Source: http://www.northjersey.com, November 21, 2013
By: Meghan Grant
A group of four property owners, including Cheridan Realty LLC that owns a commercial building on Commerce Road, are suing the owners of the Kane Tract in Carlstadt, claiming improper berm construction was to blame for the severity of the damage suffered due to Hurricane Sandy, a storm experts called unprecedented.
Owners of two Little Ferry garden apartment complexes, Williamstowne Manor Inc. and Liberty Bell Village, Cheridan Realty LLC and one Hackensack apartment building, Albarelli Hackensack Associates, and its insurance company, Greater New York Mutual Insurance Company filed the lawsuit, which names 10 governmental agencies and companies as defendants – the New Jersey Department of Environmental Protection (NJDEP), New Jersey Meadowlands Commission (NJMC), EnviroFinance Group LLP, Earthmark NJ Kane Mitigation LLC and others.
The Kane Tract
The Richard P. Kane Natural Area, the 254-acre section of wetlands on the Hackensack River in Carlstadt and South Hackensack is home to two berms, one of which gained notoriety during Sandy due to an initial emergency report being issued the night of the storm surge that a levee allegedly was breached, later identified as a berm.
The lawsuit, identifying the Kane Tract by name, builds upon the conviction that the berm had broken. It alleges contractors took shortcuts in their building of the berm that put neighboring properties at risk and state environmental and land agencies were lax in their oversight.
Just who owns and is responsible for upkeep of the Kane Tract is a complicated history tied to development and environmental remediation.
In 2002, the federal government helped the state acquire the modern-day Kane Tract for environmental protection from a company seeking to build a mall. That project later relocated to East Rutherford, subsequently becoming the existing American Dream plan. Meanwhile, the Meadowlands Conservation Trust (MCT) retains ownership with agencies such as the NJMC.
Earthmark had taken over design and development of the mitigation bank, a mitigation credit assigned a dollar value that can be purchased by a developer working elsewhere, of the Kane tract, later taken over by EnviroFinance. The company remediated the wetland property in the hope that it would sell these credits to agencies such as the Port Authority of New York and New Jersey, for the upcoming construction of the ARC Tunnel, scheduled to run beneath the Hudson River to New York City. Even after Governor Chris Christie cancelled the tunnel project in 2010, the tract remained owned by the Meadowlands Conservation Trust (MCT), with land use planning provided by the NJMC and flood control regulations oversight by the NJDEP.
Engineering firm Louis Berger Group Inc. was hired to design the installation of a 6,600 foot-long concertainer berm on the tract and removing existing berms, and was responsible for all permit-related issues and certification of the berm’s stability, the suit reads. The berm is made up of cubical, wire mesh containers lined with polypropylene material, filled with non-organic soil and stacked to create one large berm around the tract perimeter to protect against the daily tides of the Hackensack River and prevent tidal waters from impacting neighboring properties during floods.
According to the suit, Berger opted for the artificial containers “in order to accelerate construction time and reduce material requirements by using onsite available material,” believing the existing flood controls on site have effectively protected the citizens from tidal flooding for decades.
The NJDEP is cited in the lawsuit as questioning the potential sliding factor of the containers with forces caused by wave action during a hurricane, also expressing doubt about the “shear strength” of the onsite soil to be used and not settling deep enough to stand an extreme flood, potentially being “easily” displaced. Due to the way the baskets interlock, a displacement would cause “catastrophic failure” that would quickly inundate lands next to the tract. In the suit, Berger is categorized as downplaying the chance of that happening.
The structure was vulnerable, and therefore, couldn’t withstand the strength of Sandy, the suit claims.
Despite the NJDEP having doubts about the long-term durability and integrity of the berm, the suit asserts, it issued a permit to the Trust and Earthmark in April 2010, with the applicant and property owner still retaining full liability for any damages were it to fail. The permit further stated soil used to fill the berm be taken from onsite and no organic material be used to fill the containers. Geo-Con was hired to build it and Dawnson Corp. was retained for long-term maintenance of the berm. A short time later, EnviroFinance assumed control of Earthmark’s tract project.
Signs that the parties knew the berm was faulty came as early as 2011, the suit contends. EnviroFinance and Earthmark claimed Geo-Con had “conducted defective and unapproved work” in a complaint to discharge construction liens.
The property owners’ lawsuit alleged the construction crews encountered problems, including not having enough suitable material onsite to fill the berms. A new design was forged by Berger and Geo-Con that deviated from the NJDEP’s permit-approved plan, including using organic material that led to increased permeability and compromising its structure, the suit reads.
Furthermore, the suit claims, the old berms were taken down before the new could be completed.
The Kane Tract is home to two berms- with the earthen berm that follows the Losen Slote Creek being the one that many blamed for the flooding in Moonachie and Little Ferry, Andrew Derickson, a representative of EnviroFinance, told the South Bergenite last winter.
This berm had originally been constructed by the New Jersey Mosquito Commission decades ago for the purpose of protecting freshwater wetland from the tides of the Hackensack River, not flood control, Derickson said. The other is a larger berm separating the newly remediated tidal wetland from businesses in Carlstadt. According to the representative, this berm was overtaken by Sandy’s storm surge, which damaged the concertainer wall.
EnviroFinance completed remediating the Richard P. Kane Natural Area on Aug. 31, 2012 according to Derickson. The berm stood at about 8.6 feet, above the Federal Emergency Management Agency’s (FEMA’s) 100-year flood standards, he added.
The widely-circulated Office of Emergency Management email/text alert, issued around 11 p.m. on Oct. 29, 2012, was cited by the suit as creditable proof of the berm’s failure. State police issued the alert at the same time the storm surge began its peak in the Meadowlands, leading many to believe a compromised, manmade structure was to blame for the sudden onset of water.
Testimony before a state senate committee in December 2012 by Mayor Margo Raguseo of Moonachie is included in the suit to give authority to the claim of a breach. Conversely, the mayor is quoted in a transcript as identifying the berm in question as being owned by the Trust, six feet in height and located in Moonachie, not a municipality identified with the Kane tract.
Attorney Mitchell Decter, who along with Allan Maitlin are co-counsel to the plaintiffs, have filed the suit on behalf of the property owners. Decter indicated he believes the mayor was mistaken about the berm being in Moonachie, and was likely pointing to the one in the Kane tract.
Both Mayor Raguseo and EnviroFinance both acknowledged the earthen berm and the concertainer wall berm have since been repaired.
Decter declined to say just how much in damages and lost rent the suit is seeking, saying only “millions of dollars in losses were suffered.” ”
It was a very difficult time, and a very devastating time for them [clients],” Decter said. “Like everyone else in our area, it was extremely traumatic and a very trying time for my clients. The damages that they sustained were extremely significant.”
Unprecedented or poor planning?
While the lawsuit focuses on the construction of the berm, the size of the Sandy storm surge isn’t mentioned. However, the size could play into the decision of whether or not human error or Mother Nature were to blame when it comes to the Kane tract berms.
According to a study by the Meadowlands Environmental Research Institute (MERI), the science branch of the New Jersey Meadowlands Commission (NJMC), released in January, no specific break was to blame but rather the sheer size of the unprecedented surge caused the area to become inundated.
Dr. Francisco Artigas of MERI explained the tidal surge reached at least nine feet, recorded by a few of the water level sensors installed around the Hackensack River in 2004 that survived the storm. The commission’s River Barge Park Marina, located in Carlstadt, and the Moonachie tide gate on the river near Turnpike Exit 18W collected data as the waters rose on Oct. 29. Sensors indicated an average height of nine feet at midnight, but the level likely rose above that since it was only an hourly average. An example of that is the water topped the Turnpike, which stands at just over 10 feet.
EnviroFinance’s Derickson put the berm height at about 8.6 feet, slightly below the recorded height of the surge.
“We still think that regardless of the height of the surge because of the way in which the berm was built, we think that certainly could have reduced the amount of damages that were suffered if the berm were built properly and had there been proper oversight by the appropriate entities charged with overseeing the berm,” attorney Decter said.
Furthermore, salt content levels spiked around the same time the floodwaters peaked, a probable “smoking gun” of the surge being fed by ocean water, Artigas said.
Artigas noted in a presentation on the study that the mean height of berms across the Meadowlands – located on municipal, public and private lands- only comes to five feet.
The cascade of water against the berms and tide gates caused a series of spillways, especially along the Losen Slote Tide Gate and pump station, feeding into the Moonachie Creek. The flow was confirmed by sensor data, the MERI reported.
A “bathtub” effect was created due to the prolonged, six-hour length of the surge, where water came in and filled the surrounding area, but couldn’t recede, Dr. Artigas explained last winter. Berms are only as effective as their lowest point, he added.
Special assistant to the executive director Melissa Nichols said the NJMC can’t comment on the pending litigation.
The various Meadowlands berms aren’t required to be maintained by the land owners, who often acquire them with the purchase of the property, NJMC executive director Marcia Karrow has said previously.