Opinion
DOCKET NO. A-5754-11T4
02-05-2013
ALAN WOODRUFF and GRACE WOODRUFF, his wife, Plaintiffs-Appellants, v. U.S. HOME CORPORATION, a Delaware Corporation, d/b/a LENNAR HOMES CORPORATION, INTEGRITY LAND DEVELOPMENT, a Pennsylvania Corporation; FRALINGER ENGINEERING, PA, a Professional Engineering Association; MICHAEL FRALINGER, a Professional Engineer; STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, a government entity; CUMBERLAND-SALEM SOIL CONSERVATION DISTRICT, a government entity; THE ESTATES OF UPPER DEERFIELD HOMEOWNERS ASSOCIATION, a New Jersey Corporation; ATLANTIC CITY ELECTRIC, a public utility; and CUMBERLAND COUNTY PLANNING BOARD, a government entity, Defendants, and UPPER DEERFIELD TOWNSHIP, a New Jersey municipality and UPPER DEERFIELD TOWNSHIP PLANNING BOARD, Defendants-Respondents.
Brian P. Stouffer argued the cause for appellants (Walter T. Wolf, L.L.C., attorneys; Mr. Stouffer, of counsel and on the brief). Rebecca J. Bertram argued the cause for respondents (Haag & Bertram, L.L.C., attorneys; Theodore E. Baker, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Nugent and Haas.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket Nos. L-13-08 and L-756-10.
Brian P. Stouffer argued the cause for appellants (Walter T. Wolf, L.L.C., attorneys; Mr. Stouffer, of counsel and on the brief).
Rebecca J. Bertram argued the cause for respondents (Haag & Bertram, L.L.C., attorneys; Theodore E. Baker, on the brief). PER CURIAM
In this inverse condemnation action, plaintiffs Alan and Grace Woodruff appeal from the trial court's April 3, 2012 order granting summary judgment to defendants Township of Upper Deerfield and Upper Deerfield Planning Board (collectively the Township) and denying their own motion for summary judgment. After reviewing the record in light of the contentions advanced on appeal, we affirm.
I.
For over thirty years, plaintiffs have resided on approximately two acres of property they own in the Township. The property is sloped and plaintiffs' house is located on top of the hill. A portion of the property below the house rests within a ravine. Plaintiffs' house sits back fifty feet from the edge of the ravine. Their house is approximately eighteen feet above the floor of the ravine.
The ravine runs through adjacent land before it reaches plaintiffs' property. It then continues past plaintiffs' property into the adjacent wetlands. Trees, shrubs and other vegetation grow in the ravine. The ravine slopes toward the west and was formed long ago by "water flowing off the highlands" from the east.
In 2004, defendant Integrity Land Development (Integrity) began to develop a seventy-acre tract of land to the north of plaintiffs' property. The development was called Upper Deerfield Estates.
Integrity retained defendant Fralinger Engineering (Fralinger) to design a storm water management plan for the site. There was already a twenty-four inch diameter pipe in place that took storm water from an existing fifty-acre housing development north of the property from the low point on Button Mill Road into Integrity's adjacent seventy-acre site. Fralinger proposed that this existing pipe be extended approximately 1,138 feet with a new twenty-seven inch pipe, leading underground from the existing outlet of the Button Mill Road pipe directly to a culvert at the head of the ravine.Through this new system, the storm water from the existing fifty-acre development would be routed away from Integrity's property into the ravine. This would enable Integrity's site to be developed. Integrity proposed that the storm water flowing downhill from its seventy-acre site be re-routed to an on-site retention basin.
No portion of the pipe ran through or across plaintiffs' property.
On or about June 21, 2004, the Township approved the subdivision and site plan, which included the new storm water drainage system. Thereafter, Integrity proceeded to develop the site in accordance with the approved plan.
On June 22, 2006, plaintiffs filed a complaint against Integrity, Fralinger and Lennar Homes, Inc. and U.S. Home Corporation. Plaintiffs alleged that, prior to the installation of the new storm water drainage system, the portion of the ravine that ran across their property had been dry. Now, they asserted that water was "channeled down the ravine" and ultimately passed through the part of the ravine that was on their property. Plaintiffs claimed the flow of water was "torrential following rainfalls" and had damaged their property. Plaintiffs sought an order requiring defendants to restore their property to its prior condition and they demanded additional damages. On September 26, 2006, plaintiffs filed an amended complaint joining the Township as a defendant because it had approved the storm water management plan.
The complaint states that Lennar Homes and U.S. Home Corporation worked with Integrity in developing the property.
On January 2, 2008, plaintiffs filed a new complaint against the prior defendants and added additional defendants, including the New Jersey Department of Environmental Protection, the Cumberland-Salem Soil Conservation District, and the Estates of Upper Deerfield Homeowners Association. With regard to the Township, the complaint alleged the Township had negligently approved the storm water management system, trespassed on the property, illegally converted the property to its own use, took actions which constituted inverse condemnation of the property, and polluted the property. The prior complaints were consolidated into the new action.
On June 24, 2008, plaintiffs amended the "negligence" count of the complaint to one seeking a "declaratory judgment" that the Township's approval of the storm water management plan was "a nullity" and should be "set[] aside." Plaintiffs alleged the Township had not based its decision to approve the plan "on the applicable standards and regulations."
After the completion of discovery, which included a deposition provided by plaintiff Grace Woodruff, plaintiffs filed a motion for summary judgment against the Township on their inverse condemnation claim. Prior to oral argument on the motion, and with the consent of plaintiffs and the Township, the trial judge conducted a site visit with counsel to the ravine.
Following oral argument on August 19, 2011, the judge denied plaintiffs' motion for summary judgment in an August 23, 2011 order. In finding that no inverse condemnation of plaintiffs' property had occurred, the judge relied upon Mrs. Woodruff's deposition testimony and found that she
[t]estified that she has no specific knowledge with respect to the amount of frequency of water in the [ravine] area, prior to the development of Upper Deerfield Estates.
That she used the ravine area only approximately five times in the years that she has resided at the property, since approximately 1967.
And her only present recollection of using the [ravine] area, which borders to the north of her property, was to locate her lost dog on one occasion.
And she cannot recall anything regarding the ravine for which it was previously used and can no longer be used.
She could not identify any particular uses to which the ravine area had been put by her or her family during the prior years and she did not use the ravine . . . during any period of time during which it was raining or precipitating.
In addition to finding that plaintiffs did not use the portion of their property that was located in the ravine "for any particular recreational or gardening activities[,]" and that they were therefore unaware of the previous condition of that portion of their property, the judge also found that Mrs. Woodruff had testified
[t]hat no vegetation, trees, bushes or shrubs located within the . . . ravine area had died up to the present time, to the best of her knowledge.
That she was unaware of any brush, trees or other vegetation that had died since the completion of the development of the Upper Deerfield Estates.
That the intermittent water course and [ravine] area in front of [plaintiffs'] property had been created by and traversed by water over many decades.
That she was unaware the foundation of her home had been adversely affected by the water flow into the [ravine] and she's not aware of any . . . adverse impact with regard to the well on her property.
Based upon Mrs. Woodruff's testimony, the judge concluded "there's no significant change in any usage or lack thereof of the [ravine] area." Thus, the judge denied plaintiffs' motion for summary judgment on their inverse condemnation claim. On October 7, 2011, the judge denied plaintiffs' motion for reconsideration.
Thereafter, the claims against all defendants other than the Township were settled or dismissed. Plaintiffs and the Township filed cross-motions for summary judgment. By the time oral argument on the motions was held on March 30, 2102, plaintiffs had dismissed all the claims against the Township except for the conversion, inverse condemnation, and declaratory judgment counts of their complaint. At oral argument, plaintiffs agreed that summary judgment should be entered against them, and in the Township's favor, on the conversion claim.
In orders issued on April 3, 3012, the judge granted the Township's motion for summary judgment, and denied plaintiffs' motion, on the remaining inverse condemnation and declaratory judgment claims. In granting the Township's motion on inverse condemnation, the judge adopted the findings he had made on August 19, 2011. He again found, based upon Mrs. Woodruff's deposition testimony, that plaintiffs did not use the ravine, were not aware of its prior condition, and that any water that now flowed through the ravine had not damaged their home, well or any other part of their property.
The judge further found the ravine "was originally created through flowing water" and that "[t]here's little or no evidence in this case that this water flow that's coming out of this pipe outflow structure is causing significant erosion to the Woodruff property." In denying plaintiffs' inverse condemnation argument, the judge stated:
This is not a flow of water that is constant. It is, at best, intermittent and occurs only during significant rain events. Under the case law, for those combined reasons, it doesn't constitute a regulatory taking. The plaintiffs have not been deprived of the beneficial use and enjoyment of their property. It's a negligible impact at best.
The judge also denied plaintiffs' request for a declaratory judgment that the Township had improperly approved the site plan and the storm water management plan. The judge noted that plaintiffs were challenging the action of a municipality and, therefore, they were required to file an action in lieu of prerogative writs within the forty-five day time period set forth in Rule 4:69-6(a). Plaintiffs had waited over two years to file their complaint challenging the Township's approval of the plans and, therefore, their action was barred.
On May 14, 2012, the judge denied plaintiffs' motion for reconsideration. This appeal followed.
Although plaintiffs had agreed to the dismissal of their conversion claim at the time of the trial judge's consideration of the parties' motions for summary judgment, Point I of their appellate brief again presented this argument. After the Township pointed out in its answering brief that plaintiffs had voluntarily dismissed this claim, plaintiffs withdrew this argument. Therefore, we will not discuss it further here. See Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)(an appellate court will ordinarily not consider issues not presented at trial).
II.
When a party appeals a trial court's grant of summary judgment, we review de novo whether summary judgment was proper. Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 427 (App. Div. 2004). Accordingly, we must first decide whether there was a genuine issue of fact, and then, if there was not, whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In performing our appellate function, we consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).
Plaintiffs first argue the trial judge erred in denying their request for a declaratory judgment that the Township improperly approved the storm water management plan in June 2004 and that the judge should have declared this approval "a nullity" and set it aside. We disagree.
Although plaintiffs styled this count of their amended complaint as a "declaratory judgment action," plaintiffs sought to have the judge review the Township's decision to approve the subdivision and site plan for the Upper Deerfield Estates project, which included the storm water management plan, and they asked that this approval be nullified. They asserted the Township had not applied the correct "standards and regulations" in approving the plan. The Township's approval of this plan, however, constituted a quasi-judicial decision of a municipality and its planning board, which is only subject to review in the Law Division in an action in lieu of prerogative writs. Kotlarich v. Mayor of Ramsey, 51 N.J. Super. 520, 540-42 (App. Div. 1958); R. 4:69-1.
Rule 4:69-6(a) requires that an action in lieu of prerogative writs be filed no later than forty-five days "after the accrual of the right to the review, hearing or relief claimed[.]" This time limitation "is designed to give an essential measure of repose to the actions taken against public bodies." Washington Twp. Zoning Bd. v. Planning Bd., 217 N.J. Super. 215, 225 (App. Div.), certif. denied, 108 N.J. 218 (1987).
Here, the Township approved the storm water management and other plans relating to the development in June 2004. Plaintiffs concede they were aware of this approval and that, as a result of it, water would be routed to the ravine. Yet, plaintiffs did not file their first complaint until June 2006, did not join the Township as a defendant until September 2006, and did not specifically raise their "declaratory judgment claim" until June 2008. Thus, their challenge to the Township's action was clearly barred by Rule 4:69-6(a).
Rule 4:69-6(c) provides that a "court may enlarge the period of time provided in [Rule 4:69-6(a)] where it is manifest that the interest of justice so requires." However, "[b]ecause of the importance of stability and finality to public actions, courts do not routinely grant an enlargement of time to file an action in lieu of prerogative writs." Tri-State Ship Repair & Dry Dock Co. v. City of Perth Amboy, 349 N.J. Super. 418, 423 (App. Div.), certif. denied, 174 N.J. 189 (2002). We have held that
[a]n enlargement of the time for filing a prerogative writ action is recognized to serve "the interest of justice" in cases involving "(1) important or novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification."
[Willoughby v. Planning Bd. of Deptford, 306 N.J. Super. 266, 276 (App. Div. 1997)(quoting Reilly v. Brice, 109 N.J. 555, 558 (1988)).]
We do not, from our review of the record, see any novel or constitutional questions presented by the Township's approval of the plan. This was clearly a routine challenge to the decision of a township planning board to approve a subdivision and site plan, which included a storm water management plan. Plaintiffs argument was not novel. They merely argued that the Township had not correctly applied "the applicable standards and regulations" to the facts of their case. That is a classic example of an action in lieu of prerogative writs. See Kotlarich, supra, 51 N.J. Super. at 540 (an action challenging a municipality's decision to approve a development and a plan to handle drainage problems was properly the subject of an action in lieu of prerogative writs).
The Township's action was not taken informally or on an ex parte basis. Willoughby, supra, 306 N.J. Super. at 276. The Township conducted a public hearing on Integrity's application and its decision approving the plan was embodied in a resolution. Plaintiffs were aware of this approval when it occurred in 2004. Finally, no important public interests require adjudication in this case. Ibid. Plaintiffs seek only to vindicate their own private interests and they waited over two years to challenge the Township's approval of the plan. Under these circumstances, we perceive no abuse of discretion on the part of the trial judge in finding that plaintiffs' challenge to the Township's action in approving the plan was time-barred under Rule 4:69-6(a).
Plaintiffs next argue the judge erred in denying their inverse condemnation claim. Based upon their assertion that water now flows down the ravine and goes through the portion that is on their property, plaintiffs allege a compensable "taking" of their land has occurred as the result of the Township's approval of Integrity's storm water management plan. We again disagree.
"The Supreme Court of the United States has distinguished between taking cases involving "'[1] a permanent physical occupation, [2] a physical invasion short of an occupation, and [3] a regulation that merely restricts the use of property.'" Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 384-85 (App. Div.), certif. denied, 209 N.J. 96 (2011)(quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 430, 102 S. Ct. 3164, 3173, 73 L. Ed. 2d 868, 879 (1982)). If there has been a permanent physical occupation of the property, a taking will be found to have occurred regardless of the degree of interference with the property. Smith, supra, 421 N.J. Super. at 385. If a physical invasion of property falls short of a permanent occupation, however, a "balancing process" that includes consideration of the degree of interference with the property owner's use of the land is required to determine whether a taking has occurred. Ibid.
This case clearly does not involve a permanent physical occupation of plaintiffs' property. Accepting the assertions in plaintiffs' complaint as true, during a rainfall, water now flows down the ravine to the portion of it that crosses their property. This happens intermittently and is not a permanent condition.
The trial judge also conducted the required "balancing process" and found that the water intermittently flowing through the ravine caused little or no interference with plaintiffs' use and enjoyment of their property. Based upon Mrs. Woodruff's deposition testimony, it was clear that plaintiffs did not routinely use the ravine for any purpose. They had only been in the ravine about five times in the over thirty years they have lived in their home. They were not aware of the prior condition of the ravine. The ravine was never used for any particular recreational or gardening activities and Mrs. Woodruff could only recall going into the ravine once to retrieve her lost dog.
Moreover, no vegetation, trees, bushes, or shrubs growing in the ravine had died or been disturbed by any water flowing through it. Plaintiffs' home sits well above and back from the ravine and has not been affected by the water in the ravine. There has been no adverse impact on their well.
Under these circumstances, the judge correctly found that there had been no inverse condemnation of plaintiffs' property by the Township. The Township's action in approving the storm water management plan had not "substantially destroy[ed] the beneficial use of [plaintiff's] private property." Schiavone Contr. Co. v. Hackensack Meadowlands Dev. Corp., 98 N.J. 258, 263 (1985). The water only flows through a small portion of the property that plaintiffs do not use for any purpose. The water has not caused any damage to the ravine which, itself, had been created by flowing water. Therefore, there is no reason to disturb the judge's decision to grant the Township's motion for summary judgment.
Finally, plaintiffs argue for the first time in their reply brief that the judge improperly made findings based upon the site inspection he conducted together with the parties. "Raising an issue for the first time in a reply brief is improper." Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J. 294 (2001). Plaintiffs and the Township had consented to the judge visiting the site. Even though plaintiffs filed two motions for reconsideration, they never argued that the judge made improper findings based upon his observations of the ravine. Because the issue was not presented to the judge nor properly addressed by plaintiffs on appeal, we decline to consider this issue. Neider, supra.
Although plaintiffs state in their brief that they also challenge the judge's decisions denying their motions for reconsideration, they have not briefed this issue. Therefore, we deem this argument waived. See Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008).
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Nevertheless, we note there is no question of the right of a trial judge sitting without a jury to inspect a site. Peoples Trust Co. v. Bd. of Adjustment, 60 N.J. Super. 569, 576 (App. Div. 1959). Here, the site visit by the judge was conducted with the parties' consent and in the presence of counsel. Although the judge did place his observations of the ravine on the record, we are satisfied he did not treat the site visit as "evidence," but rather as "a procedure to aid the trier of fact in understanding the evidence." Route 15 Associates v. Jefferson Twp., 187 N.J. Super. 481, 490 (App. Div. 1982). The judge's findings that no inverse condemnation had occurred were based upon Mrs. Woodruff's deposition testimony, the documentary evidence, and the photographs and DVD of the ravine submitted by plaintiffs. Therefore, we reject plaintiffs' contention on this point.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION