Opinion
DOCKET NO. A-3554-12T2
06-02-2014
TMB PARTNERS, a New Jersey Limited Liability Company, Plaintiff-Respondent, v. TOWNSHIP OF MILLBURN, MAYOR AND TOWNSHIP COUNCIL OF THE TOWNSHIP OF MILLBURN, TOWNSHIP OF LIVINGSTON, MAYOR AND TOWNSHIP COUNCIL OF THE TOWNSHIP OF LIVINGSTON, Defendants-Appellants.
Brent T. Carney argued the cause for appellants, Township of Millburn, and Mayor and Township Council of the Township of Millburn (Maraziti, Falcon & Healey, LLP, attorneys; Mr. Carney and Joanne Vos, of counsel and on the briefs). Richard J. Hoff, Jr., argued the cause for respondent (Bisgaier Hoff, LLC, attorneys; Mr. Hoff, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, St. John and Leone.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0408-12.
Brent T. Carney argued the cause for appellants, Township of Millburn, and Mayor and Township Council of the Township of Millburn (Maraziti, Falcon & Healey, LLP, attorneys; Mr. Carney and Joanne Vos, of counsel and on the briefs).
Richard J. Hoff, Jr., argued the cause for respondent (Bisgaier Hoff, LLC, attorneys; Mr. Hoff, on the brief). PER CURIAM
This appeal concerns whether defendant Township of Millburn (Millburn) should be compelled to provide sewer service for plaintiff TMB Partner LLC's (TMB) property in the Township of Livingston. Defendants Millburn, and Mayor and Township Committee of Millburn, appeal from the grant of summary judgment and injunctive relief entered in favor of TMB. We reverse and remand for further proceedings.
I.
Viewed in the light most favorable to defendants, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment record reveals the following facts and procedural history.
The Property and the Project.
TMB owns property, located at the corner of South Orange Avenue and White Oak Ridge Road, designated on the Livingston Tax Map as Block 7001, Lot 1 (Property), which is currently used as a daycare center. In 2007, TMB commenced a builder's remedy action, established in Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158 (1983) (Mt. Laurel II), against Livingston and its Planning Board seeking to construct inclusionary housing on the Property. Millburn sought intervention in that lawsuit, but its request was denied by the trial court. By that same order, Millburn was afforded amicus curiae participation in TMB's lawsuit. In August 2010, TMB and Livingston entered into a settlement agreement which resolved the builder's remedy matter.
As a result of the settlement, the Property was rezoned to permit the construction of a sixty-two-unit multi-family residential project that includes a set-aside of units affordable to low and moderate income families (the Project). TMB proceeded with a site plan application before the Livingston Planning Board and also sought Millburn's approval for the Project. TMB's site plan application was approved by the Planning Board, although Millburn objected to TMB's application. However, the Planning Board approval was subject to TMB securing the necessary sewage service for the Project.
The Sewer Agreement.
In 1970, a previous owner of the Property entered into an agreement with Livingston whereby Livingston would construct, at the Property owner's expense, an outlet sewer to be connected to the sanitary sewer system of Millburn. That same year, Livingston and Millburn entered into an agreement whereby Millburn would accept and dispose of the sewage from the Property. In 1990, the parties entered into a restated and amended agreement (the sewer agreement) for providing sewer services to, among other properties, the Property. By its terms, the sewer agreement is to expire in 2015. Among other restrictions, the sewer agreement provides that "there shall be no sewage received [by Millburn] from any hotels, apartment houses, industrial plants or commercial swimming pools." (Emphasis added). Millburn also contends that the sewer agreement contemplates a calculation of Livingston's share of certain charges and capital costs incurred by Millburn for servicing the Property as "equivalent to 10 units" not the proposed sixty-two units.
The Property was also included as an area to be served by Millburn in 1955 and 1962 agreements.
Pursuant to the sewer agreement, Millburn accepts the wastewater generated from the Property, which is "disposed of into the Millburn sewerage system and treated at the sewerage treatment plant of the Joint Meeting" of Essex and Union Counties (JMEUC), Edward P. Decker Secondary Water Treatment Facility. The JMEUC receives wastewater from a sixty-five square mile area in Essex and Union Counties and treats it. Millburn is a member of the JMEUC and it conveys wastewater collected from the Millburn sewer collector system to the JMEUC
TMB contends that Millburn does not own the sewer lines in question, which Millburn disputes, and therefore cannot contest the additional flow caused by the Project. This factual and legal dispute was not determined by the motion judge.
TMB's Wastewater Application.
In September 2011, TMB submitted forms in connection with its application to the JMEUC and thereafter the Department of Environmental Protection (DEP) to obtain public sewer service to the Project. TMB was also required to receive Millburn's consent to amend certain provisions of the applicable County of Essex Wastewater Management Plan. In October, Millburn responded that it would not execute consents to allow for TMB's submissions of the treatment works application (TWA) to the DEP.
The Parties' Contentions.
Millburn and Livingston found TMB's proposed sixty-two-unit development would add 14,000 gallons per day (gpd) of sewage to the sewage lines over the present flow.
TMB contends the amount would be 12,150 gpd.
Livingston provided a letter from its township engineer, Richard Calbi, P.E., who contended that connection of the Project to Livingston's wastewater system would be difficult and costly. He stated that the connection would require
installation of a sewer service line beneath South Orange Avenue in order to connect to Livingston's connection line on the opposite side of the highway. This would require tunneling under a four-lane county road, crossing and avoiding multiple large underground utility lines, and installation of a pump station and force main, all to serve a single residence. This could be very expensive, particularly in comparison to the minimal burden and cost of connecting to the Millburn system.Calbi further opined that "the ability for Livingston to authorize additional connections to its wastewater treatment facility was constrained by the fact that, by letter of June 13, 2011, the DEP directed Livingston to prepare a Capacity Assurance Program (CAP) because average monthly flow data for recent months exceeded eighty percent of the designed capacity." Calbi further stated that, "the letters specified the CAP requirements and stated that imposition of a moratorium on further connections to its waste collection system represented a potential component of a CAP." However, Livingston did not represent that it or the DEP had imposed a moratorium on further connections. Calbi then asserted that he could not approve the use of Livingston's wastewater collection and treatment systems to accommodate the Project. However, no application was submitted by TMB to Livingston for a connection to its system.
Millburn contended that it "simply does not have adequate conveyance to provide to the TMB Project without causing undue harm to its own residents." Millburn argued that its conveyance lines are overburdened and asserted that following storm events, significant flooding regularly occurs in the streets, basements, yards, and "even some first floors of residences within the South Mountain area of Millburn." Millburn stated that this flooding poses a serious risk to public health and welfare.
In an effort to address this problem, Millburn commissioned Hatch Mott MacDonald, professional engineers, (Hatch Mott) to study the issue and to suggest solutions. Hatch Mott contended that part of the problem resulted from too much sewer flow entering the system from upstream areas, coupled with inadequate conveyance capacity between Millburn and the JMEUC. The Project is located in an upstream area.
Millburn's municipal engineer, Tom Watkinson, certified that, "[i]f the township is required to convey any additional sewage from the [Property], the existing flooding conditions will undoubtedly worsen as a result of the already overburdened sewer conveyance lines." James F. Cosgrove, Jr., P.E. certified, among other things, that, "if sufficient capacity is available in the Livingston sewer system, wastewater could easily be pumped from the proposed development into the Livingston system." He also reviewed the Livingston town engineer's position concerning the CAP and a sewer connection ban in Livingston and concluded that, "it is quite possible that the TMB project could be served by Livingston without causing issues with the CAP."
Millburn contends that Livingston failed to demonstrate that it lacked adequate sewer conveyance capacity to support the project. Millburn argues that, even if Livingston is at eighty percent of its designed capacity, it does not mean that Livingston does not have sufficient sewer capacity for the Project. Millburn posits that the June 13, 2011 letter from the DEP to Livingston indicates that if "permitted flow is exceeded," the cessation of issuance of TWAs may result. Millburn argues that DEP has not mandated a cessation of the issuance of TWAs and, therefore, there is a material factual dispute as to whether Livingston's system can accept the flow from the Project.
TMB argues that the Property is currently served by an existing gravity sewer main that connects it to the Millburn sewer system. TMB states that, "in order for the property to connect to the Livingston sewer system, TMB would be required to construct a force main and a pump station in order to direct the wastewater from the [Project] to the Livingston sewer system, which is currently located at a higher elevation than the property."
TMB's professional engineer, Michael Lanzafama, certified that connecting the Project to the Livingston system would cause TMB to "absorb substantial infrastructure costs to physically make such a connection to the Livingston Sewer System." TMB further contends that the Hatch Mott report did not conclude that additional connections to the Millburn sewer system would cause flooding within Millburn or that the elimination of additional connections would eliminate the existing risk of the flooding events. TMB asserts that the Hatch Mott report indicated that the cause of the flooding resulted from inflow and infiltration into the system during significant rain events.
TMB's complaint was filed in January 2012, naming as defendants, Millburn and Livingston. TMB sought equitable relief to enjoin Millburn to take all necessary steps to assure that the TMB project obtains adequate sewer service. In December 2012, TMB moved for summary judgment, and an order compelling Millburn's cooperation.
Oral argument on the motion was conducted on February 21, 2013, after which the motion judge granted TMB's motion for summary judgment and injunctive relief against Millburn. In an oral decision, the court noted that, "Millburn's opposition mainly rests on the fact that Millburn's sewer system cannot handle the additional capacity, which is, apparently, about 14,000 gallons per day." The court further stated that, "plaintiff frames this issue to be decided under the Mount Laurel doctrine. As it alleges that Millburn's basis for declining to provide the additional service is because Millburn does not want the affordable housing project to be completed in their region."
After stating that he was familiar with the reports that had been submitted by the parties, "particularly, the conclusions of Richard Calbi and Michael Lanzafama," the court found that connecting "the TMB Project to the Livingston sewer system would require substantial investment of infrastructure." The judge further noted that he had read the Hatch Mott report in its entirety, but he drew "the conclusion that the concern raised was, primarily, the weather." The court concluded, "it is clearly obvious to this court that this is only an attempt to further burden the movement by TMB to building their Mount Laurel-related development on this property. And that is the primary motivation behind the Township of Millburn's position."
The court then found that the objection by Millburn would be discriminatory in nature and contrary to the "Mount Laurel decisions that have been cited by both parties." The court also found that the issue of flooding in Millburn and the issue of Livingston's capacity are not "genuine, relevant issues of material fact." The court granted TMB's motion for summary judgment and injunctive relief by order dated February 22, 2013. On May 8, 2013, the court denied Millburn's motion for a stay and granted TMB's cross-motion to enforce litigant's rights.
On May 24, 2013, the court entered an order amending the February 22 order to reflect that summary judgment is entered against Millburn and all claims against all remaining defendants are dismissed.
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Millburn argues on appeal that the genuine issues of material fact pertaining to the sewer conveyance capacity of both Millburn and Livingston existed and, as such, summary judgment was precluded.
II.
Certain principles guide our consideration of the issues raised on appeal.
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge under Rule 4:46. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party. Brill, supra, 142 N.J. at 523. We accord no deference to the motion judge's conclusions on issues of law, Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 14 0 N.J. 366, 378 (1995), which we review de novo, Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
The motion judge must determine whether there are any genuine factual disputes, but, if they exist, the motion judge cannot resolve those disputes on the papers. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). When genuine issues of material fact are in dispute, the motion for summary judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003); Brill, supra, 142 N.J. at 540. To grant the motion, the court must find that the evidence in the record "'is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
Initially, resolution of TMB's summary judgment motion depended on the court's interpretation of the language of the sewer agreement -- usually a matter of law, suitable for decision on a motion for summary judgment. Spring Creek Holding Co., Inc. v. Shinnihon U.S.A. Co., Ltd., 399 N.J. Super. 158, 190 (App. Div.), certif. denied, 196 N.J. 85 (2008); Driscoll Constr. Co., Inc. v. State, Dep't of Transp., 371 N.J. Super. 304, 313 (App. Div. 2004). Only "where there is uncertainty, ambiguity or the need for parol evidence in aid of interpretation, [should] the doubtful provision . . . be left to the jury." Great Atl. & Pac. Tea Co., Inc. v. Checchio, 335 N.J. Super. 495, 502 (App. Div. 2000).
Whether an ambiguity exists is a matter of law to be decided by the trial court. Celanese v. Essex Cnty. Improvement Auth., 404 N.J. Super. 514, 528 (App. Div. 2009). Moreover, it is fundamental that if the terms of a contract are clear and unambiguous, the court must enforce those terms as written. Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960).
Here, the court did not determine, as a matter of law, that the sewer agreement was enforceable and whether the exclusions for "apartment houses" and the ten-unit flow provisions, as asserted by Millburn, relieved Millburn from a contractual obligation to accept the wastewater from the Project. If the court should find that the terms of the sewer agreement compel Millburn to accept the flow from the Project, then the application of a Mount Laurel analysis would not be necessary. However, should the court determine that Millburn is not contractually obligated to accept the flow, then the Mount Laurel principles must be applied.
Since the threshold determination concerning the contractual obligations of the parties was not determined by the court, and since there are genuine material factual disputes, we are constrained to reverse the court's decision and remand to the motion judge. As guidance, we address the issues raised by the parties in the context of a neighboring municipality's obligation, absent a voluntary contract, to provide sewer service for affordable housing projects in a neighboring municipality.
In Bi-County Development of Clinton, Inc. v. Borough of High Bridge, 174 N.J. 301 (2002), our Supreme Court determined not to extend the scarce resource doctrine, recognized in a Mount Laurel context in Hills Development Co. v. Bernards Township, 103 N.J. 1, 61-63 (1986), to a developer that had paid a fee in lieu of constructing affordable housing. The Court noted, "as a general rule, a municipality that provides services for the benefit of its residents is under no obligation to extend its services to those beyond its borders." Id. at 316. The Court held compelling circumstances should exist in order to justify under Mt. Laurel principles disturbing the general rule that a municipality may exclude another municipality or its residents from using or connecting to its sewer system. Id. at 328.
The Court continued, "we anticipate that general rule will be disturbed only in the case of developments that substantially and directly serve important regional and environmental interests." Ibid. In addition, the Court held that compelling circumstances did not exist in that case, in part because the success of the proposed project was not at stake as plaintiffs had an alternate means of acquiring sewer services.
There is an exception to the general rule, however, where an inclusionary development in one municipality could not be built without access to the sewer system in another municipality which has excess capacity. Dynasty Bldg. Corp. v. Borough of Upper Saddle River, 267 N.J. Super. 611, 616 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994). In Dynasty, we held that an order requiring one municipality "to make existing sewer capacity available to Mt. Laurel inclusionary development sites comports with the concept that municipal obligations to provide for low and moderate income housing are established on the basis of regional responsibility." Ibid. The matter was remanded for a determination of whether adequate sewer service and capacity existed to serve those inclusionary sites which required access. Id. at 617. The two municipalities involved were parties to an inter-municipal sewer service agreement and the order on appeal required only that the municipalities revise their agreement. Id. at 614.
If the court should determine that Millburn is not contractually obligated to accept the flow from the Project, then it must determine if adequate sewer service and capacity exists in Livingston to service the Project. If the court determines that there is not adequate service and capacity, then it is TMB's burden to demonstrate "compelling circumstances," which would obligate Millburn to accept the flow from the Project.
Affording Millburn all reasonable inferences from the record, we conclude that the motion court erred in granting summary judgment to TMB. In addition to whether the sewer agreement compels Millburn to accept the flow from the Project, there are genuine issues of material facts; whether Millburn owns or has the right to regulate the sewer feeder system into which the flow from the Project will discharge; whether the costs to connect to the Livingston system are substantial; whether Livingston has adequate service and capacity for the flow; and whether Millburn has adequate service and capacity for the flow.
We are therefore constrained to reverse the summary judgment and injunctive relief order granted to TMB. We remand the matter to the motion court for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION