Township of South Brunswick v. O’Neill

A-4593-97T1 (N.J. Super. App. Div. 1999) (Unpublished)
  • Opinion Date: July 9, 1999

ZONING; COSTS—A developer is responsible for a municipality’s reasonable engineering costs necessary to monitor the developer’s compliance with the approval conditions.

A property owner applied to the municipal planning board for approval of its development. Eventually, the planning board granted preliminary and final major subdivision approvals. In compliance with the approval resolution, the property owner executed an agreement with the municipality which required it to construct a pumping station to service the development. During construction of the station, damage was caused to an adjacent home by the collapse or threatened collapse of its foundation. This was caused by the reduction of groundwater, which also adversely impacted surrounding water wells. The Department of Environmental Protection (DEP) concluded that the damage had resulted from diversion by the property owner of water from the property. The municipality was forced to hire a specialized consulting engineering firm to monitor the property owner’s activities to ensure that remedial action was taken. The engineering firm submitted bills for its charges which the municipality paid from escrow monies that the property owner had deposited in accordance with a municipal ordinance. These funds were not sufficient to pay the engineering fee and the municipality demanded that the balance be remitted by the property owner. When the payment was not received, the municipality filed suit seeking reimbursement of the engineering fees. The Court granted summary judgment in favor of the municipality. In its appeal of the summary judgment, among other arguments, the property owner claimed that the DEP report did not conclusively establish that the property owner had caused the damage. The municipality argued that it had the right to engage the engineer and that the DEP’s finding that the property owner engaged in excessive water diversion and its consultant’s report clearly supported the lower court’s conclusion that the property owner was liable for the engineering fees. The Appellate Division held that the municipality, by duly enacted resolution, hired its consultant to perform engineering services for the benefit of the public after problems arose in the development. It refused to second guess the decision that the services were necessary for the benefit of the public. The property owner raised one other argument before the Appellate Division. It contended that the lower court should not have entered judgment against him individually. The Appellate Division noted that although the individual pleaded that his limited liability company owned the property, he failed to raise the issue before the motion judge. The Court found it well settled that appellate courts “will decline to consider questions or issues not properly presented to the trial court when and [sic] opportunity for such a presentation is available ‛unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.’” No matter of great public interest was involved and the individual was technically precluded from arguing it on appeal. In any event, the site plan approvals and the developer’s agreement were in the name of the individual alone. Consequently, the individual was personally responsible for the engineering fees.