Opinion
DOCKET NO. A-3426-12T1
08-27-2014
ANTHONY F. FAVORITO, Plaintiff-Appellant, v. PURITAN OIL COMPANY, INC., Defendant-Respondent, and JENNIFER SCHWARTZ, KAREN L. SIMMONS, JOSEPH J. GRASSI, JR., L.L.C., d/b/a GRASSI REALTORS, DONALD R. GRIMMIE FAMILY TRUST AND DANIEL R. GRIMMIE, Defendants.
Tedesco, Gruccio & Reuss, L.L.C., attorneys for appellant (Dante J. Romanini, on the brief). Gary J. Zangerle, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Koblitz and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4260-11. Tedesco, Gruccio & Reuss, L.L.C., attorneys for appellant (Dante J. Romanini, on the brief). Gary J. Zangerle, attorney for respondent. PER CURIAM
In 2005, plaintiff purchased real property from defendant Jennifer Schwartz. In 2009, plaintiff discovered that, back in 1988, underground gasoline storage tanks on neighboring property previously owned by defendant Puritan Oil Company, Inc. had leaked, causing hazardous substances to migrate into ground waters that flowed beneath plaintiff's premises. Plaintiff sued Puritan, Schwartz, and a real estate agent and agency involved in the sale of the premises between him and Schwartz. Plaintiff settled with all defendants except Puritan and, at the conclusion of discovery, the trial court granted Puritan's motion for summary judgment. We affirm.
I
For many years, Puritan owned and operated a gas station across the street from the property plaintiff acquired in 2005. In 1988, Puritan discovered gasoline had leaked from underground storage tanks stored on its property. The Department of Environment Protection (DEP) was notified and Puritan began remediating the property. Puritan removed six underground storage tanks and all of the contaminated soil from its property, and shut down the gas station. Monitoring wells installed on Puritan's property revealed the ground waters below it were contaminated with petroleum products and had migrated into the ground waters underneath plaintiff's property.
Although he did not acquire the property until 2005, for simplicity we will refer to these premises as plaintiff's property.
In 1996, two groundwater monitoring wells were installed on plaintiff's property, but were later removed in 1999. In 2001, the DEP placed a portion of plaintiff's property within a Classification Exception Area (CEA). When property is within a CEA, the use of the ground water for its classified use is suspended while the area is being remediated. In re Adoption of N.J.A.C. 7:26E-1.13 , 377 N.J. Super. 78, 88 (App. Div. 2005), aff'd, 186 N.J. 81 (2006). The estimated expiration date of the CEA is 2019. The DEP also approved in 2001 a Plan for Passive Remediation. Under the Plan, the water and soil in the CEA must be tested twice a year to determine the existence and concentration of any hazardous substance.
On September 22, 2005, plaintiff purchased the property as an investment, for $224,900. On the property is a single family home; plaintiff has been able to consistently rent out the premises at the fair market rate since he bought the property. The water in the home is supplied by the municipality and not from any wells on the property. In 2009, plaintiff was contacted by Puritan's agents, who advised that two monitoring wells needed to be installed on his property to periodically sample the ground water; this was the first time plaintiff learned his property had been contaminated.
In 2010, the wells were installed and, twice a year, plaintiff has permitted defendant's agents to enter his property to test both the ground waters beneath and the soil on his property. In 2011, a sample of the ground water from both wells revealed the water still contained a hazardous substance, specifically methyl tertiary butyl ether, a substance used to cleanse gasoline and engines. There is no evidence the soil on plaintiff's property has ever been contaminated by the leaks from Puritan's underground gasoline storage tanks. It is not disputed Puritan has agreed to remediate plaintiff's property at its own expense.
In his complaint, plaintiff alleged Puritan violated the New Jersey Spill Compensation Control Act, N.J.S.A. 58:10-23.11 to -23.24, because it contaminated ground waters. Plaintiff is not appealing the dismissal of this cause of action. However, plaintiff also contended in his complaint that the discharge of hazardous substances onto his property constituted a nuisance and trespass; plaintiff challenges the trial court's dismissal of these two claims.
II
In reviewing a summary judgment decision, we apply the same standard as the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Viewing the evidence "in a light most favorable to the non-moving party," we determine "if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We review questions of law de novo, State v. Gandhi, 201 N.J. 161, 176 (2010), and need not accept the trial court's conclusions of law. Davis v. Devereux Found., 209 N.J. 269, 286 (2012).
Under New Jersey law, "an action for trespass arises upon the unauthorized entry on another's property, real or personal." Pinkowski v. Township of Montclair, 299 N.J. Super. 557, 572 (App. Div. 1997) (citing State v. Wouters, 71 N.J. Super. 479, 485 (App. Div. 1962)). The essence of a nuisance is "an unreasonable interference with the use and enjoyment of land." Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 389 (App. Div.) (quoting Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 438, 448 (1959), certif. denied, 209 N.J. 96 (2011). In order to establish a claim for nuisance, "it must be shown that 'there has been an unreasonable, unwarranted or unlawful use by a person of his real property which is resulting in a material annoyance, inconvenience or hurt.'" State, Dep't of Environment Protection v. Exxon Corp., 151 N.J. Super. 464, 483 (App. Div. 1977) (quoting Cherry Hill Twp. v. N.J. Racing Comm'n, 131 N.J. Super. 125 (Law Div. 1974), aff'd, 131 N.J. Super. 482 (App. Div. 1974), certif. denied, 68 N.J. 135 (1975)).
The damages a party can recover for trespass or nuisance are
(a) the difference between the value of the land before the harm and the value after the harm, or at [plaintiff's] election in an appropriate case, the cost of restoration that has been or may be reasonably incurred;
(b) the loss of use of the land, and
(c) discomfort and annoyance to him as occupant.
[Ayers v. Jackson Twp., 106 N.J. 557, 571 (1987) (citing the Restatement (Second) of Torts § 929).]
During oral argument, the trial court sought clarification from plaintiff of what he sought in damages. Plaintiff represented he was seeking only the difference between what he in fact paid for the property in 2005, which was $224,900, and what the property was in fact worth at that time given its contaminated condition, which his expert appraiser estimated was $98,000. Thus, plaintiff was seeking $126,900 in damages.
Plaintiff did not state he was seeking damages for the stigma that may be associated with the property after it is remediated, or any other damages. Ruling on the issue before it, the trial court found that plaintiff's damages were limited to either the cost of cleaning the property or the difference between the market value of the property in a contaminated state and in an uncontaminated one. As Puritan was going to clean up the property, plaintiff was not entitled to the difference between what he did pay for the property in 2005 and what he should have paid at that time had he known of the contamination. The trial court therefore granted Puritan's motion for summary judgment.
On appeal, plaintiff asserts he is entitled to damages for not only the difference between what he paid for the property and what it was in fact worth back in 2005, but also for: (1) having monitoring wells on his property; (2) being obligated to give defendant's agents entry onto his property twice a year to conduct testing; and (3) having a portion of his property in a CEA, which limits his use of the ground water and will require him to disclose that the property is within such an area to any prospective buyer. However, none of these contentions were raised by plaintiff or considered by the trial court; therefore, we will not consider them now. See State v. Galicia, 210 N.J. 364, 383 (2012) ("Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below.") (citing Deerfield Estates, Inc. v. E. Brunswick, 60 N.J. 115, 120 (1972); State v. Walker, 385 N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J. 83 (2006)).
Here, the trial court properly decided the limited issue before it. First, a party may receive the difference between the value of the land before and after the harm or, at the party's election, the cost of restoration, but not both. See Ayers, supra, 106 N.J. at 571. Plaintiff chose to have the property restored. Second, plaintiff did not claim he has been deprived of any loss of use of his property. In fact, the record reflects he has consistently rented the premises at market rate since he bought the property. Third, plaintiff has not contended that, as an occupant, he has experienced any discomfort or annoyance as a result of the contamination and, for that matter, neither has any of his tenants.
Given this factual record, we are satisfied that summary judgment was properly granted to Puritan.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION