Birchwood Lakes Colony Club, Inc. v. Borough of Medford Lakes

No. A-125-78 (432 A.2d 525, 179 N.J. Super. 409) (N.J. Super. Ct. App. Div. May 28, 1981)

ELR Digest

The court reverses and remands for new trial an award of damages against a municipality for discharges of effluent from its sewage treatment plant. Discharges of phosphorus from the plant caused eutrophication of a lake owned by respondent. Initially, the court overturns an award of expert witness fees to respondent, holding that New Jersey's Environmental Rights Act, N.J. STAT. ANN. § 2A:35A-1 et seq., does not authorize the payment of witness fees in actions for money damages. Next, it overturns a damage award based on jury findings that appellant was negligent, first in failing to prevent excessive nutrient discharges from the plant and second, in failing to observe the conditions of its national pollutant discharge elimination system permit. The court concludes that the trial court erred in failing to submit to the jury the question of whether appellant's conduct constituted a nuisance. The doctrine of governmental immunity for discretionary functions does not relieve a municipality from liability for a nuisance created by the pollution of a stream through its operation of a sewage disposal plant. In conclusion, the court rules that the issue to be determined at trial is the unreasonableness of appellant's invasion of respondent's interest in the use and enjoyment of the lake, weighing the gravity of the harm to respondent against the social utility of appellant's conduct.

The full text of this opinion is available from ELR (8 pp. $1.50, ELR Order No. C-1268).

Counsel for Appellant
Edward A. Kondracki
Davis & Reberkenny
P.O. Box 5459, Cherry Hill NJ 08002
(609) 667-6000

Counsel for Respondent
Matthew R. McCrink
Greenway Shopping Ctr., West Berlin NJ 08091
(609) 768-0033

Seidman, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]