612 Associates, L.L.C. v. North Bergen Municipal Utilities Authority

71 A.3d 749, 215 N.J. 3, 2013 WL 3884917, 2013 N.J. LEXIS 196
CourtSupreme Court of New Jersey
DecidedMarch 7, 2013
StatusPublished
Cited by7 cases

This text of 71 A.3d 749 (612 Associates, L.L.C. v. North Bergen Municipal Utilities Authority) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
612 Associates, L.L.C. v. North Bergen Municipal Utilities Authority, 71 A.3d 749, 215 N.J. 3, 2013 WL 3884917, 2013 N.J. LEXIS 196 (N.J. 2013).

Opinion

Justice HOENS

delivered the opinion of the Court.

Our Legislature has long expressed its view that it is in the public interest to protect our water and, in furtherance of that public interest, it has acted to promote the safety of our water supply in a variety of ways. One of the ways in which our Legislature has given voice to this strong public policy concern has been through the enactment of statutes that “reduce and ultimately abate the menace to public health resulting from ... [water] pollution” by regulating the “collection, treatment, purification [and] disposal of sewage[.]” N.J.S.A. 40:14A-2; see N.J.S.A. 40:14B-2. As part of the way in which it has addressed these important concerns, the Legislature has provided for the creation of two kinds of independent entities. Called Sewerage Authorities and Municipal Utilities Authorities, they are governed by the Sewerage Authorities Law, N.J.S.A. 40:14A-1 to -45, and the Municipal and County Utilities Authorities Law, N.J.S.A. 40:14B-1 to -78, respectively.

Part of the overall statutory scheme grants permission to these authorities to charge users a variety of fees in connection with the sewerage services that they provide. Although some of these fees are based on the services that are actually provided, one of the charges, variously called the connection fee or the tapping fee, is intended to assist the authorities to defray the capital costs [7]*7involved in building the sewage collection and treatment systems themselves.

This appeal centers on a dispute between two of these authorities about which of them is entitled to collect the connection fee when one of them provides the initial physical connection to a condominium development and transports the waste for a short distance, but when the other actually treats the sewage at its nearby treatment facility. The solution to this dispute requires us to analyze the provisions governing connection fees that are found in the Sewerage Authorities Law, N.J.S.A. 40:14A-8, and the Municipal and County Utilities Authorities Law, N.J.S.A 40:14B-22.

I.

Plaintiff 612 Associates, L.L.C. owned a large parcel of land in Union City which was situated approximately 300 to 500 feet away from that municipality’s border with North Bergen Township. In 2007, plaintiff was in the process of constructing a fifty-two unit condominium complex on the property and needed to connect with a sewerage system in order to dispose of its anticipated sewer flows.

According to plaintiff, its property is located at the “high point of the area.” As a result, the sewage generated by the complex either could flow westward to the North Bergen Treatment Plant, which is operated by defendant North Bergen Municipal Utilities Authority (North Bergen MUA), or it could flow southeastward to the North Hudson Regional Sewage Plant, which is operated by defendant North Hudson Sewerage Authority (North Hudson SA). Because of the topography of the site, gravity would naturally cause the sewage to flow along the westward path, so plaintiff completed a treatment work application with North Bergen MUA for treatment of the project’s sewage.

Although the sewage was going to be treated at the North Bergen MUA treatment facility, the property’s location in Union City required that the complex be connected to sewer lines that were located in Union City and that were owned by North Hudson [8]*8SA. From the point of that connection, the sewage would flow through the North Hudson SA pipeline for approximately 300 feet until reaching the sewer lines owned by North Bergen MUA which would then transport it to the North Bergen MUA treatment plant. Plaintiff estimated that approximately ninety-five percent of the lines through which the property’s sewage travels are physically located in North Bergen and are owned by the North Bergen MUA.

During construction of the complex, plaintiff became aware that a dispute had arisen between North Bergen MUA and North Hudson SA concerning which of the authorities was entitled to collect the statutorily-authorized connection fee. That is, after the property was connected to Union City’s sewer lines, both North Hudson SA, relying on the statute governing sewerage authorities, N.J.S.A. 40:14A-8, and North Bergen MUA, relying on the statute governing municipal utilities authorities, N.J.S.A. 40:14B-22, claimed to be entitled to collect a connection fee from the project’s owner.

In its effort to resolve the dispute, plaintiff filed a complaint and Order to Show Cause against North Hudson SA, North Bergen MUA, and the New Jersey Department of Environmental Protection (DEP). In that complaint, plaintiff sought the court’s assistance in resolving the dispute about which of the two authorities was entitled to be paid a connection fee. At the same time, in an effort to avoid being forced to pay duplicative fees, plaintiff requested permission to deposit the sum representing the connection fee into an escrow account.

Shortly after the return date of the Order to Show Cause, the parties entered into a consent order pursuant to which the DEP was dismissed as a party and the matter was essentially transformed into an interpleader action. See R. 4:31. That is, plaintiff submitted completed treatment work applications to both authorities and agreed to deposit into an escrow account the sum of $157,129, which represented North Hudson SA’s connection fee of $153,655, together with application and review fees. As a result, North Hudson SA and North Bergen MUA were left to litigate [9]*9their dispute about which authority was entitled to collect the disputed connection fee.

The parties submitted briefs to the court in which each asserted that it was entitled to the connection fee. North Hudson SA argued that because the property was directly connected to its lines and because it was therefore the exclusive connection and collection point, the governing statute required that it be awarded the fee. North Bergen MUA asserted that because the sewage was ultimately treated in its treatment facility, it was entitled to collect the fee.

In January 2008, the trial court rendered an oral decision agreeing with North Hudson SA based on a comparative analysis of the statutory language authorizing connection fees and that which allowed authorities to charge service fees. In undertaking that analysis, the trial court observed that the statute expressly permitted a service fee to be imposed based on either a direct or indirect connection to the system, but that it only referred to connection fees “in respect of each connection of any property with the sewerage system.” Compare N.J.S.A. 40:14A-8(a), with N.J.S.A. 40:14A-8(b). The court reasoned that the difference in language was significant and that the use of the phrase “direct or indirect” when referring to service fees, coupled with its absence in the section relating to connection fees, meant that a connection fee was permitted only when the property had a direct connection to a sewerage system.

North Bergen MUA appealed the 2008 order of the trial court awarding the connection fee to North Hudson SA. In summary, it argued that the trial court’s analysis overlooked the underlying purpose of the statutory permission to impose connection fees. Asserting that the purpose of the fee is to permit the authorities to recoup the capital costs of building the collection and treatment systems, North Bergen MUA argued that the trial court’s opinion failed to advance that goal.

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71 A.3d 749, 215 N.J. 3, 2013 WL 3884917, 2013 N.J. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/612-associates-llc-v-north-bergen-municipal-utilities-authority-nj-2013.