MICHAEL BARTOLF VS. JACKSON TOWNSHIP BOARD OF EDUCATION (L-1767-11, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 binding only 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. A-4153-16T4
MICHAEL BARTOLF, ROBERT &
CHARLOTTE BARTOLF, and
WILLIAM & LESLIE BARTOLF,
Plaintiffs-Respondents,
v.
JACKSON TOWNSHIP BOARD OF
EDUCATION,
Defendant-Appellant.
_______________________________
Argued October 11, 2018 – Decided October 25, 2018
Before Judges Simonelli, Whipple and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-1767-11.
Sebastian Ferrantell argued the cause for appellant
(Montenegro, Thompson, Montenegro & Genz, PC,
attorneys; Sebastian Ferrantell, of counsel and on the
briefs).
Peter H. Wegener argued the cause for respondents
(Bathgate, Wegener & Wolf, PC, attorneys; Peter H.
Wegener, of counsel and on the brief; Pamela M.
Snyder, on the brief).
PER CURIAM
This inverse condemnation case is back before us following a remand
ordered in Bartolf v. Jackson Township Board of Education, No. A-2417-14
(App. Div. Sept. 30, 2016) (slip op. at. 6-7). Defendant Jackson Township
Board of Education appeals from the May 22, 2017 final judgment of inverse
condemnation and order appointing commissioners entered in favor of plaintiffs
Michael Bartolf,1 Robert Bartolf, Charlotte Bartolf, William Bartolf and Leslie
Bartolf. We affirm.
I.
Plaintiffs own three contiguous properties that front on East Veterans
Highway in the Township of Jackson across the street from Jackson Liberty
High School (the high school), which is owned by defendant. Plaintiffs'
properties are traversed by a regulated, unnamed watercourse that flows
southwesterly from East Veterans Highway between that roadway and the
residential dwelling owned by the Dorothy E. Bartolf Trust and behind the
homes owned by the other plaintiffs. This watercourse serves as a natural
1
Michael Bartolf is deceased. The Dorothy E. Bartolf Trust is his successor-
in-interest in this matter.
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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 towards its drainage point, the Toms River, some distance
away.
The high school is located across the street from plaintiffs' properties and
upland in the watercourse. According to plaintiffs, defendant changed the nature
and extent of the natural flow of stormwater run-off coming from the high school
property causing extensive and repeated flooding to, and erosion of, their
properties. Plaintiffs claimed this condition began in 2005, when defendant
neared completion of development of the high school property. Plaintiffs
conceded the construction of a stormwater detention basin by the County of
Ocean in 2010 on a portion of their properties helped reduce the severity of the
flooding.
Plaintiffs filed a verified complaint, alleging that defendant's actions in
directing stormwater runoff to their properties constituted a permanent and/or
temporary governmental taking sufficient to give constitute inverse
condemnation. Following a bench trial, the judge issued a written opinion,
finding there was no permanent occupation or permanent physical invasions of
plaintiffs' properties.
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As to whether there was a temporary taking, the judge noted that "recent
photographs" depicted "flowing and standing water on the properties, substantial
erosion of certain areas and inundated vegetation on the site which [plaintiffs
credibly] testified occurred between the commencement of the development of
the high school property [and] construction of the [detention basin by the
County]." The judge found, based on William Bartolf's credible testimony, that
"although there would be some standing water on the family properties for
perhaps twenty-four (24) hours after a major storm occurred, following
development of the high school property, the stormwater run-off increased
dramatically." The judge further noted that expert testimony established "an
increase in the volume of stormwater flows unto [plaintiffs'] properties
following a storm." The judge thus found it "probable" that for a period
"following completion of the high school and [before] the construction of the
[detention] basin, . . . [defendant's] action resulted in more severe flooding of,
and erosion to, the plaintiffs' property."
However, the judge found plaintiffs did not definitively demonstrate that
defendant caused the flooding. The judge determined the "increase [in
stormwater run-off was] likely caused, as established by the uncontroverted
testimony of [defendant's expert], by construction of the elevated driveway by
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the [plaintiffs] which impedes the natural flow of water through their property."
The judge further found defendant complied with applicable New Jersey
Department of Environmental Protection (NJDEP) regulations, which do not
regulate volume, and "plaintiffs [did not establish] by any credible engineering
evidence that the increase in the total volume was the primary cause of the
flooding."
Ultimately, the judge held that "[t]he facts presented in this case establish
that any appropriation of the plaintiffs' land by [defendant] was temporary in
nature," and "an inverse condemnation action cannot be based upon a temporary
physical invasion by the State." Thus, the judge dismissed plaintiffs' complaint
for failing to establish a valid claim for inverse condemnation.
Plaintiffs appealed.2 For the first time on appeal, plaintiffs cited Arkansas
Game & Fish Commission v. United States, 568 U.S. 23 (2012) to argue the
judge applied the wrong standard to determine whether a temporary taking
occurred and a temporary taking is compensable. Bartolf, slip op. at 5. We
noted that:
in Arkansas Game[] . . . Justice Ginsburg wrote for a
nearly unanimous Court, that a "government-induced
2
After plaintiffs appealed, the judge issued an amplified opinion pursuant to
Rule 2:5-1(b), in which he substantially reiterated his prior findings.
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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. at 6 (footnote omitted) (quoting Arkansas Game,
568 U.S. at 38).]
Accordingly, we remanded for the judge to reconsider his ruling in light of
Arkansas Game "to determine whether there was a temporary taking that rose to
the level of an inverse condemnation." Id. at 6.3
In Arkansas Game, the Court established a four-part test for determining
whether a temporary taking from government-induced flooding occurred: (1) the
length of time of the alleged taking, (2) the degree to which the invasion is
intended or is a foreseeable result of authorized government action, (3) the
character of the land and the owner's expectations regarding the land's use, and
(4) the severity of the government's interference with the land. 568 U.S. at 38-
39.
On remand, as to the first factor, the judge found "the facts adduced at
trial clearly established that for the two-to-three year period the [p]laintiffs'
3
We affirmed the judge's ruling that there was no permanent occupation or
permanent physical invasion of plaintiffs' properties. Id. at 5.
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lands were regularly flooded and the cause of this flooding was due to the
construction of the [defendant's] new high school." Further, the judge "agree[d]
with the plaintiffs' contention that the period of time of the physical invasion
supports a finding of inverse condemnation."
As to the second factor, the judge found that "the defendant's basin as
originally designed unreasonably impacted the plaintiffs' property and it was
only after the [C]ounty stormwater facility was constructed that the flooding
abated."
As to the third factor, the judge made more detailed factual findings.
Specifically, the judge found that:
[p]laintiffs used to plant corn, hay, and other crops in
various locations throughout the land but were unable
to continue doing so because the soil was so
waterlogged it could not support the roots. The judge
also found that where the [p]laintiffs' young children
and grandchildren would be able to play within the
backyards, they could not because of the degree of
flooding and muddy conditions during the time in
question. Plaintiffs used to cross the properties and go
house-to-house simply by walking through the
backyards but could not do so with the standing water
and moving waters.
The judge concluded, "[b]ased on the uncontested testimony of [p]laintiffs . . .
the characteristics of [p]laintiffs' land were substantially affected during this
period of time."
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As to the fourth factor, the judge again made more detailed factual
findings:
Plaintiffs testified during the times of flooding their
properties were under about four (4) feet of standing
water, even days after a storm passed. This amount of
water blocked access to particular areas of the
properties; deprived [p]laintiffs of ingress and egress to
the backyards and back doors of the homes; and
necessitated the building of a small footbridge for
[p]laintiffs to use to get over the most affected areas of
the property. Plaintiffs acknowledged in years past
stormwater could stand on their properties, but
[p]laintiffs clarified the water would percolate into the
ground within a day or two, at most. In years past,
before the construction, the stormwater would remain
still before it seeped into the ground, but [p]laintiffs
testified the water coursed through the backyards in
widths up to 15 feet and carved out a 3-feet by 2-feet
ditch.
The continual presence of water saturated the soil
and caused the soil to lose its integrity. Plaintiffs
pointed to downed trees in their backyards—at least
three trees total with a 25" circumference. Plaintiffs
were unable to plant flowers or use their garden beds
since the severity of the flooding increased during and
after the construction of the high school. Plaintiffs'
engineering expert . . . quantified these changes by
calculating [that] the stormwater on [p]laintiffs'
properties increased by 40% since the high school
construction.
The judge thus found "[t]he evidence . . . supports a finding that the use of
[p]laintiffs' lands were substantially affected during this period . . . ."
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Having determined that each of the four Arkansas Game factors were met,
the judge concluded "there was a temporary taking of the plaintiffs' land" by
defendant. The judge entered a final judgment of inverse condemnation and
order appointing commissioners in favor of plaintiffs. This appeal followed.
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, 412 (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. However, we owe no deference to a trial court's
interpretation of the law, and review issues of law de novo. State v. Parker, 212
N.J. 269, 278 (2012). "[F]or mixed questions of law and fact, we give deference
under Rova Farms [Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-
84 (1974)] to the supported findings of the trial court, but review de novo the
lower court's application of any legal rules to such factual findings." State v.
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Harris, 181 N.J. 391, 416 (2004). Applying the above standards, we discern no
reason to disturb the judge's ruling.
II.
Defendant contends the judge erred by completely reversing his prior
findings regarding causation and compliance with NJDEP regulations.4
Regarding causation, defendant challenges the judge's finding on remand that,
"the facts adduced at trial clearly established that for the two-to-three-year
period the [p]laintiffs' lands were regularly flooded and the cause of this
flooding was due to the construction of [defendant's] new high school."
Defendant argues that this finding is inconsistent with the following passage
from the judge's trial opinions:
[T]he court finds that the plaintiffs' properties were
subject to intermittent flooding prior to the construction
of the high school facility. The 2002 photographs
reveal that the ponding had occurred in approximately
4
Defendant also contends the remand was impermissible, as we should not have
permitted plaintiffs to present Arkansas Game. We conclude this contention is
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). If defendant disagreed with our opinion, it should have moved for
reconsideration or filed a petition for certification with our Supreme Court. In
any event, there is nothing precluding this court from considering authority not
cited by the parties. See e.g. Regency Savings Bank, F.S.B. v. Morristown
Mews, L.P., 363 N.J. Super. 363, 370 (App. Div. 2003); State v. Dickerson, 268
N.J. Super. 33, 37 (App. Div. 1993); Caldwell v. Kline, 232 N.J. Super. 406,
412 (App. Div. 1989).
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the same location as it does now. Although the extent
of this ponding is less than that which occurred prior to
construction of the county drainage facility, it appears
it is more extensive than it was prior to the construction
of the high school. However, that increase is likely
caused, as established by the uncontroverted testimony
of [defendant's expert] Mr. Edwards, by construction of
the elevated driveway by [plaintiffs] which impedes the
natural flow of water through their property.
Defendant thus concludes it did not cause flooding, because there was
intermittent flooding prior to construction of the high school, and, as the judge
initially found, the cause of the increased flooding was plaintiffs' construction
of an elevated driveway.
Defendant's "cause versus increase" contention is a semantics argument
readily rejected by the judge at oral argument on remand, as evidenced by the
following colloquy:
[DEFENDANT'S COUNSEL]: But as [plaintiffs']
[c]ounsel indicated . . . their pleadings indicate the
flooding was caused by the [high] school.
THE COURT: No, no, it's a downstream property. It
will flood from time-to-time. There's no question about
it. The question is whether your client caused any, even
on a temporary basis until that detention basin was
built, whether there was, you know, whether you've
done anything to cause [plaintiffs'] family injury and
should, therefore, compensate them for that, for that
period of time, and that's what we're here for.
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Like the judge, we reject defendant's argument. First, any preexisting soil
wetness on plaintiffs' properties following heavy rain, which would dissipate
within twenty-four to forty-eight hours, was arguably not flooding at all,
whereas, following construction of the high school, the properties were
continuously saturated for months on end, and water was, in places, four-feet
deep. Plaintiffs also testified that areas of the properties that had never
previously flooded did so following construction of the high school.
Second, plaintiffs alleged in their complaint that "[a]s a result of the
[d]efendant's drainage system, which includes the detention/retention basin,
water and mud coursed through and onto [p]laintiffs' properties, causing
flooding and other problems on repeated occasions." Flooding was, thus, but
one "problem" plaintiffs contended resulted from the water and mud coursing
through and onto their properties. If this coursing water and mud uprooted trees,
eroded the soil, prevented the growing of crops, and prevented ingress and
egress, among other associated problems, as the record confirms, it was a taking
regardless of whether flooding was caused or increased. We note that in
Arkansas Game, the plaintiff's land was also historically subject to flooding.
568 U.S. at 39. However, because the historical flooding was not comparable
in terms of the severity or damage caused, the Federal Circuit on remand
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nevertheless upheld the trial court's finding of "causation." Arkansas Game &
Fish Com'n v. United States, 736 F.3d 1364, 1372-73 (Fed. Cir. 2013).
Regarding the impact of the elevated driveway, the judge's initial reliance
thereon as the true cause of the flooding was erroneous. As plaintiffs' counsel
stated at oral argument on the remand, the elevated driveway is a "red herring,"
"the elevated driveway was not constructed until the County basin was
constructed."
The issue is obfuscated by the presence of two driveways bisecting the
properties. The first driveway had appropriately sized pipes underneath to allow
for the passage of water and was never at issue. Conversely, defendant's expert
blamed the flooding entirely on the second driveway, which he said acted like
"a dam on a regulated watercourse," as the driveway was elevated and the pipes
underneath were inadequately small. Defendant's expert did not visit the site
until October 17, 2012, more than six years after construction of the high school
commenced and approximately two years after the County constructed the
detention basin and the driveway was elevated. The expert reviewed the
County's site plans, but stated the plans "[we]re noticeably absent of any
information much downstream of [the] first driveway." Ultimately, the expert
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admitted he "ha[d] no record as to who put that pipe in, those pipes [underneath
the elevated driveway]," or who elevated the driveway.
However, the record shows that the County, not plaintiffs, elevated the
second driveway in 2010, when the County constructed the detention basin.
Prior thereto, the second driveway was approximately four feet lower and was
"flat" and "level." Though discussion of the two driveways was convoluted at
trial (and at times difficult to decipher in the transcripts), William Bartolf's
testimony confirmed that the problematic second driveway was not elevated
until 2010, and plaintiffs did not elevate it.
Thus, the judge was incorrect to find that plaintiffs elevated the driveway,
and thus caused the flooding. The absence of such finding in the remand
opinion, is thus, not reversible error, as it was a correction of a finding
manifestly unsupported by and inconsistent with the facts adduced at trial. To
the (unlikely) extent that the elevated driveway was the cause of the flooding
and associated problems on the properties, and the County elevated the
driveway, defendant should have addressed this by way of a third-party claim
against the County.
Defendant also argues its actions could not be deemed unreasonable where
the judge previously found it complied with NJDEP regulations and plaintiffs
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failed to establish causation with engineering evidence. Specifically, defendant
asks us to contrast the judge's finding on remand that "the [d]efendant's basin as
originally designed unreasonably impacted the [p]laintiffs' property" with his
prior finding that "the [defendant] has complied with all applicable storm water
regulations . . . volume of water is not regulated by the NJDEP . . . and, more
importantly the [p]laintiffs have not established by any credible engineering
evidence that the increase in the total volume was the primary cause of the
flooding."
Defendant's argument ̶ that compliance with NJDEP regulations bars its
action from being a taking ̶ is legally and factually incorrect. First, the entire
concept of "regulatory taking," under which a taking occurs where a government
regulation deprives a property owner of the economic benefit of its property,
necessarily entails the occurrence of a compensable taking notwithstanding the
"taker's" compliance with regulations. See Lucas v. South Carolina Coastal
Council, 505 U.S. 1003 (1992); Mansoldo v. State, 187 N.J. 50 (2006).
Second, even restricting defendant's argument to physical takings, it is
nevertheless still incorrect. The second Arkansas Game factor, "the degree to
which the invasion is intended or is the foreseeable result of authorized
government action," clearly contemplates that a taking may occur pursuant to,
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and not in conflict with, government authorization of some kind. 568 U.S. at 39
(flooding caused by Army Corps of Engineers release of water, a deviation
permitted by Corps' Water Control Manual for dam); see also Loretto, 458 U.S.
at 437-41 (cable TV company must compensate building owner for equipment
installed pursuant to state law).
The record amply supports the judge's finding on remand that the flooding
and associated problems on plaintiffs' properties was a foreseeable and
unreasonable result of defendant's action. Defendant's own Stormwater
Management Report documents that the volume discharge increased
dramatically following construction of the high school by forty-two percent for
a one-year storm, over fifty percent for two-year and ten-year storms, and eighty
percent for a one-hundred-year storm. Defendant's expert acknowledged this
increase in volume; that per NJDEP regulations, post-construction run-off is
supposed to be "reduced;" and additional volume would lead to more frequent
flooding of the properties. However, the expert contended that because NJDEP
regulations only regulated the flow rate, not volume, of stormwater run-off,
defendant nevertheless complied with NJDEP regulations.
Defendant was also able to avoid analysis of plaintiffs' properties by way
of technicality. Defendant's expert testified that NJDEP requires mapping 500
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feet upstream and downstream of a project that impacts a watercourse.
Technically, the high school project did not "impact the watercourse" because
the defined watercourse ends at a neighboring property and the high school's
drainage system only reached the watercourse through that property.
Given the above, the judge's finding on remand that defendant's actions
"unreasonably impacted the plaintiffs' property," notwithstanding compliance
with NJDEP regulations, was not manifestly unsupported by or inconsistent with
the evidence. Under these circumstances, it can hardly be said that compliance
with NJDEP regulations was reasonable per se.
The second portion of the alleged inconsistency ̶ the judge's initial
finding that plaintiffs failed to "establish by any credible engineering evidence
that the increase in the total volume was the primary cause of the flooding," as
compared to the finding on remand that "the cause of the flooding was due to
the construction of [defendant]'s new high school" ̶ also provides no grounds
for disturbing the judge's decision on remand. Any inconsistency is a
permissible deviation in light of the judge's application of the correct legal
standard in Arkansas Game on remand.
At trial, plaintiffs provided sufficient evidence for the judge to find it
"probable" that "[defendant's] action resulted in more severe flooding of, and
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erosion to, the plaintiffs' properties." Plaintiffs testified as to the severity of the
flooding and the drastic alteration to the character of their properties . Further,
plaintiffs' expert provided an engineer's perspective.
Plaintiffs' expert testified that the flooding and associated problems were
caused by the additional volume of water inundating the properties, and he knew
that because of the timing of events, the volume of water came from the high
school, not other upland properties. He based his conclusion on a review of
historical United States Geographical Survey and NJDEP maps, photographs of
the property, interviews with the plaintiffs, site visits, and an analysis of
wetlands vegetation growth. He also based his conclusion on the quantification,
from defendant's Stormwater Management Report, that defendant's drainage
system inundated plaintiffs' properties with a drastically increased volume of
water. Recall that defendant's expert conceded there was additional volume and
the likelihood that additional volume would lead to more frequent flooding of
the properties.
The judge referenced all of the above credible evidence in his trial and
remand opinions. The judge's determination on remand there was sufficient
basis to find causation, when viewing both that concept and the evidence through
the Arkansas Game lens, is precisely the determination we asked the judge to
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make. The shift in the judge's conclusion from "probable" to legally sufficient
is supported by the evidence and should not be disturbed, especially as the
evidence was largely testimonial and involved questions of credibility.
Seidman, 205 N.J. at 169.
III.
Defendant attempts to distinguish this case from Arkansas Game to argue
a taking did not occur. Defendant first argues that in Arkansas Game, the
government intentionally caused flooding by releasing water from a dam,
whereas here, defendant could not cause flooding because "it cannot cause it to
rain." Defendant next argues that plaintiffs have not and could not demonstrate
investment-backed expectations because the property was residential. We reject
both arguments.
Defendant's first argument rests on an overly simplistic view of causation.
Rain is not a sufficient intervening cause to break the causal chain and
extinguish defendant's liability. The second Arkansas Game factor, "the degree
to which the invasion is intended or is the foreseeable result of authorized
government action," 568 U.S. at 39, adopts "foreseeability" as the proximate
cause inquiry, in line with past holdings that "ordinary principles of proximate
cause govern the causation inquiry for takings claims." Tahoe-Sierra
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Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302,
345 (2002) (citations omitted); Cary v. United States, 552 F.3d 1373, 1377 (Fed.
Cir. 2009) (inverse condemnation plaintiff must show government intended to
invade property interest or invasion was a "direct, natural or probable result of
an authorized activity"). Plaintiffs' injuries were certainly reasonably
foreseeable by defendant.
Defendant is unable to skirt liability under this analysis by blaming
plaintiffs' injury on rain. It is doctrinal that foreseeable and normal intervening
causes do not break the causal chain and relieve liability. Cruz-Mendez v.
ISU/Insurance Services of San Francisco, 156 N.J. 556, 575 (1999) (citing
Rappaport v. Nichols, 31 N.J. 188, 203, (1959)). That rain will flow into and
out of a stormwater drainage system is foreseeable and normal. Rain is, thus,
not an intervening cause sufficient to relieve an actor of liability.
The Federal Circuit addressed the same argument on remand in Arkansas
Game. 736 F.3d at 1370-73. There, the government argued that rainfall and
other factors, such as run-off from other sources, caused the flooding. Id. at
1371. The court concluded the "evidence support[ed] the trial court's findings
that the [release of water] caused a substantial increase in the periods of . . .
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flooding . . . and that the flooding caused widespread damage . . . ." Id. at 1372
(emphasis added). We reach the same conclusion here.
Defendant next argues that plaintiffs "introduced no testimony either by
lay witnesses or experts regarding [any] 'investment backed expectations.' . . .
This property is residential. Although there was testimony of an alleged
inability to hit golf balls or plant flowers, there was no testimony regarding
alleged financial impact as in [Arkansas Game]."
Defendant does not have a correct understanding of "reasonable
investment-backed expectations." The third Arkansas Game factor measures
"the character of the land at issue and the owner's 'reasonable investment-backed
expectations' regarding the land's use." 568 U.S. at 39 (quoting Palazzolo v.
Rhode Island, 533 U.S. 606, 618 (2001)). On remand here, the judge provided
many examples of the change in the character of plaintiffs' land, which were
well-supported by the record and which went far beyond defendant's sarcastic
characterization of an "inability to hit golf balls or plant flowers."
The judge did not address whether the change in the character of the land
distorted plaintiffs' investment-backed expectations; however, a review of the
record makes it clear it did. A property owner commonly lacks reasonable
investment-backed expectations where the taking, for example, a restrictive
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regulation, is in place prior to acquisition of the property; in that instance, the
property owner could not have expected to possess the property free of the
governmental interference. Palazzolo, 533 U.S. at 634-35 (O'Connor, J.,
concurring). The record shows that Michael Bartolf purchased the properties
sometime before 1950, long before the governmental taking in this case.
Defendant's predecessor-in-interest operated a quarry on the high school land,
and the record shows that water from upland properties would flow into, and
remain in, the quarry. Thus, though plaintiffs' property was residential in nature,
their reasonable investment-backed expectation was that the status quo would
be maintained. Defendant, by directing a drastic increase in stormwater onto
plaintiffs' properties, unreasonably interfered with their investment-backed
expectations, further substantiating plaintiffs' claim that defendant effectuated a
taking.
A trial judge must comply with the remand order of an appellate court.
Tomaino v. Burman, 364 N.J. Super. 224, 232 (App. Div. 2003). A "broad and
open-ended" remand order will not, however, preclude the trial judge from
considering alternative legal theories or claims or crafting alternative remedies.
Bubis v. Kassin, 353 N.J. Super. 415, 424, 427-28 (App. Div. 2002). We are
satisfied that on remand, the judge did exactly as we instructed and reconsidered
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the matter through the Arkansas Game lens to determine whether there was a
temporary taking that rose to the level of an inverse condemnation. Guided by
the proper standard, the judge's findings on remand that defendant caused
flooding on plaintiffs' properties and committed a temporary taking that rose to
the level of an inverse condemnation are amply supported by the record.
Affirmed.
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