Kusznikow v. Township Council of Stafford

730 A.2d 930, 322 N.J. Super. 323, 1999 N.J. Super. LEXIS 227
CourtNew Jersey Superior Court Appellate Division
DecidedMarch 8, 1999
StatusPublished
Cited by3 cases

This text of 730 A.2d 930 (Kusznikow v. Township Council of Stafford) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kusznikow v. Township Council of Stafford, 730 A.2d 930, 322 N.J. Super. 323, 1999 N.J. Super. LEXIS 227 (N.J. Ct. App. 1999).

Opinion

SERPENTELLI, A.J.S.C.

This matter, which involves a novel issue for our New Jersey courts, came on for trial on January 27, 1999. Although the case had been listed for a plenary. trial, it was stipulated at the commencement of the proceedings that there were no genuine issues of fact in dispute. Indeed, the matters in controversy between the parties have been substantially narrowed over almost five years of litigation. This suit results from the installation of a municipal water system by the Stafford Township Municipal Utilities Authority (hereinafter “MUA”). Initially, the plaintiffs refused to connect to the water system. Ultimately, the Appellate Division sustained the finding of both the Municipal Court and the Superior Court that they must do so.

[325]*325The narrow issue in this case is whether the plaintiffs, having now connected to the MUA water line in the street, must also connect their home to the lateral on their property and be precluded from allowing their well water to enter the house plumbing. The defendants concede that the plaintiffs remain free to use their well water for any purpose, provided that it is not interconnected with the MUA system serving their house. The defendants do not contend that the plaintiffs must cap their well but insist that the ordinance provides the power to prevent the interconnection of the well with the house plumbing so as to avoid the possible contamination of the public water supply. The parties also agree that there is no present evidence of pollution in the plaintiffs’ well. Notwithstanding that fact, the defendants argue that any risk of contamination must be eliminated by prohibiting interconnection of the well water with the MUA water supply.

As mentioned, the parties have litigated almost continuously over the past five years. The matter once reached the Appellate Division and resulted in an unreported decision of January 8, 1998 (A-971-9473), which sustained the constitutionality of the ordinance creating the MUA. The court also upheld the right of Stafford Township to adopt an ordinance requiring mandatory connection to the municipal system. However, the opinion does not dispose of the question of whether the plaintiffs must thereafter connect their home to the lateral on their property and cease the use of well water through the house plumbing for domestic consumption or other purposes. It is that question alone which is in controversy before this court.

As noted, there has been no definitive ruling in our State regarding this issue. However, while it is a novel matter within our jurisdiction, there is persuasive precedent in our federal circuit court supported by decisions in other states so directly on point that judicial economy suggests there is no need for a lengthy independent analysis of the controversy. In particular, the case of Stern v. Halligan, et al., 158 F.3d 729 (3rd Cir.1998) is squarely on point. Indeed, Stern involved a neighboring municipality, the [326]*326Township of Berkeley, with an ordinance very similar in scope to Stafford Township’s regulations.

Berkeley Township adopted an ordinance requiring property owners to connect to the municipal system and to permanently disconnect their private wells from the potable water plumbing supply of their buildings. The plaintiffs in that action received a notice that they must connect and, after failing to do so, were served with summonses for violating the ordinance. The plaintiffs brought an action claiming the mandatory hook up and connection violated their constitutional rights and general right to be free from government action.

In addressing the ordinance provision requiring connection to the municipal water system, the court found that general economic and social welfare legislation may be struck down only if it fails to meet a minimum rationality standard. The court concluded that the plaintiffs failed to meet their burden since the protection of health, safety and general welfare, which was the goal of the challenged ordinance, was plainly in the public interest. The court justified its conclusion by finding the Legislature may rationally determine that a public water supply is the simplest and safest solution for its citizenry, even without proof of danger to each and every affected person.

In support of its decision, the Stem court stated that “the overwhelming majority of courts that have addressed the issue have found that mandatory connection to public water supply is a legitimate exercise of police power.” Id. at 731. A long string citation followed, including a reference to the unreported decision in State of New Jersey v. Kusznikow, A-971-94T3, (App.Div., January 8, 1996). The court went on to distinguish the only contrary authority, City of Midway v. Midway Nursing and Convalescent Center, Inc., 230 Ga. 77, 195 S.E.2d 452 (Ga.l973), by finding the Georgia enabling legislation required that the power granted to municipalities be strictly construed whereas the federal court was obligated to evaluate the ordinance in terms of whether [327]*327it met the minimum standard of rationality required of social welfare legislation under the due process clause.

The court then turned to the very issue involved in this matter. It said:

The plaintiffs additionally claim that their case is distinct from other mandatory connection cases because the ordinance at issue may require them to cap or disconnect their wells in addition to requiring them to hook up to municipal water. We need not interpret the ordinance at this level of detail, however, because this slight additional burden makes no difference to the outcome of this case. Requiring disconnection of indoor water from a potentially dangerous source is part of the general protective legislative scheme and works no unjustifiable harm on the plaintiffs. See Renne v. Township of Waterford, 73 Mich.App. 685, 252 N.W.2d 842, 846 (Mich.Ct.App.1977) (upholding a sewer connection requirement and a ban on the use of a functioning septic tank); Weber City Sanitation Comm’n /v. Craft, 196 Va. 1140, 87 S.E.2d 153 (1955)/ (upholding a mandatory water connection and well disconnection ordinance); cf. Andres v. City of Perrysburg, 47 Ohio App.3d 51, 546 N.E.2d 1377, 1381 (Ohio App.Ct.1988) (rejecting a takings claim for a mandatory sewer connection where local law also required all connected property to be annexed by the city).
Consequently, plaintiffs have no right to have their wells service their houses, even though the township has not proven that the wells are dangerous. Indeed, even if the plaintiffs can prove the current safety of their water, they would not be exempt from the generally applicable connection requirement. Mere over- or underinelusiveness will not invalidate social welfare regulation so long as the state action represents a rational response to a legitimate problem. See Lindsey Coal Mining Co. v. Chater, 90 F.3d 688, 694-95 (3rd Cir.1996). Mandatory connections to public utilities are classic examples of social welfare regulations that merely adjust the burdens and benefits of life in the modem world.

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Bluebook (online)
730 A.2d 930, 322 N.J. Super. 323, 1999 N.J. Super. LEXIS 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kusznikow-v-township-council-of-stafford-njsuperctappdiv-1999.