On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-987-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Payne and Graves.
Plaintiff Washington Township Municipal Utilities Authority (WTMUA) is a public water and sewer authority that owns, operates and maintains a public water treatment and distribution system primarily in the Township of Washington in Morris County. As part of a New Jersey Department of Environmental Protection approved plan to remediate ground water contamination, WTMUA was asked to extend its public water supply system into a portion of neighboring Tewksbury Township, where defendants reside. On March 23, 1993, the Tewksbury Township Committee passed a resolution adopting Ordinance No. 7-93, which authorized WTMUA to construct and operate a public water supply system and to sell water at retail in a portion of Tewksbury. In accordance with N.J.S.A. 40:14B-20(6), the New Jersey Board of Public Utilities approved the Tewksbury resolution "as necessary and proper for the public convenience" on May 9, 1994.
Section 7(A)(4) of WTMUA's rules and regulations prohibits private wells on any property connected to the WTMUA water system unless the property owner receives written approval from WTMUA. In April 2000, WTMUA learned that five property owners (the initial defendants), who were connected to WTMUA's system, were planning to install private wells for landscape irrigation purposes, and it advised the property owners that the wells were not permitted without authorization from WTMUA. When the initial defendants continued with their well installations, WTMUA filed a verified complaint and an order to show cause. On May 14, 2001, the trial court entered a preliminary injunction prohibiting the initial defendants from using their private wells. Gerald Brennan-Brooks was named as an additional defendant in plaintiff's amended complaint. On November 1, 2001, the trial court also granted injunctive relief against defendant Brennan-Brooks, prohibiting him from using his private well during the pendency of the matter.
A non-jury trial took place on four separate days in January 2003. On January 15, 2003, Judge Stanton ruled in favor of WTMUA finding that its rules and regulations were rationally related to public health and safety, the economic viability of the public water supply system, and, to some extent, the conservation of water. On January 25, 2003, he entered an order for judgment that permanently enjoined defendants "from using in any way all private wells on their property where water service is provided to said property by the Washington Township Municipal Authority . . . ."
Defendant Brennan-Brooks filed a motion for reconsideration arguing for the first time that the WTMUA's rule dealing with private wells was not "duly adopted" and enforceable against him in Tewksbury. On March 21, 2003, Judge Stanton denied defendant's request for reconsideration. He ruled that WTMUA had fully complied with the Open Public Meetings Act when it adopted its rules in 1989 and 1990, and "there was no legal requirement to re-adopt the rules when plaintiff extended its service area into part of Tewksbury Township in 1993."
This appeal was filed by defendant Brennan-Brooks. The initial defendants have not appealed. Defendant presents the following arguments for our consideration:
THE WASHINGTON TOWNSHIP MUNICIPAL UTILITIES AUTHORITY RULE PROHIBITING PRIVATE WELLS WAS NOT PROPERLY AND DULY ADOPTED AS TO TEWKSBURY TOWNSHIP[.]
A. THE ADOPTION DID NOT COMPLY WITH THE REQUIREMENTS OF N.J.S.A. 52:14B-1 [et seq.]
B. THE ADOPTION DID NOT COMPLY WITH THE REQUIREMENTS OF ...