April 11, 2008
PIO COSTA ENTERPRISES, PLAINTIFF-APPELLANT,
TOWNSHIP OF MONTVILLE, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, L-0936-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 26, 2008
Before Judges Fuentes, Grall and Chambers.
Plaintiff Pio Costa Enterprises appeals from the judgment dated April 16, 2007, upholding Ordinance 2003-12 (the Ordinance) of the defendant Township of Montville (the Township). The Ordinance includes a portion of plaintiff's land within the Restricted Area of the Critical Water Resource District and prohibits community wells within the Restricted Area. Plaintiff contends that this prohibition of community wells is arbitrary, capricious, and unreasonable. Since the record reveals a reasonable basis for this restriction, we affirm.
The Towaco Valley Aquifer (the Aquifer), which is located within the boundaries of the Township, provides water to over ninety percent of the Township's 18,000 residents who are served by public water. The Aquifer is considered a stressed resource, and since 1979, the Township has taken measures to protect this water supply. The Township has created a Critical Water Resource District (the District) consisting of two parts: the Prime Aquifer Area, which is located directly over the Aquifer, and the Restricted Area, which is located around the Aquifer and provides recharge water to the Aquifer. The Ordinance expanded the Township's Restricted Area in order to provide further protection for the Aquifer's recharge water. In addition, the Ordinance permits only "individual private residential wells" within the Restricted Area, thereby prohibiting community wells there.*fn1
Plaintiff owns 394 acres in the Township which it plans to develop into forty-eight single family homes. Due to the Ordinance's expansion of the Restricted Area, about sixty percent of plaintiff's land now falls within the Restricted Area. Plaintiff plans to construct twenty-four of its forty-eight homes on this portion of its property. As a result, plaintiff cannot use a community well on the portion of its property within the Restricted Area to provide water to its development.
Plaintiff commenced this declaratory action challenging the inclusion of its property within the Restricted Area and challenging the prohibition against community wells, among other issues. After conducting a four-day bench trial, the trial judge upheld the Ordinance, finding that the Township had a reasonable basis to include plaintiff's property within the Restricted Area on the basis that the groundwater below plaintiff's property contributed to the recharge of the Aquifer. Plaintiff does not challenge this holding on appeal. The trial judge also upheld the provision of the Ordinance allowing only individual private residential wells within the Restricted Area. Plaintiff appeals this portion of the trial judge's decision, contending that the limitation to individual private residential wells is arbitrary, capricious and unreasonable.
Municipalities possess a broad police power to zone property for the public good provided they act within the confines of the legislature's delegation of authority to them. Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 289 (2001), cert. denied, 535 U.S. 1077, 122 S.Ct. 1959, 152 L.Ed. 2d 1020 (2002). Zoning ordinances enjoy a strong presumption of validity. Ibid. The party seeking to set aside the ordinance has the burden of overcoming this presumption. Riggs v. Twp. of Long Beach, 109 N.J. 601, 611 (1988). The court does not judge the wisdom of the ordinance; that is a legislative function. Pheasant Bridge Corp. v. Twp. of Warren, supra, 169 N.J. at 290. However, a zoning ordinance will be overturned where it is "clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute." Ibid. (quoting Bow & Arrow Manor, Inc. v. Town of W. Orange, 63 N.J. 335, 343 (1973)). The appellate court applies this same standard of review. Charlie Brown of Chatham, Inc. v. Bd. of Adj. of Chatham, 202 N.J. Super. 312, 321 (App. Div. 1985).
In evaluating the reasonableness of an ordinance, the court must look at "the relationship between the means and ends of the ordinance." Pheasant Bridge Corp. v. Twp. of Warren, supra, 169 N.J. at 290. A "real and substantial" relationship must exist between the goal sought to be achieved by the ordinance and the means selected; that is, the provisions of the ordinance must be "reasonably calculated to meet the evil." Ibid. (quoting Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 251 (1971). Further, the regulation or proscription in the ordinance should not be substantially broader than needed to address the problem. Ibid. (stating that the regulation must not "exceed the public need or substantially affect uses which do not partake of the offensive character of those which cause the problem sought to be ameliorated").
The record indicates that the water within the Restricted Area serves an important recharge function for the sensitive balance of the Aquifer. Accordingly, the Township's attempt to regulate the water in the Restricted Area to avoid a negative impact upon the Aquifer furthers the public health, safety and general welfare of the municipality, a valid goal of a zoning ordinance. See N.J.S.A. 40:55D-2(a). Water used by households within the Restricted Area, through septic systems, lawn watering and pool discharges, becomes part of the recharge water that flows from the Restricted Area to the Aquifer. As a result, the Township could properly impose a restriction designed to keep the water already within the Restricted Area from being used to service needs outside the Restricted Area and District, so that the water is not lost to the Aquifer.
The Township presented evidence that a community well within the Restricted Area providing water to property outside of the Restricted Area and District would reduce the quantity of water available to recharge the Aquifer. Thus, a community well on plaintiff's property, within the Restricted Area but providing water to households outside the Restricted Area and District, would divert recharge water away from the Aquifer.
Since the prohibition against community wells within the Restricted Area helps prevent water from leaving the Restricted Area and District, a rational relationship exists between the community well prohibition and the goal of preserving recharge water for the Aquifer. By allowing only individual private residential wells within the Restricted Area, the Ordinance helps assure that the water within the Restricted Area remains available to recharge the Aquifer.
Plaintiff maintains that the prohibition against all community wells within the Restricted Area is an excessive, unnecessary restriction. Plaintiff points out that recharge water for the Aquifer could be preserved by merely requiring that water from a community well within the Restricted Area be supplied to only properties located within the Restricted Area.
Indeed, the Township's expert acknowledged that if a community well were used only for the twenty-four houses planned for plaintiff's property within the Restricted Area, then there would be very little difference between using individual wells or a community well. Further, one of plaintiff's experts testified that usage would be easier to control through a community well and that there is some Department of Environmental Protection oversight on community wells not present with individual wells.
Allowing only community wells that supply water to properties within the Restricted Area appears to be one regulatory way to deal with the concern that water from community wells will leave the Aquifer system. However, the record indicates that community wells have some drawbacks. The Township's Director of Public Works and Water and Sewer Departments explained that he preferred that people either be hooked up to the public water supply or have individual wells.
The Township's experience with two privately owned community wells has been unfavorable. Due to the age of these systems, one going back at least forty years, mechanical problems and water quality problems have developed. The joint ownership of the wells also presented problems. The homeowners looked to the Township for help, and in one case, the Township ended up taking over the system. To avoid these kinds of problems in the future, the Director expressed a preference for either a public water supply or individual wells. He further testified that a person solely owning an individual well would be more likely to take better care of it and the water supply. These concerns provide a rational basis for the municipality's decision to regulate the recharge water issue through a requirement of individual private residential wells rather than allowing community wells that supply water only to properties within the District.
We note that it is not the role of the court to overturn an ordinance "merely because the court would have done it differently" or because the expert testimony at trial supports an alternate means of achieving the same goal. Bow & Arrow Manor, Inc. v. Town of W. Orange, supra, 63 N.J. at 343. Where the local legislative judgment is "debatable," it will be sustained. Ibid. Here sufficient evidence supports the Township's decision that permitting only individual private residential wells was a sound way to help preserve recharge water for the Aquifer.
Since we have upheld the prohibition against community wells within the District, we need not address defendant's argument, disputed by plaintiff, that plaintiff's property falls within the Highlands preservation area where, according to defendant, N.J.S.A. 58:12A-4.1 would prohibit a community well anyway.