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Sarmanoukian v. Chemtek at Alpine, LLC

2005 WL 3005777 (N.J. Super. Ch. Div. 2005) (Unpublished)

TRESPASS; ENCROACHMENT—No preliminary injunctive relief will be granted to halt construction on a neighboring property if the threatened harm, such as trespass or vibration damage, can be compensated by the payment of money or where the material facts are in dispute.

A husband and wife owned a two-family house. Both units of the house were occupied by residential tenants. A real estate developer owned land adjacent to the couple’s property. It sought to build a mixed use complex consisting of a four story structure with a underground parking garage. The developer obtained variances and all necessary approvals. Prior to commencing construction, the developer hired an engineering company to monitor vibration activity to ensure that the couple’s property would not be damaged by the construction. After conducting several tests, the engineering company opined that the couple’s property would not be harmed by the work being performed on the developer’s land and the construction began. The builders inserted steel sheet piles into the ground around the perimeter of the property. The land within the perimeter was then excavated to create a two story drop in the ground. The couple believed that this activity was causing significant damage to their property and demanded that the developer stop construction. The developer refused, and the couple filed an order to show cause, requesting temporary restraints against the developer. They asserted that the developer’s construction workers were trespassing on their property. They also asserted that the developer’s proposed structure was going to encroach on their property. Lastly, the couple contended that the developer’s construction activities were causing significant damage to their property. They requested that the Court order the developer to immediately cease all construction, trespassing, and encroachment. They also requested that the Court direct the developer pay to restore their property back to its original condition prior to the construction.

The Court denied the couple’s request for injunctive relief. It discussed the burden that a party must meet in order to be granted injunctive relief. In such cases, a moving party must establish the following: 1) irreparable harm is likely if the relief is denied; 2) the applicable underlying law is well settled; 3) the material facts of the case are not substantially disputed and there exists a reasonable probability of ultimate success on the merits; and 4) the balance of hardship to the parties favors the issuance of the requested relief. In this case, the Court found that the couple failed to meet factors one and three. As to factor one, the Court ruled that the couple did not establish that the current and potential damage to their property was irreparable. It found that the couple’s request that the developer restore its property to its original condition indicated that the harm caused by the developer’s construction was not irreparable. With regard to factor three, the Court held that couple failed to demonstrate a probability of success on the merits because the material facts of the case were in dispute. It also rejected the couple’s encroachment claim, holding that the couple could not prove that the developer’s proposed structure encroached on their property because the structure had not been built.

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