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. e du/thir dc ir c uit_1998/240Filed October 7, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-5506

STEVEN B. STERN; MICHELE STERN;

THE LORENZO TRUST

v.

FRANCIS X. HALLIGAN, JR.; JEFFREY W. FLATT;
BERKELEY TOWNSHIP; BERKELEY TOWNSHIP

MUNICIPAL UTILITIES AUTHORITY

v.

FRANCIS X. HALLIGAN, JR; BERKELEY TOWNSHIP, Third-party plaintiffs

v.

MICHAEL PETER SCILLITANI, Third-party defendant (Trenton D. C. Civil No. 95-cv-03449)

STEVEN B. STERN; MICHELE STERN;

THE LORENZO TRUST

v.

FRANCIS X. HALLIGAN, JR; JEFFREY W. FLATT; BERKELEY TOWNSHIP; BERKELEY TOWNSHIP

MUNICIPAL UTILITIES AUTHORITY

v.

FRANCIS X. HALLIGAN, JR., BERKELEY TOWNSHIP, Third-party plaintiffs

v.MICHAEL PETER SCILLITANI,

Third-party defendant (Trenton D. C. Civil No. 95-3885)

STEVEN B. STERN, MICHELE STERN, THE LORENZO TRUST, Appellants

On Appeal From the United States District Court For the District of New Jersey (D.C. Civ. No. 95-cv-03449)

Argued: July 16, 1998

Before: BECKER, Chief Judge, STAPLETON, and WEIS, Circuit Judges.

(Filed October 7, 1998)

L. GILBERT FARR, ESQUIRE (ARGUED) 193 East Bay Avenue P.O. Box 42, 2nd Floor Manahawkin, NJ 08050

Attorney for Appellants

PATRICK SHEEHAN, ESQUIRE (ARGUED) 6 Hooper Avenue Toms River, NJ 08753

Attorney for Appellees - Berkeley Township and Francis X. Halligan, Jr.

JOHN J. SHEEHY, ESQUIRE (ARGUED) Sheehy & Sheehy
665 Newark Avenue Jersey City, NJ 07306

Attorney for Appellees -

2Berkeley Township Municipal Utilities

Authority and Jeffrey W. Flatt

OPINION OF THE COURT

BECKER, Circuit Judge.

Plaintiffs Steven and Michele Stern, and Michele St ern's brother Michael Scillitani (as trustee), each own r eal property in Berkeley Township, New Jersey, which is served by privately-owned well water. Defendant Berkeley Township Municipal Utilities Authority ("BTMUA"), pursuant to local ordinances, ordered the plaintiff s to connect to the municipal water supply and, through various enforcement proceedings, placed a lien on t he trust property administered by Michael Scillitani when he refused. Plaintiffs brought suit against BTMUA, the Township, and local officials, alleging that the ma ndatory connection requirement is unconstitutional, at leas t as applied to them, because it is beyond the powers of a municipality; because it constitutes a taking; and because it unlawfully forces them into an unwanted contract . The plaintiffs wish to avoid a connection to the munici pal water supply with its attendant costs and to continue usi ng their private wells for drinking and other household purp oses. The district court granted summary judgment for the defendants, finding that there was a rational basis for the
ordinances. We affirm.

I. Facts and Procedural History

Berkeley Township Ordinance 90-16-OAB requires that
, within 90 days after a BTMUA water supply line is m ade available, property owners must hook up their build ings to the municipal system and must also permanently disconnect their private wells from the potable wat er supply for the buildings. See Berkeley Township, N.J., Ord inance 90-16-OAB S 2 (Apr. 23, 1990). The ordinance also a llows BTMUA to make any required connection, installation , or well sealing if an owner fails to do so after recei ving notice. The owner can be charged for such actions, and the

3charges will be a lien on the owner's property unti l they are

paid. See 90-16-OAB S 9. A second ordinance similar ly authorizes BTMUA to charge property owners for connection and service charges "after the homeowner has received all notices to hook up to the water system and the time period for . . . connection has expired." Berk eley Township, N.J., Ordinance 94-23-OAB S 128-21 (June 28, 1994).

In 1994, both the Sterns and the trust received not ice that BTMUA was to provide their properties with con nection to the municipal water supply. In due course, both the
Sterns and the trust received notice that the 90-da y period for connecting to the water supply had expired and that they would be liable for all connection and service charges. In 1995, BTMUA issued summonses charging the trust with failure to connect to the water supply pursuan t to township ordinance 94-23-OAB. A lien was imposed on the trust property. The plaintiffs then filed virtually identical pro se petitions in the district court for "a writ of protection" alleging violations of 18 U.S.C.S 241, 42 U.S.C. SS 1985(3) & 1983, and the Fifth and Ninth Amendmen ts to
the United States Constitution.

The defendants are BTMUA; the Township; Francis X. Halligan, Jr., the municipal court judge in Berkele y Township who arraigned Scillitani pursuant to the 1 995 summonses; and Jeffrey Flatt, the BTMUA plant super visor
who issued the summonses. The defendants moved for summary judgment, which the district court granted. The plaintiffs, now represented by counsel, appeal only the ruling as it applies to their SS 1983 and 1985 clai ms.1

II. The Substantive Due Process Claim

The plaintiffs contend that Township Ordinance 90-1 6-

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1. The district court granted summary judgment on t he 18 U.S.C. S 241 claim because there is no private cause of action u nder the criminal statute. See Newcomb v. Ingle, 827 F.2d 675, 677 n. 1 (10th Cir. 1987). We note that, although the issue was not raised by the parties, all claims against the magistrate judge would have to be dismi ssed in any event on the grounds of judicial immunity.

4OAB, which requires residents to hook up to the pub lic

water supply when it becomes available and to disco ntinue the use of well water in the home, violates the Uni ted
States Constitution because their well water is "sa fe and pure."2 They do not identify precisely what parts o f the Constitution are thereby implicated, though we unde rstand them to be making the claim that the ordinance is irrational and therefore violates substantive due p rocess. In their reply brief, the plaintiffs also appear to in voke a general right to be free from government action by quoting Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (192 2). Even if this claim had been preserved,3 we do not consider the right to be free from municipal water connectio ns to be part of the right to privacy as it has developed si nce Meyer. See Town of Ennis v. Stewart, 807 P.2d 179, 182 (Mo nt. 1991) (rejecting an identical claim).

We have made clear that when "general economic and social welfare legislation" is alleged to violate s ubstantive due process, it should be struck down only when it fails to meet a minimum rationality standard, an "extremely difficult" standard for a plaintiff to meet. Knight v. Tape, Inc., 935 F.2d 617, 627 (3d Cir. 1991). The only qu estion is "whether the law at issue bears any rational relati onship to any interest that the state legitimately may promot e," id.; simple unfairness will not suffice to invalidate a law. The challenger bears the burden of proving irrationalit y. See Lindsey Coal Mining Co. v. Chater, 90 F.3d 688, 694 (3d Cir. 1996).

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2. Neither side presents much evidence about the sa fety of the particular wells on the two properties. Plaintiffs' brief stat es that their water

"has been tested and passed all tests with flying colors ." However, the record does not contain any evidence of such testing. What little testimony there is in the record about well safety is in Jeff rey Flatt's affidavit, which states that there is a contaminated well appr oximately one half mile from the plaintiffs' properties. Moreover, the affidavit states that wells can become contaminated overnight. At all eve nts, this case does
not turn on these considerations.

3. A party cannot raise issues for the first time i n a reply brief. See Republic of Philippines v. Westinghouse Elec. Corp. , 43 F.3d 65, 71 n.5 (3d Cir. 1994); Kost v. Kozakiewicz, 1 F.3d 176, 18 2 (3d Cir. 1993).

5The plaintiffs have not met their burden. Protectin g the

health, safety, and general welfare of township inh abitants, the goal of the challenged ordinances, is plainly i n the public interest. Private wells can be unsafe for a disturbingly long list of reasons. Potential danger s include: carcinogenic radon, radium-226, and radium-228;4 sa lt from road-salting stockpiles or saline aquifers; pe sticides; fertilizers; explosive methane; MTBE (a gasoline ad ditive); fuel from leaking underground tanks; bacteria-laden waste from leaking septic tanks, broken sewer lines, pets , farm animals, or wildlife; and chemical or other hazardo us waste. See Roger M. Waller, U.S. Geological Survey, U.S. Dep't of Interior, Ground Water and the Rural Homeo wner 20-30 (1994). Furthermore, private wells are genera lly shallower than public supply wells and thus more ea sily
contaminated.

These potential harms provide ample justification f or government action to safeguard citizens. Because pu re water is a precondition for human health, regulatin g the water supply is a basic and legitimate governmental activity. See City of Trenton v. New Jersey, 262 U. S. 182, 43 S. Ct. 534 (1923); City of Newark v. Department of Health, 262 A.2d 718 (N.J. Super. Ct. App. Div. 197 0). A municipal water supply replaces a myriad of private water sources that may be unmonitored or, at best, diffic ult, expensive, and inefficient to monitor. Therefore, a legislature may rationally conclude that a public w ater supply is the simplest and safest solution for its citizenry as a whole without proof of danger to each and ever y affected person. The danger is significant, the bur den of connecting to nearby waterlines is not great, and t he costs and benefits of such legislation are widely shared throughout the area of service. For these reasons, the

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4. Levels of radium and nitrate contamination are h igher in private wells than in public supply wells. See U.S. Geological Su rvey, U.S. Dep't of Interior, Radium-226 and Radium-228 in Shallow Grou nd Water, Southern New Jersey, Fact Sheet FS-062-98, June 199 8, at 5 & tbl.2. It also appears that contaminated private wells are a significant problem in many areas of New Jersey, including Ocean County, w here the plaintiffs' property is located. See Maureen Graham & Frederick Cusick, Radium Tainting Water in N.J. Wells, Phila. Inquirer, Aug. 9, 1998, at A1.

6overwhelming majority of courts that have addressed the

issue have found that mandatory connection to publi c water is a legitimate exercise of police power. See , e.g., Shrader v. Horton, 471 F. Supp. 1236 (W.D. Va.), af f'd, 626 F.2d 1163 (4th Cir. 1979); Lepre v. D'Iberville Wat er & Sewer Dist., 376 So. 2d 191 (Miss. 1979); Town of E nnis, 807 P.2d at 184; New Jersey v. Kusznikow, No. A-971 -94T3 (N.J. Super. Ct. App. Div. Jan. 8, 1996); Rupp v. G rantsville City, 610 P.2d 338 (Utah 1980); Tidewater Ass'n of Homebuilders, Inc. v. City of Virginia Beach, 400 S .E.2d 523, 526 (Va. 1991); Weber City Sanitation Comm'n v . Craft, 87 S.E.2d 153, 159 (Va. 1955).

The only case supporting the plaintiffs' position i s City of Midway v. Midway Nursing & Convalescent Center, Inc
., 195 S.E.2d 452 (Ga. 1973).5 There, the Georgia Supr eme Court found that mandating a connection to a public water supply was not a reasonable manner of protecting th e health and welfare of citizens. City of Midway has been criticized by other courts for a crabbed understand ing of the scope of a municipality's police power over hea lth and safety issues. See, e.g., Town of Ennis, 807 P.2d a t 182-83. Moreover, City of Midway was decided under state la w that required grants of power to municipal corporations to be construed strictly, see City of Midway, 195 S.E.2d at 454, whereas we are evaluating only whether the ordinanc e meets the minimum standards of rationality required of social welfare regulation under the Due Process Cla use.

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5. The plaintiffs also cite Frier v. City of Dougla s, 213 S.E.2d 607 (Ga. 1975), for the proposition that safety concerns alo ne cannot justify a mandatory connection ordinance. We cannot discern t he difference between "safety" and "health" in this situation, bu t even were we to find the distinction persuasive, Frier would be inapposi te. That case turned in large part on the court's interpretation of the Geo rgia law at issue,
which was worded restrictively in ways not present here. See id. at 609. Frier, moreover, concerned electricity rather than water, and involved an owner who wanted no electricity whatsoever. Here, the pla intiffs obviously want to use water, but from their own source. The approp riate analogy is not
to Frier but to a case in which a homeowner wished to provide his or her own electricity from a source that might without wa rning become unsafe; in such a case the city would doubtless be able to require the homeowner to use the public system if he or she wis hed to use electricity

at all.

7We do not have the authority to second-guess ration al

legislative judgments of this sort. A legislature m ay be riskaverse even when there is no evidence of immediate harzard and some citizens are willing to run the risk of fu ture harm. The Supreme Court of Virginia has upheld mandatory water connections even though the parties before the cour t stipulated that the plaintiffs' wells were currentl y safe:

A local governing body must necessarily enjo y broad discretionary powers to protect the public h ealth and general welfare of its residents. To anticip ate seemingly unlikely events . . . as public health hazar ds may be to exercise commendable prudence and foresight. There is no requirement that protective measures be l imited to
actions taken after a crisis has arisen or a catastrophic
disaster has struck.

McMahon v. City of Virginia Beach, 267 S.E.2d 130, 134 (Va. 1980). Similarly, the Supreme Court of Montana upheld a mandatory water connection law without evi dence of immediate health threats to any well-water user in the affected area, because "the potential for such prob lems always exists. A municipal water system is better s uited to meet these health concerns and prevent potential he alth problems that could arise absent such a system." To wn of Ennis, 807 P.2d at 183.6

City of Midway distinguished sewers, which it thoug ht sufficiently important to justify mandatory connect ion laws, from water, which it found mostly harmless. We may accept that sewers are even more vital than clean drinking water. However, cases addressing sewers also support the proposition that only a low level of risk is requir ed to justify mandatory connections. In Hutchinson v. City of Val dosta, 227 U.S. 303, 33 S. Ct. 290 (1913), for example, al though the Supreme Court posited that there was "no necess ity on account of health or sanitary conditions" to requir e a sewer connection to the owner's land, id. at 305, and eve n noted the possibility that the construction of a sewer li ne might pose interim health hazards, the Court upheld the s ewer

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6. We note that the town of Ennis, the self-proclai med "Fly Fishing Capitol of America," is in the midst of the pristin e "Big Sky Country," and yet still perceived the need for a municipal wa ter supply.

8connection requirement as a constitutional exercise of

police power. See id.; see also Alperstein v. Three Lakes Water & Sanitation Dist., 710 P.2d 118 (Colo. Ct. A pp. 1985) (rejecting a requirement of individualized determination of sanitation risk for mandatory sewe r connection); Bingham Farms v. Ferris, 384 N.W.2d 12 9, 133 (Mich. Ct. App. 1986) (same). As another court expl ained: "Municipal governments are not required to gamble a gainst public health risks. To protect the public health, as well as to promote public safety, a legislative body may ad opt `the most conservative course which science and engineer ing offer.' " City of Nokomis v. Sullivan, 153 N.E.2d 4 8, 51 (Ill. 1958) (quoting Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 83, 66 S.Ct. 850 (1946)).

The harms averted by sewer systems may well be grea ter than the harms averted by municipal water sources. But the plaintiffs have offered no evidence that the di sparity in risk is sufficient to disregard these precedents. S ee Shrader, 471 F. Supp. at 1243 (finding "no meaningf ul distinction between mandatory sewer connection and mandatory water connection"); Lepre, 376 So. 2d at 193 (applying sewer connection precedents to a mandator y water connection ordinance).

The plaintiffs additionally claim that their case i s distinct from other mandatory connection cases because the ordinance at issue may require them to cap or disco nnect their wells in addition to requiring them to hook u p to municipal water. We need not interpret the ordinanc e at this level of detail, however, because this slight additional
burden makes no difference to the outcome of this c ase. Requiring disconnection of indoor water from a pote ntially dangerous source is part of the general protective legislative scheme and works no unjustifiable harm on the plain tiffs. See Renne v. Township of Waterford, 252 N.W.2d 842, 846 (Mich. Ct. App. 1977) (upholding a sewer connection requirement and a ban on the use of a functioning s eptic tank); Weber City Sanitation Comm'n (upholding a mandatory water connection and well disconnection ordinance); cf. Andres v. City of Perrysburg, 546 N .E.2d 1377, 1381 (Ohio Ct. App. 1988) (rejecting a taking s claim for a mandatory sewer connection where local law al so required all connected property to be annexed by th e city).

9Consequently, plaintiffs have no right to have thei r wells

service their houses, even though the township has not proven that the wells are dangerous. Indeed, even i f the plaintiffs can prove the current safety of their wa ter, they would not be exempt from the generally applicable connection requirement. Mere over- or underinclusiv eness will not invalidate social welfare regulation so lo ng as the state action represents a rational response to a le gitimate problem. See Lindsey Coal Mining Co., 90 F.3d at 69 4-95. Mandatory connections to public utilities are class ic examples of social welfare regulations that merely adjust
the burdens and benefits of life in the modern worl d. It cannot escape our notice that from the inception of such sanitary programs--and even during the Lochner era- - courts have routinely rejected constitutional chall enges to mandatory connection requirements. See, e.g., City of Mountain Home v. Ray, 267 S.W.2d 503 (Ark. 1954); Schmidt v. Village of Kimberly, 256 P.2d 515 (Idaho 1953) (collecting cases); Township of Bedford v. Bates , 233 N.W.2d 706 (Mich. Ct. App. 1975) (collecting cases) ; New Jersey v. Mayor of Paterson, 51 A. 922 (N.J. 1902); McNeill v. Harnell County, 398 S.E.2d 475 (N.C. 1990) (coll ecting cases); Bigler v. Greenwood, 254 P.2d 843 (Utah 195 3).

In the end, the plaintiffs' apparently quite sincer e belief that the ordinance represents an unjustified intrus ion on their rights as citizens does not carry the day. Mo st laws appear intrusively burdensome to at least some of t hose whose conduct is thereby governed. But the legislat ure may respond to potential threats to the safety and welf are of its citizens, and may require even those who consider themselves careful or lucky enough to escape harm t o comply with generally applicable laws.

III. The Takings Claim

The plaintiffs contend that their takings claim was not addressed by the district court, and that the matte r should thus be remanded. It does not appear, however, that the issue was fairly presented to the district court. T he pro se petition filed in district court contains numerous unexplained citations of various laws and cases, in cluding a quotation of the Fifth Amendment in its entirety. The

10relief sought did not include just compensation; in stead,

the petition sought to prevent the township from en forcing its ordinances and, in the alternative, demanded th at the township accede to certain conditions (compensation for the well not among them) if connection were to be requi red. Although we construe the pro se petition liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we c annot find a takings claim. Moreover, we would lack subje ct matter jurisdiction over a takings claim, because p laintiffs
must first exhaust state remedies before a federal court may entertain a regulatory takings claim. See Willi amson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S. Ct. 3108 (1985). The plaintiffs have no t, so far as the record shows, sought compensation through st ate proceedings. Accordingly, plaintiffs' takings claim must be rejected.7

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7. Such a claim would be meritless in any event. Th e Supreme Court has noted that, after a finding that due process has no t been violated, "it would be surprising indeed to discover a [regulator y] taking," because the relevant analysis is so similar. Connolly v. Pe nsion Benefit Guaranty Corp., 475 U.S. 211, 223, 106 S. Ct. 1018 (1986). M oreover, regulatory taking, requiring just compensation therefor, occur s when there has been a deprivation of "all economically beneficial use" of property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1 018, 112 S. Ct. 2886 (1992). The property at issue is not to be divided up between affected and unaffected parts; otherwise, every regulation w ould be a taking of the entirety of that which it prohibits. See Penn C entral Transp. Co. v. City of New York, 438 U.S. 104, 130, 98 S. Ct. 2646 (1978). There is no indication that the plaintiffs' wells constitute al l (or, indeed, any) of

the
economic value of their land. The value of the wate r pipes running from the plaintiffs' wells to their houses and of the li mited amount of
interior plumbing affected by the disconnection does not beg in to approach the total destruction of value required before we willf ind a taking. See,

e.g., Midnight Sessions, Ltd. v. City of Philadelphia, 94 5 F.2d 463, 468 (3d Cir. 1996) (taking a "narrow view" of regulatory ta kings); Elsmere Park Club Ltd. Partnership v. Town of Elsmere, 771 F. Su pp. 646, 653 (D. Del. 1991) (holding that a regulation preventing the use of an apartment complex basement for residences was not a taking be cause so much of the property remained unaffected).

11IV. The Contract Claim

The plaintiffs submit that they are being forced in to a contract with BTMUA involuntarily. The plaintiffs b riefly
claim that the ordinance violates the federal and N ew Jersey state constitutional provisions prohibiting laws impairing the obligation of contracts. The argument is plainly lacking in merit, because the ordinance doe s not impair any contracts.

The plaintiffs then argue that general principles o f contract law prohibit the township from charging fe es for unwanted water service. Their claim is mistaken, be cause government is not required to deal with citizens on a purely contractual basis, as the mandatory connection case s discussed above demonstrate. The plaintiffs may be required to obtain their water service from BTMUA a nd to pay for that service just as they may be required t o adhere to other laws that, one way or another, cost money. 8 The only forced contract is the broader social contract , which is part of the nation's polity and as such is unchalle ngable

here.

Relying on New Jersey statutory law, the plaintiffs further argue that they may not be charged fees for utility service if they have not affirmatively applied for a servic e contract. The governing statute, however, lists contractual r elations as only one of the potential sources of a payment obligation. Municipal authorities may collect fees for connection to and use of the water system from "any person contracting for . . . connection or use, pro ducts or services . . . or from the owner or occupant, or bo th of them, of any real property which directly or indirectly i s or has been connected with the water system or to which di rectly or indirectly has been supplied or furnished such u se, products or services of the water system . . . ." N .J.S.A. S 40:14B-21 (1991) (emphasis added). Therefore, upo n connection, BTMUA is authorized to charge the owner s for

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8. The situation here is similar to the requirement that automobile owners pay for annual inspections in order to drive their cars legally. The state, in establishing inspection centers, prov ides a service that owners must purchase if they wish to drive.

12connection costs and water used, whether they want it or

not.

To bolster their contractual claim, the plaintiffs cite Austin v. Mayor of Union Beach, 160 A. 318 (N.J. 19 32), Ivan v. Marlboro Township Municipal Utilities Autho rity, 393 A.2d 598 (N.J. Super. Ct. App. Div. 1978), and Dani el v. Borough of Oakland, 304 A.2d 757 (N.J. Super. Ct. A pp. Div. 1973), in which municipalities did not connect the respective plaintiffs to the public water system an d the plaintiffs had no contracts for service. In those c ases the New Jersey courts found that the plaintiffs could n ot be assessed water service charges. Those cases are not on point, however, because they did not involve connec tion requirements; service was apparently voluntary.

Moreover, New Jersey law is clear that public utili ties may require citizens to pay fees even if the citize ns do not contract with the utilities. In Airwick Industries, Inc. v. Carlstadt Sewerage Authority, 270 A.2d 18 (N.J. 197 0), the New Jersey Supreme Court decided that nonusers of a sewer system could be required to pay a share of sy stem construction costs because they benefited from the existence of and potential connection to the system . When a municipality requires connection to a public util ity, it is legitimate to require payment to cover both constru ction costs and use and maintenance charges. See also May or of Paterson (holding that a city may construct connect ions to link individual houses to a sewer and then charge t he costs to the property thereby benefited).

The plaintiffs do not assert that the connection fe e or the
service fees are unreasonable.9 It is true that the re is no

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9. The plaintiffs apparently argue that they may no t be charged "water service" fees when a connection has not yet been ma de to their houses. This claim stems from New Jersey law, which provide s that nonusers within the area of a municipal utility may be charg ed debt service fees but may not be charged for operation and maintenanc e costs or use fees unless they actually use the municipal services. Se e Airwick Indus., 270 A.2d at 25. The plaintiffs may be arguing that, eve n if they have to pay for the water connection, they cannot be charged fo r operation and maintenance costs and use fees until they have firs t been forced to make the connection. (It is difficult to ascertain the a ctual argument, because

13indication in the record which ordinance, if any, s pecifies

the rates for BTMUA. Nonetheless, this is not relev ant to their claim, as municipal rate fixing is governed b y the authorizing statute and general principles of reasonableness and uniformity. The New Jersey Supre me Court has held that municipalities have plenary sta tutory power to charge for sewer and water services, subje ct only to review for patent unreasonableness. See Meglino v. Township Comm., 510 A.2d 1134, 1138 (N.J. 1986).

V. Conclusion

One might sympathize with the plaintiffs' apparentl y sincere desire to maintain their own wells for thei r private use. Their grievances must, however, be addressed t o the political branches, for we have no authority to ups et rational, nondiscriminatory legislation addressing potential dangers to the health and safety of the community. We will affirm the judgment of the district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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the plaintiffs couple the invalid claim that they d o not want a connection with the potentially valid claim that they do not c urrently have such a connection.) Unfortunately, the plaintiffs did not make this distinction

in the district court, where they attacked the ordinan ce in much broader terms. Furthermore, the record lacks any indication of whether or not they were charged operation and maintenance costs a nd use fees within the meaning of the law before connection was made. Nor did Airwick Industries address the case in which an owner wrong fully refuses connection and then claims immunity from paying the associated charges, because in Airwick Industries the New Jers ey Supreme Court addresssed the claims of owners of unimproved land who had nothing to connect when the municipal authority began coverage of their land. See id. Thus, it would be inappropriate for us to inter pret New Jersey law at this time or to opine whether the plaintiffs may ha ve a more limited claim in state court, provided that it is not claim precluded.

14