsecs, they received no advance notice of the reclassification, or any explanation of the reasons therefor, which greatly increased their potential costs and responsibilities with respect to the dam.
Following an inspection of the dam in November 1989, the DEP wrote to the County, the Avsecs, and Sorbello, notifying them of various identified maintenance issues. The DEP directed them to have the dam inspected in accordance with N.J.A.C. 7:20-1.11 and repaired as necessary. Notably, the County had previously informed the DEP, in connection with another case, that it did not "accept the responsibility for dams and water impoundments created by privately . . . owned spillways."
The County and the Avsecs jointly retained Intech Engineering Corporation ("Intech") to inspect the bridge, culvert, roadway, embankments and spillway visually. The resulting September 1990 Intech "condition report" recommended further studies, repairs and long-term improvements. The County informed the DEP that it would undertake the recommended work as a joint project with the Avsecs.
In January 1991, the County Engineer submitted to the DEP a "Dam Safety Compliance Schedule Form," which listed the County and the Avsecs as the owners of the dam. The Engineer indicated that the County would attempt to coordinate all its repair work with the Avsecs.
Within a week, the County Engineer wrote to the Avsecs regarding repairs and improvements to the "jointly owned dam/spillway structure." The Engineer offered to incorporate the Avsecs' engineer's plans into the County's contract. However, he informed the Avsecs that, if they declined to do so, they "as the sole owner[s] [would then] be responsible for" procuring any necessary contracts to perform their portion of the repairs. He indicated that the County was willing to cooperate with them in order to minimize their costs.
In February 1991, the County Engineer advised the Avsecs that they were responsible for certain of the long-term improvement items and studies identified in the Intech report pertaining to the spillway. Those items included the replacement of the control weir mechanism, installation of a trash rack, concrete repair, and the inspection of the underwater portions of the dam and spillway. The repair items also encompassed the upstream embankments, including vegetation and debris removal, fill replacement and erosion protection. The Engineer further informed the Avsecs that it was their responsibility to obtain several other items, as further recommended by Intech: (1) "[a] hydrologic, hydraulic and structural engineering study of the drainage basin, dam and spillway"; (2) "[a] detailed topographic survey of the dam and surrounding area"; (3) an Operations and Maintenance Manual ("OMM"); (4) an EAP; and (5) a Dam Break evaluation.
The Avsecs declined to perform most of the long-term improvements and studies recommended by Intech. Rather, they merely continued their past practice of removing trees and debris from the spillway, repairing minor concrete spalling on the spillway, and removing and replacing worn boards from the sluicegates. The Avsecs did not obtain the studies identified by Intech, or prepare an EAP, although they did claim, without documentary support, to have submitted an OMM to the DEP in 2007 and to have contracted with an engineer to develop an EAP. The Avsecs had the spillway visually inspected in 2001, 2007, and 2010, at their own cost and without any County involvement, although the County was listed as a co-owner in at least the 2001 report. According to the Avsecs, the 2001, 2007, and 2010 inspections were limited to their "area of ownership" only.
According to the Avsecs, the County removed the vegetation from the upstream embankments until the late 2000's. The County Engineer confirmed that the County had previously done "trimming" on the upstream and downstream embankments as required for the roadway.
At his deposition in July 2011, Mr. Avsec stated that he had recently contacted an engineer about conducting a hydrologic and hydraulic study.
In 2010, the spillway was deemed to be in "fair condition[,]" although some repairs were needed. During the following year, 2011, the County repaired the downstream side embankment after it was damaged by storm water runoff unrelated to the lake and spillway. The DEP sent a Notice of Violation to the County for making these repairs without obtaining a permit pursuant to the SDA. The County asserted, however, that the repairs had been properly made "to ensure the integrity of the roadway" and were "sufficient for that purpose."
In November 2008, the DEP filed a complaint against the County, the Avsecs, and Sorbello in the Chancery Division. The DEP sought an order requiring the defendants to either perform all actions necessary to bring the Basgalore Lake Dam into compliance with the SDA, or to decommission the dam according to a DEP-approved permit. The DEP also sought penalties for defendants' violation of the SDA.
The claims as to Sorbello were actually asserted against a related limited liability company, Benny A. Sorbello Family, LLC ("Sorbello").
The DEP thereafter moved for partial summary judgment, seeking a finding that all defendants were responsible for the dam, that they had violated the SDA, and ordering them to comply with the statute. The DEP did not, at that time, seek a determination of penalties owed for violations of the SDA and the Dam Safety Standards, N.J.A.C. 7:20-1.1 to -2.9.
On October 4, 2011, the trial court granted the DEP's summary judgment motion as to the Avsecs, but denied it as to the County and Sorbello. The court also granted the cross-motions of the County and Sorbello for summary judgment, dismissing the claims against them. Following the court's ruling, the DEP withdrew its request for penalties against the Avsecs. On November 30, 2011, the court issued an order making its prior October 4, 2011 order final as to all parties and all issues.
In her summary judgment ruling, the trial judge found that the Basgalore Lake Dam included the spillway, bridge, culvert, roadway embankments and County Road 538. However, although the County's bridge and road were components of the dam, the judge ruled that history of this dam did not support a finding that the County was an owner or person in "control" of the dam within the meaning of the SDA.
The court found that, in 1915 and up through to the present, the County had cooperated with the different private owners of the lake and "dam to coordinate bridge and dam repairs." However, "[t]he County's cooperation with the private owners over the years was not an undertaking by the County to own or control the existing lake or dam." Rather, the court found, as indicated by the County's February 1991 letter to the Avsecs, "the respective obligations of the owners and the County [were] clearly delineated by the County."
Although the County had described itself as a "joint owner" of the dam on the 1991 "Dam Safety Compliance Schedule Form," the court found that the entirety of the County's response on that form made it clear that the County was not maintaining the spillway. The court noted that the County had repeatedly disavowed any responsibility under the SDA over the years and also that the spillway could be removed without impacting the County's bridge and roadway.
The court adhered to the holding in Mercer County Soil, supra, 425 N.J. Super. at 200-21, that the term "owner" had to be read in conjunction with the concept of "control." Applying that principle of statutory construction to this case, the court ruled that the Avsecs, who owned the lake and spillway and had been maintaining it, were "the owners and are persons having control of a dam or reservoir within the meaning of the [SDA] and have the responsibility of compliance." The court found that neither the County, which had only ever undertaken to repair the bridge and roadway within its right of way, nor Sorbello, who owned only a downstream embankment that did not impound water and had no use of the lake, were owners with the requisite "control" so as to bring them within the purview of the SDA.
The DEP appeals, arguing that the trial court construed the SDA too narrowly in finding that neither the County nor Sorbello are liable for Basgalore Lake Dam's compliance with the statute. The Avsecs have not cross-appealed the court's finding of their own liability.
II.
A.
As we observed recently in Alloway Township, supra, 438 N.J. Super. at 513, "the Legislature intended the SDA to have the broadest possible remedial application and envisioned enforcement actions [by the DEP] against multiple responsible parties." Consistent with that legislative intent, we construed the SDA in Alloway Township to authorize "enforcement of its provisions against both owners and persons in control of dams and reservoirs" in New Jersey. Id. at 514. We rejected the argument that the DEP's enforcement powers are limited under N.J.S.A. 58:4-5 and -6 to a single "owner or person in control" of a dam or reservoir, finding that such a narrow construction of the SDA "would be at odds with the remedial purpose of the statute." Id. at 514 n.4.
We have considered the helpful post-argument submissions of the parties addressing the implications of Alloway Township for the present appeals.
In this respect, we overruled in part in Alloway Township the Chancery Division's earlier opinion in Mercer County Soil, supra, 425 N.J. Super. at 223, insofar as that opinion had erroneously adopted a multi-factor test for ownership that envisioned that only certain owners have sufficient "control" over a dam or reservoir to be liable under the statute. Alloway Township, supra, 438 N.J. Super. at 512-13. As noted at the outset of this opinion, we instead interpreted the statute as designating "four classes of people who are subject to the statute: (1) dam owners; (2) reservoir owners; (3) those who control the dam; and (4) those who control the reservoir." Id. at 512.
Further, we recognized in Alloway Township that 2005 amendments to the SDA strengthened the DEP's enforcement powers. For example, the 2005 amendments enacted N.J.S.A. 58:4-5(c), which "explicitly authorizes 'allocation of the cost of removal [of a dam or reservoir] among the liable owners or persons having control of the dam or reservoir whenever two or more owners or such persons are liable.'" Id. at 514 (footnote omitted) (quoting N.J.S.A. 58:4-5(c)).
We did not reach in Alloway Township a critical issue that is presently implicated within two of the cases now before us: specifically, whether a party owning the downstream portion of the dam, bridge, roadway, embankment, culvert, or other connected structures ("downstream landowner") are liable for remedial measures under the SDA as well as the parties that own or control the upstream portion or who own or control the spillway or reservoir.
In Alloway Township, there was no such downstream landowner who owned the land under the downstream portion of the embankments and a portion of the bridge or roadway, all of which had been constructed pursuant to a right-of-way easement. Id. at 507. Rather, in Alloway Township, the appellant owner of the lake also owned all of the land under the dam and bridge and on either side of it. Ibid. Hence, we did not need to consider in Alloway Township the ramifications of our decision upon downstream landowners who, as here, are merely servient tenants under easements of other person(s) or organization(s) having the legal right to enter their property and perform maintenance or repairs on a dam or its connected structures. We are now called upon to address those legal issues relating to such downstream landowners.
The SDA, by its terms, imposes liability upon the "owner" or a party in "control" of a dam or reservoir. See N.J.S.A. 58:4-5 and -6. Here, the downstream landowners' property lines run through the middle of the embankments. Nonetheless, the downstream landowners argue that they do not own part of a dam.
However, the Dam Safety Standards make clear that an embankment can be part of a dam. N.J.A.C. 7:20-1.2 defines a "dam" to include "any artificial dike [or] levee":
"Dam" means any artificial dike, levee or other barrier, together with appurtenant works, which is constructed for the purpose of impounding water, on a permanent or temporary basis, that raises the water level five feet or more above the usual, mean, low water height when measured from the downstream toe-of-dam to the emergency spillway crest or, in the absence of an emergency spillway, the top-of-dam.N.J.A.C. 7:20-1.2 provides that "'Levee' or 'dike' means any artificial barrier together with appurtenant works that will divert or restrain the flow of a stream or river." An artificial embankment that impounds water is thus part of a "dam." See N.J.A.C. 7:20-1.2 (defining the "[f]reeboard" of the dam as the vertical distance from "the crest of the embankment of a dam" to the reservoir water surface); N.J.A.C. 7:20-1.4(1), (n) (prohibiting trees and utility crossings on "dam embankments"); N.J.A.C. 7:20-1.7(c)(3)(iii)(2) (setting criteria for "embankment material").
[N.J.A.C. 7:20-1.2.]
We reject the argument that only the upstream portion of the embankment impounds water and that the downstream portion of the embankment is not part of the dam. That argument is contrary to the definition of a "dam" in the Dam Safety Standards, which includes the entire "artificial dike, levee or other barrier," including an embankment, "together with appurtenant works[.]" N.J.A.C. 7:20-1.2. The argument ignores the Standards' description of a "dam," which includes "the downstream face of a dam" to the toe of the dam on the ground surface, or below the ground surface if an outlet pipe is used. Ibid. The argument conflicts with the Standards' setting of safety requirements for the downstream face or slope of the embankment, the toe of the dam, and the outlet pipe. See N.J.A.C. 7:20-1.7(c)(3)(iii)(2), -1.7(c)(3)(iv)(1), -1.9(m).
If the downstream slope of an earth dam is too steep, or if the slope, the toe of the dam, or the supporting ground surface erodes or otherwise fails, the upstream portion of the dam may fail also, and the impounded water will escape and endanger lives and property. A property line does not alter the unitary physical nature of the embankment forming the dam, or remove the need to regulate, maintain, and safeguard the downstream portion of the embankment.
"Owner" includes "any person who owns" a dam. N.J.A.C. 7:20-1.2. If parts of a dam are owned by "two or more owners," they all may be liable. N.J.S.A. 58:4-5(c). "Owner" under the SDA also includes "dam owners" who do not "control the dam." Alloway Township, supra, 438 N.J. Super. at 512-13. Thus, a downstream landowner remains an "owner" even if the dam is controlled by others, and even though it is within the County's right-of-way easement. Id. at 506, 509-10, 515 (rejecting the landowner's arguments that because the dam was within Salem County's right-of-way easement, he lacked any control and could not be liable under the SDA).
Although the downstream landowners here are each liable as an owner of part of the dam, their liability may not be equal to the owners of the upstream portion of the dams ("upstream landowner"). Such an upstream landowner not only owns part of a dam, but may own and control the spillway which determines the amount of water impounded or discharged. Moreover, here the upstream landowners owned and controlled the "reservoir," that is, the impoundment of water "created by a dam, dike or levee." N.J.A.C. 7:20-1.2. Thus, unlike the downstream landowners, the upstream landowners here appear to fall within all "four classes of people who are subject to the statute: (1) dam owners; (2) reservoir owners; (3) those who control the dam; and (4) those who control the reservoir." Alloway Township, supra, 438 N.J. Super. at 512. Moreover, as the Legislature recognized, the owner(s) of "the shores above the dam or on the reservoir" may have a particular interest in and benefit from the dam. N.J.S.A. 58:4-9. Finally, here the upstream landowners appear to be the successors in interest of the persons who created the dams.
Similarly, the downstream landowners' liability may not be equal to the liability of the County, which has some control over those portions of each dam in its right-of-way easement. Certain well-established principles of the common law of easements bear upon our analysis. An easement is a non-possessory interest in another person's land which entitles the holder of the easement to make a specified use of the other's land. Borough of Harvey Cedars v. Karan, 214 N.J. 384, 390 n.1 (2013). An easement is not equivalent to ownership of the land. Seals v. Cnty. of Morris, 210 N.J. 157, 177 (2012). Thus, for example, a property owner whose title in fee encompasses land to the middle of a road is a servient tenant to the owner of the road easement, i.e., the dominant tenant. Braun v. Twp. of Mantua, 270 N.J. Super. 404, 408 (Law Div. 1993).
The owner of land burdened by an easement may not interfere with the uses authorized by the easement. Caribbean House, Inc. v. N. Hudson Yacht Club, 434 N.J. Super. 220, 226 (App. Div. 2013). The extent of the rights conveyed rests on the intent of the parties as expressed in the language creating the easement, taking into account the surrounding circumstances. Ibid. Express easements may be general grants or limited grants for specified uses. Id. at 227. When no limitation is placed on the extent of the use of an easement, it may be used for all reasonable purposes. Ibid.
The burden of maintaining and repairing an easement and the improvements used in the enjoyment of the servitude under the dominant tenant's control is a burden on that tenant recognized as an incident to the beneficial use of the easement. Citizens Voices Ass'n v. Collings Lakes Civic Ass'n, 396 N.J. Super. 432, 443 (App. Div. 2007); Poblette v. Towne of Historic Smithville Cmty. Ass'n, 355 N.J. Super. 55, 67 (App. Div. 2002); Lake Lookover Prop. Owner's Ass'n v. Olsen, 348 N.J. Super. 53, 67 (App. Div. 2002); Braun, supra, 270 N.J. Super. at 408. An easement holder is also obligated to inspect the property subject to the easement. Ingling v. Pub. Serv. Elec. & Gas Co., 10 N.J. Super. 1, 10-11 (App. Div. 1950); Poblette, supra, 355 N.J. Super. at 68.
In addition, a dominant tenant may be liable in tort for activities or improvements that it conducts pursuant to an easement on land, based on its control or occupation of the premises. See Restatement (Second) Torts §328E (defining possession of land as based on the exercise of control over or occupation of such land). A party may be liable when injury arises out of its activities or improvements on a parcel of land, even when those activities or improvements are conducted on another's private property. See Seals, supra, 210 N.J. at 161-62 (concluding that neither the defendant utility company or the defendant county was immune from liability for utility pole placed on private land to which the county had a right-of-way). See also Oncor Elec. Delivery Co., L.L.C. v. Murillo, 449 S.W.3d 583, 591 (Tex. App. 2014) (finding that an electricity provider had a duty under tort law to guard against injury caused by electric transformers installed on a third-party landowner's property that it controlled and that were located within its easement).
These common-law principles may also be applied to determine liabilities that arise out of ownership or control of structures that are located on land subject to an easement. For example, an easement in a structure that is not accompanied by an interest in the land on which the structure is located is extinguished when the structure is destroyed. See, e.g., Sabattus v. Bilodeau, 391 A.2d 357, 360 (Me. 1978) ("Clearly, inadvertent destruction of a structure would terminate any easement thereon because the easement [of the dominant tenant] does not involve any interest in the soil [of the servient tenant] apart from the building.")
The existence of a right-of-way easement may affect the allocation of costs and responsibility under the Act, even though it does not prevent the downstream landowners from being dam owners under the SDA. In Alloway Township, we found "persuasive" Braun, supra, 270 N.J. Super. at 404, which allocated liability between the dam owners and the Township which held the right-of-way easement for the road atop the dam. Alloway Township, supra, 438 N.J. Super. at 515-16. In Braun, the Law Division was persuaded "the owner of a servient tenement is not under an obligation to incur the expense of maintaining the easement and that the entire structure comprised of the dam, spillway, and roadway, are so interrelated, that the maintenance responsibility should be imposed upon the dominant tenant." Braun, supra, 270 N.J. Super. at 410-11 (citations omitted). Nonetheless, the Law Division held that the easement holder's "duty to maintain the dam under the facts of this case, cannot relieve the adjoining property owners, as owners of the dam, of their obligations under N.J.S.A. 58:4-1 [of the SDA], and their specific obligation to inspect the dam as imposed by [the Dam Safety Standards], N.J.A.C. 7:20-1.1 to -1.11." Id. at 411. Braun was a suit between the dam owners and the easement holder, not the DEP, but its allocation of liability exemplifies the analysis that can be applied to allocate equitably the costs of dam repair and removal where easements are involved.
The SDA itself permits such equitable allocation of costs using common law principles. N.J.S.A. 58:4-5(c) states:
Whenever two or more owners or persons having control of a reservoir or dam are liable for the cost of removal, including attorney's fees and court costs, the department may allocate the cost of removal among the liable parties using such factors as the department determines are appropriate. Nothing in this subsection shall affect the right of any party to seek contribution from any other person responsible for the cost of removal of the dam pursuant to any other statute or under common law.
[N.J.S.A. 58:4-5(c).]
We encourage the DEP to allocate costs of dam repair and removal among the parties who are liable under the SDA as owners and persons in control of a dam and reservoir. Regardless of whether the DEP performs such an allocation, a court faced with litigation involving such multiple liable parties should allocate costs and responsibilities among such parties. Appropriate factors to consider include the liabilities imposed by "any other statute or under common law," including the common law governing easements. Ibid.
Also pertinent in allocating liability are the factors set forth in Mercer County Soil, supra, 425 N.J. Super. at 223:
(1) The nature and extent of any legal title to the underlying real property;
(2) Whether the alleged owner constructed or participated in the structure's construction;
(3) Whether the alleged owner controls, ever controlled, or participated in the control of the structure to more than a de minimis extent; and
(4) Whether the alleged owner has legal authority to exercise control of the structure.
[Ibid.]
Mercer County Soil suggested using those factors "to determine whether a person is an 'owner' of a dam" under the SDA. Ibid. In Alloway Township, supra, we rejected this suggestion that "to be brought under the enforcement umbrella of the SDA, a person must have more than legal ownership of a dam[.]" 438 N.J. Super. at 512-13. However, we did not rule that these factors were irrelevant to the ultimate allocation of costs, see id. at 511, and we upheld the allocation under N.J.S.A. 58:4-5(c) of 25% of the costs of compliance to the dam owner, in part because he "has historically exerted some level of control over the reservoir by admittedly operating the spillway[,]" id. at 505, 514-15.
Another factor to consider in allocating costs of dam repair is the benefits received from the dam and the resulting reservoir by each of the responsible parties. As discussed above, the upstream landowners may benefit from the reservoir created by the dam. The reservoir may provide them with water for human and agricultural consumption, or provide recreational, environmental, or aesthetic benefits. The right-of-way easement holder may also benefit from the support and protection the dam provides to the road surmounting the dam. The owner of land, upon which the downstream part of a dam has been built and controlled, may benefit from the existence and upkeep of a dam to the extent that, for example, it contains water effectively and prevents or limits flooding.
A party's present or past performance of maintenance on the dam is a related factor. It is an indication that the party has some control over the dam, and may also be motivated by, and evidence, the benefit received by that party from the dam. Based on the consideration of all of these factors, we encourage the DEP, and require courts in which the issue is raised, to allocate costs fairly among those who own or control the dam and reservoir.
Thus, our construction of the SDA considers the downstream landowner as being an "owner" of part of the dam and subject to the SDA's requirements, while recognizing that in the ultimate allocation of costs the downstream landowner's fair share may be zero or less than that of the upstream landowner or the holder of the right-of-way easement. Our construction leaves the downstream landowner one of the parties which must cooperate with the DEP by providing information, N.J.S.A. 58:4-3, -6(h), performing inspections, N.J.S.A. 58:4-8.2, implementing safety measures, N.J.S.A. 58:4-5(a)-(b), and facing liability for violations and failure to cooperate, N.J.S.A. 58:4-5(c), -5(d), -6(d), -6(g). However, the DEP should, and courts presented with the issue must, allocate the ultimate costs of such efforts among the responsible parties, to reflect the relative and often lesser responsibility of passive downstream landowners.
A statute must be construed sensibly in the context of the Legislature's overall scheme. N.J. Dep't of Envtl. Prot. v. Huber, 213 N.J. 338, 365 (2013). Our construction sensibly serves "'to protect the public from the loss of life and property'" by maintaining dam safety and giving the SDA "the broadest possible remedial application [by] enforcement actions against multiple responsible parties[,]" Alloway Township, supra, 438 N.J. Super. at 504, 513, while reflecting the often subservient and secondary role of the downstream landowner in the ultimate allocation of costs, N.J.S.A. 58:4-5(c).
B.
Having stated these principles, we apply them to each of the three consolidated cases before us. Our review of the trial court's summary judgment dispositions in all three cases is de novo. W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); see also Alloway Township, supra, 438 N.J. Super. at 506-07.
Kincaid Lake Dam
We first consider the DEP's appeal of the trial court's grant of summary judgment to Gloucester County. Based upon our holding in Alloway Township (which coincidentally resulted in a finding that the County of Salem was liable under the SDA for the dam at issue in that case), on reconsideration here, we reverse the trial court's decision which concluded that Gloucester County is neither an owner nor a party having control over Kincaid Lake Dam.
The extensive historical record shows that the County was deeply involved in the design and creation of Kincaid Lake Dam and funded the construction of the bridge connected to the dam components. The County's own engineer prepared the plans for the bridge and spillway. The County maintained the bridge, embankments, and roadway, and was the dominant tenant of the related right-of-way easements.
Although at times the County disclaimed legal responsibility for the dam's condition, it remained involved in certain aspects of the dam, including its efforts in 2001 to have the Grays increase the width of their portion of the County's right-of-way. The fact that the County did not maintain the spillway is not dispositive.
We are mindful that Blackman and his Estate or Trust had the predominant role over the years as to the dam, and that the private lake created by the dam was for the use of Blackman and his successors. As such, the Estate and the Trust may be considered owners of a reservoir under the SDA. See Alloway Township, supra, 438 N.J. Super. at 515.
The Estate and the Trust have not challenged on appeal the trial court's finding of their liability, but only contest their alleged duty to indemnify the County.
That said, we are satisfied, under the principles of Alloway Township, that the County should be also regarded as a party having "control" over at least a portion of the dam to be concurrently responsible under the SDA.
The County points to N.J.A.C. 7:20-1.2, which, as we have noted, supra, defines a "dam" to mean "any artificial dike, levee or other barrier, together with appurtenant works, which is constructed for the purpose of impounding water, on a permanent or temporary basis, that raises the water level [by certain specified measures]." Ibid. (emphasis added). The County argues that it has no liability under the SDA because the bridge, roadway, and embankment were not "constructed for the purposes of impounding water."
Although the County's primary purpose in building, funding, and maintaining the bridge, roadway, and embankment is transportation, the interconnected embankment, bridge, culvert, spillway, and other physical structures were all designed to assure that water would not overflow from the reservoir and cause the County roadway to become impassable. In addition, the dam was described in a 1979 inspection report as a "highway embankment structure with a bridged spillway[.]" Such a description suggests the interconnected nature of the physical structures that comprise the dam. Braun, supra, 270 N.J. Super. at 411; Sabattus, supra, 391 A.2d at 360. As such, the impoundment of water represents an additional purpose of those structures.
Moreover, the County's heavy involvement in the design and construction of those structures supports the DEP's position that the County is a party that exercised "control" over at least a portion of the dam structures when they were being constructed and, to a lesser degree, thereafter. As part of that involvement, the County surely would have endeavored to have the dam structures designed to prevent water from overflowing and its bridge and road from washing out.
The trial judge was correct when she preliminarily ruled that the County had responsibility for the dam under the SDA, and she should not have reconsidered her original assessment. We therefore vacate the reconsideration order as to the County, and direct that the court enter summary judgment in favor of the DEP against the County.
We reverse the trial judge's grant of summary judgment to the Grays. Because the Grays owned the land on which the downstream portions of the embankment and culvert were built, they are owners of part of the dam and are thus responsible parties under the SDA. However, the court on remand should carefully assess the extent of the Grays' liability in fairly allocating the costs of compliance. They are merely downstream landowners of land burdened by components of a dam pursuant to easements under which they are the servient tenants. The Grays assert that they were not consulted when the Estate and Trust removed the dam. There is no indication in the record that the Grays denied anyone access for repairs or maintenance. They had no access to the lake and did not use it.
Having determined that the County and the Grays bear responsibility for the dam, we remand this matter to the trial court to consider the extent to which the County and the Grays should be fairly apportioned any of the dam's removal costs under N.J.S.A. 58:4-5(c). Any such allocation should be proposed in the first instance by the DEP, pursuant to the statute, but in the interests of judicial economy, the proposed allocation should then be considered by the trial court, based on the factors set forth above.
We discern no fair basis to impose statutory penalties upon the County. The County's legal obligations under the SDA were not clear until our 2015 opinion in Alloway Township overruled earlier case law in Mercer County Soil. We bear in mind, at least as an equitable consideration, the reality that County taxpayers would be funding any penalties the County would pay to the DEP, itself a taxpayer-funded agency of the State.
We reject the County's claim that the Estate and the Trust are obligated to indemnify the County for any expenses it may incur for compliance with the SDA. We do not regard the language in the County Committee's unilateral declaration in 1926 that it contemplated the County entering into a contract with the property owner "to insure the County against any extra expense" as an indeterminate mandate that Kincaid and his successors-in-interest could be obligated to indemnify the County for compliance with a dam safety statute that had yet to be enacted. There is no mutually-executed document in the record in which Kincaid agreed to accept such open-ended indemnification obligations. See also Azurak v. Corporate Prop. Investors, 175 N.J. 110, 112 (2003) (underscoring the importance of explicit and clear language in alleged indemnification agreements). At most, the 1926 contract between the County, Kincaid, and Eriksen for the construction of the bridge and spillway contained a provision in which Eriksen, but not Kincaid, agreed to indemnify the County for claims arising out of such construction. As N.J.S.A. 58:4-5(c) indicates, the SDA does not affect the rights of parties to seek contribution from other persons responsible for removal costs under common-law grounds or other statutes.
We view the contribution and indemnity issues here as questions of equity, which are closely tied to the unresolved question of whether the County and the Grays will be directly allocated any of the removal costs. We therefore remand these issues for further equitable consideration by the trial court, in light of our reversal of summary judgment as to the County and any other arguments or evidence that the parties may wish to present to the trial court.
In this context, we use the terms "contribution" and "indemnity" interchangeably.
Sterling Lake Dam
We reverse the trial court's grant of summary judgment to the County in this second case, for similar reasons. The County bridge and road, which the County built, are respectively connected to and surmount the embankment that helps form the dam. The County likewise has easements and rights-of-way relating to those structures. The County maintains not only the road, bridge, and culvert, but also the embankments needed to stabilize the road. The County also has the storm water drainage easement. Although the County has not maintained the spillway, it has participated in engineering for the dam and the related structures, including the repairs called for in the 1989 Lippincott report. For the same reasons discussed supra, we reject the County's argument that it is not liable under the SDA because of its claim that the bridge, roadway, and embankment were not "constructed for the purpose of impounding water."
Again here, although the private owners of the spillway and lake (Wilson, followed by Duffield), certainly had a greater role, we construe the SDA to impose concurrent obligations on the County as well. Summary judgment in favor of the County consequently must be reversed. The matter is remanded to the trial court to address the questions of allocation raised by Duffield.
Since the DEP has not filed a cross-appeal in this case, we do not grant it any affirmative relief. On remand, the trial court may consider whether the entry of summary judgment in favor of the DEP against the County is appropriate, in light of our analysis adjudicating Duffield's appeal. --------
Basgalore Lake Dam
The County's liability as a co-defendant in this case essentially follows the same analysis as in the other two appeals.
The historical record shows that the County and its Engineer precipitated the construction of the replacement bridge and spillway in 1915, and bore a portion of the construction costs. The County maintains the bridge, culvert, and roadway, and has easement rights to the surrounding property. The spillway structure and portions of the upstream and downstream embankments are within the County's right-of-way. The County also jointly participated with the Avsecs to retain the private engineers who inspected bridge culvert, roadway, embankments and spillway in 1990. The County has also been involved in coordinating repair work to the structures and maintaining the embankments' vegetation. Here, again, we reject the County's arguments that the bridge, roadway, and embankment were not "constructed for the purpose of impounding water," and that it has no liability under the SDA, for the same reasons discussed supra.
Again, although the private owners have a greater role with respect to this third dam, the County's involvement sufficiently triggers the alternative ownership and control tests under the SDA, as construed in Alloway Township, to make it a responsible co-defendant under the statute.
We therefore reverse the entry of summary judgment in the County's favor and direct the entry of an order of summary judgment against the County in favor of the DEP. The trial court shall also consider on remand any allocation issues that may be presented, in light of the County's change in status.
As a separate item, we reverse the trial court's grant of summary judgment to Sorbello. Applying the general principles that we have already expressed, Sorbello is the owner of the downstream portions of the embankment and culvert, and is thus a responsible party under the SDA. That said, Sorbello is merely a party who owns the land under the downstream portion of the County's bridge as well as portions of the downstream embankments. He has never maintained the dam or any of the embankments, and has not been allowed use of the private lake. The record contains no indication that Sorbello has resisted or thwarted access to his portion of the property to accommodate maintenance or repairs. The court should consider those facts, and the factors set forth above, in determining the ultimate allocation of the costs of compliance.
III.
For the reasons we have stated, we reverse the trial court's orders in A-0558-12 and A-0625-12 regarding Kincaid Lake Dam; reverse the grant of summary judgment to the County in A-5095-11 regarding Sterling Lake Dam; and reverse the trial court's disposition in A-2327-11 regarding Basgalore Lake Dam.
All of these cases are remanded to the trial court for further proceedings consistent with this opinion. In light of our disposition, and the open issues of allocation reserved for the trial court, we need not reach at this time the validity of the DEP's theory that any single party is jointly and severally liable for the entire cost of replacing, repairing, or removing any of these dams. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION