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Gabriel v. Borough of Paramus

Decided: July 9, 1965.


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- Justice Haneman. The opinion of the court was delivered by Schettino, J. Haneman, J. (dissenting).


[45 NJ Page 382] Plaintiffs, owners of two parcels of land in the Borough of Paramus, were assessed $18,568.70 as the

benefit to plaintiffs from defendant's local sewer system improvement. The dollar amount of the assessment was stipulated to be in proportion to and not in excess of the alleged benefits. At trial it was stipulated that all of the statutory procedures in adopting the improvement ordinance and in making the assessments had been complied with. Plaintiffs objected to the assessments, however, alleging that no benefit to their property resulted from the improvement. The assessment was confirmed by defendant's governing body, and on appeal, the decision was affirmed by the Superior Court, Law Division. Plaintiffs appealed to the Appellate Division and we certified the cause before argument.

Many issues were set forth in the pleadings and pretrial order -- all were disposed of by stipulation except one. That issue is: May the municipality assess property for a local improvement when plaintiffs' direct benefit results from an interceptor sewer line (which tied into and is the sole outlet of the municipality's sewer system) built and paid for by the county sewer authority as a result of a contract between the defendant municipality and the sewer authority?

The authority or power to make public improvements does not of itself confer power to levy assessments to pay for the improvements; such power must be conferred by constitution, statute or charter. 14 McQuillin, Municipal Corporations § 38.07 (3 d ed. 1950). The Home Rule Act of 1917 is the principal source of a municipality's authority to undertake local improvements and to pay for them by assessment. See Burstiner v. City of East Orange, 100 N.J.L. 385 (E. & A. 1925).

We note that historically all public improvements originally were made at the expense of the taxpayers generally. However, in 1427, Parliament provided for the draining of certain marshes at the expense of a more limited class, namely, the property owners benefiting thereby. 6 Hen. 6, c. 5, § 6. This theory was widely adopted in this country. State, Society, etc., pros. v. City of Paterson, 42 N.J.L. 615 (E. & A. 1880); Hamilton, Special Assessments, p. 4 et seq. (1907).

Our Legislature has provided that a municipality has the option of undertaking public improvements at the expense of the land benefited thereby or at the expense of the municipality generally. N.J.S.A. 40:56-1.

Although a public improvement may be of general benefit to the municipality at large, it does not negate the existence of special benefits to individual properties. Leggett v. Plainfield, 97 N.J.L. 341 (E. & A. 1921). For a special assessment to be levied it is enough that the land be in the vicinity of the local improvement and be benefited thereby. N.J.S.A. 40:56-1. The foundation of the power to levy a special assessment is the benefit or enhancement of value which the improvement confers. Cirasella v. Village of South Orange, 57 N.J. Super. 522, 528 (App. Div. 1959); In re Public Service Electric and Gas Co., 18 N.J. Super. 357 (App. Div. 1952). See also Jardine v. Borough of Rumson, 30 N.J. Super. 509 (App. Div. 1954); Sahl v. West Deptford Tp., 32 N.J. Super. 546 (App. Div. 1954).

In Hills v. City of Rahway, 29 N.J. Super. 16 (App. Div. 1953), the city assessed as a local improvement the cost of construction of extensions to its sanitary sewerage system. The owners of the land in question built, at their own expense, lateral sewers which connected with and emptied into the trunk sewer constructed by the city. The court found that the owners were actually being served by the trunk sewer and to that extent were benefited, stating (at p. 23):

"Lands served by a sewage system constructed by a city, although not on the line of the sewer or of the street through which the sewer runs, if benefited, are subject to assessment * * * [citations omitted]. And this is true of lands served by lateral sewers, not fronting on the main or trunk sewer, where such lateral sewers empty into the main sewer."

Hills referred to River Edge Homes, Inc. v. Borough of River Edge, 130 N.J.L. 376 (Sup. Ct. 1943), wherein assessments made for the extension of the existing sewer system were at issue. Although the owner had to erect a lateral sewer

and a pumping station in order to use the new extensions, the court upheld the assessment stating (at p. 381): "The lands are benefited. The sewage is carried off by the trunk sewer and the lands thus served commensurately increased in value."

In In re Hazeltine, 23 N.J. Super. 154 (Law Div. 1952), the municipality enlarged an existing drainage outlet. Part of the cost thereof was assessed to lands not directly connected to the laterals and trunk lines of the improvement. The court made the following finding as to whether a benefit had been conferred (at p. 160).

"It is the finding of this court that where laterals and trunks have been constructed, which have in part taken over the drainage afforded by the Crooked Brook, as here, and a new outlet constructed in part, property holders whose drainage is carried or facilitated by the drainage system, as here, receive a special or peculiar benefit by reason of the furnishing of a new, enlarged outlet made necessary by the improvements accelerating the descent of the storm water thereby surcharging the main trunks laid in place of the brook, there being no question that this improvement increased the discharge of water beyond the natural capacity of Crooked Brook." (Emphasis ours)

We conclude therefore that land, although not abutting the improvement itself and therefore necessitating a private connection thereto, can be assessed for the proportionate share of the cost of the total improvement.

We turn to the history of the case. The facts are not disputed. The Bergen County Freeholders in 1947 created the Bergen County Sewer Authority under N.J.S.A. 40:36A-2. The Authority has the power to contract with municipalities within the county (N.J.S.A. 40:36A-33) for the disposal of sewage through a District Sewer System.

In 1957 the Borough of Paramus adopted an ordinance authorizing a contract with the Authority for the disposal of sewage emanating from the Borough. The contract in general provided that the Authority would dispose of the sewage collected by a proposed municipal sewer system to be built by the Borough for a charge to the Borough depending on the metered flow of sewage out of the municipal system into the

County District System. It also provided that the Borough would not execute the contract until the Authority agreed on a point of connection located in Paramus between the proposed municipal system and the district system. Subsequent negotiations found it would be more economical to change the original site chosen for the connection and as a result of this change, an interceptor sewer line was constructed and paid for by the Authority at a cost of $300,000. The Authority acquired by condemnation an easement across plaintiffs' property and it was through this easement that the interceptor was built.

In 1960, the Borough adopted Ordinance 412 which provided for the construction of Stage I of the municipal sewage system, the system contemplated in 1957, which would tie into the District Sewer System. Section 1 stated that the improvement described in section 3 was authorized as a local improvement. This part of the system was constructed at the cost of $3,330,000 and was tied into the interceptor. All the sewage from the Borough's sewer system flows through the interceptor into the district sewer system. At the district end of the interceptor is a meter which measures the amount of sewage and is the basis for the Authority's annual charge to the Borough.

The ordinance provided that the Borough would issue notes in its name to finance part of the construction and also directed a special assessment to pay for the remainder. The special assessment was levied pursuant to N.J.S.A. 40:56-1 which defines a local improvement as one, "the cost of which, or a portion thereof, may be assessed upon the lands in the vicinity thereof benefited thereby." Par. (i) of the statute gives a municipality the power to construct sewers as a local improvement.

The consulting engineer engaged by the Borough to negotiate with the Authority, testified that at the insistence of the Borough, opening facilities were installed in the interceptor so that various properties, including that of plaintiffs, would be able to connect directly to the interceptor. However, any

such connection could only be made in accordance with an understanding between the Borough and the Authority that the property owners who wanted to make such a connection had to apply to the Authority for permission and were required to obtain an endorsement of approval on the permit by the Borough's board of health.

Plaintiffs' lots are located near the intersection of Route 4 and Forest Avenue in the Borough of Paramus. The sewer installations provided for in Ordinance 412 come near plaintiffs' property, but are not accessible. The section of the Paramus sewer on Route 4 cannot be used by plaintiffs since neither lot fronts on Route 4, and properties owned by others are in between. The sewer on the west side of Forest Avenue is of no use to the plaintiffs because the elevation of their property makes a tie-in to this sewer impossible without pumps. As for the Paramus sewer on the east side of Forest Avenue on which plaintiffs' property fronts, the elevation differential exists and moreover a tie-in is impossible as the sewer line stops short of plaintiffs' property. But see River Edge Homes, Inc., supra.

Plaintiffs, at their own expense and with the written permission of the Authority and approval by the Borough's board of health, built their own private sewer line connecting with and into the interceptor sewer.

Plaintiffs contended at trial and before us that even conceding that their private line connection to the interceptor sewer benefits their property, the Borough cannot assess their property for a local improvement for "this fortunate consequence." The Borough does not dispute the fact that none of the municipal installations permits a tie-in to plaintiffs' property but contends however, that the alleged benefit arises from the fact that plaintiffs have connected directly to the Authority's interceptor which would not have been available had it not been for the Paramus sewer system of which the Authority's interceptor line ...

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