New Jersey Department of Environmental Protection v. Alloway Township and County of Salem and William R. Cobb
N.J. Super. Ct. App. Div.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3835-12T3
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, January 2, 2015
v. APPELLATE DIVISION
ALLOWAY TOWNSHIP and
COUNTY OF SALEM,
Defendants-Respondents/
Cross-Appellants,
and
WILLIAM R. COBB,
Defendant-Appellant/
Cross-Respondent.
_________________________________________________
Submitted October 7, 2014 – Decided January 2, 2015
Before Judges Messano, Ostrer and Hayden.
On appeal from the Superior Court of New
Jersey, Law Division, Salem County, Docket
No. L-95-08.
Holston, MacDonald, Uzdavinis, Ziegler &
Lodge, attorneys for appellant/cross-
respondent William R. Cobb (William F.
Ziegler, on the brief).
John G. Hoffman, attorney for
respondent/cross-appellant Alloway Township.
Michael M. Mulligan, Salem County Counsel,
attorney for respondent/cross-appellant
County of Salem.
John J. Hoffman, Acting Attorney General,
attorney for respondent State of New Jersey
Department of Environmental Protection
(Lewis A. Scheindlin, Assistant Attorney
General, of counsel; Daniel A. Greenhouse,
Deputy Attorney General, on the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
In this appeal we are called upon to construe provisions of
the Safe Dam Act (the "SDA"), N.J.S.A. 58:4-1 to -14, a statute
enacted upon the Legislature's specific finding "that the
condition of many dams, lakes, and streams throughout the State
has been deteriorating at an alarming rate due to a chronic lack
of maintenance," and "that these conditions have led to the
collapse of dams, polluted lakes, stream flooding and property
damage to homes, businesses, lake communities and public
utilities." N.J.S.A. 58:4-11. The SDA casts a "broad net" of
liability, New Jersey Department of Environmental Protection v.
Mercer County Soil Conservation District, 425 N.J. Super. 208,
221(Ch. Div. 2009), so that its remedial purpose -- "to protect the public from the loss of life and property in the event a dam fails, regardless of whether it is privately or publicly owned" -- is served.Id. at 218
.
2 A-3835-12T3
Under the SDA, the Commissioner (the Commissioner) of the
Department of Environmental Protection (DEP) is vested with
sweeping regulatory and enforcement powers. See, e.g., N.J.S.A.
58:4-3 (permitting the Commissioner to request surveys and plans
of dams and reservoirs); N.J.S.A. 58:4-4 (permitting the
Commissioner to inspect any dam or reservoir); N.J.S.A. 58:4-
5(b), (d) (granting the Commissioner broad remedial powers
regarding unsafe dams, including the power to enter onto lands
and remove the dam).
The SDA also imposes significant obligations upon "[a]n
owner or person having control of a reservoir or dam." N.J.S.A.
58:4-5(a) (emphasis added). Such person must "[i]mplement all
measures" required by the SDA or its accompanying regulations,
provide any reports or information requested by DEP, and
"[i]mplement any action ordered by the Commissioner" to rectify
unsafe conditions. N.J.S.A. 58:4-5(a)(1)-(3).
The Commissioner is vested with broad enforcement powers
whenever the SDA, "or any rule or regulation adopted, or permit
or order issued pursuant thereto" is violated. N.J.S.A. 58:4-
6(a). The remedies available to the Commissioner are numerous
and include the right to file a summary civil action seeking
injunctive relief, costs and civil penalties. N.J.S.A. 58:4-
6(c).
3 A-3835-12T3
In this case, DEP filed a civil enforcement action alleging
violations of the SDA by defendants William R. Cobb, the County
of Salem (the County) and Alloway Township (the Township)
(collectively, defendants).1 At issue was defendants'
involvement with the Cobb's Mill Dam (the dam), a 288-foot
earthen structure that forms a private lake, Cobb's Mill Lake,
in the Township, and along the top of which runs a paved road,
Cobb's Mill Road.
All parties moved for summary judgment. Chancery Judge
Anne McDonnell granted DEP summary judgment on its amended
verified complaint and denied defendants' motions. She entered
an interlocutory order thereafter, apportioning the costs of
compliance among the three defendants, sixty-five percent to the
County, twenty-five percent to Cobb, and ten percent to the
Township. After carefully considering the specific penalties
requested by DEP, Judge McDonnell entered judgment in favor of
DEP and ordered defendants to pay civil penalties totaling
1
Since none of the appellants contest DEP's right to bring the
action, or its entitlement to the relief accorded by the judge,
we do not elaborate upon the factual and procedural history that
preceded the commencement of the enforcement action.
4 A-3835-12T3
$19,250, apportioned $7312.50 to the County, $7932.50 to Cobb,
and $4005 to the Township.2
Cobb appeals and argues that the SDA does not apply to him,
the "mere owner" of the lake bed without any authority to
"'control, operate or maintain'" the dam in question. He argues
that the County is solely responsible because it owns the right
of way in which Cobb's Mill Road is situated.
In its cross-appeal, the County argues that material
factual disputes regarding its contacts with and control of the
dam should have foreclosed summary judgment. In particular, the
County argues that the judge mistakenly found as a fact that
title to the public right of way for Cobb's Mill Road vested
with the County pursuant to a document recorded in the late 19th
century.
In its cross-appeal, the Township argues that since it
never "maintained, managed, operated or controlled the
2
All civil penalties under the SDA are deposited in the
Environmental Services Fund and appropriated to DEP for the
removal of dams in the state. N.J.S.A. 58:4-6(j); N.J.A.C.
7:20-2.8. In a single sentence in its brief, the County states
that it "cannot be determined to have the lion's share of
responsibility for remedial activity or sanctions." It provides
no legal argument why the judge mistakenly exercised her
discretion in fixing and apportioning the penalty. An issue
that is not briefed is deemed waived upon appeal. Fantis Foods
v. N. River Ins. Co., 322 N.J. Super. 250, 266-67 (App. Div.
2000); Pressler & Verniero, Current N.J. Court Rules, comment 4
on R. 2:6-2 (2015).
5 A-3835-12T3
structure," it cannot be responsible for any violations of the
SDA. The Township further contends that since the County
installed the structures appurtenant to the roadway, including a
culvert for spill-off from the lake, the County is solely
responsible for compliance with the SDA.
DEP urges us to affirm in all respects the orders entered
by Judge McDonnell. It argues that because Cobb owns the lake
and historically maintained the dam, the County owns the "bridge
and culverts" that are part of the dam, and the Township owns
and maintains the road, all defendants are responsible for the
dam structure and any concomitant violations of the SDA.
We have considered these arguments in light of the record
and applicable legal standards. We affirm.
I.
In reviewing a grant of summary judgment we "'employ the
same standard . . . that governs the trial court.'" W.J.A. v.
D.A., 210 N.J. 229, 237(2012) (quoting Henry v. N.J. Dep't of Human Servs.,204 N.J. 320, 330
(2010)). We first determine whether the moving party demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co.,387 N.J. Super. 224, 230
(App. Div.), certif. denied,189 N.J. 104
(2006).
[A] determination whether there exists a
"genuine issue" of material fact that
6 A-3835-12T3
precludes summary judgment requires the
motion judge to consider whether the
competent evidential materials presented,
when viewed in the light most favorable to
the non-moving party, are sufficient to
permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-
moving party.
[Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540(1995).] We confine our review to the same record that existed before the motion judge. Ji v. Palmer,333 N.J. Super. 451, 463-64
(App.
Div. 2000).
We then decide "whether the motion judge's application of
the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J.
Super. at 231. In this regard, "[w]e review the law de novo and owe no deference to the trial court . . . if [it has] wrongly interpreted a statute." Zabilowicz v. Kelsey,200 N.J. 507, 512
(2009) (citing Manalapan Realty, L.P. v. Twp. Comm.,140 N.J. 366, 378
(1995)).
A.
The motion record regarding defendants and their
involvement with the dam, sometimes described as a bridge in the
record, and its appurtenant structures was largely undisputed.
Cobb owns several parcels of land on Cobb's Mill Road, and
he has held many public offices and appointed positions in the
municipality and the County. The land has been in his family
7 A-3835-12T3
since 1705, and Cobb's home and active saw mill are on parcels
that are adjacent to the dam. During his deposition, Cobb
testified that he owned the land beneath the dam and all the
land on both sides of it, as well as all the land surrounding
Cobb's Mill Lake. Additionally, in a 2000 letter to DEP, Cobb
said that he was the owner of the dam.
Cobb surmised the dam was built by his ancestor Elisha
Dilks, sometime in the early 1800s, and the structure was known
for some time as the Dilks' Mill Dam. A recorded document from
1876, the import of which was in dispute, set courses for the
construction of a road over the dam, indicating that at that
time, the dam was owned by Calvin Dilks, Cobb's relative. A
document in the record dated September 20, 1923, entitled "Dams
in New Jersey – Reference Data," lists a business, "Thomas Cobb
& Sons," as the owner of the dam, and states that the dam was
rebuilt in 1903 by the County and Calvin Dilks. Cobb testified
that his business, Cobb's Mill, LLC, is the successor to Thomas
Cobb & Sons.
Cobb also testified that he has looked after the dam on an
almost daily basis, operating the flood gates to control the
water level in the lake, inspecting for cracks and, on occasion,
making minor repairs. He mows the grass on both sides of the
road and the lake-side embankment of the dam. On occasion, Cobb
8 A-3835-12T3
plows snow from Cobb's Mill Road when the Township is too slow
in responding.
In his deposition, Alloway Township public works director
Kenneth McKelvey testified that the Township never maintained
the dam. McKelvey believed that Cobb was responsible for
opening and closing the dam's flood gates and "maintaining the
land around the dam." McKelvey conceded, however, that the
Township maintained Cobb's Mill Road and routinely patched
potholes and applied sealant to the roadway. The Township also
received grant money from the State to repave the road, which it
last did in 2009.
Since at least the early twentieth century, the County has
maintained portions of the dam. In 1923, the County placed "new
caps and abutment planks on the dam," and then replaced the
planks with steel pipes in 1932. In 1988, the Board of Chosen
Freeholders passed a resolution remedying "a potentially
dangerous situation" at the lake and approving "the installation
of a . . . [c]ulvert with a new valve type structure [to]
decrease the potential danger for downstream residents and
County structures." The resulting structure, known as "Cobb's
Mill Sluice," was installed about ten years after Cobb was
forced to cut a trough through Cobb's Mill Road during a flood
to prevent the road from entirely washing away.
9 A-3835-12T3
As noted, the import of a January 1876 recorded document
was disputed. The document records an "[a]pplication . . . made
to the Court by Gerald Hitchner and others more than 10
Freeholders and residents of the County of Salem who think a
public road to be necessary in the Township of Upper Alloway
Creek in said County." The document sets forth a metes and
bounds description for a proposed road, and reflects a
recommended "assessment of damages to the . . . owners of the
land taken for the laying out of the aforesaid road." The
document further states that those sums would be paid by the
"inhabitants" of the Township.
Cobb asserted that the document amounted to the creation of
a public right-of-way over the dam, and the road, therefore, was
owned by the County. The County steadfastly maintained that the
document did not create any public right of way in favor of the
County, but rather reflected the then-existing practice of
permitting municipal residents to petition a court to lay a
public road, thereby making Cobb's Mill Road a municipal, not
County, road.
B.
After considering oral arguments of the parties on the
various motions for summary judgment, in a written opinion Judge
McDonnell concluded that all defendants were "owners or persons
10 A-3835-12T3
in control of a dam or reservoir within the meaning of the
[SDA]." The judge reasoned:
The County has accepted responsibility for
the culvert over the years. The Township's
road and the supporting embankments are the
sole reason for the existence of the
County's bridge/culvert. Both the County
and the Township have control of the right-
of-way and each has the right to remove
structures. Because the County and the
Township have control of the right-of-way
and the structures within it, each is a
person in control of the Cobb[']s Mill Dam.
Mr. Cobb has legal and beneficial
ownership of Cobb[']s Mill Pond. As the
owner of the lake bed, Mr. Cobb is the owner
of a reservoir within the meaning of the
[SDA]. Further, Mr. Cobb has exercised
control over the embankments and dam over
the years. Mr. Cobb is an owner and a
person in control over the dam or reservoir
within the meaning of the [SDA].
[T]he history and legal title of the dam
itself are irrelevant, as the clear
legislative purpose of the amendments is to
cast a broad net of responsibility that
includes owners and persons in control of a
dam or reservoir.
[(Citations omitted).]
After considering further oral arguments regarding the
penalty to impose and how it should be apportioned, Judge
McDonnell issued the order for judgment referenced above,
together with a bench memorandum explaining the apportionment.
She stayed payment of the penalties pending resolution of this
appeal.
11 A-3835-12T3
II.
We first consider Cobb's argument that he cannot be
responsible for violations of the SDA because, although he owned
the land upon which the dam was situated, as well as the bed of
the reservoir of water created by the dam, he lacked any control
over the dam's structure or the roadway and was not responsible
for maintaining them. Cobb relies primarily upon the Chancery
Division's decision in Mercer County, supra, 425 N.J. Super. at
208.
In that case, DEP brought an enforcement action against
private property owners upon whose lands two publicly-funded
dams were constructed fifty years earlier, and which were
subject to easements in favor of public entities providing
access for maintenance of the dams. Id. at 215-217. DEP argued the defendants, as owners of the servient estates, were "owners" of the dam for purposes of the SDA.Id. at 217
. The Chancery
judge disagreed.
Interpreting the SDA's use of the phrase "owner or person
having control of a reservoir or dam," the judge reasoned,
There are two reasonable ways to interpret
this language. One interpretation is to read
the word "owner" separate from the phrase
"person having control," in which case being
an owner of the land could make you the
owner of any improvements upon the land even
if you had no control thereof. While an
otherwise perfectly acceptable
12 A-3835-12T3
interpretation under the common law, there
are plenty of exceptions to which this
do[es] not hold true, including utilities
transmission wires, sewer pipes, and
telephone poles; such items are more often
than not located in or on private easements,
but are not considered to be owned by the
underlying property owner. The second
possible interpretation, then, is to read
the words "owner or persons having control"
together as one phrase, such that either the
owner who has control or another person
having control would be responsible for the
improvements upon real property. This
construction implies that having control is
a necessary element of being an "owner"
under the statute.
[Id. at 220.]
The judge found further support in DEP's own regulation, which
defines "[o]wner and/or operator" as "any person who owns,
controls, operates, maintains, manages or proposes to construct
a dam." N.J.A.C. 7:20-1.2.
The judge then listed four factors to be considered in
determining whether a person was an "owner" for purposes of the
SDA:
(1) The nature and extent of any legal title
to the underlying real property;
(2) Whether the alleged owner constructed or
participated in the structure's
construction;
(3) Whether the alleged owner controls, ever
controlled, or participated in the control
of the structure to more than a de minimis
extent; and
13 A-3835-12T3
(4) Whether the alleged owner has legal
authority to exercise control of the
structure.
[Id. at 223.]
The judge held that the defendants were "not owners or persons
having control of the subject dams or reservoirs as contemplated
by the [SDA]," and he dismissed DEP's complaint. Id. at 223.
Cobb argues that application of these four factors to this
case should have resulted in summary judgment in his favor. We
need not consider the merits of that argument. We conclude that
the court in Mercer County erred in construing the terms "owner
or person having control of a reservoir or dam" as used in the
SDA. In that limited regard, we respectfully overrule the
decision.
Our analysis begins by noting that "[i]n statutory
interpretation, a court's role 'is to determine and effectuate
the Legislature's intent.'" State ex rel. K.O., 217 N.J. 83, 91(2014) (quoting Allen v. V & A Bros.,208 N.J. 114, 127
(2011)). The first step in divining legislative intent is to consider the statute's plain language, Town of Kearny v. Brandt,214 N.J. 76, 98
(2013), which "should be given its ordinary meaning and be construed in a common-sense manner."K.O., supra,
217 N.J. at 91
. "[W]e must examine that language sensibly, in the context
of the overall scheme in which the Legislature intended the
14 A-3835-12T3
provision to operate[.]" N.J. Dep't of Envtl. Prot. v. Huber,
213 N.J. 338, 365(2013). Additionally, we may consider "the interpretation and cognate enactments of the agency to which the Legislature has entrusted the statute's implementation."Ibid.
Courts are further guided by "the bedrock assumption that
the Legislature did not use any unnecessary or meaningless
language." Jersey Cent. Power & Light Co. v. Melcar Util. Co.,
212 N.J. 576, 587(2013) (quoting Patel v. N.J. Motor Vehicle Comm'n,200 N.J. 413, 418-19
(2009)) (internal quotation marks omitted). We therefore presume that each of the statute's words means something and "'is not mere surplusage.'"Ibid.
(quoting Cast Art Indus. v. KPMG LLP,209 N.J. 208, 222
(2012)).
The SDA compels compliance from "[a]n owner or person
having control of a reservoir or dam." N.J.S.A. 58:4-5(a)
(emphasis added). A common sense reading of this language
indicates there are four classes of people who are subject to
the statute: (1) dam owners; (2) reservoir owners; (3) those
who control the dam; and (4) those who control the reservoir.
It follows that if a party fits into any one of those
15 A-3835-12T3
categories, the Commissioner may seek enforcement of the SDA
against that person.3
The Chancery Division's construction of the statute in
Mercer County implied that, to be brought under the enforcement
umbrella of the SDA, a person must have more than legal
ownership of a dam or reservoir. Such person also must have
constructed or exercised some degree of control over the dam or
reservoir, or have had the legal authority to exercise control.
Mercer County, supra, 425 N.J. Super. at 223. The commonsense
understanding of the word "owner" does not support that
interpretation. See Black's Law Dictionary 1214 (9th ed. 2009)
("An owner may have complete property in the thing or may have
parted with some interests in it (as by granting an easement or
making a lease)."). Additionally, by interpreting the SDA's use
of the term "owner" to necessarily include qualities similar to
that of a "person in control," the court in Mercer County
conflated two separate statutory terms, thereby rendering the
phrase "owner" surplusage.
Moreover, even though it chose to use the disjunctive "or,"
the Legislature did not mean that either the "owner" or "the
person in control," but not both, could be subject to DEP's
3
DEP's regulations define "person" as "any individual,
proprietorship, partnership, association, corporation,
municipality, county or public agency." N.J.A.C. 7:20-1.2.
16 A-3835-12T3
enforcement action. See United States v. Woods, __ U.S. __, 134
S. Ct. 557, 567,187 L. Ed. 2d 472, 484
(2013) ("[T]he operative
terms are connected by the conjunction 'or.' While that can
sometimes introduce an appositive -- a word or phrase that is
synonymous with what precedes it ('Vienna or Wien,' 'Batman or
the Caped Crusader') -- its ordinary use is almost always
disjunctive, that is, the words it connects are to 'be given
separate meanings.'" (quoting Reiter v. Sonotone Corp., 442 U.S.
330, 339,99 S. Ct. 2326, 2331
,60 L. Ed. 2d 931, 937
(1979))). Rather, the Legislature intended the SDA to have the broadest possible remedial application and envisioned enforcement actions against multiple responsible parties. See Gallenthin Realty Dev., Inc. v. Borough of Paulsboro,191 N.J. 344, 368
(2007)
("[I]t has long been settled that the disjunctive 'or' in a
. . . statute may be construed as the conjunctive 'and' if to do
so is consistent with the legislative intent." (quoting State v.
Holland, 132 N.J. Super. 17, 24 (App. Div. 1975))).
The recent legislative history and language in other parts
of the SDA make this clear. In 2004, for example, Burlington
County suffered severe flooding after several dams failed. See
39 N.J.R. 4894(a) (Nov. 19, 2007). As a result, DEP concluded
that it "lacked [the] necessary tools to efficiently enforce the
provisions of the [SDA]." Ibid. The Legislature subsequently
17 A-3835-12T3
broadened DEP's enforcement powers, noting its proposed
amendment would "strengthen[] the DEP's authority to take action
regarding failing and failed dams and to integrate these
measures with the provisions of the [SDA]." Senate
Environmental Committee, Statement to S. 1895 (Oct. 18, 2004).
One of the sections enacted, N.J.S.A. 58:4-5(c), explicitly
authorizes "allocation of the cost of removal among the liable
owners or persons having control of the dam or reservoir
whenever two or more owners or such persons are liable."4
(Emphasis added).
Finally, our conclusion that the SDA permits enforcement of
its provisions against both owners and persons in control of
dams and reservoirs is consistent with DEP's interpretation of
its authority. See Dep't of Envtl. Prot. and Energy v. Cnty of
Cumberland, 94 N.J.A.R.2d 111, 119 (Dep't of Envtl. Prot. and
4
We recognize that the Legislature has used similar, albeit
slightly different language, at various points in the SDA.
Compare N.J.S.A. 58:4-5(a) ("An owner or person having control
of a reservoir . . . ." (emphasis added)), with N.J.S.A. 58:4-
6(h) ("Each owner or person having control of a reservoir
. . . ." (emphasis added)). We are convinced, however, that
DEP's enforcement powers are not limited to a single "owner or
person in control" of a dam or reservoir. Such an
interpretation would be at odds with the remedial purpose of the
statute. See A.B. v. Div. of Med. Assistance & Health Servs.,
407 N.J. Super. 330, 341 ("[W]hen a literal interpretation of
individual statutory terms or provisions would lead to results
inconsistent with the overall purpose of the statute, that
interpretation should be rejected." (internal quotation marks
omitted)), certif. denied, 200 N.J. 210 (2009).
18 A-3835-12T3
Energy) ("By nature of a party's decision to engage in either
ownership or control of a dam, such party incurs such
statutorily established liabilities.").
In this case, Judge McDonnell properly found that Cobb was
within the reach of the SDA's regulatory and enforcement powers.
He admitted being the owner of the dam, as well as the reservoir
created by the dam. See N.J.A.C. 7:20-1.2 (defining reservoir
as "any impoundment or any potential impoundment that will be
created by a dam, dike or levee"). Moreover, Cobb has
historically exerted some level of control over the reservoir by
admittedly operating the spillway. For all these reasons, we
affirm the grant of summary judgment and the amount of the
judgment entered against Cobb.
III.
The Township argues that, because it "never maintained,
managed, operated or controlled the structure . . . [it] cannot
be held responsible under the [SDA]." We disagree.
DEP's regulations define a "dam" as "any artificial dike,
levee or other barrier, together with appurtenant works, which
is constructed for the purpose of impounding water." N.J.A.C.
7:20-1.2 (emphasis added). The word "appurtenant" means
"[a]nnexed to a more important thing." Black's Law Dictionary
118 (9th ed. 2009). In this case, Cobb's Mill Road is a work
19 A-3835-12T3
"appurtenant" to the preexisting Cobb's Mill Dam, the entire
length of which the road traverses. The issue then becomes
whether the Township's routine work on the road brings it within
the SDA's regulatory scheme, i.e., is the Township a "person[]
having control of a reservoir or dam"?
Although the case is not on all fours, we find persuasive
the Law Division's decision in Braun v. Twp. of Mantua, 270 N.J.
Super. 404 (Law Div. 1993). There, the court considered whether
Mantua Township ("Mantua"), which had removed snow, cleared
weeds, replaced gravel and generally maintained a road
traversing a dam, could be compelled to make repairs when the
dam collapsed due to heavy rains. Id. at 406-08. Recognizing
that the roadway and dam were "interrelated," the court
reasoned:
Although the legally required duty of Mantua
may only encompass a duty to provide safe
passage for users of the road, that safe
passage can only be assured if the dam
itself is secure. The most exhaustive
efforts by Mantua to maintain and control
the roadway, which it provides for public
use and accommodation, would be for naught,
unless the underpinning of the road, in this
instance the dam, is also vigilantly and
safely maintained.
[Id. at 411.]
20 A-3835-12T3
The Court also reasoned that under the SDA, the owners of the
dam -- owners of the adjoining properties -- were also
responsible. Id. at 411-12.
In this case, it is undisputed that the Township regularly
maintained Cobb's Mill Road, and that the road had been and
remained an integral part of Cobb's Mill Dam. In maintaining
the road, the Township exercised some level of control over one
of the dam's appurtenant structures. We affirm the grant of
summary judgment against the Township, as well as the amount of
penalties assessed against it.
The County argues Judge McDonnell erroneously found that
"it [had taken] title of a public right of way over Cobb's Mill
Dam . . . in the late 19th Century," and that there were
material factual issues in dispute regarding the County's
contacts with and historic control of the dam. The argument
lacks sufficient merit to warrant extensive discussion. R.
2:11-3(e)(1)(E).
We need not decide whether the disputed 1876 recorded
instrument created a public right-of-way over the dam in favor
of the County or the Township. It is undisputed that the County
assisted in reconstructing the dam in 1923, that it made
improvements to the dam in 1932, and that in 1988, it installed
a culvert to "decrease the potential danger for downstream
21 A-3835-12T3
residents and County structures." These acts alone are
sufficient to render the County subject to the Commissioner's
enforcement powers under the SDA as "a person in control" of the
dam.
Affirmed.
22 A-3835-12T3
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