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Kusznikow v. Township Council of the Township of Stafford

322 N.J. Super. 323, 730 A.2d 930 (Law Div. 1999)

MUNICIPALITIES; WATER SUPPLIES—Property owners can be required to connect to water laterals and can be barred from interconnecting their own well water supplies with the public water system.

A municipality installed a municipal water system and after an unsuccessful appeal to the courts, a group of homeowners was required to connect to the water system. After having connected to the water line in the street, the homeowners objected to connecting their homes to the lateral on their property and also objected to being precluded from allowing their well water to enter their house plumbing. The municipality conceded that the homeowners would remain free to use their well water for any purpose, provided that it was not interconnected with the municipal water system serving their house. The municipality did not contend that the homeowners must cap their wells but insisted that the ordinance gives the municipality the power to prevent the interconnection of the well with the house plumbing to avoid possible contamination of the public water supply. The parties agreed that there was no present evidence of pollution in the homeowners’ wells. Although this was a novel matter within New Jersey, there appeared to be persuasive precedent in the federal circuit court supported by decisions in other states. Consequently, the Court did not find the need for a lengthy independent analysis of the controversy. Instead, it relied primarily on Stern v. Halligan, 158 F.3d 729 (3rd Cir. 1998). In that case, the court “found that general economic and social welfare legislation may be struck down only if it fails to meet a minimum rationality standard. The court concluded that the plaintiffs failed to meet their burden since the protection of health, safety and general welfare, which was the goal of the challenged ordinance, was plainly in the public interest.” There, as here, the Court concluded that the legislature “may rationally determine that a public water supply is the simplest and safest solution for its citizenry, even without proof of danger to each and every affected person.” Here, the homeowners argued that the real underlying justification for the mandatory connection requirement was the economic interest of the Municipal Utility Authority. The municipality did not deny either that revenue from usage was an important element of its economic structure or that if homeowners were free to avoid at least the basic usage charge by refusing to connect their homes to the lateral on their property, the rates charged to those who connect might be driven higher. The Court, however, found that “even if finances are at the heart of the ordinance provisions, the plaintiffs’ cause is not strengthened. Our courts have recognized that such monetary considerations are legitimate and rationale [sic] elements related to the installation of the utility system.” The homeowners also argued that “to deny them the use of their well constitutes a taking.” Here, the Court felt that there was no indication that the homeowners’ wells constitute all (or, indeed, any) of the economic value of their land. Consequently, the Court found no evidence of the total destruction of value that is required before it can find a taking. As a result, the Court found that the homeowners were required to connect their dwelling to the municipal water system and pay the fees assessed for their usage of the water. If the homeowners choose not to use any of the water, they presumably will pay the basic usage fee applicable to all individuals. The homeowners were not required to cap or discontinue use of their well for purposes unrelated to the plumbing in their homes. Theoretically, they could choose to drink the well water, use it for cooking or for other purposes in addition to its more likely use in lawn sprinkling. “The court is not insensitive to the plaintiffs’ philosophical differences with the law. Living in a civilized society translates to a surrender of a certain amount of individual freedom to the common good. A balance must be struck if the legitimate interests of society are to be achieved.”


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