Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

J & A REALTY v. CITY OF ASBURY PARK

April 18, 1991

J & A REALTY, A NEW JERSEY PARTNERSHIP, PLAINTIFF,
v.
CITY OF ASBURY PARK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lifland, District Judge.

OPINION

Plaintiff, J & A Realty ("J & A"), moves to strike defenses. Defendants oppose the motion.

BACKGROUND

In 1988, the City of Asbury Park ("the city") enacted an ordinance which established the city sewer system as a self-liquidating municipal utility. To fund its new sewer plant, the city passed a sewer ordinance which established a system for assessing property owners for sewer charges. Prior to that time, the city provided its property owners with sewer service which was billed as a part of the owner's municipal property taxes. The new charges are based upon two factors: 1) an annual flat charge based upon the size of the user's water meter; and 2) a gallonage rate based upon the number of gallons of water consumed by the property.

J & A owns property in Asbury Park, which it leases to a corporation operating a commercial laundry on the site. J & A failed to pay the sewer charges for the years 1988 through 1990. Pursuant to the ordinance, the delinquent payments became a lien on the property. Due to J & A's failure to pay its 1988 and 1989 sewer charges, the city imposed a lien upon the property and sold the lien in a tax sale. J & A filed an unsuccessful administrative appeal with the Sewer Utility Appeals Board. In October of 1989, J & A filed a complaint in this court, challenging the constitutionality of the ordinance. J & A alleges that the ordinance fails to account for the strength and volume of the user's wastewater, and that the charges bear "no reasonable relation" to the amount of service provided. See Complaint, Count 1. In Count 2, J & A alleges that the ordinance denies equal protection of the laws in violation of the federal and New Jersey Constitutions by distinguishing between water meter sizes as a means to assess sewer charges. In Count 3, J & A alleges that the sewer rentals, the lien and the resultant tax sale constitute a taking of private property for public use without just compensation in violation of the 5th amendment and ¶ 20 of Article 1 of the New Jersey Constitution. In Count 4, J & A alleges that defendants' actions taken under color of state law and or pursuant to governmental policy deprived J & A of its rights to substantive and procedural due process, equal protection and just compensation contrary to 42 U.S.C. § 1983. J & A sues the following (hereinafter referred to as "defendants"): the city of Asbury Park; William Black, the city's "Director of the Sewer Tariff"; Helen Pride, the city's tax collector; Garrett Giberson, the city's Deputy Director of Public Maintenance; and Katherine Knox, the city's Sewer Utility Collection Clerk. J & A seeks: to have the ordinance declared null and void; a permanent injunction against the enforcement of the ordinance; rescission of all sewer bills; monitoring of the discharge from J & A's premises; a declaration that all liens on its property are null and void; a permanent injunction against the collection of sewer charges; and damages, interest and costs.

J & A moves to strike the following defenses:

  1st Defense — that J & A fails to state a cause of
  action upon which relief can be granted;
  2nd Defense — that the court lacks jurisdiction to
  hear the case due to the Johnson Act;
  3rd Defense — that defendants are entitled to
  immunity pursuant to the New Jersey Tort Claims
  Act;
  5th Defense — that defendants did not proximately
  cause any deprivation of plaintiff's rights;
  6th Defense — that any damages were a result of
  plaintiff's own unlawful actions;

7th Defense — that defendants lack willfulness;

  8th Defense — that defendants acted reasonably and
  without malice; and
  9th Defense — that defendants' negligence was not
  the proximate cause of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.