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Ludlam v. County of Camden

A-3798-96T3 (N.J. Super. App. Div. 1999) (Unpublished)

CONDEMNATION; INVERSE CONDEMNATION; TRESPASS—Even though a municipality’s actions may not rise to a taking because they do not substantially destroy the beneficial use of a property, such actions may still constitute trespass and nuisance for which the municipality must answer in damages.

A developer purchased a parcel of property after receiving assurances that the land had been subdivided into four lots. Water problems prohibited the buyer from developing the lots. The property was generally lower than the surrounding property and water gathered and ponded in various areas. There was no question that ponding occurred when there was extensive rainfall. Two large storm water pipes emptied onto the property, as did the runoff from an adjacent road. The runoff entered along a stream easement in favor of the municipality. The municipality’s witnesses testified that although the developer had zoning approval, it had no grading or building permits, but the developer contended that the subdivision approval included approval of the grading required to install the improvements and to construct homes. The municipality would not issue a grading permit until the developer could produce evidence that it did not require a stream encroachment permit. The developer never produced such evidence nor did it ever apply for a permit. After trial, the lower court found that the property was a natural retention area for water. It also held that the municipality was responsible for maintenance of the stream easement which it did not adequately maintain. In addition, it held that even if the municipality were to have cleaned its easement, the flow of water during a continuous, heavy rain would pond on the developer’s property, unless the municipality restored part of its adjacent property to its original condition. If the water problem was permanent and caused by the municipality’s failure to maintain its easement or by its failure to restore its adjacent property, the lower court would have concluded that the municipality substantially contributed to the destruction of the beneficial use of the developer’s property. However, “the conditions presented are intermittent and in fact happen[s] only when there is a severe storm or heavy continuous rain.” Accordingly, the lower court concluded that the intermittent flooding did not constitute a taking that would require the municipality to respond in damages.

The developer pursued its inverse condemnation claim before the Appellate Division. Inverse condemnation is a remedy to protect a landowner whose property has been taken de facto by making sure that the landowner is paid reasonable compensation. Unfortunately for the developer, upon review of the record, the Court found substantial credible evidence that the developer’s property was the natural drainage basin for the surrounding property and that no action by the municipality altered this pattern or substantially destroyed the beneficial use of the developer’s property. Moreover, the Court upheld the lower court’s finding that the inundation of the property by storm water runoff was intermittent and temporary. Therefore, it did not meet the required standard of substantial destruction of the beneficial use of the property. The lower court also dismissed the developer’s claims of nuisance, trespass, regulatory taking, and violation of 42 U.S.C. 1983 (violation of civil rights) as facets of the inverse condemnation claim. The Appellate Division, however, addressed these as separate wrongs. To support its private nuisance claim, the developer alleged that the municipality had: (1) installed drainage pipes which allowed the storm water to discharge on its property without permission; (2) authorized the construction of other residential subdivisions which generated runoff onto its property; and (3) allowed sheet runoff from two other subdivisions onto the property. The essence of a private nuisance is an unreasonable interference with the use and enjoyment of land. The conduct necessary to make the actor liable for a private nuisance may consist of an act or a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate an interference with the use of another’s property. Flooding of land may constitute a trespass, but also constitutes a nuisance if it is repeated or of long duration, and a public entity may be liable for public nuisance. The Court, however, did not find anything in the record to support the lower court’s grant of summary judgment in favor of the municipality and remanded the matter to the lower court for factual determination as to whether nuisance existed. The developer also claimed that water emanating from the two storm water runoff pipes and the water escaping from the stream easement constituted a continuing trespass. An action for trespass arises from the unauthorized entry onto another’s property which entitles the property owner to damages for loss of value of the land. While a municipality may be immune for its exercise of discretion and judgment in developing sewer and drainage systems, that immunity does not protect it from liability for trespass or the creation of a nuisance. Again, the lower court’s record was insufficient to support its holding of summary judgment in favor of the municipality.

The Court, however, agreed that the lower court properly dismissed the developer’s regulatory taking case because the developer, in fact, never demonstrated that a stream encroachment permit was unnecessary nor did it obtain such a permit. Having failed to demonstrate that it had taken all remedial measures or that such measures would have been fruitless, the developer could not complain that the municipality would not issue building permits. Lastly, to prove a section 1983 claim, the developer was required to show that the municipality acted under color of state law and that such act deprived the developer of a statutory or constitutional right. Its assertions that the deposit of water from the drainage pipes and the failure of the municipality to maintain the stream easement caused it injury did not rise to that level, because liability may only attach to a governmental entity where a plaintiff proves that some governmental policy or custom caused its injury. In the absence of anything beyond the developer’s own experience, the Court concluded that the municipality was entitled to summary judgment on the section 1983 count as a matter of law.


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