where our Supreme Court emphasized that "[c]ompelling circumstances should exist in order to justify, under Mount Laurel principles, disturbing the general rule that a municipality may exclude another municipality or its residents from using or connecting to its sewer system "
How later courts described this case
- where our Supreme Court emphasized that "[c]ompelling circumstances should exist in order to justify, under Mount Laurel principles, disturbing the general rule that a municipality may exclude another municipality or its residents from using or connecting to its sewer system "
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0226-20
SISTERS OF CHARITY OF
SAINT ELIZABETH,
Plaintiff-Respondent,
v.
TOWNSHIP OF MORRIS and
THE TOWNSHIP COMMITTEE
OF THE TOWNSHIP OF MORRIS,
Defendants-Appellants.
________________________________
Submitted June 8, 2021 – Decided June 24, 20212
Before Judges Yannotti, Haas and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-0975-20.
Mills & Mills, attorneys for appellants (John M. Mills,
III, of counsel and on the briefs).
Hill Wallack LLP, attorneys for respondent (Thomas F.
Carroll, III, of counsel and on the brief).
PER CURIAM
Defendants Township of Morris (Morris) and the Township Committee of
Morris appeal from the Law Division's August 11, 2020 order requiring them
"to immediately accept ownership, maintenance[,] and control of [a] sewer
pump and force main" currently owned and operated by plaintiff Sisters of
Charity of Saint Elizabeth in the Borough of Florham Park (Florham Park).
After carefully reviewing the record, we conclude the trial court erred by: (1)
issuing a permanent injunction on the return date of an order to show cause, and
(2) conducting this matter as a summary proceeding under Rule 4:67-1(a) and
thereby failing to develop the meager record and properly address the many
material disputes of fact existing between the parties. Therefore, we vacate the
portion of August 11, 2020 order directing defendants to assume ownership,
maintenance, and control of plaintiff's pump station and force main, and remand
for further proceedings.
I.
We begin by reciting the barebone facts presented in the record on appeal.
In doing so, we also point out the deficiencies in that record and identify the
additional facts that should have been developed before the trial court
considered the matter on its merits.
A-0226-20
2
Plaintiff is a religious organization that owns 151.77 acres of property that
straddles Morris and Florham Park. The largest portion of the property, 101.79
acres, lies in Florham Park, and the remaining 49.98 acres are in Morris.
Plaintiff owns a convent, a high school, a college, student housing, and other
residences on its Florham Park property.
Florham Park has its own sewer treatment system, as does Morris.
Nevertheless, Florham Park is located within Morris' "sewer service area" as
approved by the New Jersey Department of Environmental Protection. Morris
operates a sewer treatment plant known as the Woodland Sewage Treatment
Plant.
Plaintiff previously owned and operated its own sewer treatment plant for
the effluent it generated on its Florham Park property. However, in 1981,
plaintiff sought to send the effluent to the Florham Park and Morris sewer
systems. Only Morris would allow plaintiff access to its system.
On July 28, 1981, plaintiff, Morris, and Florham Park entered into a
written contract permitting plaintiff to connect to the Morris sewer system.
Under the contract's terms, plaintiff agreed to construct a sewer pump station
and force main to deliver its effluent to the Morris system. Plaintiff would own
this new system and would operate it as a private utility.
A-0226-20
3
Plaintiff further agreed that "[n]either [Morris, Florham Park], nor the
[Florham Park Sewerage Authority (FPSA)] will, under any circumstances, be
responsible for the construction, maintenance or operation of [plaintiff's]
System or its connection to the [Morris] System." (emphasis added). However,
the agreement stated that Florham Park had the right to "demand" that plaintiff's
system "be disconnected from the [Morris] System and connected to the FPSA
System" if Florham Park extended its system to a road adjacent to plaintiff's
property.
Plaintiff retained a private company to operate the pump station and
force main in Florham Park. However, it did not identify this company in its
trial court papers and its attorney did not do so at oral argument. While plaintiff
alleged in its complaint that the Board of Public Utilities did not want the system
to be owned and operated by it, plaintiff did not submit any written evidence to
support this assertion and its attorney conceded at oral argument that he did not
"think there's been any threat that they've been shut down."
Indeed, in the forty years that plaintiff has owned and operated its system,
plaintiff also has used its pump station and force main to transport effluent from
at least two other entities in Florham Park to the Morris sewer system. These
A-0226-20
4
entities include the Morris County Golf Club and a housing development known
as The Villa at Florham Park. 1
On June 12, 2017, plaintiff contracted with Toll Brothers, a construction
company, to sell it a "portion" of its Florham Park property. According to the
complaint, Toll Brothers proposed to build 198 units of multi-family housing on
that property and set aside twenty percent of those units for "low and moderate
income households."
Plaintiff did not provide the trial court with a copy of its contract of sale
with Toll Brothers or any other related documents. At oral argument, the trial
court acknowledged that without those documents, it had no basis for knowing
whether plaintiff and Toll Brothers had made any agreement concerning the
provision of sewer services to the development site or whether plaintiff's
"contract with Toll Brothers may be in peril" if plaintiff did not immediately
receive the permanent injunctive relief it sought in this case. At the time the
August 11, 2020 order that is the subject of this appeal was entered, no closing
on the sale of the property had occurred and nothing in the record indicates
1
While plaintiff asserts that the 1981 agreement was amended to permit it to
add the golf club and housing development to its system, these amendments
were not submitted to the trial court.
A-0226-20
5
whether there was any deadline by which such a closing had to take place in
order for the sale to be consummated.
On October 31, 2018, the Law Division entered a Final Judgment of
Compliance and Repose in a Mt. Laurel 2 dispute between Morris and the Fair
Share Housing Center (FSHC). Under the terms of the settlement agreement
that formed the basis for that judgment, Morris agreed to rezone a portion of
plaintiff's property in that township for affordable housing. Although not stated
in the settlement agreement, Morris asserted that the effluent generated by that
development would be accepted into the Morris sewer system by gravity flow
and without the need for a separate pump station or force main.
On March 7, 2019, the Law Division entered a similar judgment resolving
a Mt. Laurel lawsuit between Florham Park and the FSHC. Under the terms of
a July 28, 2017 settlement agreement that resulted in the judgment in that case,
Florham Park agreed to rezone approximately twenty-two acres of the land
plaintiff owned in that borough for affordable housing. The settlement stated
there was a plan that twenty percent of the housing on the site would be used for
"affordable dwelling units." Neither the settlement agreement nor the judgment
said anything about plaintiff's or Florham Park's responsibility to provide sewer
2
In re Adoption of N.J.A.C. 5:96 and 5:97, 221 N.J. 1 (2015).
A-0226-20
6
service to, or operate the pump station and force main for the benefit of, the Toll
Brothers development.
At some unknown point in time, plaintiff decided that Morris should take
over the responsibility of owning and operating its pump station and force main.
In its complaint, plaintiff stated that "the ownership and operation of the pump
station and force main [wa]s both costly and burdensome to" it and it "need [ed]
to get 'out of the sewer business.'" 3 Although plaintiff acknowledged that the
operation of its system was both "costly and burdensome," it did not provide any
information to the trial court as to the yearly cost it incurs for operating and
maintaining the pump station and force main.
Just a few weeks after the court approved Florham Park's Mt. Laurel
settlement, representatives for plaintiff, Florham Park, and Morris met. At the
March 15, 2019 meeting, plaintiff asked that the effluent from the proposed Toll
Brothers development be permitted to enter either the Morris or Florham Park
sewer system for treatment. Plaintiff also asked that one of the towns take over
the pump station and force main. In return, plaintiff stated it would pay for any
3
Plaintiff stated the average age of the members of its religious order was
eighty-two years old. However, plaintiff has always conceded that its members
do not, and never have, personally operated the pump station and force main
and, instead, have always retained a fully qualified outside entity to do so.
A-0226-20
7
repairs or improvements needed in its system as part of any agreement. If
plaintiff submitted a written document setting forth its proposed terms to the
two towns, it was not submitted to the trial court and is not part of the appellate
record.
According to plaintiff's complaint, Florham Park stated that it did not have
the capacity in its sewer system or treatment system to accept additional effluent
flow. Critically, the complaint does not assert that Florham Park ever
demonstrated that it lacked the capacity to take over the operation of the pump
station and force main. Morris asserts that Florham Park already owns and
operates several pump stations of its own in its borough, which send effluent
into the Morris sewer system. As discussed below, Florham Park "stayed out of
the fray" of this litigation and did not submit any certifications or documents
setting forth its position in the trial court.
At the March 2019 meeting, Morris indicated it would review plaintiff's
request. However, it asked plaintiff to fund a study by Morris' consulting
engineers to determine the scope of any improvements in plaintiff's system that
would have to be made. Although plaintiff states in his brief that plaintiff paid
for this survey and that it was completed, plaintiff did not submit a copy of it to
the trial court and, therefore, it is not a part of the record on appeal.
A-0226-20
8
In addition, there is nothing in the record indicating the cost plaintiff
would have to incur to bring the pump station and force main up "to present day
engineering standards." At oral argument, the trial court asked plaintiff's
attorney for this information, but all he was able to say in response was : "I
couldn't quote [a cost estimate] to you right now but I know it's in the hundreds
of thousands of dollars, you know. Exactly how much, I'm not sure." The record
also does not contain any information as to whether plaintiff was proposing to
convey only the pump station and force main to one of the towns or whether it
was also going to transfer ownership of the property in Florham Park where this
system is located.
After reviewing the matter, Morris sent plaintiff a letter on January 27,
2020, stating that it did not want to accept any effluent from the Toll Brothers
project into its system and it did not want to take over ownership, maintenance,
and control of plaintiff's pump station and force main in Florham Park. Morris
advised plaintiff that it believed the density of the Toll Brothers development
was too high for the area. Nevertheless, Morris stated it would consider
changing its mind if plaintiff agreed that it would not further develop its property
in Florham Park and Morris. Plaintiff would not accede to this request.
A-0226-20
9
After further discussions, however, Morris agreed to allow plaintiff to
send effluent from its Florham Park property through plaintiff's pump station
and force main into the Morris sewer system after the property was sold to, a nd
developed by, Toll Brothers. However, Morris unequivocally stated it would
not take over ownership, maintenance, and control of plaintiff's Florham Park
sewer facility.
On May 1, 2020, plaintiff filed a verified complaint and order to show
cause against defendants. It did not name Florham Park as a defendant even
though the pump station and force main are located in that township and the
development proposed by Toll Brothers was designed to satisfy Florham Park's
Mt. Laurel affordable housing requirement. Plaintiff also did not name Toll
Brothers as a defendant even though, as the developer, that company would
presumably be responsible for ensuring that the development could be connected
to a sewer system.
The trial court issued an order to show cause on May 5, 2020, and set a
return date of June 15, 2020. The court's order directed defendants to show
cause "why judgment should not be entered . . . [o]rdering [them] to immediately
accept ownership, maintenance[,] and control of the pump station/force main
serving the [p]laintiff's property located in the Borough of Florham Park . . . ."
A-0226-20
10
The court also directed defendants to show cause why they should not be
required to provide sewer treatment services for the proposed Toll Brothers
development. The order also stated that "it further appear[s] that the plaintiff
moves to have this [c]ourt hear this cause summarily pursuant to New Jersey
Court Rules 4:67-1(a) and 4:67-2 . . . ."
In support of its complaint, plaintiff submitted copies of (1) the final
judgments of compliance and repose in the Morris and Florham Park Mt. Laurel
cases; (2) the settlement agreement between Florham Park and the FSHC in its
Mt. Laurel case; (3) the 1981 agreement between plaintiff, Morris, and Florham
Park; (4) the January 27, 2020 letter Morris sent to plaintiff; and (5) a four-page
certification prepared by a "licensed professional engineer and professional
planner." Although this individual stated that he had "personal knowledge of
the facts related" in his certification, he did not disclose how he obtained this
information. In any event, the assertions in the certification largely parrot those
set forth in plaintiff's complaint.
On May 29, 2020, defendants filed an answer and a third-party complaint
against Florham Park and the FPSA. However, Morris did not properly serve
the complaint upon the Florham Park defendants prior to the June 15, 2020
return date. Nevertheless, the order to show cause required the parties to provide
A-0226-20
11
"courtesy copies" of all pleadings to Florham Park and the FSHC. Florham
Park's attorney attended oral argument on plaintiff's application on the return
date, but declined to participate in that proceeding. 4
In an affidavit submitted in support of Morris' answer, the township's
engineer stated that contrary to plaintiff's assertion that a private entity could
not operate a pump station and force main, a number of private entities also
pumped effluent into the Morris system, including another development known
as the "Honeywell Property." According to the engineer, all that an entity
needed to operate its own pumping system was the appropriate license. The
engineer further stated that Morris did not own or operate any pumping stations
outside its borders.
Morris' township administrator also submitted an affidavit in opposition
to plaintiff's pleadings. The administrator cited to the 1981 agreement, which
clearly stated that plaintiff agreed to construct, own, and maintain its pump
station and force main and further agreed that Morris and Florham Park would
have no responsibility for it. The administrator asserted that the operation of
4
The FSHC submitted a letter brief in support of plaintiff's application and
participated in oral argument before the trial court. Despite their lack of formal
status as parties in this appeal, both FSHC and Florham Park have filed briefs
with this court and, absent any objection from defendants, we have duly
considered these submissions.
A-0226-20
12
any "pump station is a maintenance nightmare" which the township did not wish
to undertake. The administrator also noted that Morris would "receive no new
revenue if it were required to undertake the operation of the pump station and
such additional duty would result in [a] new financial burden to the [t]ownship
for which it [would] receive[] no compensation." 5
However, Morris again made clear it would accept the effluent generated
by the Toll Brothers development into its sewer system. As a result, defendants'
attorney advised the trial court in a May 29, 2020 letter that Morris was
"somewhat at a loss to understand why this matter is proceeding as an Order to
Show Cause when, to the best of our knowledge, the development approvals
have not yet been obtained and title to the property has not even passed to Toll
Brothers."
Morris also objected to the matter proceeding in a summary manner at oral
argument on June 15, 2020. Through its attorney, Morris argued there were
disputes of material facts between the parties and that there was no need to
resolve this litigation in an emergent or summary proceeding.
5
The Morris administrator submitted a second affidavit on June 9, 2020, which
mirrored the assertions made in his initial affidavit.
A-0226-20
13
To summarize, at the time of the June 15, 2020 return date on plaintiff's
order to show cause, the record revealed that plaintiff owned and operated the
pump station and force main it constructed pursuant to its July 1981 written
agreement with Morris and Florham Park. That contract provided that neither
municipality would be responsible for the operation of this system. The record
further showed that plaintiff had retained a private company to operate the
system, but the identity of that entity was unknown, as was whether plaintiff had
ever been advised by the Board of Public Utilities or any other governmental
agency that plaintiff was unable to lawfully continue to maintain its facility.
The record indicates there was a contract of sale under which plaintiff
agreed to sell a portion of its Florham Park property to Toll Brothers, but a copy
of that agreement was not submitted to the court and it was not clear whether
closing was contingent on plaintiff operating the pump station or transferring
ownership, maintenance, and control of the system to Morris or Florham Park.
All that was certain was that the closing had not yet occurred and that Toll
Brothers had not yet obtained any municipal approvals from Florham Park for
its proposed project.
While plaintiff alleged that Florham Park lacked the capacity in its sewer
system to accommodate the effluent to be generated by the Toll Brothers project,
A-0226-20
14
Florham Park did not submit any affidavit or certification attesting to the
veracity of this claim. Florham Park also did not establish that it was unable to
accept ownership of the pump station from plaintiff. Indeed, because no court
testimony or discovery depositions were permitted by the summary proceeding
employed by the court, none of the parties' conflicting factual representations
were subject to cross-examination.
The record shows that plaintiff's pump station and force main does not
meet "present-day engineering standards," but nothing was presented to the
court to establish the cost plaintiff would have to incur to accomplish the
improvements necessary to meet these standards. On this topic, all the court had
before it was plaintiff's counsel's oral representation that plaintiff would have to
pay hundreds of thousands of dollars to modernize the system. If plaintiff did
perform the engineering survey as alleged in its complaint, any report generated
as a result of the survey was not submitted to the court.
Plaintiff presented no written proposal detailing how or when it would
transfer ownership, maintenance, and control of the pump station and force main
to Morris. The court also did not know whether plaintiff proposed to transfer
the property the system was located on to Morris and whether, if it did, Morris
would then have to pay taxes or other fees to Florham Park as a result. There is
A-0226-20
15
absolutely nothing in the record to establish the cost Morris would incur on an
annual basis for operating and maintaining plaintiff's pump station and force
main.
In spite of these critical deficiencies in the record, the trial court granted
plaintiff the permanent injunctive relief it sought. First, the court rendered a
short oral opinion at the end of oral argument on June 15, 2020, with a
confirming order being filed on June 24, 2020. Although defendants had already
agreed to accept the effluent generated by the Toll Brothers development into
its sewer system, the court ordered defendants to "provide sewer treatment for
the inclusionary developments proposed on [p]laintiff's property in the Borough
of Florham Park and the Township of Morris . . . ."6
Thereafter, in a written decision and accompanying order rendered on
August 11, 2020, the court granted plaintiff the remaining injunctive relief it
sought. Specifically, the court ordered that plaintiff was to make all "reasonable
and necessary improvements" to its pump station and force main "as may [be]
recommended by" Morris' consulting engineers and pay the full cost of same.
The court stated that plaintiff would then be permitted to transfer "ownership
6
Defendants do not challenge this portion of the order on appeal.
A-0226-20
16
and operation" of this system to defendants "to ensure the prompt and efficient
construction" of Toll Brothers development in Florham Park.
While lengthy, the court's opinion is largely, if not entirely, premised upon
its conclusion that because Toll Brothers proposed to build affordable housing
on the Florham Park property it had contracted to purchase from plaintiff,
Morris, as a neighboring municipality, was obligated by case law to provide
assistance to the project by accepting the effluent from the development. See
Samaritan Center, Inc. v. Borough of Englishtown, 294 N.J. Super. 437, 455
(Law Div. 1996). The court also determined that the Law Division's holding in
Samaritan Center, which stated that under appropriate circumstances a court
could require an adjacent township to open its sewer system to an affordable
housing development under the jurisdiction of a nearby municipality, was not
limited to the acceptance of the effluent. Thus, the court found that it also had
the authority to order Morris to accept ownership of plaintiff's pump station and
force main, a legal determination which no other court in this State has ever
made even on a fully developed factual record.
In so ruling, the court acknowledged that Morris opposed proceeding in a
summary fashion and had argued that "the court's inquiry into the merits of
plaintiff's application should entail an exhaustive analysis of the prospective
A-0226-20
17
burden upon the [t]ownship's operation and maintenance regarding the pump
station and force main, with particular attention paid to the impact upon rate
users, taxpayers, and traffic patterns and congestion." However, the court
rejected this argument by pointing to the fact that Morris stated during its
negotiations with plaintiff that the density of the Toll Brothers project was too
high. Based upon this statement, and without taking any testimony on the issue,
the court found that defendants' concern with the undetermined cost of taking
over plaintiff's sewer system was merely a pretext to hide its animus toward the
construction of additional affordable housing in the area. This appeal followed.
II.
On appeal, Morris argues that the trial court mistakenly: permitted
plaintiff to obtain permanent injunctive relief through an order to show cause;
allowed the matter to proceed in a summary fashion; and arrived at its rulings
by resolving material disputes of fact in favor of plaintiff without discovery or
a plenary hearing. Morris also asserts that the court should have joined Florham
Park and FPSA as indispensable parties to this litigation. We agree wit h these
contentions.
The trial court erred in granting a permanent injunction requiring
defendants to take over ownership, maintenance, and control of plaintiff's pump
A-0226-20
18
station and force main on the return date for the order to show cause. As we
explained in Waste Management of New Jersey, Inc. v. Union County Utilities
Authority, 399 N.J. Super. 508, 516 (App. Div. 2008), "[t]he process adopted in
our court rules for seeking injunctive relief applications . . . does not allow for
the entry of an order to show cause for the entry of a permanent injunction;
rather, it permits only the entry of an order requiring a party to show cause why
a temporary restraint or an interlocutory injunction should not issue." Ibid.
(emphasis in original) (citing R. 4:52-1 and 2; Solondz v. Kornmehl, 317 N.J.
Super. 16, 20-21 (App. Div. 1998)).
As noted above, the trial court's order to show cause referenced plaintiff's
intention to "move[] to have [the] [c]ourt hear this cause summarily pursuant to
. . . Rules 4:67-1(a) and 4:67-2 . . . ." However, our court rules precluded
plaintiff from proceeding in this fashion. Although Rule 4:67-1(a) permits "the
entry of an order at the commencement of the action that requires a defendant
to show cause why final judgment should not be entered," Waste Management,
399 N.J. Super. at 516, n.2, proceeding under this Rule is allowed only when a
"rule or statute" authorizes the court to resolve the matter summarily. Ibid.
Here, there was no applicable rule or statute that permitted plaintiff to proceed
summarily.
A-0226-20
19
Further, a permanent injunction was improperly issued here because
neither the order to show cause nor the resulting proceedings suggested that
defendants consented to a summary disposition of the dispute. As the Waste
Management court explained:
We are mindful that in practice it is not unheard of for
parties to consent to a final determination on the return
of an order to show cause for an interlocutory
injunction when the facts are not in dispute or when an
evidentiary hearing would add no illumination to the
court's resolution of the issues presented. It is also not
uncommon, when a plenary hearing is conducted for the
purposes of resolving factual disputes on an
interlocutory injunction application, for the parties to
consent to have the trial judge render a final judgment.
Such a sensible and practical approach often provides
the parties with a swift and efficient resolution of their
disputes that is not inconsistent with our rules of
procedure, which favor "just determination[s],
simplicity in procedure, fairness in administration and
the elimination of unjustifiable expense and delay." R.
1:1-2 (citations omitted). Accordingly, we do not
intend to preclude pragmatism in the resolution of
disputes, but we must insist that such an approach is
only appropriate when the parties understand and
consent to a summary disposition of their disputes.
Otherwise, the process would possess only the qualities
of simplicity and efficiency, not fairness or justice.
[Waste Mgmt., 399 N.J. Super. at 518 (emphasis
added).]
Morris plainly did not consent to have the matter resolved through a
summary proceeding. It also disputed many of the facts alleged by plaintiff.
A-0226-20
20
Yet, the trial court did not require the parties to present testimony on any of the
issues involved in this case. Therefore, the court should not have attempted to
resolve these factual disputes on the basis of the parties' conflicting
certifications.
In addition, the record at this early stage of the proceedings clearly did
not contain sufficient information to enable the trial court to make a reasoned
decision on whether defendants should be required to take over ownership,
maintenance, and control of plaintiff's sewer facility. For example, there is no
evidence in the record establishing the costs Morris would incur if it were
required to take over the pump station and force main. In addition, the system
did not meet existing engineering standards and plaintiff had not made any of
the required improvements to it. Nevertheless, the court addressed these
disputed factual issues by merely stating, "Here, we have another undisputed
fact: Morris Township has the ability to accept ownership of the pump station
and force main – a utility that is up to date and state of the art."
Later in its decision, the court stated that "it has been repeatedly made
clear that Florham Park's inheritance of the pump station, which served the
Morris Township Sewer Service Area, is not a viable option." However, there
was no evidence in the record that Florham Park was unable to own and operate
A-0226-20
21
plaintiff's pump station and force main. The foregoing examples are only two
of the many instances in the August 11, 2020 decision where the court resolved
disputed factual issues in plaintiff's favor or rendered its rulings without
requiring plaintiff to provide the information necessary to support them.
In addition, there was simply no compelling reason to proceed in an
emergent, summary manner in this case, especially after Morris agreed to accept
the effluent generated by the Toll Brothers project. Plaintiff and Toll Brothers
had not even closed on the proposed sale of the property; Toll Brothers had not
received any municipal approvals from Florham Park; and there was no evidence
that any State or local authority had barred plaintiff from continuing to operate
the pump station and force main, or proposed to do so at some point in the future.
Therefore, there was no exigency requiring the resolution of this matter on less
than a fully developed record.
Finally, the legal basis for the trial court's ruling was far from settled.
While courts have held that a neighboring municipality may have to assist
another town by opening up its sewer system to accept waste generated by an
affordable housing project, no court has ever required that municipality to also
be responsible for maintaining sewer pumps, mains, pipes, or other equipment
outside of its borders. See Dynasty Bldg. Corp. v. Borough of Upper Saddle
A-0226-20
22
River, 267 N.J. Super. 611, 616 (App. Div. 1993) (stating that "an order
requiring [one town] to make existing sewer capacity available [for a
neighboring municipality's] Mt. Laurel inclusionary development sites comports
with the concept that municipal obligations to provide for low and moderate
income housing are established on the basis of regional responsibility");
Samaritan Center, 294 N.J. Super. at 455 (holding "that even in the absence of
a pre-existing co-operation or inter-municipal agreement, each municipality,
whether developing or developed, has an obligation to facilitate, if not assist,
the regional goal of providing realistic housing opportunities for low and
moderate income people in a cost effective manner" by opening its sewer system
to a neighboring town); See also Bi-County Dev. of Clinton v. Borough of High
Bridge, 174 N.J. 301, 328 (2002) (where our Supreme Court emphasized that
"[c]ompelling circumstances should exist in order to justify, under Mount Laurel
principles, disturbing the general rule that a municipality may exclude another
municipality or its residents from using or connecting to its sewer system ").
Here, the trial court ordered Morris not only to accept the effluent from
the proposed Toll Brothers development in neighboring Florham Park, a
responsibility that Morris had already accepted, but also required it to own and
operate a sewer pump station and force main within its neighbor's sole
A-0226-20
23
jurisdiction. And, as stated above, the court rendered this ruling without even
knowing the tax burden that would be placed on Morris' residents by this
unprecedented undertaking.
Under all of these circumstances, we are satisfied that the court erred by
granting plaintiff the permanent relief it sought on the return date of the order
to show cause under the truncated, summary procedure it employed in this
highly contested and complex matter. Therefore, the portion of the August 11,
2020 order requiring defendants to take over the ownership and operation of
plaintiff's pump station and force main cannot stand.
Accordingly, we vacate this portion of that order and remand for further
proceedings.7 The trial court should permit the parties to engage in discovery,
including depositions. Prior to doing so, however, the court should allow
defendants to serve their third-party complaint upon Florham Park and FPSA,
or file a motion to join them as indispensable parties under Rule 4:28-1. In
remanding this matter, we do not suggest a preferred result, but only that th e
trial court reconsider the matter and ensure that the factual record and the parties'
legal arguments are fully developed and addressed.
7
As noted above, defendants previously consented to accept the effluent to be
generated by the Toll Brothers development into its sewer system. Therefore,
we affirm the portion of the August 11, 2020 order requiring it to do.
A-0226-20
24
Affirmed in part; vacated in part; and remanded. We do not retain
jurisdiction.
A-0226-20
25