New Jersey Department of Environmental Protection v. Alloway Township and County of Salem and William R. Cobb
105 A.3d 1145
N.J. Super. Ct. App. Div.2015Background
- DEP sued William R. Cobb, Salem County, and Alloway Township under New Jersey's Safe Dam Act (SDA) for deficiencies at Cobb's Mill Dam, an earthen dam forming Cobb's Mill Lake traversed by Cobb's Mill Road.
- Cobb owns the land beneath the dam and surrounding lake, has historically operated the spillway, performed minor repairs, and admitted ownership of the dam and reservoir.
- The Township maintained the roadway across the dam (patching, repaving, snow removal) but its public-works director said it never maintained the dam structure itself.
- The County performed dam-related work over decades (repairs in 1923 and 1932, installation of a culvert/sluice and other improvements) and asserted historical title disputes over the right-of-way.
- Chancery Judge McDonnell granted DEP summary judgment against all three defendants, apportioned remedial costs and imposed civil penalties; defendants appealed and DEP sought affirmance.
Issues
| Issue | Plaintiff's Argument (DEP) | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cobb (land/reservoir owner) is liable under the SDA | Owner of lake bed and long-time operator of spillway is subject to SDA enforcement | Cobb: mere owner of lake bed without control of dam structure or road; County controls roadway | Court: Cobb is an owner of the reservoir and exercised control (operating spillway); liable under SDA |
| Whether Township is liable for SDA violations by maintaining roadway across dam | Routine road maintenance of an appurtenant work brings Township within "person having control" | Township: it never maintained, managed, operated or controlled the dam structure itself | Court: road is appurtenant to dam; Township exercised control over an appurtenant structure and is liable |
| Whether County is liable given historical work and asserted right-of-way | County assisted in reconstruction, installed culvert/sluice and performed improvements—thus a person in control | County: factual disputes (title/right-of-way) preclude summary judgment; it cannot be primarily liable because of title uncertainties | Court: independent acts (repairs, culvert installation) show sufficient control; liable as a person in control; title dispute immaterial |
| Proper construction of "owner or person having control" in SDA (scope of liability) | SDA permits enforcement against owners and controllers; liability may be apportioned among multiple parties | Cobb relied on Mercer County decision to argue ownership alone insufficient without control | Court: rejects Mercer County's narrower reading; "owner" and "person having control" are distinct/disjunctive categories; SDA intended broad remedial reach and multiple-party enforcement; Mercer County overruled insofar as inconsistent |
Key Cases Cited
- Mercer County Soil Conservation Dist. v. New Jersey Dep't of Envtl. Prot., 425 N.J. Super. 208 (Ch. Div. 2009) (Chancery Division decision construing "owner or person having control" narrowly; court here overruled that aspect)
- Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007) (disjunctive "or" may be construed conjunctively when consistent with legislative intent)
- W.J.A. v. D.A., 210 N.J. 229 (2012) (standard of appellate review for summary judgment)
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995) (summary judgment: view evidential materials in light most favorable to nonmoving party)