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

A-4910-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

MUNICIPALITIES; WATER SERVICE — When a municipality’s general policy is to maintain water lines only to the extent they are located on public property, and not private property, it may set its service limit at the division between public and private property, and is not required to service water lines curb boxes located on private property.

Under traditional arrangements, a municipality is responsible for the maintenance of municipal water lines from the water main to the curb box of private dwellings. A “curb box” is the hookup for an underground shut-off valve for the water lines. Typically, the curb box is located as close to the public right of way as possible and is connected to the water main by pipes called “short stubs.” Longer pipes are generally not required because of the curb box’s usual close proximity to the public right of way. Curb boxes are then connected by service lines to the buildings themselves. Under that scheme, the municipality maintains the water line that sits in the public right of way and the short stubs ending at the curb box, and the private owner is obligated to maintain the service line that extends from the curb box to the dwelling. The municipality in this case also had an ordinance making the consumer responsible for the service from the shutoff valve at the street to the structure, except for the meter.

A condominium complex was built and all of its water and sewer lines and related equipment were placed within the private property of the condominium by the developer. Some of the curb boxes were placed far from the public right of way. Seven years after the curb boxes were installed, after discovering an apparent break in the water line, the municipality and the condominium association disputed the responsibility for repairing the water lines from the public right-of-way to the curb box. The parties initially believed that they resolved their dispute by agreeing to transfer ownership of the water and sewer lines on the condominium property to the municipality pursuant to a bill of sale. That bill of sale provided that the municipality would maintain the sanitary sewer main, water main, and hose connections. The municipality was also granted an easement to install, relocate, repair, and maintain the sewer main, its spurs, and the water main. The municipality also adopted a resolution incorporating the sanitary and waterlines and service into its overall municipal utility delivery system. Further disagreements arose, however, because the easement agreement did not address the stubs from the water main to the curb boxes and neither the easement agreement nor the bill of sale discussed who would maintain the water service lines.

The association sued the municipality seeking: (a) a court order to have the municipality maintain the water lines, including the service lines; (b) damages for incomplete repairs; and (c) compensation for repairs undertaken by the association. The lower court found it was necessary to review the bill of sale, easement, resolution, and ordinance to determine the rights of the parties. It agreed with the municipality that the resolution only mentioned that it would provide water service and believed that had the municipality intended for it to be responsible for maintaining the water service line, the resolution would have used the plural “services” instead of the singular “service.” As for the ordinance, the Court held that, at the time the bill of sale was prepared, the parties never discussed, and apparently never relied on, the ordinance, making it inappropriate to rely on it to resolve this issue. The lower court also heard testimony from the municipality to the effect that it generally accepted responsibility for maintenance of the line up to the midpoint of the curb box. The Court noted, however, that both parties had apparently assumed the curb boxes would be in the normal location, as they were in ninety-five percent of the municipality, and that the bill of sale and easement plainly indicated that the municipality would only be assuming responsibility for the main line, not the service lines. Accordingly, although the lower court believed both parties were the innocent victims of an irresponsible developer who made several mistakes in locating the water lines, it concluded that the municipality was only responsible for the main line and not the long pipes, and that is was not responsible for repairing stubs that were located outside the public right of way and within private property.

The association appealed, but the Appellate Division affirmed. The association argued that the ordinance had to be read to require the municipality to be responsible for the maintenance of the pipes between the main line and the curb box, regardless of where the curb box was located. The Court disagreed, noting that the municipality’s general policy was to maintain water lines only to the extent that they were located on public property, not private property. Further, the municipality set its service limits at the division between public and private property, and not at the location of the curb box. The Court found the municipality’s interpretation of the ordinance to be reasonable, especially since the municipality has no control over the installation of flower beds, fences or trees on private property and would not want responsibility to repair or replace any flower beds damaged during the repair of the pipes leading to the curb boxes.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •