OCEAN SENIORS, L.L.C. v. TOWNSHIP OF OCEAN SEWERAGE AUTHORITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5290-09T4

OCEAN SENIORS, L.L.C., A

Limited Liability Corporation

of the State of New Jersey,

Plaintiff-Appellant,

v.

TOWNSHIP OF OCEAN SEWERAGE

AUTHORITY; A Municipal Sewerage

Authority of the State of

New Jersey,

Defendant-Respondent.

________________________________________________________________

May 10, 2011

Submitted March 7, 2011 - Decided

Before Judges Lisa, Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2287-08.

Shiriak & Timins, attorneys for appellant (Ben D. Shiriak, of counsel and on the briefs).

Edward A. Kondracki, attorney for respondent.

PER CURIAM

Plaintiff, Ocean Seniors, L.L.C., owns Primrose Place, a 124-unit apartment building in Ocean Township. When the project was constructed, plaintiff paid sewer connection fees for all 124 units, on a per-unit basis at the prevailing rate prescribed by defendant, Township of Ocean Sewerage Authority. Although certificates of occupancy were issued for all 124 units, plaintiff contended in the present lawsuit that sixty of the units had not yet been occupied. Nevertheless, defendant was charging sewerage service fees for the unoccupied units. Plaintiff challenged the validity of those fees.

Plaintiff also made a related challenge. It proposed expansion of Primrose Place by the construction of an additional twenty apartment units. The Ocean Township Planning Board approved its plans. Defendant then also approved the plans, conditioned upon plaintiff's payment of additional connection fees for the additional units, to be paid at the then-applicable rates prior to the issuance of certificates of occupancy. Plaintiff challenged the propriety of these additional connection fees. It argued that it would not be adding a new connection to defendant's sewer main. Instead, the flow from the twenty new units would enter the system through the existing connection into defendant's main.

No facts were in dispute, and the matter came before Judge Daniel M. Waldman on cross-motions for summary judgment. The judge rejected plaintiff's arguments on both issues. He accordingly issued an order on June 18, 2010, granting defendant's summary judgment motion and denying plaintiff's motion. Appended to the order was the judge's comprehensive written statement of reasons.

Plaintiff appeals, arguing that Judge Waldman misconstrued the applicable statutory provisions, misapplied the controlling case law, and engaged in flawed reasoning. Based upon our independent de novo review, see Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we conclude that Judge Waldman analyzed the issues correctly and reached the correct result. We therefore affirm his June 18, 2010 order, substantially for the reasons set forth in his thorough and well reasoned written statement of reasons. We provide these brief comments.

With respect to the service fees being charged for unoccupied units, defendant is statutorily authorized to charge such fees from the owner or occupant "of any real property which directly or indirectly is or has been connected with the system or from or on which originates or has originated sewerage or other wastes which directly or indirectly have entered or may enter the sewerage system." N.J.S.A. 40:14A-8(a) (emphasis added). Without dispute, the sixty unoccupied units are connected to the system and are thus liable for the service fee. Actual discharge of waste into the system is not a statutory requirement. By virtue of the connection, the service is available to these units and the service fee is authorized.

Plaintiff relies primarily on Airwick Industries, Inc. v. Carlstadt Sewerage Authority, 57 N.J. 107 (1970), appeal dismissed and cert. denied, 402 U.S. 967, 91 S. Ct. 1666, 29 L. Ed. 2d 132 (1971), in support of its argument regarding these service fees. Judge Waldman correctly distinguished Airwick Industries and other similar cases relied upon by plaintiff because, in those cases, the affected entities were not connected to the sewerage system.

In the trial court and before us, plaintiff's argument that it should not be required to pay additional connection fees for the twenty new units relies primarily on two cases, namely, Nestl USA v. Manasquan River Regional Sewerage Authority, 330 N.J. Super. 510 (App. Div.), certif. denied, 165 N.J. 604 (2000), and Animated Family Restaurants of East Brunswick, Inc. v. East Brunswick Sewerage Authority, 209 N.J. Super. 532 (App. Div.), certif. denied, 104 N.J. 441 (1986). Judge Waldman distinguished those cases because they dealt with a mere change in use of an existing building, the result of which would increase the flow into an existing connection. Neither case involved new construction expanding the building or the addition of any new billable units connecting with the system. That is not the case here.

Without objection, plaintiff initially paid, on a per-unit basis, 124 connection fees for phase one of its project. This constituted a recognition that each separate apartment is a separate dwelling unit and, like any single-family home, condominium unit, or other form of single dwelling unit, a separate connection fee was applicable on a per-unit basis. It is the number of billable units that determines the number of connection fees applicable, not the number of physical connections into the sewer main owned by the sewerage authority. This is because charges are authorized against any property which is "directly or indirectly" connected with the system. N.J.S.A. 40:14A-8(a).

Plaintiff's rationale would lead to results that are not only anomalous but absurd. A developer could build the first phase of a multi-unit project consisting of only a handful of units and pay a connection fee on a per-unit basis for them; the developer could then construct the later phases consisting of hundreds or thousands of units and, as long as their waste flowed through the connections previously made to the sewer main, no additional connection fees would be required. On the other hand, another developer who built the same total number of units (hundreds or thousands) in a single phase would be required to pay connection fees for all of the units. There is no basis in logic or in the law to support such a rationale.