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Kip's Ridge Condominium Association, Inc. v. Township of Montclair

July 15, 2009

KIP'S RIDGE CONDOMINIUM ASSOCIATION, INC., PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF MONTCLAIR, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10184-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 18, 2009

Before Judges Rodríguez and Ashrafi.

Kip's Ridge Condominium Association, Inc. (Association), a sixteen-unit residential condominium development, with eleven units in Montclair and five units in Verona, appeals from the May 10, 2008 judgment of the Law Division, following a bench trial, which denied in part the relief it sought against the Township of Montclair. We affirm.

The facts are largely uncontested. The dispute is centered on curb boxes located in each unit in the Association. A "curb box" is the housing for an underground shut-off valve linking the main water line to the service lines, which, in turn, are linked to each dwelling. Generally, curb boxes are located on a public right-of-way or as close to it as possible. Under the traditional arrangement, the municipality is responsible for the lines from the water main to the box and the property owner is responsible from the curb box to the dwelling. However, for some undetermined reason, the Association's developer placed some curb boxes at a distance from the right-of-way and well within the property of each unit owner.

Seven years after the curb boxes were installed, upon discovering an apparent break in the main water line, the Association and Montclair disputed the responsibility for repairing and maintaining the water lines from the public right-of-way to the curb box. Eventually, Montclair agreed to undertake responsibility for the water mains, the sewer main, and the fire hydrants located on the Association's property. In the course of negotiating this agreement, neither party discussed the water service lines. The agreement was formalized in a Bill of Sale and Grant of Easement.

In the Bill of Sale, dated September 19, 1996, Montclair undertook responsibility for:

The twelve (12") inch water main line and hose connections along with the sanitary sewer main all located within the Kip's Ridge Condominium property . . . . . . . [Montclair] warrants it shall maintain the above-described sanitary sewer main the water main, and hose connections.

On the same date, the Association granted Montclair an easement:

[T]o install and/or operate, expand, rebuild, relocate, locate, remove, inspect, test, replace, reconstruct, repair and maintain sanitary sewerage facilities, . . . but not including laterals or stubs running from [Montclair]'s 8 inch PVC sewer main to any buildings located on Owner's lands and also including the main water line and hose connections and other necessary appurtenances . . . .

The Easement did not address the laterals or spurs from the water main, only from the sewer main.

The Association sued Montclair, seeking declaratory relief ordering Montclair to maintain the water lines, seeking damages for incomplete repairs and seeking compensation for repairs undertaken by the Association. Montclair answered and a bench trial followed.

At trial, in addition to the Bill of Sale and Grant of Easement, the judge considered Montclair Municipal Ordinance ยง 341-5(F) (ordinance), which provides: "The consumer is responsible for the service from the shutoff valve at the street to the structure, except for the meter." Montclair adopted a similar resolution incorporating "such sanitary and ...


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