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Shupack v. Manasquan River Regional Sewerage Authority

Decided: June 13, 1984.

SIGMUND SHUPACK, CONSTRUCTION OFFICIAL OF THE TOWNSHIP OF HOWELL, AND THE TOWNSHIP OF HOWELL, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS-APPELLANTS, AND JOHN P. RENNA, COMMISSIONER, DEPARTMENT OF COMMUNITY AFFAIRS, STATE OF NEW JERSEY, INTERVENOR-APPELLANT,
v.
THE MANASQUAN RIVER REGIONAL SEWERAGE AUTHORITY AND ANSELMI AND DECICCO, INCORPORATED, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Monmouth County.

Morton I. Greenberg and Trautwein. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.

Greenberg

This matter comes on before this court on appeal from a determination that defendant Manasquan River Regional Sewerage Authority (Authority) in constructing a sewerage pumping station need not comply with site plan and building permit requirements. The authority is organized under the Sewerage Authorities Law, N.J.S.A. 40:14A-1 et seq.*fn1

In 1981 the Authority received approval from the United States Environmental Protection Agency (EPA) and permits from the New Jersey Department of Environmental Protection (DEP) to construct interceptor mains and pumping stations to treat sewerage generated in the Manasquan River basin. The project included construction of two pumping stations in Howell Township. Although it apparently believed it was not required to do so, the Authority as a matter of courtesy obtained construction permits and site plan approval from the township for one station now substantially completed. The site plan approval was provided for under a local ordinance. The construction permit was issued under the State Uniform Construction Code Act (N.J.S.A. 52:27D-119 et seq.) which is administered locally.

The Authority received bids for construction of the second station but could not award the contract without DEP and EPA authorization. One bid received from Anselmi and DeCicco, Inc. was approved by the Authority. Even though the Authority conceived that it was not required to obtain site plan approval for the project it sent plans for the station to the Howell Township Planning Board and indicated in its covering letter that it would ". . . consider any comments which the Planning Board may have on the subject pumping station site plan and construction details." On February 28, 1983 the DEP and EPA

authorized construction to begin under the Anselmi and DeCicco bid.

On March 8, 1983 the planning board responded to the Authority's letter of February 24, 1983. It requested the Authority to submit an application for approval of a site plan and conditional use. Despite its failure to obtain a site plan approval or a construction permit, the Authority through Anselmi and DeCicco, Inc. subsequently began construction on the project.

On June 20, 1983 plaintiff Sigmund Shupack, the construction official for Howell Township authorized to perform inspections and issue construction permits and certificates of occupancy, learned that notwithstanding the absence of site plan approval and construction permits, Anselmi and DeCicco, Inc. had begun construction on the pumping station. Thus on that day he issued a stop construction notice to Anselmi and DeCicco, Inc. On June 27, 1983 Anselmi and DeCicco, Inc. notified the Authority that if it continued work on the pumping station without site plan approval and a construction permit, fines of $500 per day could be assessed.

The construction plans were scheduled to be reviewed by the planning board during July 1983 but the review never occurred and thus approval was not granted. Nevertheless construction of the structure continued. On July 11, 1983 Shupack inspected the construction site of the pumping station and discovered that concrete footings, walks and floors had been installed.

On July 14, 1983 Shupack and Howell Township filed a complaint against the Authority and Anselmi and DeCicco, Inc. alleging that the pumping station was a building as defined in the State Uniform Construction Code and thus defendants were obligated to obtain a construction permit before beginning its construction. In addition plaintiffs charged defendants were obligated to obtain site plan approval under the Howell Township Land Use Ordinance adopted pursuant to N.J.S.A. 40:55D-37 before beginning construction. Plaintiffs stated that defendants

had not obtained the requisite approvals before beginning construction and thus plaintiffs had issued a stop construction order which defendants had disobeyed. Plaintiffs requested an injunction against further construction until the appropriate construction permit and site plan ...


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