CLAUDIU SECARA v. WEST MILFORD MUA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CLAUDIU and ANDREA SECARA,

Plaintiffs-Appellants,

v.

WEST MILFORD MUA,

Defendants-Respondent.

March 7, 2014

Submitted February 11, 2014 Decided

Before Judges Alvarez, Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3218-11.

Claudiu Secara and Andrea Secara, appellants pro se.

Nuzzi & Mason, attorneys for respondent (Lisa Chadwick Thompson, of counsel; Matthew W. Young, on the brief).

PER CURIAM

Plaintiffs Claudiu and Andrea Secara are the owners of a seasonal cottage located in the Awosting area of West Milford. They appeal from a January 8, 2013 judgment of the Law Division that dismissed their challenge to defendant West Milford Township Utilities Authority's (MUA) method of charging for sewer service. Following a bench trial, the court found that plaintiffs' complaint was time-barred under Rule 4:69-6(a), and, even if timely filed, lacked any legal basis. We agree, and affirm the trial's court's ruling.

Prior to 1987, the State of New Jersey leased a parcel of property located in the Awosting area of West Milford to Royal Sengstacken, Jr., for seasonal summer use. Royal1 owned the home located on the leased property.

In 1987, Royal sought to have the property improved with sewer service, and the State agreed to his request. In exchange for its acquiescence, the State required that (1) Royal pay any connection fees and bills associated with the sewer service and (2) the water be disconnected each year from November 15 to April 15.2

Royal and the State renewed the lease in 1999. It provided that the tenant's interest could not be assigned to anyone absent the State's consent, and no one other than the lessee could use the improved premises. According to the trial judge, "[t]he purpose of the lease was to allow [Royal] to use the land as a cottage site for . . . personal use on a seasonal basis only." The judge determined that the lease "imposed on [Royal] the obligation to be responsible for all repairs and charges related to the utilities servicing the property."

Royal passed away in 2001, and the lease vested in his wife, Carol Sengstacken. Carol retained the leasehold, but in 2002 sold the house on the leased property to her daughter and son-in-law, the Secaras. Carol informed the State that the Secaras would be using the property and, accordingly, that they should be billed for future water and sewer fees.

On September 20, 2002, Andrea wrote to the MUA, following up on an earlier phone call. Andrea noted that she and Claudiu were taking over use of the property and house, including the bills, but that they would be using it even less frequently than Royal and Carol. Consequently, Andrea stated:

We find that a charge of $181.50 per quarter seems a bit much. To what extent should we have to subsidize our year-round neighbors with large families? We do not use the house for even 60 days a year, total, so even if this amount were cut in half (which we think seems fair), we would still be paying for 6 months' full-time use, while only using it for two months.

By letter dated September 27, 2002, Diane Paretti, Executive Director of the MUA, replied that she discussed the Secaras' concerns with the MUA Board, but that their request was being denied because "the law require[d] that all customers be charged the same rate." In addition, Paretti explained that it had been Royal's choice to obtain sewer service for the property and that year-round sewer charges were a consequence of that decision.

The issue apparently remained dormant until June 21, 2005, when the Secaras attended an MUA Board meeting, and again asked the MUA to reduce their sewer fees. Paretti responded on July 5, 2005, once more informing the Secaras that their request was denied. Paretti explained that all seasonal sewer users paid annual fees and that this billing methodology was "made perfectly clear when the request to connect was made in 1987."

In June 2010, plaintiffs filed a complaint in the Small Claims Division challenging defendant's billing practice. That action was dismissed without adjudication on the merits. In July 2011, plaintiffs then re-filed their complaint in the General Equity Division, which transferred the matter to the Law Division.3 On January 17, 2012, the Secaras filed an amended complaint, seeking judgment: (1) declaring the MUA's billing methodology "inequitable"; (2) limiting the MUA's authority to collect sewer fees to only those months when the property had water service; and (3) requiring the MUA to refund the amount allegedly overcharged between 2003 and 2011, estimated at approximately $3210.

A bench trial took place on December 10, 2012. The Secaras testified, and the MUA offered one witness, Kelly Love, its Director of Staff Operations.

Andrea testified that she and her husband had brought their complaint to the MUA Board in 2002 and 2005 without success. Similarly, Claudiu testified that they contacted the MUA in 2002 and "several times" thereafter, seeking a reduction in their sewer bills based on usage, as opposed to being assessed an annual fee.

After the Secaras rested, the MUA made a motion to dismiss. The MUA's counsel argued that, because the Secaras did not bring their action in lieu of prerogative writs within forty-five days of the MUA's denial of their 2005 bill-reduction request, their action was barred by the statute of limitations. The trial judge reserved decision on the motion so that he could review the applicable law, and afforded the parties the opportunity to brief the issue.

In concluding the testimonial portion of the trial, Love explained that the State, which owned and leased out the properties in the Awosting area, required that water service to the properties be turned off between November 15 and April 15. Love also stated that the MUA billed an annual flat-rate fee for sewer service, both for year-round and seasonal customers.4 According to Love, that billing practice had been in effect since at least 1987.

On January 8, 2013, the trial judge entered a final judgment dismissing plaintiffs' complaint with prejudice, accompanied by a written opinion. He concluded that the Secaras did not timely file their action in lieu of prerogative writs within forty-five days after it accrued, as required by Rule 4:69-6(a). While the judge noted that Rule 4:69-6(c) permitted an enlargement of the limitation period when the interest of justice so required, that exception was inapplicable here, since the Secaras waited five years to pursue their claim, offering no explanation other than that they were busy with their lives.

Further, the judge determined that even if the Secaras were permitted to avail themselves of the continuing violation of public rights exception to Rule 4:69-6(a), their claim nonetheless lacked substantive merit. The judge cited N.J.S.A. 40:14B-22, Luv Condominium Association v. Stanhope, 192 N.J. Super. 159, 167 (App. Div. 1983), and Reahl v. Randolph Township Municipal Utilities Authority, 163 N.J. Super. 501, 515-516 (App. Div. 1978), certif. denied, 81 N.J. 45 (1979), for the proposition that a municipality must establish a uniform sewer rate for all similarly situated residential dwelling units. The judge found that the MUA's billing methodology satisfied the statutory uniformity requirement, stating:

The actual cost to furnish sewer service to one home may be different to furnish the same service to another home but the statute focuses on the nature of the service, not on unit cost-accounting methods. [The MUA]'s approach to billing-charging all one family houses the same for the same service squares with the statutory requirement of uniform treatment for the same type, class and amount of use or service by spreading non discriminatorily among all similar users in the district served. The fact that some homes, seasonal or not, use the service more than others does not change the appropriateness of [the MUA]'s billing practices.

[(citations and quotation marks omitted).]

The present appeal followed.

When reviewing a decision resulting from a bench trial, "[t]he general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings of the trial judge unless we are "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412; see also Beck v. Beck, 86 N.J. 480, 496 (1981). However, "[a] trial court s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). A trial court s "interpretation of court rules is also subject to de novo review." Washington Commons, LLC v. City of Jersey City, 416 N.J. Super. 555, 560 (App. Div. 2010), certif. denied, 205 N.J. 318 (2011).

"[J]udicial review of the actions of a municipality where there is no administrative appeal procedure is in the Law Division by an action in lieu of prerogative writs." Dolan v. City of E. Orange, 287 N.J. Super. 136, 142 (App. Div. 1996). Here, it is clear that the Secaras were challenging municipal action, namely, the MUA's refusal to reduce the sewer rate on their seasonal home. Their action was therefore one in lieu of prerogative writs, even though their complaint was not captioned as such. "Even though [a] plaintiff s complaint [i]s not so designated, it may be characterized as such because it challenges [a municipality] s action . . . ." See Hawthorne PBA Local 200 v. Borough of Hawthorne, 400 N.J. Super. 51, 55 (App. Div. 2008).

Rule 4:69-6(a) generally provides that "[n]o action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed." However, pursuant to Rule 4:69-6(c), "[t]he court may enlarge the period of time provided in paragraph (a) . . . where it is manifest that the interest of justice so requires." As the judge correctly noted, three general categories of cases qualify for this "interest of justice" exception to the 45-day limitations period:

cases involving (1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification. The Court has added that one of the [other] factors that will ordinarily guide courts include whether there will be a continuing violation of public rights. Balanced against those interests is the important policy of repose expressed in the forty-five day rule. The statute of limitations is designed to encourage parties not to rest on their rights.

[Borough of Princeton v. Bd. of Chosen Freeholders, 169 N.J 135, 152-53 (2001) (citations and quotation marks omitted).]

On appeal, plaintiffs contend that their complaint is not time-barred under Rule 4:69-6. Some support for plaintiffs' position may be found in Reahl, supra, 163 N.J. Super. at 504-06, where three individual plaintiffs, representing a class of 145 aggrieved single-family homeowners, brought an action in lieu of prerogative writs against a township MUA seeking relief from payment of an annual sewer service charge. Plaintiffs were notified in March 1976 that beginning April 1, 1976, they would be billed by the MUA as its sewer customers. Id. at 509. However, suit was not filed until December 21, 1976. Ibid. We held:

One of the recognized reasons for relaxing the 45-day rule is the consideration of an important public, rather than private interest, requiring adjudication. Although the cost of sewer service to each of the class plaintiffs is a personal expense, the question of the power of the Randolph MUA to charge these class plaintiffs the standard annual rate for single family dwellings is an issue of public importance requiring adjudication. Additionally, in view of the dealings between the parties, there is some doubt in this record when the dispute between the class plaintiffs and the Randolph MUA actually crystallized along firm lines sufficient to call forth the policy of repose . . . . For these reasons and because of the continuing impact of the question upon the parties we conclude that the interests of justice require an enlargement of time under R. 4:69-6(c).

[Id. at 509-10 (citations omitted).]

On its facts, Reahl appears clearly distinguishable from the present action. As an initial matter, plaintiffs in Reahl were three individuals expressly representing the interests of 145 similarly situated homeowners, a group that the court designated "class plaintiffs." Id. at 505. In contrast, the Secaras are two individuals representing only themselves and a single home, and thus assert a "private interest[.]" See Borough of Princeton, supra, 169 N.J. at 152 (internal quotation marks omitted).

The Secaras' amended complaint did not indicate that they were seeking redress on behalf of their sixteen seasonal neighbors in the Awosting area. In fact, according to the amended complaint, the Secaras represented that their house "[wa]s the only house on the Awosting sewage system that [wa]s restricted by lease to seasonal usage only, and [wa]s not 'seasonal' by the owners' choice." (first emphasis added). The amended complaint further alleged that the Secaras' house "[wa]s a special case, under unique circumstances." (emphasis added). Moreover, Love's undisputed testimony was that there had been no other complaints about the MUA's billing method from any other homes in the municipality.

Nor have the Secaras presented a compelling reason for their prolonged delay in challenging the MUA's billing methodology. In Reahl, plaintiffs brought suit within a relatively prompt time period, and it was unclear from the record when the dispute between the parties had "actually crystallized." Id. at 510. No such lack of clarity exists here, since it is abundantly apparent from the record that plaintiffs were long aware of the alleged improper billing methodology, and voiced the identical complaint to the MUA in 2002 and 2005 that now forms the basis of their belated lawsuit.

The reference in Rule 4:69-6(c) that "[t]he court may enlarge the period of time" has been construed by our Supreme Court as conferring discretionary authority upon the trial court. Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569, 578 (2011) (citing Wiese v. Dedhia, 188 N.J. 587, 592 (2006)). The Court in Hopewell Valley emphasized that the reference to manifest injustice in the Rule required the plaintiff "to show plainly or make palpably evident or certain by showing or displaying" that he or she will endure injustice if the time restrictions of the Rule are not relaxed. Hopewell Valley Citizens' Grp., Inc., supra, 204 N.J. at 569. Here, as justification for their delay in waiting until 2010 to file their initial complaint, Andrea simply offered that was "when [they] got around to it." When questioned why plaintiffs had not filed suit in 2005 when their request for a billing decrease was again denied by the MUA, Andrea merely added, "People only have so much time in the day." Claudiu's testimony, that "[w]e had to build a business and we were very busy," was no more persuasive. Given these excuses, we find no abuse of discretion by the trial court in deeming plaintiffs' claims time-barred under the Rule.

Even if for purposes of this appeal we accept plaintiffs' argument that the MUA's annual billing constitutes a continuing statutory violation so as to remove it from the bar of the statute of limitations, we nonetheless conclude, as did the trial court, that plaintiffs' substantive claim clearly lacks merit.

N.J.S.A. 40:14B-22 concerns "[s]ewarage services charges" by MUAs. It provides, in relevant part:

Every municipal authority is hereby authorized to charge and collect rents, rates, fees or other charges . . . for direct or indirect connection with, or the use or services of, the sewerage system . . . . Such rents, rates, fees and charges, being in the nature of use or service charges, shall as nearly as the municipal authority shall deem practicable and equitable be uniform throughout the district for the same type, class and amount of use or service of the sewerage system . . . .

[Ibid.]

On appeal, plaintiffs renew their argument that the MUA improperly charges a flat annual rate for all single family homes, billed quarterly, regardless of the fact that they do not use sewerage service between November and April, as per the terms of their land lease with the State. However, contrary to plaintiffs' argument, N.J.S.A. 40:14B-22 allows sewer fees to "be based or computed either on the consumption of water on or in connection with the real property." The statute approves six specific methodologies for billing, or a combination of them, including not only usage-based rates but also flat categorical rates such as those based on connections, number of residents, and, relevant here, on the kind of connection or class of user.

We have consistently rejected challenges to the statute such as that posed here by the Secaras. In Reahl, supra, 163 N.J. Super. at 515-16, we held that the municipality's decision to impose an identical $125 annual sewer charge on all single-family dwelling units, regardless of size or usage, comported with N.J.S.A. 40:14B-22. "This approach squares with the statutory requirement of uniform treatment for the same type, class and amount of use or service. The expense of service is spread nondiscriminatorily among all similar users in the district served." Id. at 517 (internal quotation marks omitted).

Similarly, in Luv Condominium Ass'n, supra, 192 N.J. Super. at 167, we considered language in the Sewer Authorities Law, N.J.S.A. 40:14A-8(b), similar in all relevant respects to N.J.S.A. 40:14B-22, and concluded that the municipality's ordinance that established a uniform sewer rate for all single-family residences, apartments or condominiums, was not arbitrary, capricious, or discriminatory. We further held that the municipality was not required to bill its customers by usage, even though the sewerage authority billed the municipality in that manner. Id. at 169.

In the present case the MUA's billing methodology, which imposes the same sewer service fee on all single-family dwelling units in West Milford, promotes uniformity, and complies with N.J.S.A. 40:14B-22.

Affirmed.

1 Since the Sengstackens and the Secaras each share common surnames, we refer to them in this opinion by their first names. We do so for purposes of brevity and clarity, and intend no disrespect.

2 As of December 10, 2012, there were sixteen other seasonal homes in the Awosting area, all of which were subject to a similar water service limitation.

3 We have not been provided with copies of the Small Claims complaint, the order dismissing that complaint, or the original complaint filed in this action. However, the parties agree upon this procedural history in their briefs.

4 According to a June 1, 2005 memorandum issued by the MUA to its customers, the flat annual rate was uniform among homes of the same size: one-bedroom homes paid $815, two-bedroom homes paid $835, and three-bedroom and single-family homes paid $855.