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Beck v. Walker, Previti, Holmes & Associates

A-0548-03T2 (N.J. Super. App. Div. 2004) (Unpublished)

MUNICIPALITIES; LIABILITY — By statute, a public entity and its employees have complete immunity for injuries resulting from dangerous conditions produced by a plan or design that has been officially approved by an authorized person or body.

A municipality undertook a massive reconstruction of its sanitary sewer and potable water systems. In this project, the municipality raised all of its streets to deal with a decades-old flooding problem. After the project was completed, local homeowners sued the municipality and its engineer, alleging negligence, nuisance, trespass, and inverse condemnation. The homeowners claimed that the work, as designed and constructed, specifically raising the street elevation, diverted water onto their properties, resulting in flooding. They also claimed that water from tidal flooding and rainfall could not drain from their properties because of the sanitary sewer and potable water systems project. The lower court granted the municipality’s motion for summary judgment, holding that the municipality and its engineer were entitled to “design and plan immunity” under N.J.S.A. 59:4-6(a) as well as to discretionary immunity pursuant to N.J.S.A. 59:2-3. It also dismissed the inverse condemnation claim.

On appeal, the homeowners argued that the municipality was not entitled to design and plan immunity because: (a) the plan and design did not consider the impact of water run-off onto the their properties; (b) the solution employed by the municipality – the depositing of additional fill to raise the grade of the owner’s property – violated the BOCA code; and (c) the municipality’s plans did not work as intended. The homeowners also claimed that the impairment of their properties was substantial and long-lasting, therefore constituting a “deprivation” for the purposes of inverse condemnation law.

The Tort Claims Act (Act) provides that a public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity. Here, the Appellate Division found that the municipality had faced decades of persistent tidal and storm flooding. Further, the municipality was charged with the maintenance of local roadways. All it was doing was to establish and apply a roadway design in order to fix a significant community problem. The Court held this to be an exercise of the municipality’s judgment or discretion to remedy the flooding problem while replacing deteriorated infrastructure. The municipality’s conscious choice to raise its streets was reflected in the minutes of public meetings and was evidenced by plans available for public review prior to the bonding of the project or placing the project out to bid. The municipality had consulted with its engineers and then made a fundamental policy choice to raise its streets to facilitate drainage. The Court concluded that this was the kind of high-level decision making that enjoyed immunity under the Act.

Furthermore, N.J.S.A. 59:4-6 grants public entities and employees complete immunity for injuries resulting from dangerous conditions produced by a plan or design of public property when such plan or design has been officially approved by an authorized person or body. Elevation of the roadways had been discussed in several public hearings and meetings years before construction took place. The plan was adopted by the municipality. According to the Court, no rational factfinder could conclude that when the municipality approved the bonding and bid specifications for the construction, anyone could have been unaware that the street levels were being raised to ameliorate flooding.

To establish design immunity under N.J.S.A. 59:4-6, it is necessary to show that the design feature was contained in the construction plan, those plans were approved by the public entity, and the construction was undertaken in accordance with the plans. In this case, the municipality’s decision to raise the street levels was an approved feature of the plan. Even though the homeowners considered this plan feature defective, the municipality, having consciously chosen the design feature, was immune from liability. The Court noted that it was irrelevant that the municipality failed to consider alternatives to raising the streets. The municipality was not required to explicitly consider and reject all conceivable options to earn immunity for the option chosen. Therefore, the Appellate Division affirmed the lower court’s decision, holding that the municipality and its engineer were entitled to design and plan immunity under N.J.S.A. 59:4-6(a) as well as discretionary immunity, pursuant to N.J.S.A. 59:2-3.

Inverse condemnation claims are initiated by a landowner whose property has been taken de facto. An owner is barred from any claim to a right of inverse condemnation unless deprived of all or substantially all economically beneficial use of its property. The Court held that these homeowners’ factual allegations amounted to ones of nuisance and not of inverse condemnation. The Court found that the flood waters did not result from the municipality or from the roadway. Instead they resulted from tidal events and storm flooding. The homeowners conceded that they experienced flooding problems before the streets were raised. More importantly, the Court found that no homeowner had demonstrated a deprivation of all, or substantially all, of the beneficial use of its property as a result of the project. All of the properties continued to be occupied, rented or mortgaged, or had been sold. A proper cause of action for inverse condemnation requires much more than mere damage to property, expenses or nuisance. For this reason, the Court affirmed the lower court’s rejection of the owners’ inverse condemnation claim.

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