Opinion
DOCKET NO. A-6090-12T3
07-22-2014
ANTHONY R. MAUTONE, Plaintiff-Respondent, v. MICHAEL CAPPELLUTI and ISABELLA CAPPELLUTI, Defendants-Appellants.
Alexis L. Gasiorowski argued the cause for appellants (Gasiorowski & Holobinko, attorneys; R.S. Gasiorowski, on the briefs). Adolfo L. López argued the cause for respondent (Ledesma, Diaz, López & Noris, P.C., attorneys; Mr. López, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh, Nugent, and Accurso.
On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-139-12.
Alexis L. Gasiorowski argued the cause for appellants (Gasiorowski & Holobinko, attorneys; R.S. Gasiorowski, on the briefs).
Adolfo L. López argued the cause for respondent (Ledesma, Diaz, López & Noris, P.C., attorneys; Mr. López, on the brief). PER CURIAM
Defendants Michael and Isabella Cappelluti appeal the General Equity Part's July 2, 2013 order granting summary judgment to plaintiff Anthony R. Mautone. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Mautone owns several parcels of land located at 207-209 Manhattan Avenue in Union City. Mautone has received a variance from the Union City Planning Board (Board) to construct two three-story, three-family homes on his lots. The Board's approval of the variance was unsuccessfully challenged by the Cappellutis following our earlier remand for a new hearing before the Board. Cappelluti v. City of Union City Planning Bd., No. A-3075-09 (App. Div. July 19, 2011) (slip op. at 1-2, 11, 13-14); Cappelluti v. City of Union City Planning Bd., No. A-5876-04 (App. Div. June 6, 2006) (slip op. at 1).
If Mautone's buildings are constructed, the Cappellutis will lose a substantial portion, if not all, of any view of the Manhattan skyline from the rear of their house.
Mautone's property is contiguous with the Cappellutis' property located on Palisade Avenue. The Cappellutis have an easement, granted by deed in 1947, allowing them the right to maintain a sewer line under Mautone's property so that they can connect to the public sewer line located on Manhattan Avenue. There is no public sewer line on Palisade Avenue. The Board conditioned its approval of Mautone's variance on the satisfactory resolution of any issues related to the Cappellutis' sewer easement. Cappelluti, supra, No. A-3075-09T3 (slip op. at 9, 11).
In August 2012, after Mautone concluded that he and the Cappellutis would be unable to reach an amicable agreement concerning the easement, he filed the present action seeking an order allowing him to relocate the sewer line covered by the easement. In April 2013, Mautone filed a motion for summary judgment, which was opposed by the Cappellutis.
Oral argument was held on June 7. Trial counsel for the Cappellutis argued that there was a factual "dispute about whether the [sewer] line is going [to] function" once it is altered from its current state. She conceded that the dispute was solely about the functionality of the moved sewer line and that there would be no dispute if the functionality "is done correctly." The motion judge concluded that the Cappellutis had not demonstrated such a factual dispute, characterizing their expert report as "just criticizing" the relocation plan submitted by Mautone's expert. Counsel for the Cappellutis, however, maintained that there were not "enough facts in the record right now to determine whether it is going to be done correctly."
The motion judge reserved decision to allow Mautone time to submit a certification from his expert demonstrating "that this will be a functional sewer and that it would not affect or infringe upon the property owner's rights." The motion judge also allowed the Cappellutis the opportunity to submit additional certifications in response.
On June 15, Mautone submitted a certification from his expert, John Curry, a licensed professional engineer, who acted as a consultant on relocating the sewer line. Curry certified that the "present location of the sewer line would interfere with [Mautone's] proposed construction" of the two three-family homes and that the line must be relocated because excavation would need to take place at the subsurface level for proper "footings, foundations and/or mechanical systems." Curry noted that the existing sewer line is not compliant with current code requirements. It consists of clay pipes, which have cracked and are "susceptible to attracting roots from trees during" times of drought. Cappelluti, supra, No. A-5876-04 (slip op. at 5 n.1).
Curry set out the details of the proposed plan to build a code-compliant system with a 290% increase in capacity. He further certified that the "entire process [would be] carried out without disturbing the existing sewer to the [Cappelluti] residence" and that the proposed system will be "a fully functional sewer system which is superior in all aspects to the existing system." Mautone has agreed that he will pay for all costs associated with installing the new system.
On June 27, the Cappellutis submitted a certification from Gerald G. Gardner, also a licensed professional engineer. Gardner critiqued a number of points in Curry's certification, which were summarized in the following paragraph:
Without sufficient information about subsurface conditions; detailed flow calculations to determine adequate capacity; a slope or pitch based upon invert elevations and the alignment of the proposed line; and, a building connection design based upon the relocation of the junction box, it cannot be said that the proposed sewer line will be fully functional. The proposed plan, which lacks essential engineering and design details, does not fully [protect] defendants' rights to a functioning sewer line.Gardner concluded that if one design or engineering element is "problematic during design or construction, it may prevent permits from being issued or the project from being completed, in which case defendants' legal right to an easement with a fully-functional sewer line cannot be protected."
On July 2, the motion judge filed an order granting summary judgment in favor of Mautone. He also issued an opinion explaining his reasons. This appeal followed.
II.
On appeal, the Cappellutis argue that summary judgment was premature because discovery was not complete, and improvidently granted since there are genuine issues of material fact regarding whether Mautone's proposed relocation plan will work. They also assert that, even if there are no genuine issues of material fact, as a matter of law Mautone cannot prove that their easement rights will be fully protected and preserved.
A.
We review a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the "light most favorable to the non-moving party." Id. at 38, 41. "The inquiry is 'whether the evidence presents a sufficient disagreement to require submission to a [finder of fact] or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). "[T]he legal conclusions undergirding the summary judgment motion itself" are reviewed "on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).
An easement is "defined as a nonpossessory incorporeal interest in another's possessory estate in land, entitling the holder of the easement to make some use of the other's property." Leach v. Anderl, 218 N.J. Super. 18, 24 (App. Div. 1987). Easements may be created by implication, express act or conveyance, or prescription. Ibid. (citing Mahony v. Danis, 95 N.J. 50, 58 (1983) (Schreiber, J., dissenting).
An easement by written deed qualifies as an express conveyance. See Mahony, supra, 95 N.J. at 58 (Schreiber, J., dissenting).
Where [an] easement comes into being by way of an agreement, . . . the "universally accepted principle" is that "the landowner may not, without the consent of the easement holder, unreasonably interfere with the latter's rights or change the character of the easement so as to make the use thereof significantly more difficult or burdensome."
[Kline v. Bernardsville Ass'n, Inc., 267 N.J. Super. 473, 478 (App. Div. 1993) (emphasis added) (quoting Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 604 (1964)).]
In Ingling v. Public Service Electric & Gas Co., 10 N.J. Super. 1, 8 (App. Div. 1950) (quoting Johnson v. Jaqui, 27 N.J. Eq. 552, 555-56 (E. & A. 1876)), we held that
[i]t is the exclusive right of the owner of the dominant tenement to say whether or not the servient owner shall be permitted to change the character and place of the servitude suffering the burden of anThis "unequivocal language" was tempered by our decision in Kline, in which we held that "relocation of an easement without the mutual consent of the parties is an extraordinary remedy and should be grounded in a strong showing of necessity." Kline, supra, 267 N.J. Super. at 479-80. We further held that "a court may compel relocation of an easement to advance the interests of justice where the modification is minor and the parties' essential rights are fully preserved." Id. at 480. An inquiry in this regard is normally fact sensitive. Ibid.
easement . . . . regardless of any consideration of convenience of the owner of the servient tenement.
B.
The purpose of the easement at issue in this case is purely a functional one, in that the Cappellutis have the right to an underground sewer pipe beneath Mautone's property leading from their residence to the public sewer line on Manhattan Avenue. There is no visual component to the easement, inasmuch as the sewer line is not visible to people standing on the property. The exact route of the sewer pipe is largely irrelevant to its functionality, as long as it is accessible for repair and it transports the sewage from the Cappellutis' property to the public sewer line at least as well as the current pipe. Our consideration of the issues raised on appeal must be made in this context.
As a threshold matter, Mautone was required to demonstrate that it is necessary to relocate the sewer line protected by the easement. Curry certified that the "present location of the sewer line would interfere with the proposed construction" and must be relocated because excavation would need to take place at the subsurface level for proper "footings, foundations and/or mechanical systems." Gardner did not dispute that assertion. Consequently, the record fully supports the motion judge's determination that "[t]he evidence demonstrates that unless the sewer line is relocated, [Mautone] will not be able to complete his construction project and will effectively be deprived of the benefits of ownership while still being obligated to pay for taxes, insurance, and maintenance costs."
In addition, there is nothing in the record to suggest that the relocation of the sewer line will create an additional burden on the Cappellutis, assuming the new line actually functions at least as well as the present, non-conforming line. The motion judge noted that it will "be located on the northern end of [Mautone]'s property which provides for the most direct connection to the public sewer," and that the "sewer pipes will be separate from [Mautone]'s buildings and will provide a more direct and efficient connection to the public sewer." Curry described the proposed new line as a code-compliant system with a 290% increase in capacity.
Mautone has also demonstrated that the proposed modification to the easement is minor and, in fact, an improvement to what exists now. He has additionally demonstrated that the modification will preserve the Cappellutis' essential right to a sewer pipe that flows under his property to the public sewer line, again assuming the new sewer line functions as represented. Consequently, we agree with the motion judge that, assuming the new sewer line functions as represented, Mautone has satisfied the requirements of Kline. It would be unjust to preclude Mautone from use of his property, within the bounds of the Board's permission, merely to preserve the current location of a non-conforming sewer line that can be moved without depriving the Cappellutis of the essential benefit of the easement. There are no genuine issues of material fact with respect to those conclusions.
The point of contention on appeal is whether Mautone has sufficiently demonstrated that the design outlined by Curry will, in fact, be buildable and function properly. In his certification, Gardner does not opine that no sewer line can be built that would serve the same purpose as the existing one. Nor does he even opine that the one proposed by Curry cannot be built and function properly. He says only that he cannot express an opinion on the functionality of the proposed sewer line, one way or another, "[w]ithout sufficient information about sub-surface conditions; detailed flow calculations to determine adequate capacity; a slope or pitch based upon invert elevations and the alignment of the proposed line; and, a building connection design based upon the relocation of the junction box." Assuming Gardner's assertion is accurate, as we must on a motion for summary judgment, we nevertheless conclude that the judge's grant of summary judgment to Mautone was appropriate.
We do so because the risk that the proposed plan will fail remains with Mautone and is in no way transferred to the Cappellutis. Mautone cannot permanently disconnect the existing sewer line on his property until he has completed the new one and obtained the required approvals from the Union City Building Department and the North Hudson Sewerage Authority.
The Cappellutis shall receive ten days' written notice that the new sewer line is finished and ready for inspection by the governmental entities named above. They will have the right to have their own expert examine the new line, as built, to determine whether it is an adequate replacement for the existing system. If it is not, despite the approval of the two government agencies responsible for inspection and approval of sewer connections, the Cappellutis shall have thirty days from the date they receive notice of the governmental approvals to reopen this action, on motion, seeking appropriate judicial relief as long as they have a good faith basis to do so and are not acting for the purpose of delay. N.J.S.A. 2A:15-59.1; see R. 1.4-8(a). In the interim, we strongly urge the parties to cooperate with each other by having their experts confer concerning the design and installation of the new sewer line as it proceeds.
For these reasons, we affirm the motion judge's July 2, 2013 order, but remand to the motion judge for entry of a revised order setting forth the schedule for the Cappellutis' review of the completed sewer line and right to reopen as provided above. The motion judge may modify the timelines with the consent of the parties or determination that the interests of justice require such modification. The revised order shall also provide that Mautone must execute and record an updated easement, which shall be valid nunc pro tunc to the date of the existing easement, reflecting the change in the location of the sewer line.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION