On appeal from Superior Court of New Jersey, Law Division, Ocean County.
McElroy, Dreier and Shebell. The opinion of the court was delivered by Dreier, J.A.D.
Plaintiff appeals from an order of the Law Division dismissing the complaint by which he challenged the Township's method of financing and implementing sewer service along Dock Road in the Township of Eagleswood. The original complaint had been filed on behalf of 108 residents and property owners; however, by consent order, plaintiff alone prosecuted the review of the Township's actions with the proviso that any other of the original plaintiffs could apply to be included if the court subsequently granted relief.
The issues in this case involve an attack upon the method of financing the sewer system and the use of "Grinder Pump Agreements" required of participating property owners. The Township, with a year-round population of approximately 1,000, experiences a 50% increase in population during the summer months, largely in the area of Dock Road, an area subject to tidal flooding and having an elevation less than 10 feet above sea level. Waste removal in the Township is currently provided by individual septic tank systems. Over the years, however, these systems have proven to be unsatisfactory in the vicinity of Dock Road because flooding has occasioned pollution of the ground water and adjacent waterways. Considering the elevation of the area, the Township determined that a gravity feed system would be inappropriate. Rather, a low pressure conveyance system with individual grinder pumps was deemed the most suitable for the area.
The Township Engineer's proposed system, selected after a four year study, was approved by the United States Environmental Protection Agency (EPA) and the New Jersey Department of Environmental Protection (DEP). The estimated cost for the sewer system is $1,384,624, of which the EPA agreed to give the Township a grant of $818,075 and the DEP a grant of $78,849. The Township also negotiated a 40 year, low-interest Federal loan in the amount of $340,700. The total of $1,237,624 from grants and loan was $147,000 short of the total estimated
cost of the project. The Township proposed to raise this additional amount through connection fees to be imposed with respect to the sewer system.
The Township by ordinance required all properties along Dock Road to connect to the system and established connection fees at $600 per connection, based upon 245 estimated potential hookups. It is currently estimated that only 175 users will tie into the system, necessitating a higher connection fee under the Township's plan. The Township has also established an initial annual service charge of $354, 40% of which will be applied towards the repayment of the principal and interest on the 40 year construction loan, and the balance for the operation of the system.
Under the Federal and State grants the Township will be able to supply each lot with a grinder pump unit, the function of which is to liquify the sewage and impel it into the main under low pressure, permitting the system to run uphill. The "Grinder Pump Agreement" will permit the Township to install and maintain the unit on the premises owned by each property owner, with title to the pump remaining in the Township (a condition required for qualification for the Federal grant). The homeowner would allow access by Township personnel to the pump location for the purpose of performing inspections, maintenance and repairs to the equipment. The homeowner must also (1) furnish the electrical power to operate the grinder pump; (2) be responsible for any repairs and replacement caused by his negligence or intentional act; (3) not sell or mortgage the grinder pump; (4) not "obstruct access to the grinder pump unit and accessories by placing walls, pavement, landscaping, or other obstructions which would make access, maintenance or removal and repair of the equipment and accessories difficult"; and (5) have the agreement recorded, binding the homeowner as well as his successors and assigns.
An individual property owner who does not wish to sign the Grinder Pump Agreement would be required to purchase and
install his own similar unit at a cost of approximately $3,000 to $5,000. There are a few (21) homes that could feed the main on a gravity basis; no funding would be available to such homeowners.
The parties have stipulated these facts and, in addition, agreed that the EPA and DEP have advised the Township that new funding is practically nonexistent. If the project is not built as approved, the grant money will be lost and it is ...