January 8, 2007
WASHINGTON TOWNSHIP MUNICIPAL UTILITIES AUTHORITY, PLAINTIFF-RESPONDENT,
GERALD BRENNAN-BROOKS, DEFENDANT-APPELLANT, AND WALTER JAHN, ROBERT RICHARDS, DAVID RAPOSO, KEVIN WALSH, AND MARK SCALERA, DEFENDANTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 12, 2006
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 N.J.S.A. 10:4-6[.]
THE WASHINGTON TOWNSHIP MUNICIPAL UTILITIES AUTHORITY RULE PROHIBITING PRIVATE WELLS IS ARBITRARY AND CAPRICIOUS [.]
THE WTMUA IS PRECLUDED FROM ENFORCING ITS RULE AS TO BRENNAN-BROOKS BASED UPON THE DOCTRINE OF EQUITABLE ESTOPPEL[.]
THE WTMUA REGULATION CONSTITUTES A TAKING AND BRENNAN-BROOKS IS ENTITLED TO JUST COMPENSATION[.]
After reviewing the record and applicable law in light of the issues presented, we conclude that defendant's contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). The trial court's findings are firmly supported by substantial credible evidence contained in the record, and its legal conclusions predicated on those findings are sound. R. 2:11-3(e)(1)(A). Accordingly, we affirm the judgment entered in favor of WTMUA substantially for the reasons expressed by Judge Stanton in his comprehensive, well-reasoned oral decision on January 15, 2003, and his statement of reasons for denying defendant's motion for reconsideration. We add only these brief comments. In rejecting defendants' estoppel argument, Judge Stanton found that the granting of well permits by other governmental agencies did not "trump" WTMUA's right to protect and manage its public water supply system:
I do not think that the granting of those permits by those agencies trumps the right of the authority to protect and manage its system. I do not think there is an estoppel by action of coordinate or other governmental agencies.
I say that because the primary responsibility under the law for running the system is with the Municipal Utilities Authority, not with some other agency of government, and . . . if we have some of the agencies acting inappropriately, as I think they did act, that should not be allowed to defeat the legitimate needs of the Municipal Utilities Authority which is the primary agency involved here.
I think that's unfortunate, but the problem is we can't allow that mistake of individual governmental officials to defeat the fundamental governmental responsibility for the provision of water in this section of the world, meaning this particular section of Tewksbury Township.
We agree that the essential prerequisites for finding equitable estoppel are not present in this case. Equitable estoppel has been explained as follows:
The essential principle of the policy of estoppel . . . is that one may, by voluntary conduct, be precluded from taking a course of action that would work injustice and wrong to one who with good reason and in good faith has relied upon such conduct. An estoppel . . . may arise by silence or omission where one is under a duty to speak or act. It has to do with the inducement of conduct to action or non-action. One's act or acceptance may close his mouth to allege or prove the truth. The doing or forbearing to do an act induced by the conduct of another may work an estoppel to avoid wrong or injury ensuing from reasonable reliance upon such conduct. The repudiation of one's act done or position assumed is not permissible where that course would work injustice to another who, having the right to do so, has relied thereon.
[Fraternal Order of Police v. Bd. of Trs. of Police and Firemen's Ret. Sys., 340 N.J. Super. 473, 484-85 (App. Div. 2001) (quoting Summer Cottagers' Ass'n of Cape May v. City of Cape May, 19 N.J. 493, 503-04 (1955) (citations omitted)).]
Because there is nothing in the record to suggest that WTMUA misrepresented or concealed any material fact, or that defendant relied on any misrepresentation by WTMUA to his detriment, the trial court correctly concluded that the doctrine of equitable estoppel could not be invoked against WTMUA to prevent it from enforcing its rule prohibiting the use of private wells.
We also agree with Judge Stanton's determination that the WTMUA rule prohibiting defendant from using his private well is not a regulatory taking that entitles defendant to just compensation. See Kusznikow v. Township Council of Stafford, 322 N.J. Super. 323, 328 (Law Div. 1999) (holding that mandatory connections to municipal water system and corresponding ban on use of well water did not violate owners' due process rights and was not an unconstitutional taking), aff'd, 330 N.J. Super. 357 (App. Div.), certif. denied, 165 N.J. 489 (2000).
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