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De la Cruz v. Conte

2005 WL 3416157 (N.J. Super. App. Div. 2005) (Unpublished)

LANDSLIDES—Where the facts are disputed and the parties have spent months negotiating a settlement over a landslide possibly caused by owners of higher elevation property, a court won’t grant interlocutory relief because of doubts as to the likelihood of success on the merits and the evident lack of imminent harm evidenced by the prior passage of time.

A property owner’s background was separated by a tall retaining wall from its rear yard neighbors. The wall was about 15 feet high and the neighbors’ properties were graded to be level with the top of the wall. In contrast, on the complaining property owner’s side of the wall, there was sloped land between the retaining wall and their backyard. Until the incident in question, it had “been covered with natural growth, including trees, bushes, grasses and other vegetation.” A time came when the sloped land gave way, “causing soil, stone and other debris to slide onto [the complaining property owner’s] property.” According to the complaining owner, “this landslide caused severe damage to and destruction of architectural, structural and decorative elements in [our] rear yard.” This gave rise to the issue as to whether the landowners at the top of the retaining wall caused the landslide and subsequent damage. According to the complaining property owner, the neighbors whose homes were at the top of the retaining wall “personally and/or through their agents, cut down and removed trees, bushes and other vegetation from the steeply sloped strip of land between the retaining wall” and the backyard. According to the complaining property owner, this “landscaping” was done without their prior knowledge or consent and continued despite their repeated objections. They further alleged that removal of the vegetation destroyed the root system that had stabilized the slope. According to this theory, by reason of this distabilization and heavy rains, “the sloped land at the rear of [the complaining property owner’s] property gave way” causing the damage. The neighbors had their own version. They claimed that it was well known within the neighborhood that the sloping property was not maintained and that it was infested with racoons and opossums. They argued that the complaining property owners were aware of the cleanup and even offered to contribute money for the work.

The complaining property owner’s first request was for a court order to require their neighbors “to immediately engage an appropriately experienced engineer or engineers to provide or report outlining what temporary measures are necessary to stabilize and secure the retaining wall ... against structural failure ... .” The second request was for the Court to require the neighbors to undertake whatever remedial measures were proposed.

The Court refused to grant the requested relief. It pointed out that “[a]n interlocutory injunction is an extraordinary equitable remedy utilized primarily to forbid and prevent an irreparable injury.” Such injunctions “must be administered with sound discretion and always upon considerations of justice, equity and morality in a given case.” The requesting party bears the burden of demonstrating: (1) irreparable harm is likely if the relief if denied; 2) the applicable underlying law is well-settled; (3) the material facts are not substantially disputed and there exists a reasonable probability of ultimate success on the merits; and (4) the balance of the hardship to the parties favors the issuance of the requested relief.” After hearing the testimony, the Court did not believe that the complaining property owners demonstrated irreparable harm. It pointed to the fact that they continued to live on the property for several months while attempting to settle the matter. “Clearly, if there was an imminent danger of life or limb [they] would not be taking such a risk.” It also noted that the municipality had taken no action. Further, the facts and circumstances regarding the removal of the trees and vegetation were in dispute. The complaining property owners claimed that the cleanup was done without their consent whereas the neighbors that the complaining property owners had offered to contribute to the cost of the cleanup. Also in dispute was the actual cause of the landslide. Whereas the complaining property owners claimed that the removal of the trees and vegetation “destroyed the root system of the land causing the landslide when the region experienced heavy rains, [the neighbors] claim[ed] the heavy rains were the predominant cause of the damage.”

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