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ARBORETUM PARKWAY RESIDENTS TAKE LAKEWOOD TOWNSHIP TO COURT OVER REPEATED FLOODING, ALLEGING NEGLIGENT STORMWATER MANAGEMENT HAS CAUSED ENVIRONMENTAL DAMAGE AND PROPERTY DESTRUCTION




The Township of Lakewood is facing legal action after being slammed with a lawsuit filed by local residents who allege that the Township's failure to maintain their stormwater system violates the New Jersey Environmental Rights Act and has caused significant damage to their properties, FAA News has learned.


The plaintiffs are Moshe and Shoshana Drew, and Baruch and Eva Waisbrod, adjoining neighbors residing on Arboretum Parkway.


According to their complaint filed in New Jersey Superior Court in Ocean County by Princeton attorneys Stuart J. Lieberman and Brittany W. DeBord, Esq.:


Arboretum Parkway is served by a stormwater conveyance system owned, operated and maintained by the Township. Arboretum Parkway is a regional low point for the surrounding areas and therefore, the stormwater conveyance system collects stormwater from the natural topography as well as upgradient stormwater conveyance systems. The Arboretum Parkway stormwater conveyance system ultimately leads to the Metedeconk River Outfall. 


On August 5, 2022, a rain event occurred during which time the respective properties were flooded with stormwater, resulting in significant damage.


Subsequently, Township officials hired Colliers Engineering & Design (“Colliers”) to investigate the cause of the flooding.


On January 17, 2023, Colliers issued a report concluding that the conveyance system serving Arboretum Parkway is significantly undersized such that it is overwhelmed during even small storm events. 


The report also concluded that the outfall pipe between County Line Road and the Metedeconk River outfall is undersized and therefore causes surcharge, leading to flooding. The report further concluded that the flooding observed on Arboretum Parkway is directly attributable to the Arboretum Parkway conveyance system’s lack of capacity. 


Colliers recommended the following to address the flooding:

a. Implementation of regular maintenance to include leaf removal and annual jetting. 

b. Implementation and enforcement of an ordinance prohibiting disposal of trash, debris, detritus, leaves, etc., in the roadway. 

c. Increase capacity of the conveyance pipes on Arboretum Parkway from Georgian Terrace to the Metedeconk River Outfall. 

d. Provide additional pipes and inlets to improve surface collection along Arboretum Parkway.


Despite the Township being on notice of the dangerous condition associated with the Arboretum Parkway conveyance system and despite having sufficient time to correct it, they simply failed to do so. Specifically, the Township has failed to maintain the Arboretum Parkway conveyance system, particularly with regard to keeping the system free and clear of debris and sediment that blocks the system and contributes to flooding.


Inadequate and poorly maintained drainage features cause flooding of residential properties, creating a dangerous condition. In this case, the inadequate and poorly maintained Arboretum Parkway conveyance system caused residential flooding on the Plaintiffs’ properties and therefore a dangerous condition.


The 5-count complaint contends the following:


Count I - Negligence


Lakewood has a duty to protect its residents from dangerous conditions caused by inadequate municipal stormwater systems. Lakewood breached this duty by failing to timely correct the inadequate Arboretum Parkway stormwater conveyance system.


Lakewood has a duty of care to maintain, repair, and keep in good condition, municipal stormwater systems. Lakewood breached this duty by failing to maintain, repair, or keep in good condition the Arboretum Parkway stormwater conveyance system and connected systems.


These breaches were the direct cause of flooding on Plaintiffs’ properties. As a result of the breach of duty by Lakewood, Plaintiffs have incurred damages, including but not limited to property damage.


Count II - Trespass


Lakewood has without permission, intentionally and unreasonably entered upon and unreasonably interfered with Plaintiffs’ use and enjoyment of their properties by causing flooding to Plaintiffs’ properties. As a result of the conditions described herein that were created by the intentional acts of Lakewood, Plaintiffs have incurred damages, including but not limited to property damage.


Count III - Private Nuisance


Lakewood has intentionally and unreasonably caused flooding to Plaintiffs’ properties. Lakewood has acted in a manner that is negligent and/or reckless and has substantially and unreasonably interfered with Plaintiffs’ use and enjoyment of their property.


Lakewood has failed to carry out its duty to take positive action to prevent and/or abate flooding to Plaintiffs’ properties.


As a result of Lakewood’s acts and omissions, Plaintiffs have incurred damages, including but not limited to property damage.


Count IV - New Jersey Environmental Rights Act


Pursuant to the Environmental Rights Act (“ERA”), any person may commence a civil action for declaratory and equitable relief against any other person for the protection of the environment, or the interest of the public therein, from pollution, impairment or destruction. The Act provides that a court may award the prevailing party reasonable counsel and expert witness fees in an action brought against a local agency. 


Lakewood has failed to timely correct the inadequate Arboretum Parkway stormwater conveyance system. Lakewood has failed to properly maintain and operate the Arboretum Parkway stormwater conveyance system and connected conveyance systems. Flooding caused by Lakewood’s failure to correct and maintain the Arboretum Parkway stormwater conveyance system constitutes impairment and destruction to the environment that will continue until these issues are corrected.


Lakewood has failed to meet its obligation not to cause pollution, impairment or destruction of the environment. Accordingly, Plaintiff is empowered to seek relief pursuant to the ERA for declaratory and equitable relief against Lakewood for the protection of the environment from pollution, impairment or destruction, as well as attorneys’ fees and costs.


The complaint also names as a defendant Scibal Associates, Inc. d/b/a Qual-Lynx, which serves as the Township's insurance adjuster.


Pursuant to the New Jersey Tort Claims Act, plaintiffs of certain claims against governing bodies are required to serve notice of their claims 6 months prior to commencing suit.


In accordance with the Act, the Plaintiffs did serve notice upon the Township. On June 8, 2023, Scibal responded to Plaintiff denying their claim, erroneously characterizing the claim as a “claim for sewer backup.” On September 5, 2023, Plaintiffs sent a follow up demand letter to Lakewood. On September 7, 2023, Scibal responded by citing the general immunities afforded to municipalities under the Tort Claims Act. On September 28, 2023, Plaintiffs responded with a letter explaining why the Tort Claims Act immunities are inapplicable based on documents obtained via the Open Public Records Act (“OPRA”) and legal analysis. On November 15, 2023, Scibal summarily denied Plaintiffs claim without consideration or analysis of the contents of Plaintiffs’ September 28, 2023 letter.


Count V of the complaint alleges bad faith as to Scibal:


Scibal is an independent servicing contractor that handles tort claims submitted to Lakewood. As an independent servicing contractor acting on Lakewood’s behalf, Scibal had a duty to Plaintiffs to adequately review the specifics of their claim and provide a reasoned response. Accordingly, Plaintiffs had a reasonable expectation that Scibal would adequately review the specifics of their claim and provide a reasoned response.


Scibal’s denials contained form language and failed to address Plaintiffs’ claims with specificity. Scibal denied Plaintiffs’ claim without a reasonable basis, with knowledge and/or reckless disregard for the merits of the claim and proofs submitted by Plaintiffs. Scibal independently and tortiously interfered with and obstructed Plaintiffs’ right to obtain legal relief and damages from Lakewood. Consequently, Scibal is liable for its bad faith review and denial of Plaintiffs’ claims against Lakewood.


As a result of Scibal’s bad faith actions, Plaintiffs have suffered economic disadvantage including but not limited to incurring attorneys’ fees, remediation expenses and loss of use and enjoyment of their properties.


Scibal, through its “Qual-Lynx” website, advertises as a third-party administrator that “aggressively” mitigates their clients’ losses and therefore, Scibal has economic motive for summarily denying claims. Upon information and belief, Scibal received economic gain by mitigating Lakewood’s losses through improper means including summary denial of Plaintiffs’ claims.


The lawsuit demands judgment declaring that the Township impaired the environment pursuant to the ERA; for permanent injunctive relief compelling the Township to abate the impairment by remediating the Arboretum Parkway stormwater conveyance system; for an award of compensatory and consequential damages, together with lawful interest; for payment of attorneys’ fees and costs, including the cost of experts; and for an award of all such other relief as the Court may deem just and equitable.


The suit also demands judgment against Scibal for an award of compensatory and consequential damages, together with lawful interest; for an award of attorneys’ fees and costs of suit; for an award of punitive damages; and for an award of all such other relief as the Court may deem just and equitable.


The Township and Scibal have 35 days to answer the allegations.


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