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Strauss v. Township of Holmdel

December 18, 1997


The opinion of the court was delivered by: Locascio, J.S.C.

The issues presented by this case are (1) whether a municipality's levy of a special assessment, to offset the cost of the installation of sewer lines within a development, violates the constitutional rights of residents of the development, and (2) whether a municipality can be liable for negligently permitting the construction of a subdivision without sewers.

Plaintiffs represent approximately 137 property owners who reside in two separate subdivisions, the Estates of Holmdel and the Hills of Holmdel, which were approved for construction in sections in 1963, 1965, 1970 and 1972. Because there were no sewer trunk lines available, nor any plans to install trunk lines in the vicinity, the developers were not required to install sewer lines as a condition of approval, and therefore the houses were built with septic tanks.

Late in 1989, the septic systems began experiencing such serious failures that neither the repair, nor the reconstruction, of the systems was practicable. Because a nearby trunkline was, by then, under construction, making the installation of sewer lines into the Estates of Holmdel and the Hills of Holmdel feasible, defendant Holmdel Township decided, in June 1990, to extend the sewer lines into these developments.

On October 22, 1990, a sewer assessment ordinance, providing for the construction of sewer lines into the subdivisions, was introduced by defendant's township committee; a public hearing on the ordinance was held on November 26, 1990. After the ordinance's unchallenged adoption, bonds were sold to finance the project. A bonding ordinance was passed on December 17, 1990, and published on December 20, 1990, which provided for the issuance of $4,100,000 in bonds and, in order to offset a portion of the sewer installations costs, directed the levy of a special assessment on plaintiffs' properties, in accordance with the sewers' resultant increase in the value of each lot. Any amounts not paid, by those lot owners who received the benefit, would be paid by the township.

The installation of the sewer lines was completed in July, 1993 at a total cost of $2,755,986.00. Pursuant to N.J.S.A. §§ 40:56-1-89, a Sewer Assessment Commission was established which, after an investigation, which included a real estate appraisal, site visits, and consideration of comments made at a May 17, 1995 public hearing, concluded that this improvement resulted in a benefit of $14,700 per lot. The Commission's report was confirmed by a resolution of the township committee on September 11, 1995. *fn1 Plaintiffs filed their amended complaint, challenging this assessment, on October 11, 1995. Defendants now move for summary judgment as to count I, alleging equal protection violations, and count II, alleging negligence.


The first issue to be decided is whether defendant township's levying of a special assessment violates plaintiffs' equal protection rights provided by the United States Constitution and the New Jersey Constitution.

The Equal Protection Clause of the United States Constitution, made applicable to the states by the Fourteenth Amendment to the United States Constitution, requires "all persons similarly situated be treated alike and that no State ... shall deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1; See also, City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, (1985); Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). In Chester Borough v. World Challenge, 14 N.J.Tax 20, 29 (Tax Ct.1994), the court enumerated the tests used to determine whether there is a violation of the Equal Protection Clause:

To analyze whether or not a classification violates the Equal Protection Clause [of the Unites States Constitution], three different tests have evolved; the "rational basis" test which is a general test; the "governmental objectives" test which is an intermediate [level scrutiny] test and, the "strict scrutiny" test which is applied to legislation that operates to the disadvantage of a "suspect class" or impinges upon a fundamental constitutional right.

[1][2] The Equal Protection Clause was intended to restrict state legislative action inconsistent with fundamental constitutional principles. Accordingly, the Court has found that classifications that disadvantage a suspect class, or impinge upon a fundamental right, are to be treated as presumptively invidious." Plyler, supra, 457 U.S. at 216-17, 102 S.Ct. at 2394-95, 72 L.Ed.2d 786. Regulation of a fundamental right, or treatment of a suspect class, is subject to strict scrutiny, i.e. it must further a compelling state interest and there must be no less restrictive means to accomplish that goal. Regents of the University of California v. Bakke, 438 U.S. 265, 357, 98 S.Ct. 2733, 2782, 57 L.Ed.2d 750 (1978). Regulation which involves a semi- suspect class, i.e. which indirectly affects a fundamental right, is subject to an intermediate level of scrutiny which must further an important governmental interest and be substantially related to the achievement of that objective. See generally, Plyler v. Doe, supra, 457 U.S. at 217, 102 S.Ct. at 2394, 72 L.Ed.2d 786.

[3][4][5] Plaintiffs conceded, at oral argument, that they do not fall within a suspect class (e.g. race or religion), nor a semi-suspect class (i.e. involving a fundamental right), and therefore do not qualify for consideration under either the "strict scrutiny" or "intermediate scrutiny" standards. However, plaintiffs contend that defendant's conduct fails to meet the "rational basis" standard which, in order to withstand constitutional attack, requires the regulation to be rationally related to a legitimate governmental objective. See Massachusetts Bd., of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976); Drew Associates of New Jersey, L.P. v. Travisano, 122 N.J. 249, 258-59, 584 A.2d 807 (1991). The rational basis test requires that the regulation (1) not be arbitrary or capricious and (2) have a rational basis in relation to the specific objective to be obtained. New Jersey Restaurant Association v. Holderman, 24 N.J. 295, 300, 131 A.2d 773 (1957). See Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 2332, 120 L.Ed.2d 1 (1992)(holding that the Equal Protection Clause is generally satisfied "so long as there is a plausible policy reason for the classification"). Generally, economic regulations are subject to the rational basis test. See Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955) reh'g denied, 349 U.S. 925, 75 S.Ct. 657, 99 L.Ed. 1256 (1955).

[6][7][8] When a municipality addresses an issue, it must invariably draw lines and make choices which create some inequity to those included or excluded. New Jersey State League of Municipalities v. State, 257 N.J.Super. 509, 519, 608 A.2d 965 (App.Div.1992). However, so long as the "bounds of reasonable choice" are not exceeded, the courts must defer to a municipality's judgment. Taxpayers Association of Weymouth Township v. Weymouth Township, 80 N.J. 6, 40, 364 A.2d 1016 (1976), appeal dismissed and cert. denied, 430 U.S. 977, 97 S.Ct. 1672, 52 L.Ed.2d 373 (1977); League of Municipalities, supra, 257 N.J.Super. at 519, 608 A.2d 965. A municipality's classification must be sustained if it can be justified on any reasonably conceivable set of facts. McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). "It does not matter that the classification may be mathematically imperfect or that it results in inequities in practice." Taxpayers Association of Weymouth Township, supra, 80 N.J. at 40, 364 A.2d 1016; Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970), reh'g denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970). The court must only determine whether or not there is a reasonable basis for the township's choice and not substitute its own judgment for that of the township committee's. Drew Associates of New Jersey, L.P. v. Travisano, 122 N.J. 249, 260, 584 A.2d 807 (1991).

[9][10] In analyzing an equal protection challenge, brought under the United States Constitution, the Court, in David v. Vesta Co., 45 N.J. 301, 314-315, 212 A.2d 345 (1965), observed that:

The equal protection clause of the Fourteenth Amendment does not deprive the State of the power to classify in the adoption of police laws, but allows wide discretion, precluding only that done without any reasonable basis and therefore purely arbitrary. The constitutionality of a legislative classification is presumed, and one who assails the classification must carry the burden of showing its arbitrariness. A classification having some reasonable basis is not invalid merely because if is not made with mathematical nicety or because in practice it results in some inequality. And the classification ...

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