1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-7-1998

Stern v. Halligan

Precedential or Non-Precedential:

Docket 97-5506

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Recommended Citation

"Stern v. Halligan" (1998). 1998 Decisions. Paper 240.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/240
Filed 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 - 

 2 
 Berkeley Township Municipal Utilities 

 Authority and Jeffrey W. Flatt 

OPINION OF THE COURT 

BECKER, Circuit Judge. 

Plaintiffs Steven and Michele Stern, and Michele Stern's 

brother Michael Scillitani (as trustee), each own real 

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 plaintiffs to 

connect to the municipal water supply and, through 

various enforcement proceedings, placed a lien on the trust 

property administered by Michael Scillitani when he

refused. Plaintiffs brought suit against BTMUA, the

Township, and local officials, alleging that the mandatory 

connection requirement is unconstitutional, at least 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 municipal water 

supply with its attendant costs and to continue using their 

private wells for drinking and other household purposes. 

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 made 

available, property owners must hook up their buildings to 

the municipal system and must also permanently 

disconnect their private wells from the potable water supply 

for the buildings. See Berkeley Township, N.J., Ordinance 

90-16-OAB S 2 (Apr. 23, 1990). The ordinance also allows 

BTMUA to make any required connection, installation, or 

well sealing if an owner fails to do so after receiving notice. 

The owner can be charged for such actions, and the 

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

paid. See 90-16-OAB S 9. A second ordinance similarly 

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." Berkeley 

Township, N.J., Ordinance 94-23-OAB S 128-21 (June 28, 

1994). 

In 1994, both the Sterns and the trust received notice 

that BTMUA was to provide their properties with connection 

to the municipal water supply. In due course, both the 

Sterns and the trust received notice that the 90-day 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 pursuant 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 Amendments to 

the United States Constitution. 

The defendants are BTMUA; the Township; Francis X. 

Halligan, Jr., the municipal court judge in Berkeley 

Township who arraigned Scillitani pursuant to the 1995 

summonses; and Jeffrey Flatt, the BTMUA plant supervisor 

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 claims.1 

II. The Substantive Due Process Claim 

The plaintiffs contend that Township Ordinance 90-16- 

_________________________________________________________________ 

1. The district court granted summary judgment on the 18 U.S.C. S 241 

claim because there is no private cause of action under 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 dismissed in any event on 

the grounds of judicial immunity. 

 4 
OAB, which requires residents to hook up to the public 

water supply when it becomes available and to discontinue 

the use of well water in the home, violates the United 

States Constitution because their well water is "safe and 

pure."2 They do not identify precisely what parts of the 

Constitution are thereby implicated, though we understand 

them to be making the claim that the ordinance is 

irrational and therefore violates substantive due process. In 

their reply brief, the plaintiffs also appear to invoke a 

general right to be free from government action by quoting 

Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1922). 

Even if this claim had been preserved,3 we do not consider 

the right to be free from municipal water connections to be 

part of the right to privacy as it has developed since Meyer. 

See Town of Ennis v. Stewart, 807 P.2d 179, 182 (Mont. 

1991) (rejecting an identical claim). 

We have made clear that when "general economic and 

social welfare legislation" is alleged to violate substantive 

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 question is 

"whether the law at issue bears any rational relationship to 

any interest that the state legitimately may promote," id.; 

simple unfairness will not suffice to invalidate a law. The 

challenger bears the burden of proving irrationality. See 

Lindsey Coal Mining Co. v. Chater, 90 F.3d 688, 694 (3d 

Cir. 1996). 

_________________________________________________________________ 

2. Neither side presents much evidence about the safety of the particular 

wells on the two properties. Plaintiffs' brief states 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 Jeffrey Flatt's affidavit, 

which states that there is a contaminated well approximately one half 

mile from the plaintiffs' properties. Moreover, the affidavit states that 

wells can become contaminated overnight. At all events, this case does 

not turn on these considerations. 

3. A party cannot raise issues for the first time in 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, 182 (3d Cir. 1993). 

 5 
The plaintiffs have not met their burden. Protecting the 

health, safety, and general welfare of township inhabitants, 

the goal of the challenged ordinances, is plainly in the 

public interest. Private wells can be unsafe for a 

disturbingly long list of reasons. Potential dangers include: 

carcinogenic radon, radium-226, and radium-228;4 salt 

from road-salting stockpiles or saline aquifers; pesticides; 

fertilizers; explosive methane; MTBE (a gasoline additive); 

fuel from leaking underground tanks; bacteria-laden waste 

from leaking septic tanks, broken sewer lines, pets, farm 

animals, or wildlife; and chemical or other hazardous 

waste. See Roger M. Waller, U.S. Geological Survey, U.S. 

Dep't of Interior, Ground Water and the Rural Homeowner 

20-30 (1994). Furthermore, private wells are generally 

shallower than public supply wells and thus more easily 

contaminated. 

These potential harms provide ample justification for 

government action to safeguard citizens. Because pure 

water is a precondition for human health, regulating 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. 1970). A 

municipal water supply replaces a myriad of private water 

sources that may be unmonitored or, at best, difficult, 

expensive, and inefficient to monitor. Therefore, a

legislature may rationally conclude that a public water 

supply is the simplest and safest solution for its citizenry 

as a whole without proof of danger to each and every 

affected person. The danger is significant, the burden of 

connecting to nearby waterlines is not great, and the costs 

and benefits of such legislation are widely shared 

throughout the area of service. For these reasons, the 

_________________________________________________________________ 

4. Levels of radium and nitrate contamination are higher in private wells 

than in public supply wells. See U.S. Geological Survey, U.S. Dep't of 

Interior, Radium-226 and Radium-228 in Shallow Ground Water, 

Southern New Jersey, Fact Sheet FS-062-98, June 1998, at 5 & tbl.2. It 

also appears that contaminated private wells are a significant problem in 

many areas of New Jersey, including Ocean County, where the plaintiffs' 

property is located. See Maureen Graham & Frederick Cusick, Radium 

Tainting Water in N.J. Wells, Phila. Inquirer, Aug. 9, 1998, at A1. 

 6 
overwhelming majority of courts that have addressed the 

issue have found that mandatory connection to public 

water is a legitimate exercise of police power. See, e.g., 

Shrader v. Horton, 471 F. Supp. 1236 (W.D. Va.), aff'd, 626 

F.2d 1163 (4th Cir. 1979); Lepre v. D'Iberville Water & 

Sewer Dist., 376 So. 2d 191 (Miss. 1979); Town of Ennis, 

807 P.2d at 184; New Jersey v. Kusznikow, No. A-971-94T3 

(N.J. Super. Ct. App. Div. Jan. 8, 1996); Rupp v. Grantsville 

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 is City of 

Midway v. Midway Nursing & Convalescent Center, Inc., 

195 S.E.2d 452 (Ga. 1973).5 There, the Georgia Supreme 

Court found that mandating a connection to a public water 

supply was not a reasonable manner of protecting the 

health and welfare of citizens. City of Midway has been 

criticized by other courts for a crabbed understanding of 

the scope of a municipality's police power over health and 

safety issues. See, e.g., Town of Ennis, 807 P.2d at 182-83. 

Moreover, City of Midway was decided under state law 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 ordinance 

meets the minimum standards of rationality required of 

social welfare regulation under the Due Process Clause. 

_________________________________________________________________ 

5. The plaintiffs also cite Frier v. City of Douglas, 213 S.E.2d 607 (Ga. 

1975), for the proposition that safety concerns alone cannot justify a 

mandatory connection ordinance. We cannot discern the difference 

between "safety" and "health" in this situation, but even were we to find 

the distinction persuasive, Frier would be inapposite. That case turned in 

large part on the court's interpretation of the Georgia 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 plaintiffs obviously want 

to use water, but from their own source. The appropriate 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 warning 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 wished to use electricity 

at all. 

 7 
We do not have the authority to second-guess rational 

legislative judgments of this sort. A legislature may be riskaverse even when there is no evidence of immediate harzard 

and some citizens are willing to run the risk of future harm. 

The Supreme Court of Virginia has upheld mandatory water 

connections even though the parties before the court 

stipulated that the plaintiffs' wells were currently safe: 

 A local governing body must necessarily enjoy broad 

 discretionary powers to protect the public health and 

 general welfare of its residents. To anticipate seemingly 

 unlikely events . . . as public health hazards may be to 

 exercise commendable prudence and foresight. There is 

 no requirement that protective measures be limited 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 evidence 

of immediate health threats to any well-water user in the 

affected area, because "the potential for such problems 

always exists. A municipal water system is better suited to 

meet these health concerns and prevent potential health 

problems that could arise absent such a system." Town of 

Ennis, 807 P.2d at 183.6 

City of Midway distinguished sewers, which it thought 

sufficiently important to justify mandatory connection 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 required to justify 

mandatory connections. In Hutchinson v. City of Valdosta, 

227 U.S. 303, 33 S. Ct. 290 (1913), for example, although 

the Supreme Court posited that there was "no necessity on 

account of health or sanitary conditions" to require a sewer 

connection to the owner's land, id. at 305, and even noted 

the possibility that the construction of a sewer line might 

pose interim health hazards, the Court upheld the sewer 

_________________________________________________________________ 

6. We note that the town of Ennis, the self-proclaimed "Fly Fishing 

Capitol of America," is in the midst of the pristine "Big Sky Country," 

and yet still perceived the need for a municipal water supply. 

 8 
connection 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. App. 

1985) (rejecting a requirement of individualized 

determination of sanitation risk for mandatory sewer 

connection); Bingham Farms v. Ferris, 384 N.W.2d 129, 133 

(Mich. Ct. App. 1986) (same). As another court explained: 

"Municipal governments are not required to gamble against 

public health risks. To protect the public health, as well as 

to promote public safety, a legislative body may adopt `the 

most conservative course which science and engineering 

offer.' " City of Nokomis v. Sullivan, 153 N.E.2d 48, 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 greater 

than the harms averted by municipal water sources. But 

the plaintiffs have offered no evidence that the disparity in 

risk is sufficient to disregard these precedents. See 

Shrader, 471 F. Supp. at 1243 (finding "no meaningful 

distinction between mandatory sewer connection and 

mandatory water connection"); Lepre, 376 So. 2d at 193 

(applying sewer connection precedents to a mandatory 

water connection ordinance). 

The plaintiffs additionally claim that their case is distinct 

from other mandatory connection cases because the 

ordinance at issue may require them to cap or disconnect 

their wells in addition to requiring them to hook up to 

municipal water. We need not interpret the ordinance at 

this level of detail, however, because this slight additional 

burden makes no difference to the outcome of this case. 

Requiring disconnection of indoor water from a potentially 

dangerous source is part of the general protective legislative 

scheme and works no unjustifiable harm on the plaintiffs. 

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 septic 

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 takings claim 

for a mandatory sewer connection where local law also 

required all connected property to be annexed by the city). 

 9 
Consequently, plaintiffs have no right to have their wells 

service their houses, even though the township has not 

proven that the wells are dangerous. Indeed, even if the 

plaintiffs can prove the current safety of their water, they 

would not be exempt from the generally applicable 

connection requirement. Mere over- or underinclusiveness 

will not invalidate social welfare regulation so long as the 

state action represents a rational response to a legitimate 

problem. See Lindsey Coal Mining Co., 90 F.3d at 694-95. 

Mandatory connections to public utilities are classic 

examples of social welfare regulations that merely adjust 

the burdens and benefits of life in the modern world. It 

cannot escape our notice that from the inception of such 

sanitary programs--and even during the Lochner era-- 

courts have routinely rejected constitutional challenges 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) (collecting 

cases); Bigler v. Greenwood, 254 P.2d 843 (Utah 1953). 

In the end, the plaintiffs' apparently quite sincere belief 

that the ordinance represents an unjustified intrusion on 

their rights as citizens does not carry the day. Most laws 

appear intrusively burdensome to at least some of those 

whose conduct is thereby governed. But the legislature may 

respond to potential threats to the safety and welfare of its 

citizens, and may require even those who consider 

themselves careful or lucky enough to escape harm to 

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 matter should 

thus be remanded. It does not appear, however, that the 

issue was fairly presented to the district court. The pro se 

petition filed in district court contains numerous 

unexplained citations of various laws and cases, including 

a quotation of the Fifth Amendment in its entirety. The 

 10 
relief sought did not include just compensation; instead, 

the petition sought to prevent the township from enforcing 

its ordinances and, in the alternative, demanded that the 

township accede to certain conditions (compensation for the 

well not among them) if connection were to be required. 

Although we construe the pro se petition liberally, see 

Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we cannot 

find a takings claim. Moreover, we would lack subject 

matter jurisdiction over a takings claim, because plaintiffs 

must first exhaust state remedies before a federal court 

may entertain a regulatory takings claim. See Williamson 

County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 

172, 105 S. Ct. 3108 (1985). The plaintiffs have not, so far 

as the record shows, sought compensation through state 

proceedings. Accordingly, plaintiffs' takings claim must be 

rejected.7 

_________________________________________________________________ 

7. Such a claim would be meritless in any event. The Supreme Court has 

noted that, after a finding that due process has not been violated, "it 

would be surprising indeed to discover a [regulatory] taking," because 

the relevant analysis is so similar. Connolly v. Pension Benefit Guaranty 

Corp., 475 U.S. 211, 223, 106 S. Ct. 1018 (1986). Moreover, regulatory 

taking, requiring just compensation therefor, occurs when there has 

been a deprivation of "all economically beneficial use" of property. Lucas 

v. South Carolina Coastal Council, 505 U.S. 1003, 1018, 112 S. Ct. 2886 

(1992). The property at issue is not to be divided up between affected 

and unaffected parts; otherwise, every regulation would be a taking of 

the entirety of that which it prohibits. See Penn Central 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 all (or, indeed, any) of 

the 

economic value of their land. The value of the water pipes running from 

the plaintiffs' wells to their houses and of the limited amount of 

interior 

plumbing affected by the disconnection does not begin to approach the 

total destruction of value required before we willfind a taking. See, 

e.g., 

Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 463, 468 (3d 

Cir. 1996) (taking a "narrow view" of regulatory takings); Elsmere Park 

Club Ltd. Partnership v. Town of Elsmere, 771 F. Supp. 646, 653 (D. Del. 

1991) (holding that a regulation preventing the use of an apartment 

complex basement for residences was not a taking because so much of 

the property remained unaffected). 

 11 
IV. The Contract Claim 

The plaintiffs submit that they are being forced into a 

contract with BTMUA involuntarily. The plaintiffs briefly 

claim that the ordinance violates the federal and New 

Jersey state constitutional provisions prohibiting laws 

impairing the obligation of contracts. The argument is 

plainly lacking in merit, because the ordinance does not 

impair any contracts. 

The plaintiffs then argue that general principles of 

contract law prohibit the township from charging fees for 

unwanted water service. Their claim is mistaken, because 

government is not required to deal with citizens on a purely 

contractual basis, as the mandatory connection cases 

discussed above demonstrate. The plaintiffs may be 

required to obtain their water service from BTMUA and to 

pay for that service just as they may be required to 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 unchallengable 

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 service contract. 

The governing statute, however, lists contractual relations 

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, products or 

services . . . or from the owner or occupant, or both of them, 

of any real property which directly or indirectly is or has 

been connected with the water system or to which directly 

or indirectly has been supplied or furnished such use, 

products or services of the water system . . . ." N.J.S.A. 

S 40:14B-21 (1991) (emphasis added). Therefore, upon 

connection, BTMUA is authorized to charge the owners for 

_________________________________________________________________ 

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, provides a service that 

owners must purchase if they wish to drive. 

 12 
connection 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. 1932), 

Ivan v. Marlboro Township Municipal Utilities Authority, 393 

A.2d 598 (N.J. Super. Ct. App. Div. 1978), and Daniel v. 

Borough of Oakland, 304 A.2d 757 (N.J. Super. Ct. App. 

Div. 1973), in which municipalities did not connect the 

respective plaintiffs to the public water system and the 

plaintiffs had no contracts for service. In those cases the 

New Jersey courts found that the plaintiffs could not be 

assessed water service charges. Those cases are not on 

point, however, because they did not involve connection 

requirements; service was apparently voluntary. 

Moreover, New Jersey law is clear that public utilities 

may require citizens to pay fees even if the citizens do not 

contract with the utilities. In Airwick Industries, Inc. v. 

Carlstadt Sewerage Authority, 270 A.2d 18 (N.J. 1970), the 

New Jersey Supreme Court decided that nonusers of a

sewer system could be required to pay a share of system 

construction costs because they benefited from the 

existence of and potential connection to the system. When 

a municipality requires connection to a public utility, it is 

legitimate to require payment to cover both construction 

costs and use and maintenance charges. See also Mayor of 

Paterson (holding that a city may construct connections to 

link individual houses to a sewer and then charge the costs 

to the property thereby benefited). 

The plaintiffs do not assert that the connection fee or the 

service fees are unreasonable.9 It is true that there is no 

_________________________________________________________________ 

9. The plaintiffs apparently argue that they may not be charged "water 

service" fees when a connection has not yet been made to their houses. 

This claim stems from New Jersey law, which provides that nonusers 

within the area of a municipal utility may be charged debt service fees 

but may not be charged for operation and maintenance costs or use fees 

unless they actually use the municipal services. See Airwick Indus., 270 

A.2d at 25. The plaintiffs may be arguing that, even if they have to pay 

for the water connection, they cannot be charged for operation and 

maintenance costs and use fees until they have first been forced to make 

the connection. (It is difficult to ascertain the actual argument, because 

 13 
indication in the record which ordinance, if any, specifies 

the rates for BTMUA. Nonetheless, this is not relevant to 

their claim, as municipal rate fixing is governed by the 

authorizing statute and general principles of 

reasonableness and uniformity. The New Jersey Supreme 

Court has held that municipalities have plenary statutory 

power to charge for sewer and water services, subject 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' apparently 

sincere desire to maintain their own wells for their private 

use. Their grievances must, however, be addressed to the 

political branches, for we have no authority to upset 

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 

_________________________________________________________________ 

the plaintiffs couple the invalid claim that they do not want a connection 

with the potentially valid claim that they do not currently have such a 

connection.) Unfortunately, the plaintiffs did not make this distinction 

in 

the district court, where they attacked the ordinance in much broader 

terms. Furthermore, the record lacks any indication of whether or not 

they were charged operation and maintenance costs and use fees within 

the meaning of the law before connection was made. Nor did Airwick 

Industries address the case in which an owner wrongfully refuses 

connection and then claims immunity from paying the associated 

charges, because in Airwick Industries the New Jersey 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 interpret New Jersey law at 

this time or to opine whether the plaintiffs may have a more limited 

claim in state court, provided that it is not claim precluded. 

 14