State ex rel. Dept. of Health v. North Jersey Dist. Water Supply Commission

• Decision Date: 08 March 1974
• Citation: 127 N.J.Super. 251,317 A.2d 86
• Parties: STATE of New Jersey ex rel. DEPARTMENT OF HEALTH, Plaintiff-Respondent, v. NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION, Defendant and Third-Party Plaintiff-Respondent, v. CITY OF NEWARK and Passaic Valley Water Commission, Third-Party Defendants- Appellants, and Town of Kearny et al., Third-Party Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 251

127 N.J.Super. 251

317 A.2d 86

STATE of New Jersey ex rel. DEPARTMENT OF HEALTH, Plaintiff-Respondent, v. NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION, Defendant and Third-Party Plaintiff-Respondent, v. CITY OF NEWARK and Passaic Valley Water Commission, Third-Party Defendants- Appellants, and Town of Kearny et al., Third-Party Defendants.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 1, 1973.

Decided March 8, 1974.

Donald S. Coburn, Asst. Corp. Counsel, East Orange, for third-party defendant-appellant City of Newark (William Rossmoore, Asst. Corp. Counsel, Newark, on the brief; William H. Walls, Corp. Counsel, Newark, attorney).

Newton M. Roemer, Paterson, for third-party defendant-appellant Passaic Valley Water Commission.

Albert S. Gross, Hackensack, for defendant and third-party plaintiff-respondent North Jersey Dist. Water Supply Commission.

Joseph M. Clayton Jr., Deputy Atty. Gen., for plaintiff-respondent State of New Jersey, ex rel. Dept. of Health (George F. Kugler, Jr., Atty. Gen., attorney).

Before Judges CONFORD, HANDLER and MEANOR.

The opinion of the court was delivered by

HANDLER, J.A.D.

This is the sequel to Newark v. N.J. Dept. of Health, 109 N.J.Super. 166, 262 A.2d 718 (App.Div.1970). As directed therein, the court below held a plenary hearing encompassing various issues raised by appellants' attack upon the order of the State Department of Health (Department) promulgated on January 24, 1966, as well as the implementation thereof as proposed by the North Jersey District Water Supply Commission (Commission or North Jersey). This plan was approved by the Department and concurred in by all of the participating municipalities with the exception of appellants City of Newark (Newark) and Passaic Valley Water Commission (Passaic Valley).

The court below determined upon cross-motions for partial summary judgment that the participating members were required to contribute to the cost and operation of the proposed filtration plant required by the Department. It also delineated as the remaining questions to be resolved by a hearing: the reasonableness of the proposed filtration plant with respect to its capitalization requirements and the method of payment therefor, computation of the respective contributions of the constituent municipalities, and compensation, if any, to Passaic Valley for damage to or loss of its filtration facilities at Little Falls. Following a full plenary hearing, the trial court entered a judgment which provided:

'A. North Jersey District Water Supply Commission is ordered and directed with all possible speed to finance, construct and operate a chemical filtration plant facility in a suitable area at the Wanaque Reservoir Headworks, Wanaque, New Jersey, to serve Newark, Clifton, Paterson, Passaic, Bloomfield, Glen Ridge, Kearny and Montclair, in compliance with the mandate of the State of New Jersey, Department of Health.

B. The cost of financing, constructing and operating said filtration facility be borne and paid for by said constituent members in proportion to their percentage of ownership.

C. The North Jersey District Water Supply Commission shall be and is hereby authorized and directed forthwith pursuant to the provisions of N.J.S.A. 58:5--1 et seq. for the purpose of financing, constructing and operating said filtration facility to issue and market its bonds secured by a pledge or lien on its revenues.

D. The North Jersey District Water Supply Commission shall pay to the Passaic Valley Water Commission $650,160, the present fair value of its Totowa Pressure Filtration Plant, as soon as feasible out of the proceeds of the bond issue aforesaid.

To sharpen the focus on this appeal, the essential issues to be resolved may be characterized as follows: (1) whether the determination that there should be a new filtration plant located at the Wanaque headworks was reasonable, in light of the effect thereof upon the interests of Passaic Valley and Newark; (2) whether Passaic Valley and Newark may be compelled to participate in the proposed filtration plant at Wanaque and to contribute a proportionate share of the costs of constructing that facility; (3) whether the award of damages for the loss sustained by Passaic Valley attributable to the anticipated abandonment of its pressure filtration plant at Little Falls was improper or inadequate, and (4) whether the directive that North Jersey could finance the proposed filtration plant through the issuance of its own bonds secured by a pledge or lien on its revenues was improper or invalid.

I

Appellants have taken the position that the proposed filtration facility at the Wanaque headworks 'is economically unfeasible and will be disastrous to the owner-municipalities comprising Passaic Valley and to Newark.' This contention is supplemented by the further assertion that Passaic Valley 'could readily improve its present facilities to meet and surpass all state standards,' and that Newark could build an 'entirely satisfactory' facility in Belleville and should, at the very least, have been given the opportunity 'to explore this feasible approach * * *.'

The trial court noted that the only comprehensive study that was undertaken in response to the Department's order of January 24, 1966 was that submitted by the consulting engineers on January 12, 1968 and accepted by the Department on February 1, 1968. The recommendation as approved by the Department was for a new filtration plant at Wanaque. The court felt compelled, 'by the overwhelming evidence' reflected in the engineers' reports, to approve their recommendations and adopt their findings, noting that such evidence exceeded 'clear and convincing standards of proof.' In reaching that ultimate conclusion, the court rejected the alternatives advanced by Passaic Valley and Newark. In effect, it reasoned that their proposals were unfounded and inconsistent with the objectives to be achieved by the plan approved by the Department.

Our independent review of the record leads us to the same result. In reaching this conclusion we have duly noted that there is some countervailing evidence. We are also mindful of the contentions of appellants, based in some measure upon extra-record references, that the proposed plan to construct a filtration facility at Wanaque is actuated by motives to serve not primarily the demands of the inhabitants of the constituent members of North Jersey but rather to cater to the needs of other municipalities and to abet other projects, such as the proposed Monksville Project. These considerations however, do not dissuade us that the result reached by the trial court was eminently sound.

Most of the experts expressed the view that the location of a new filtration facility at Wanaque was optimum. Glen H. Abplanalp, a highly qualified expert associated with the engineering firm which had been retained by Passaic Valley and whose report was ultimately approved by North Jersey and the Department, concluded that the best location for the filtration plant was the Wanaque site at the headworks of the system. John Wilford, Chief of the Bureau of Potable Water of the State Department of Environmental Protection, underscored the State's approval of the engineers' report as to the location of the filtration plant at the Wanaque headworks. Dean C. Noll, the District's Chief Engineer, emphasized the need to meet future needs of the northeastern area of the State and that the Wanaque location has the greatest flexibility in that respect. Dr. William Oscar Lynch, a professional engineer who testified for Passaic Valley, recognized that Wanaque was the proper location for the plant (but that Passaic Valley should be adequately compensated) and that such a plant could be more economically run and constructed for less than it would cost to construct or renovate facilities at Little Falls.

Accordingly, we are satisfied that the court's determination upholding the Department's decision that a new filtration plant be constructed on the site of the Wanaque headworks was clearly reasonable and firmly based upon substantial evidence.

II

Passaic Valley and Newark assert that they cannot be compelled to participate in the water supply system entailing new filtration facilities to be located at the Wanaque headworks, nor can they be required to share proportionately with other members of North Jersey in the cost of such construction. It is argued that not only is there an absence of statutory and contractual authority to force the cooperation of these objecting municipalities in the proposed facility but that such a mandate would result in an 'unconstitutional taking of their property.'

This controversy must be understood in the perspective of the State's overriding concern and obligation to safeguard the public health. West Caldwell v. Caldwell, 26 N.J. 9, 30, 138 A.2d 402 (1958); Dept. of Health v. Owens-Corning Fiberglas Corp., 100 N.J.Super. 366, 381, 242 A.2d 21 (App.Div.1968), aff'd 53 N.J. 248, 250 A.2d 11 (1969). This encompasses a comprehensive power, coupled with a correlative duty, to control and conserve the use of its water resources for the benefit of all its inhabitants. Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937 (1923). It is a paramount governmental policy that such water supplies must be pure in quality, and be economically and prudently managed for the benefit of the public. See Collingswood v. State Water Supply Comm'n, 85 N.J.L. 673, 676, 90 A. 277 (E. & A. 1914). Designed to protect and promote the general health, safety and welfare, statutes regulating public water resources must be liberally construed to advance and achieve this underlying beneficent policy. Jersey City v. State Water Policy Comm'n, 118 N.J.L. 72, 76, 191 A. 456 (E. & A. 1937); Newark v. N.J. Dept. of Health, Supra, 109 N.J.Super. at 177, 262 A.2d 718.

The Legislature has enacted various statutes which give the State regulatory and...