Filed: Apr. 22, 2013
Latest Update: Apr. 22, 2013
Summary: NOT FOR PUBLICATION PER CURIAM. Defendant Helen 1 Natsis appeals 2 from the February 27, 2012 judgment against her and her husband, Konstantinos (Gus) Natsis requiring them to remediate the damage they caused to the slope on and behind their property. After reviewing the issues raised on appeal in light of the relevant law, we affirm. In 2000, the Natsis purchased property in the Steep Slope District of Weehawken (Township). In 2004, litigation took place between the Natsis, various neighbo
Summary: NOT FOR PUBLICATION PER CURIAM. Defendant Helen 1 Natsis appeals 2 from the February 27, 2012 judgment against her and her husband, Konstantinos (Gus) Natsis requiring them to remediate the damage they caused to the slope on and behind their property. After reviewing the issues raised on appeal in light of the relevant law, we affirm. In 2000, the Natsis purchased property in the Steep Slope District of Weehawken (Township). In 2004, litigation took place between the Natsis, various neighbor..
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NOT FOR PUBLICATION
PER CURIAM.
Defendant Helen1 Natsis appeals2 from the February 27, 2012 judgment against her and her husband, Konstantinos (Gus) Natsis requiring them to remediate the damage they caused to the slope on and behind their property. After reviewing the issues raised on appeal in light of the relevant law, we affirm.
In 2000, the Natsis purchased property in the Steep Slope District of Weehawken (Township). In 2004, litigation took place between the Natsis, various neighbors and the Township relating to a damaged sewage pipe located on the Natsis' property. At that time, the clay pipe was leaking raw sewage and there was concern about the condition of the slope on the Natsis' property. A court ordered that slope stabilization take place (2004 Slope Stabilization Project).3
In the present case, the Township alleges that after the 2004 Slope Stabilization Project was completed, Helen and Gus undermined the stabilization project by disrupting their property contrary to Township Ordinance No. 4-1987 (Steep Slope Ordinance).4
On August 18, 2008, the Township filed a verified complaint. The following day, a temporary injunction was issued. The Natsis did not appear on the return date of October 1, 2008 when the judge ordered
that the parties' [e]ngineers, [c]ounsel and the Township Construction Code Official and/or his agent shall conduct an on-site inspection of the structure and adjacent undeveloped lot . . . (the "Site") . . . .
. . . [And] that the parties' [e]ngineers shall submit their preliminary reports outlining the current condition of the Site and the action necessary to stabilize the Site and surrounding area. . . .
On December 23, 2009, the Township filed an amended verified complaint seeking an order compelling the Natsis "to allow and permit, if necessary, a right of access to their respective property in order to allow for the implementation of any remedial actions at the [Site] that the [c]ourt may order or approve."
A nine-day trial was held before the Honorable Thomas P. Olivieri at which the Natsis were represented by counsel.
Judge Olivieri found that pursuant to the Steep Slope Ordinance, the Natsis should have obtained a permit before "any clearing or removal or construction[.]" He found that as early as July 2006, Gus was observed working on the slope. The judge explained:
Mr. Natsis admitted to his removal of PVC pipe on the site and some sawing of portions of clay pipes on the site. He also admitted to tampering with the fence installed by J. Fletcher Creamer, and admits to breaking and removing a portion of the retaining wall.
He has further admitted in this hearing to digging out irrigation ditches along his property and utilizing hoses and pumps to funnel water across the slope.
Mr. Natsis has also admitted to cutting stairs into the slope and leveling the site, all done without a permit, although he admits he could not work without one.
Mrs. Natsis admitted that her husband operated a jackhammer and removed a portion of the retaining wall without engineering plans indicating it was their plan, meaning Mr. and Mrs. Natsis, to build on the undeveloped site on the property.
The judge also found that Gus admitted to turning the soil over after the 2004 Slope Stabilization Project to plant his garden, which would have required a permit. The judge stated that "Mr. Natsis testified he was never issued a permit by Weehawken for any of the work he did on his property between 2004 and 2008."
The judge found that the Natsis were issued a summons for work done contrary to the Steep Slope Ordinance. While the Natsis did submit two permit applications to do work on the property, both applications were denied.5 The judge summarized the testimony of Richard Kessler, a geotechnical engineer hired by the Township, and John Curry, a civil engineer at Mayo Lynch & Associates who is the Township's engineer, who discussed their 2008 on-site inspections and compared the property's appearance in 2004 after the stabilization project with its appearance in 2008. The judge also discussed the plans submitted by Robert Costa, an engineer hired by the Natsis in 2008 to bring the slope back into compliance with the Ordinance, noting the similarities and differences between his plans and those submitted by the Township. The judge noted that unlike Costa's plans, the Township's plans had curved, shorter walls, and required "compacting the slope and building it back[.]"
The judge found that Costa was not familiar with the history of the slope in question, stating:
Mr. Costa testified that he was unaware that Mr. Natsis removed a portion of the retaining wall and had been cited by the plaintiff on a number of occasions for violation of the steep slope ordinance.
Mr. Costa was also unaware that the sewer pipe was decommissioned in September of 2007 as a result of the pump station that was constructed upslope.
Mr. Costa admitted that he did not review the June 30th, 2004 letter report of PMK [Engineers], nor did he review the daily log and photographs taken by J. Fletcher Creamer while the 2004 project pursuant to Court order was ongoing.
The defendant[s'] expert Mr. Costa was also unaware of any events that took place on the site prior to being retained by the defendants in this matter. He was retained in September of 2008.
Therefore this Court finds that the defendants have provided no rebuttal to the showing made by the plaintiff of a prima facie case in this matter.
The judge cited Hoboken Env't Comm., Inc. v. German Seaman's Mission of N.Y., 161 N.J.Super. 256 (Ch. 1978), in support for the proposition that "[t]he steep slope, although not providing any substantive rights, does confer standing upon an entity such as Weehawken, a political subdivision of the State, to enforce or restrain the violation of any ordinance designed to prevent impairment or destruction of the environment."
The judge found that "plaintiff has made a prima facie showing that the conduct of these defendants has and continues to impair and destroy the environment and the public's interest in the environment." He "was struck by the extreme changes at the site that occurred between the end of the stabilization project and a scant two or three years later." He found that defendant disregarded the Ordinance and also found the testimony from neighbors who reside on adjoining lots to be credible. He found that the Natsis' actions were putting the public at risk and entered a judgment for the Township, "ordering the defendants Gus and Helen Natsis to remediate and restore the site to be in compliance with the steep slope ordinance."6
Helen raises five points in her appeal, although she does not provide point headings as required by Rule 2:6-2(a)(1) and (5). She complains that the Township has treated her unfairly and seeks to take her property unlawfully by imposing remediation that she cannot afford. She also alleges that her neighbors, who live upslope, have caused a hazard, which she is being ordered to cure. She particularly objects to having to pay for the remediation plan prepared by Mayo Lynch & Associates rather than the less costly plan of her expert, Costa.
According to Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974), our scope of review in non-jury cases is limited. Findings, such as credibility determinations, made when a judgment has been entered in a non-jury case, "should not be disturbed unless . . . they are so wholly insupportable as to result in a denial of justice, and that the appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Ibid. (alteration in original) (citation and internal quotation marks omitted). Therefore, "[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Id. at 484. Accordingly, "we do 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. . . ." Ibid. (citation omitted).
We affirm Judge Olivieri's decision substantially on the basis of his thoughtful and comprehensive oral opinion of February 22, 2012, issued after a full hearing was held during which the Natsis were represented by counsel.
Affirmed.
