N.J. Dep't of Envtl. Prot. v. Alloway Twp.

• Decision Date: 02 January 2015
• Docket Number: Docket No. A-3835-12T3
• Citation: 438 N.J.Super. 501,105 A.3d 1145
• Parties: NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff–Respondent, v. ALLOWAY TOWNSHIP and County Of Salem, Defendants–Respondents/Cross–Appellants, and William R. COBB, Defendant–Appellant/Cross–Respondent.
• Court: New Jersey Superior Court — Appellate Division

438 N.J.Super. 501

105 A.3d 1145

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff–Respondent

v. ALLOWAY TOWNSHIP and County Of Salem, Defendants–Respondents/Cross–AppellantsandWilliam R. COBB, Defendant–Appellant/Cross–Respondent.

Docket No. A-3835-12T3

Superior Court of New Jersey, Appellate Division.

Submitted Oct. 7, 2014.

Decided Jan. 2, 2015.

Holston, MacDonald, Uzdavinis, Ziegler & Lodge, attorneys for appellant/cross-respondent William R. Cobb (William F. Ziegler, Woodbury, on the brief).

John G. Hoffman, Woodstown, attorney for respondent/cross-appellant Alloway Township.

Michael M. Mulligan, Salem County Counsel, Carneys Point, attorney for respondent/cross-appellant County of Salem.

John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey Department of Environmental Protection (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Daniel A. Greenhouse, Deputy Attorney General, on the brief).

Before Judges MESSANO, OSTRER and HAYDEN.

Opinion

The opinion of the court was delivered by

MESSANO, P.J.A.D.

In this appeal we are called upon to construe provisions of the Safe Dam Act (the “SDA”), N.J.S.A. 58:4–1 to –14, 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, 40 A. 3d 107 (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, 40 A. 3d 107.

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).

In this case, DEP filed a civil enforcement action alleging violations of the SDA by defendants William R. Cobb, the County of Salem (the County) and Alloway Township (the Township) (collectively, defendants).¹ At issue was defendants' involvement with the Cobb's Mill Dam (the dam), a 288–foot earthen structure that forms a private lake, Cobb's Mill Lake, in the Township, and along the top of which runs a paved road, Cobb's Mill Road.

All parties moved for summary judgment. Chancery Judge Anne McDonnell granted DEP summary judgment on its amended verified complaint and denied defendants' motions. She entered an interlocutory order thereafter, apportioning the costs of compliance among the three defendants, sixty-five percent to the County, twenty-five percent to Cobb, and ten percent to the Township. After carefully considering the specific penalties requested by DEP, Judge McDonnell entered judgment in favor of DEP and ordered defendants to pay civil penalties totaling $19,250, apportioned $7312.50 to the County, $7932.50 to Cobb, and $4005 to the Township.²

Cobb appeals and argues that the SDA does not apply to him, the “mere owner” of the lake bed without any authority to “ ‘control, operate or maintain’ ” the dam in question. He argues that the County is solely responsible because it owns the right of way in which Cobb's Mill Road is situated.

In its cross-appeal, the County argues that material factual disputes regarding its contacts with and control of the dam should have foreclosed summary judgment. In particular, the County argues that the judge mistakenly found as a fact that title to the public right of way for Cobb's Mill Road vested with the County pursuant to a document recorded in the late 19th century.

In its cross-appeal, the Township argues that since it never “maintained, managed, operated or controlled the structure,” it cannot be responsible for any violations of the SDA. The Township further contends that since the County installed the structures appurtenant to the roadway, including a culvert for spill-off from the lake, the County is solely responsible for compliance with the SDA.

DEP urges us to affirm in all respects the orders entered by Judge McDonnell. It argues that because Cobb owns the lake and historically maintained the dam, the County owns the “bridge and culverts” that are part of the dam, and the Township owns and maintains the road, all defendants are responsible for the dam structure and any concomitant violations of the SDA.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

In reviewing a grant of summary judgment we “ ‘employ the same standard ... that governs the trial court.’ ”

W.J.A. v. D.A., 210 N.J. 229, 237, 43 A. 3d 1148 (2012) (quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330, 9 A. 3d 882 (2010) ). We first determine whether the moving party demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230, 903 A. 2d 513 (App.Div.), certif. denied, 189 N.J. 104, 912 A. 2d 1264 (2006).

[A] determination whether there exists a “genuine issue” of material fact that precludes summary judgment requires the motion judge to 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, 666 A. 2d 146 (1995).]

We confine our review to the same record that existed before the motion judge. Ji v. Palmer, 333 N.J.Super. 451, 463–64, 755 A. 2d 1221 (App.Div.2000).

We then decide “whether the motion judge's application of the law was correct.” Atl. Mut. Ins. Co., supra, 387 N.J.Super. at 231, 903 A. 2d 513. In this regard, “[w]e review the law de novo and owe no deference to the trial court ... if [it has] wrongly interpreted a statute.” Zabilowicz v. Kelsey, 200 N.J. 507, 512, 984 A. 2d 872 (2009) (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378, 658 A. 2d 1230 (1995) ).

A.

The motion record regarding defendants and their involvement with the dam, sometimes described as a bridge in the record, and its appurtenant structures was largely undisputed.

Cobb owns several parcels of land on Cobb's Mill Road, and he has held many public offices and appointed positions in the municipality and the County. The land has been in his family since 1705, and Cobb's home and active saw mill are on parcels that are adjacent to the dam. During his deposition, Cobb testified that he owned the land beneath the dam and all the land on both sides of it, as well as all the land surrounding Cobb's Mill Lake. Additionally, in a 2000 letter to DEP, Cobb said that he was the owner of the dam.

Cobb surmised the dam was built by his ancestor Elisha Dilks, sometime in the early 1800s, and the structure was known for some time as the Dilks' Mill Dam. A recorded document from 1876, the import of which was in dispute, set courses for the construction of a road over the dam, indicating that at that time, the dam was owned by Calvin Dilks, Cobb's relative. A document in the record dated September 20, 1923, entitled “Dams in New Jersey—Reference Data,” lists a business, “Thomas Cobb & Sons,” as the owner of the dam, and states that the dam was rebuilt in 1903 by the County and Calvin Dilks. Cobb testified that his business, Cobb's Mill, LLC, is the successor to Thomas Cobb & Sons.

Cobb also testified that he has looked after the dam on an almost daily basis, operating the flood gates to control the water level in the lake, inspecting for cracks and, on occasion, making minor repairs. He mows the grass on both sides of the road and the lake-side embankment of the dam. On occasion, Cobb plows snow from Cobb's Mill Road when the Township is too slow in responding.

In his deposition, Alloway Township public works director Kenneth McKelvey testified that the Township never maintained the dam. McKelvey believed that Cobb was responsible for opening and closing the dam's flood gates and “maintaining the land around the dam.” McKelvey conceded, however, that the Township maintained Cobb's Mill Road and routinely patched potholes and applied sealant to the roadway. The Township also received grant money from the State to repave the road, which it last did in 2009.

Since at least the early twentieth century, the County has maintained portions of the dam. In 1923, the County placed “new caps and abutment planks on the dam,” and then replaced the planks with steel pipes in 1932. In 1988, the Board of Chosen Freeholders passed a resolution remedying...