Argued September 14, 2016 Decided. Before Judges Fuentes, Simonelli and Gooden Brown.
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1 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. MICHAEL BARTOLF, ROBERT BARTOLF, CHARLOTTE BARTOLF, WILLIAM BARTOLF and LESLIE BARTOLF, v. Plaintiffs-Appellants, JACKSON TOWNSHIP BOARD OF EDUCATION, Defendant-Respondent. Argued September 14, 2016 Decided September 30, 2016 Before Judges Fuentes, Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L Peter H. Wegener argued the cause for appellants (Bathgate, Wegener & Wolf, P.C., attorneys; Mr. Wegener, of counsel and on the briefs; Pamela M. Snyder, on the briefs). Sebastian Ferrantell argued the cause for respondent (Montenegro, Thompson, Montenegro & Genz, attorneys; Mr. Ferrantell, of counsel and on the brief).
2 PER CURIAM In this inverse condemnation case, plaintiffs Michael Bartolf, 1 Robert Bartolf, Charlotte Bartolf, William Bartolf and Leslie Bartolf appeal from the December 12, 2014 Law Division order, which dismissed their complaint against defendant Jackson Township Board of Education with prejudice. For the following reasons, we remand for further proceedings. Plaintiffs own properties located on East Veterans Highway in the Township of Jackson across the street and upland from Jackson Liberty High School, which is owned by defendant. Plaintiffs' properties are traversed by a well-established watercourse which serves as a natural drainage for upland properties. As a result, plaintiffs' lower elevation properties had historically been subject to stormwater flowing from upland properties on its natural course to the river. According to plaintiffs, defendant changed the nature and extent of the natural flow of stormwater runoff coming from the high school property causing extensive and repeated flooding to, and erosion of, their properties. Plaintiffs claimed that this condition began in 2005, when defendant neared completion of development of the high school property, but conceded that 1 Plaintiff Michael Bartolf is deceased. The Dorothy Bartolf Trust is his successor-in-interest in this matter. 2
3 construction of a stormwater detention basin in 2010 by the County of Ocean on a portion of their properties helped reduce the amount of flooding on their properties. Plaintiffs maintained that defendant was utilizing a portion of their properties as part of the high school's stormwater drainage system without paying compensation for that use. They alleged that the increased stormwater runoff directed onto their properties by defendant constituted inverse condemnation, and the repeated flooding of their properties constituted a permanent physical invasion of the properties. Alternatively, they alleged there was a temporary taking of their properties. Following a bench trial, the trial judge found it was probable that for a two- or three-year period following completion of the high school and construction of the County's stormwater detention basin, the high school discharged a higher volume of stormwater onto plaintiffs' properties and caused more severe flooding of, and erosion to, the properties than before. However, the judge held there was no permanent occupation of plaintiffs' properties, as defendant neither constructed any facilities thereon nor regraded the properties to better facilitate the stormwater discharging onto their properties. The judge next held that the physical invasion of the properties by defendant's surface water did not constitute a 3
4 permanent physical invasion that would warrant a finding of inverse condemnation. The judge found that the increase in the volume of stormwater onto the properties following a storm was a reasonable use of plaintiffs' properties by an upland property owner. The judge noted that due to its location between the high school's higher elevation and the Toms River, the properties had historically been subject to stormwater flowing from the high school and other upland properties on its natural course to the river. The judge concluded that, while defendant was discharging a higher volume of stormwater onto plaintiffs' properties, this did not constitute an appropriation of the properties as part of the high school stormwater drainage system. The judge also noted that defendant complied with all applicable stormwater regulations in constructing the high school's stormwater drainage facility, and plaintiffs did not establish by any credible engineering evidence that the increase in the total volume was the primary cause of the flooding. The judge also found that plaintiffs' properties were subject to intermittent flooding prior to construction of the high school. Lastly, the judge found that the facts established that any appropriation of plaintiffs' properties by defendant was temporary in nature, and an inverse condemnation action could not be based upon a temporary physical invasion by the State. 4
5 On appeal, plaintiffs argue that the judge made certain erroneous factual findings, and that discharging of increased stormwater volume on the properties established a claim of either permanent physical invasion or occupation, or a temporary taking that rises to the level of an inverse condemnation. Lastly, plaintiffs argue that the judge applied the wrong standard to determine whether a taking occurred. For the first time on appeal, plaintiffs cite Arkansas Game & Fish Commission v. United States, U.S., 113 S. Ct. 511, 519, 184 L. Ed. 2d 417, 427 (2012) to support its argument that a temporary taking can be compensable. Our review of a trial court's fact-finding in a non-jury case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "'The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, (1998)). We "'should not disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Cesare, supra, 154 N.J. at ). However, we owe no deference 5
6 to a trial court's interpretation of the law, and review issues of law de novo. Sipko v. Koger, Inc., 214 N.J. 364, 379 (2013). Applying these standards, we discern no reason to disturb the judge's conclusion that there was no permanent occupation or permanent physical invasion of plaintiffs' properties. The record amply supports the judge's findings on these issues, and we affirm substantially for the reasons expressed in the judge's wellreasoned written opinion. However, in Arkansas Game & Fish Commission, supra, Justice Ginsburg wrote for a nearly unanimous Court, 2 that a "government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking." Id. 133 S. Ct. at 522, 184 L. Ed. 2d at Because the trial judge did not have the opportunity to consider the Court's holding to determine whether there was a temporary taking that rose to the level of an inverse condemnation, we remand for this limited purpose. Nevertheless, we cannot conclude without noting that the Supreme Court decided Arkansas Game & Fish Commission on December 4, 2012, more than two years before the trial judge delivered his ruling in this case. 2 Justice Kagan did not participate in the opinion. 6
7 Rudimentary legal research conducted by competent counsel should have brought this relevant and potentially dispositive precedent to the attention of the trial judge on a timely basis. Affirmed in part; remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction. 7
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