Lyons v. Township of Wayne

• Citation: 888 A.2d 426,185 N.J. 426
• Parties: Timothy P. LYONS and Michele Lyons, Plaintiffs-Appellants, v. TOWNSHIP OF WAYNE and George Holzapfel, Township Engineer and Director of Public Works, Defendants-Respondents, and John Doe, Developer, Defendant.
• Decision Date: 28 December 2005
• Court: United States State Supreme Court (New Jersey)

Page 426

888 A.2d 426

185 N.J. 426

Timothy P. LYONS and Michele Lyons, Plaintiffs-Appellants, v. TOWNSHIP OF WAYNE and George Holzapfel, Township Engineer and Director of Public Works, Defendants-Respondents, and John Doe, Developer, Defendant.

Supreme Court of New Jersey.

Argued September 27, 2005.

Decided December 28, 2005.

John Vincent Saykanic, Clifton, argued the cause for appellants.

Robert L. Podvey argued the cause for respondents (Podvey, Sachs, Meanor, Catenacci, Hildner & Cocoziello, attorneys Steven R. Tombalakian, Newark, on the letter in lieu of brief).

Timothy P. Lyons and Michele Lyons submitted a brief, pro se.

Justice ZAZZALI delivered the opinion of the Court.

In this appeal, the Court must determine whether municipal defendants can be held liable under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:8-1 to -11, for increased flooding on plaintiffs' property. Plaintiffs allege that the flooding was caused by storm water runoff that originated on municipal property or was channeled onto plaintiffs' property by structures that the municipality erected, assertions the municipal defendants deny. The trial court granted summary judgment for the municipal defendants and the Appellate Division affirmed. Both courts held that plaintiffs' claims are time-barred by the TCA's statute of limitations because the alleged nuisance is not a continuing tort and, regardless of the statute of limitations, plaintiffs failed to support their contentions with sufficient evidence.

Plaintiffs' allegations, if true, may establish a prima facie claim of continuing nuisance. We therefore vacate the grant of summary judgment and remand for further proceedings because the incomplete and confusing record in this matter prevents a determination whether there is, or is not, a genuine issue as to any material fact as required by Rule 4:46-2(c).

I.

In 1998, plaintiffs Timothy and Michele Lyons bought hillside property located at 60 Bolton Road in Wayne Township, New Jersey. Immediately above plaintiffs' property is municipal property that the Township owns and maintains as "a nature preserve." Two local roads, Mountain Road and Doreen Lane, also are situated at a higher elevation than plaintiffs' property on Bolton Road. Although all three streets, Mountain, Doreen, and Bolton, are open to public traffic, they are unimproved, privately-owned roads.

This area has a history of water problems. In 1986, prompted by complaints of flooding, a Township engineer investigated drainage conditions in the vicinity of Bolton Road. The engineer concluded that "water originates on large wooded property above the location, not from Township road, not from Newark water supply, not from Township water or sewer service, [and is] not [a] Township problem." In 1991, George Holzapfel, another Township engineer and a defendant in this suit, detailed the worsening drainage problems in the area. He noted that there "clearly is a water problem" on the hillside and, without assigning responsibility, stated that a remedy "would be expensive but . . . necessary for the long term solution." Shortly after purchasing their home in 1998, plaintiffs noticed flooding in their rear yard following rainstorms. They promptly communicated with Township officials, claiming that water runoff from Mountain Road, among other sources, was damaging their property. Then, on September 16, 1999, flooding from Hurricane Floyd caused great damage to plaintiffs' property, as water flowed into their garage and home.

In December 1999, plaintiffs filed a Notice of Tort Claim alleging that water from Mountain Road had caused damage to their house, garage, and yard. Plaintiffs also hired an engineering consultant to inspect their property. In his January 2000 report, the expert said that various structures and uphill improvements had changed the area's drainage patterns. He further indicated that the recent paving and curbing of Mountain Road acted to intercept storm water runoff from Mountain Road, channel the water to a concentrated flow, and direct the water toward plaintiffs' property. According to plaintiffs' expert, a raised berm and drainage ditch at the end of Doreen Lane acted to redirect uphill water, which naturally flowed downhill, laterally across the slope and onto plaintiffs' property, "[t]he net effect [of which] is the doubling of the flow against the house and garage at the lower reaches of [plaintiffs'] property."¹ The engineer qualified his opinions, however, by stating that

[i]t is beyond the scope of this investigation to undertake a detailed analysis of the total drainage area uphill from this house. Rather, a brief overview will be presented. If there is a need for further investigation, a review of topographic maps and the undertaking of a topographic survey will be needed.

On September 14, 2001, plaintiffs filed an action pro se against the Township, Township Engineer Holzapfel, and a fictitious property developer (collectively referred to as the Township). In their complaint, plaintiffs allege that the Township's actions "changed the topographical nature of the land" and "caused unnatural and/or unreasonable diversion of storm . . . and surface waters, causing flooding upon [p]laintiffs' land." The Township responded by moving for summary judgment, asserting that plaintiffs had failed to allege wrongful conduct on the part of the Township within the TCA's two-year statute of limitations and had failed to present evidence that the Township caused the flooding.

Plaintiffs first contend that the recent curbing and paving of Mountain Road has increased water flow onto their property and that the Township is responsible for the paving and curbing. The Township admits that "stormwater [sic] flows coming off of Mountain Road eventually end up crossing the subject property" but depicts the flows as a longstanding problem that "has existed as long as Mountain Road existed (possibly 60 years)," far before the Township became involved in the road's development. A letter from the Township's mayor to plaintiffs states that Mountain Road's curbing "does not appreciably affect [plaintiffs'] property." Township Engineer Holzapfel, however, stated in an internal memorandum that changes in water runoff have occurred. Specifically, he noted that he "do[es] not know why over the past year we experience[d] a significant change in water problems in this area but a long term solution has to be considered." Township officials have offered various other theories to explain plaintiffs' water problems. A 1999 letter from the mayor to plaintiffs states that "most of the wet [on your property] comes from below grade geological conditions." Two years later, Holzapfel wrote to the mayor that "[m]uch of the problems [in the vicinity of 60 Bolton Road] stem from incomplete roadways."

Although Mountain Road is privately owned, plaintiffs claim that the Township is responsible for at least some of Mountain Road's paving and curbing. They cite public work orders from 1978 and 1986 that authorize repair of a curb and the construction of a berm on Mountain Road. The Township does not expressly deny or admit that allegation, and, in a letter to plaintiffs, the mayor stated that he does not know who built the road's curbs. In response to plaintiffs' interrogatory asking "[w]hat was done to correct the [water] problem," Holzapfel wrote that "minor asphalt berms were constructed to direct water towards the drainage system." Holzapfel does not state when, where, or by whom those berms were built.

Plaintiffs' second claim is that a thirty-foot long drainage ditch, cut on a diagonal grade across Township property above their property, is contributing to flooding on their land. Plaintiff Timothy Lyons states in his certification that according to the tax map, "the two lots above plaintiff[s'] property are also owned by the Township . . . and the Township . . . has allowed a large drainage ditch [on its property] to divert water directly towards plaintiff[s'] property." The Township's response to that allegation is unclear. In the same letter discussing Mountain Road's curbing, the mayor denied Township responsibility for the construction of the ditch but apparently admitted that the ditch is on Township property. He stated: "We don't know when the ditch on municipal property was constructed. To our knowledge, the Town did not approve it."

Finally, plaintiffs argue that the berm constructed on Township property has increased the flow of water onto their land. Plaintiffs' expert report noted that the berm directs water runoff onto a neighbor's property which then runs across plaintiffs' land, resulting in the "doubling of the flow against [plaintiffs'] house and garage." Counsel for the Township claimed at oral argument both before this Court and the trial court that the berm is not located on Township property, but neither counsel could point to record evidence that establishes or disproves that fact. The Township denies responsibility for the berm's construction and states that the berm is not the proximate cause of plaintiffs' problems because the berm directs water onto plaintiffs' neighbor's land.²

The trial court agreed with the Township and granted summary judgment in favor of defendants. The court held that plaintiffs had not alleged Township wrongdoing within the TCA's two-year statute of limitations. Apart from the statute of limitations, it found that the berm is located on Township property but concluded that the Township did not erect it because, "if the municipality installed the berm, there would be a record of it." The court speculated that the berm was built by plaintiffs' neighbor because its fill is similar to that on the neighbor's land. The trial court nevertheless concluded that there is an absence "of any evidence causally connecting the berm to the detrimental impact on plaintiffs' property." The court made no findings as to the location,...