On appeal from Superior Court, Law Division, Somerset County.
Petrella, Gruccio and Landau. The opinion of the court was delivered by Petrella, P.J.A.D.
Plaintiff Warrenville Plaza, Inc. (Plaza), a developer of real estate, challenges the current method used by Warren Township Sewerage Authority (the Authority) in assessing nonresidential developments, here Plaza's condominium office buildings, with respect to the imposition of connection charges. In a complaint in lieu of prerogative writ Plaza challenged the lawfulness of certain connection charges imposed by the Authority on each condominium unit. Those charges were known as capacity trunk rate charges and tap-in charges (collectively referred to as connection fees). The Authority moved for partial summary judgment with respect to the connection fees and Plaza cross-moved for summary judgment. At oral argument on the motions the parties relied on discovery, which included depositions and certifications. There was no dispute as to any factual issues. The trial judge upheld the assessment of the connection charges on the condominium units. As an alternative ground for entering judgment for the Authority, the trial judge concluded that Plaza had failed to exhaust administrative remedies because it had not "formally" requested a hearing before the Authority.
On its appeal Plaza argues that the Authority's allocation of an "equivalent" unit of residential discharge for each nonresidential condominium unit without taking into account uniform treatment of all commercial users, discriminates against the condominium form of ownership in violation of the equal protection clause of the Fourteenth Amendment. According to Plaza, the classification imposed by the Authority is discriminatory because it lacks a rational relationship to a legitimate State objective and cannot be justified by the facts. The argument is also made that the Authority's administrative calculation of an "equivalent" unit of residential discharge is contrary to the
uniformity and equality requirements of N.J.S.A. 40:14A-8(b). Finally, Plaza argues that it should not be considered barred by the doctrine of exhaustion of administrative remedies.
We turn first to Plaza's argument that the doctrine of exhaustion of administrative remedies should not bar this action. Plaza essentially contends that the trial judge erred in concluding that it failed to exhaust administrative remedies because Plaza did in fact seek relief from the Authority to the extent it was available. We agree and hold that Plaza's cause of action is not barred by any failure to exhaust administrative remedies.
Plaza was assessed the connection fees in June 1985, and subsequently paid them. In a March 12, 1986 letter Plaza's attorney informed the Authority that payment was made under protest and a meeting was requested to determine whether a modification of the assessed connection fees was warranted. In addition, Plaza had been advised at several public meetings held by the Authority that its request for a review of the connection fees was under consideration. Despite Plaza's efforts, from March 1986 through March 1987 the Authority did not respond to Plaza's request. On June 2, 1987, Plaza filed its prerogative writ action. Notwithstanding the foregoing, the Authority's attorney represented to the judge during argument on its motion for partial summary judgment that the Authority is always available to hear rate disputes, and had Plaza requested a formal hearing such a hearing would have been granted. Based upon this representation and Plaza's failure to request a formal hearing, the judge concluded that Plaza had not exhausted available administrative remedies.
In our view the judge's conclusion in this regard is contrary to the facts. The Authority does not have in place any formal procedure for aggrieved parties to appeal the assessment of connection fees. No such procedure can be found in the Authority's
resolution. Indeed, there was an undisputed assertion by the Authority's representative that the primary administrative procedure for contesting connection fees is established at the time of the public hearing when the rates are initially adopted. It is at that time that a party opposing the rate structure is expected to state his objections. Beyond this it appears that Plaza had no other recourse but to institute an action in the courts when its requests for relief were denied.
The exhaustion of remedies requirement "rests on the premise that such remedies are 'certainly available and completely adequate to right the wrong complained of.'" Abbott v. Burke, 195 N.J. Super. 59, 73 (App.Div.1984), rev'd on other grounds, 100 N.J. 269 (1985). In the instant case no such administrative remedies were "certainly available." Indeed, Plaza had made efforts to obtain an administrative remedy prior to instituting suit. The Authority acknowledged Plaza's request but ultimately never responded. Plaza waited for more than one year for a response and then determined that it was necessary to file this suit. Even if some informal procedure existed, and we are hard pressed to find one, it was inadequate here. It is apparent that further effort by Plaza to pursue an administrative remedy would have been futile. Brunetti v. Borough of New Milford, 68 N.J. 576, 589 (1975). In any event, application of the doctrine of exhaustion of administrative remedies is not applicable where, as here, the only issues that remain to be resolved are legal issues. Matawan Borough v. Monmouth County Tax Board, 51 N.J. 291, 297 (1968).
Since we have concluded that Plaza's action is not barred we now turn to the remaining issues raised by Plaza in this appeal.
Plaza obtained site plan approval in June 1985 to construct 22 professional office ...