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Ceva v. Township of River Vale

Decided: June 28, 1972.


Conford, Matthews and Fritz. The opinion of the court was delivered by Conford, P.J.A.D.


[119 NJSuper Page 595] This is an appeal by the four individual plaintiffs, taxpayers of the Township of River Vale, and by five municipalities, including River Vale, originally made defendants, from a summary judgment entered by the Law Division in favor of defendant Bergen County Sewer Authority ("Authority"). By stipulation of the parties on entry of judgment the only issue remaining, and reserved for appeal, is the validity of a certain "base charge" for participation by the seven defendant municipalities in what is described as the Northern Valley extension of the sewerage

system maintained by the Authority under and by virtue of L. 1946, c. 123 (N.J.S.A. 40:36A-1 et seq.).*fn1 That participation was agreed upon by formal contract of the seven municipalities with the Authority which bears date of October 7, 1969. River Vale's enabling ordinance was adopted September 10, 1970. The bond resolution for constructing the extension was adopted by the Authority December 2, 1970.

The complaint was filed November 2, 1970. It was not decided below, and the Authority does not here argue, that the proceedings were not timely instituted nor that the appealing municipalities are without standing by reason of their entry into the agreement aforesaid or for any other reason. We therefore deal with the merits of the only question properly before us -- the validity of the base charge.

An understanding of the nature and operation of the base charge requires some background.

The presently controlling 1946 statute stems from a predecessor enactment, L. 1933, c. 373, creating the Hackensack River Sewerage District, adopted for the general purpose of reducing pollution in the drainage area of that stream by collection and disposal of sewerage therein. A 1945 revision of that act (which repealed it) (L. 1945, c. 300) was held unconstitutional as special legislation not properly enacted. Sherwood v. Bergen-Hackensack, etc., Authority , 135 N.J.L. 304 (E. & A. 1947). The present act, dealing in general terms with streams in first or second class counties whose drainage areas include more than one municipality and where the degree of pollution is or threatens to be a danger to the public health in the judgment of the board of freeholders, permits the establishment of county sewer districts by such boards. Section 1. The constitutionality of this act was upheld in Little Ferry v. Bergen County Sewer Authority , 9 N.J. 536 (1952).

Sections 29 and 30 of the act provide that prior to the creation of a district sewer system or any part of it the Authority shall procure a project report which, among other things, is to make estimates (1) of the percentage of sewage volume from existing municipal or private sewage systems which must flow into the district system "in order to make possible and advisable the advantageous and economical construction and operation of the proposed * * * system" and its financing, par. (d); (2) of the cost of construction and financing up to the beginning of the first fiscal year, par. (e); (3) of the amount of money required annually for the first 40 years of operation of the system, par. (f); (4) "of such rates to be charged in each year and * * * paid to the authority * * * sufficient [with funds already received] to raise the * * * money required by the authority for at least the first ten fiscal years * * *" to meet the estimates fixed in par. (f), par. (g).

Section 43 reads as follows:

After the commencement of operation of a district sewer system of an authority under this act the authority may prescribe and change from time to time rates to be charged for the discharge and disposal of sewage through its district sewer system. Said rates shall be prescribed and from time to time revised as hereinafter provided, so that an authority and its district sewer system shall be and always remain self-supporting with earnings sufficient to provide for all expenses of operation, maintenance, depreciation and repair and the payment of the principal and interest of any bonds issued or to be issued pursuant to this act, so as to prevent the accrual of any deficit. Such rates being in the nature of use or service charges, shall be uniform throughout a district for the same type, class and amount of use or service of a district sewer system and shall be based upon the total annual volume of sewerage from each municipality, private sewer company or institution; but may give weight to the characteristics of the sewage and other wastes and any other special matter affecting the cost of treatment and disposal thereof, including chlorine demand, biochemical oxygen demand, concentration of solids and chemical composition. (Emphasis added)

Section 45 reads in part:

In section 47, after directing the certification by the Authority annually to each participating municipality, etc., of the amount due from it for the year, the act says:

It is apparent that the only kind of general charge for service to a municipality by the Authority expressly specified in the act is what has been generally referred to as "rate-times-flow," i.e. , the gross gallonage of sewage into the system from the municipality multiplied by a uniform system-wide rate per gallonage unit (generally per million gallons) -- the said rate calculated by division of the total financial requirements of the system at large for total costs of every nature, i.e. , construction, financing, maintenance and operation, by ...

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