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State v. East Shores Inc.

Decided: January 8, 1979.

STATE OF NEW JERSEY AND BOARD OF PUBLIC UTILITY COMMISSIONERS, PLAINTIFF-RESPONDENTS,
v.
EAST SHORES, INC.; MRS. E. CONDIT; ROBERT CHEW; JOSEPH WODZIAK; J. ATKINSON; JOSEPHINE BENEDICT; SOUTH ORANGE FEDERAL SAVINGS BANK, A NEW JERSEY CORPORATION; JAMES TIBUS, AND WILLIAM DONZIESER, DEFENDANTS, AND THE TOWNSHIP OF JEFFERSON, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT



On appeal from Superior Court, Chancery Division, Morris County.

Lynch, Crane and Horn. The opinion of the court was delivered by Horn, J.A.D.

Horn

This is an appeal by defendant Township of Jefferson (township) from a judgment entered in the Chancery Division in accordance with the opinion rendered by Judge Polow and reported at 154 N.J. Super. 57 (1977).

Since the operative factual findings of Judge Polow are not claimed to be erroneous, we need not repeat them. It

suffices to state that some 285 residences in the township are presently being supplied with impure and unpotable water. This condition has existed since at least July 20, 1970, when the State Department of Environmental Protection ordered that all drinking water supplied by East Shores, Inc. be boiled. There is a strong likelihood that the receiver of East Shores, Inc. may not be able to continue the water supply, such as it is, for much longer. In sum, the occupants of the affected houses have been laboring under the handicap of receiving impure water for over eight years, and unless relief is forthcoming they will lose even the present inadequate and unpotable water services.

As Judge Polow stated in his opinion, the health and welfare of the affected occupants are at issue, for without water the houses will become uninhabitable and the unwholesome conditions will be exacerbated.

The final judgment, entered following a summary hearing, directed the township to submit to the trial court a plan "for fulfilling its obligation to assure the provision of adequate, potable water supply to the affected residents" by January 15, 1978 or, in default of the submission of such an acceptable plan, "to take over, operate and rehabilitate the East Shores water system."

The township lists three reasons why we should overturn said judgment. These are: (1) the judge erred in deciding the cause in a summary manner; (2) two earlier referenda as to the township's acquisition of the water and/or sewer facilities within the township were defeated and these referenda are "binding upon the municipality and may not be disregarded," and (3) a court of equity is without power or authority to compel the township to take over and operate the local water utility based upon the township's failure to otherwise arrange to supply the resident customers of the water company with an adequate potable water supply.

I

Defendant urges that ordinarily a plenary hearing must be afforded litigants where critical fact issues are present. This is especially so "when important issues involving highly significant policy considerations are involved and where the ruling which is sought would * * * reach far beyond the particular case." Lusardi v. Curtis Point Prop. Owners Ass'n , 138 N.J. Super. 44, 51 (App. Div. 1975). This quoted language, adapted from that contained in Jackson v. Muhlenberg Hosp. , 53 N.J. 138, 141-142 (1969), does not further defendant's contention that a plenary hearing was required in the instant case. It merely points up the need for a plenary hearing where there are contested issues of fact. It accentuates such need when there are important and far-reaching public issues. But these cases do not hold that there should be a plenary hearing when there are no contested critical fact issues which must be resolved. None of our rules which permit either summary judgment or other summary disposition distinguishes between "important issues" and other kinds, if there are other kinds.

The factfindings made by the trial judge, cited by defendant township as requiring a plenary hearing, are neither seriously contested nor critical. The judgment as modified by us could well stand on the ...


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