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Darrah v. Township of Evesham

Decided: July 7, 1970.

ALBERT DARRAH AND RUTH DARRAH, HIS WIFE, INDIVIDUALLY AND AS RESIDENTS AND TAXPAYERS OF THE TOWNSHIP OF EVESHAM, AND AS REPRESENTATIVES OF A CLASS OF OBJECTORS, PERSONS HEREIN DEFINED AND LISTED BY NAME, PLAINTIFFS-RESPONDENTS,
v.
THE TOWNSHIP OF EVESHAM, ET AL., DEFENDANTS-APPELLANTS



Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Leonard, J.A.D.

Leonard

[111 NJSuper Page 63] In this proceeding in lieu of prerogative writs defendants Township of Evesham and its Municipal Utilities Authority (Authority) appeal from a summary judgment by the trial court declaring a municipal ordinance authorizing, inter alia , the construction of sewers as local improvements, to be unlawful in light of the existence of the Municipal Utilities Authority and enjoining defendants from taking any further action pursuant to the ordinance. Plaintiffs are residents of the unsewered portion of the township affected by the proposed installation. The township is

comprised of 4,000 homes, of which 3,000 have sewerage facilities. Of the remaining 1,000, only 70-78 are involved in this installation.

The facts are not in dispute. Defendant township had created a municipal utilities authority, as provided for in N.J.S.A. 40:14B-1 et seq. Although defendant Authority was still in existence, the township adopted ordinance No. 23-69 which provided for a municipal bond issue to finance the extension of water and sewerage facilities to the unsewered portion of the township. The cost was to be assessed solely against the property benefited as a local improvement. The construction of the improvement was to be done by the Authority and it received bids for the performance of the necessary construction.

Defendants argue that only the local improvement method of recovering the cost of the sewers is fair since three-fourths of the township already has such facilities. The existing sewers were built by the individual housing developers, the cost of which was passed on to the buyer in the sales price. If the construction and financing were accomplished according to the Municipal Utilities Authorities Law, the service charge of the present residents using the sewerage facilities would be increased. Consequently, defendants urge that the above result would be unfair.

In support of this policy and procedure, defendants contend that the Municipal Utilities Authorities Law, N.J.S.A. 40:14B-1 et seq. , does not specifically provide that a municipal utilities authority, upon creation, becomes the exclusive means of providing the financing of sewerage facilities. Accordingly, they argue that the township retains the power to act concurrently in these matters with the Authority. Defendants rely entirely upon their interpretation of the pertinent statutory provisions noted above; they cite no case which supports their position.

Our reading of N.J.S.A. 40:14B-1 et seq. , mandates the opposite conclusion. Initially, N.J.S.A. 40:14B-68 provides that the entire act

* * * shall be construed liberally to effectuate the legislative intent and as complete and independent authority for the performance of each and every act and thing herein authorized, and a municipal authority shall not be subject to, or constitute a municipality or agency or component of a municipality subject to, the provision of chapter 50 or any other provisions of Title 40 of the Revised Statutes * * *.

It has been recognized that a municipal utilities authority is the alter ego of the municipality in providing water and sewer services. Jordan v. Zidel , 40 N.J. 244, 248 (1963), citing Camden County v. Pennsauken Sewerage Auth. , 15 N.J. 456 (1954). As the alter ego , it follows that an authority should act in the place of the municipality in discharging the performance of this essential public need.

However, the act does specifically empower a municipality to cooperate with its utilities authority in certain limited instances. Jordan v. Zidel, supra , 40 N.J. at 248. For example, a municipality may donate or lend funds, or convey real or personal property to it. See N.J.S.A. 40:14B-24, 48. A municipality and an authority may enter into a contract for the treatment and disposal of sewage by means of the existing facilities of a municipality. See N.J.S.A. 40:14B-49. Since this act has specifically set forth the manner in which a municipality may aid an authority in the accomplishment of its purposes, we conclude that the act must be interpreted as reserving all other powers exclusively in the authority. Such an interpretation is more consistent with N.J.S.A. 40:14B-68, as above noted, which indicates that the act will be liberally construed to be the complete and independent authority for the performance of each and every task therein authorized.

In Santoro v. South Plainfield , 57 N.J. Super. 498, 501 (App. Div. 1959), the court considered the problem of whether a municipality could undertake the planning, financing and installing of sewers where a sewerage authority had been established pursuant to N.J.S.A. 40:14A-1 et seq. It was held that a sewerage authority has the ...


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