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LBS Sues New Jersey Department of Transportation for Stormwater Easement in Cedar Grove

Lieberman Blecher & Sinkevich is proud to represent Carolyn O’Connell in her lawsuit against the New Jersey Department of Transportation (NJDOT), for the damage caused to her property by a stormwater easement next to her house.

As reported in NJ.com, the lawsuit challenges the damage to Ms. O’Connell’s home in Cedar Grove from the stormwater that overflows onto her property from the easement, which was constructed in 1936. The easement carries municipal Cedar Grove stormwater underneath a state highway, Route 23, over Ms. O’Connell’s property. The NJDOT asked the Essex County Superior Court to dismiss the complaint, but the Court denied the NJDOT’s request.

The article in NJ.com by Larry Higgs can be found here. The text is below.

A crumbling stormwater drainage system is destroying this woman’s property, lawsuit says
Updated: Sep. 20, 2022, 8:02 a.m. | Published: Sep. 20, 2022, 8:00 a.m.
By Larry Higgs | NJ Advance Media for NJ.com

A river now runs through Carolyn O’Connell’s Cedar Grove property thanks to a stormwater drainage system meant to prevent flooding on nearby Route 23.

Her backyard is overgrown because holes she said were caused by fast-moving water during storms make it dangerous for her to mow, and she worries that the water is damaging her home’s foundation.

According to a lawsuit filed in state Superior Court in Newark by O’Connell’s attorney, Stuart Lieberman, an engineering firm hired by the state Department of Transportation confirmed there was damage to the foundation and erosion on the walls alongside the spillway.

“My son is five and has never once set foot in his backyard because it is not safe,” O’Connell said in an interview with NJ Advance Media. “There was a stone wall and grass. Now there is erosion and a big hole.”

O’Connell filed the lawsuit in March after 10 years going back and forth with the DOT in an attempt to have the spillway maintained and the damage fixed.

“What we want is for the state to fix it and take responsibility so she can go on with her life,” Lieberman said during a tour of the property with NJ Advance Media. “It’s a David versus Goliath situation and David’s going to win.”

The DOT doesn’t comment on pending litigation, DOT spokesperson Leanna Nelson told NJ Advance Media. The DOT’s most recent motion to dismiss the case was denied by a judge on Aug. 29.

The system was built alongside O’Connell’s house under an easement amended in 1936 that permitted the DOT to build a system to handle water draining from Route 23, according to the lawsuit.

In the suit, O’Connell contends the DOT hasn’t maintained the system, a condition of the easement. Rising water in the system has washed away sections of a stone wall and a wooden foot bridge O’Connell used to cross to mow grass on her property between the spillway and Route 23.

“In the time I’ve lived here, I’ve seen an exponential growth in the amount of water,” O’Connell said. “A footbridge washed away between 2019 and 2020.”

During a recent tour of the property with O’Connell and Lieberman, some of the cement slabs on the spillway were clearly broken and the stones and soil underneath washed away. O’Connell showed a video taken after a rainstorm showing water flowing like river rapids through the spillway.

At the end of the spillway is a small pond, several feet deep, created by running water that carried concrete, rocks and debris from the spillway and widened what was originally a small hole, creating the pond by altering the water’s path, O’Connell said. Beyond the pond are the ruins of the washed away wooden foot bridge and debris from the stone wall.

The concrete and rocks, O’Connell said, came from work the DOT did to replace and patch the cement spillway in 2011, O’Connell said, adding she contacted the DOT about the pond in 2012.

Both Cedar Grove and Essex County officials said the spillway wasn’t their responsibility, O’Connell said. An Essex County spokesman declined to comment about the lawsuit. Cedar Grove did not respond to a request for comment.

In 2019, after trying unsuccessfully to contact the DOT, O’Connell said she randomly dialed DOT phone numbers until a person picked up. The DOT sent an investigator in November 2019, followed by an engineer who confirmed the presence of the pond, according to the lawsuit.

After that, the DOT hired three engineering firms between 2019 and 2020, according to the lawsuit, and all recommended repairs, filling the pond with stone and possibly piping stormwater through the spillway past her house.

The state Department of Environmental Protection concurred that “corrective measures needed to be taken” and suggested installing a pipe to protect the property, according to the lawsuit. O’Connell said she was never told about the three engineering reports, learning about the reports by filing an open public records request this year.

What the DOT proposed is, according to the lawsuit, “a minor repair,” reinforcing the concrete lining of the first 10 feet of the culvert opening that wouldn’t address erosion directly adjacent to the house. It also didn’t include any of the recommendations contained in the three engineering reports.

O’Connell said she wants all the damage done to her property and her home’s foundation repaired.

“The state did a two-year investigation, came back and said it was my problem,” O’Connell said. “They gave me a $12,000 band aid to repair the damage. I lost it and called a lawyer.”

O’Connell said if she pays to have the spillway repaired, the DOT will have her assume the responsibility of maintaining it. Lieberman added, “But they said she can’t touch it.”

That drainage system is also relied on by Cedar Grove for flood control, Lieberman said. “This easement protects a good portion of Cedar Grove, but it’s wrecked my house,” O’Connell added.

https://www.nj.com/news/2022/09/a-crumbling-stormwater-drainage-system-is-destroying-this-womans-property-lawsuit-says.html

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