Sisters of Charity of Saint Elizabeth v. Township of Morris

SISTERS OF CHARITY OF SAINT ELIZABETH, Plaintiff-Respondent, v. TOWNSHIP OF MORRIS and THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MORRIS, Defendants-Appellants.

No. A-0226-20

Superior Court of New Jersey, Appellate Division

June 24, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 8, 2021

On appeal from the Superior Court of New Jersey, Law Division Morris County, Docket No. L-0975-20.

Mills & Mills, attorneys for appellants (John M. Mills, III, of counsel and on the briefs).

Hill Wallack LLP, attorneys for respondent (Thomas F. Carroll III, of counsel and on the brief).

Before Judges Yannotti, Haas and Natali.

PER CURIAM

Defendants Township of Morris (Morris) and the Township Committee of Morris appeal from the Law Division's August 11, 2020 order requiring them "to immediately accept ownership maintenance[, ] and control of [a] sewer pump and force main" currently owned and operated by plaintiff Sisters of Charity of Saint Elizabeth in the Borough of Florham Park (Florham Park). After carefully reviewing the record, we conclude the trial court erred by: (1) issuing a permanent injunction on the return date of an order to show cause, and (2) conducting this matter as a summary proceeding under Rule 4:67-1(a) and thereby failing to develop the meager record and properly address the many material disputes of fact existing between the parties. Therefore, we vacate the portion of August 11, 2020 order directing defendants to assume ownership, maintenance, and control of plaintiff's pump station and force main, and remand for further proceedings.

I.

We begin by reciting the barebone facts presented in the record on appeal. In doing so, we also point out the deficiencies in that record and identify the additional facts that should have been developed before the trial court considered the matter on its merits.

Plaintiff is a religious organization that owns 151.77 acres of property that straddles Morris and Florham Park. The largest portion of the property, 101.79 acres, lies in Florham Park and the remaining 49.98 acres are in Morris. Plaintiff owns a convent, a high school, a college, student housing, and other residences on its Florham Park property.

Florham Park has its own sewer treatment system, as does Morris. Nevertheless, Florham Park is located within Morris' "sewer service area" as approved by the New Jersey Department of Environmental Protection. Morris operates a sewer treatment plant known as the Woodland Sewage Treatment Plant.

Plaintiff previously owned and operated its own sewer treatment plant for the effluent it generated on its Florham Park property. However, in 1981, plaintiff sought to send the effluent to the Florham Park and Morris sewer systems. Only Morris would allow plaintiff access to its system.

On July 28, 1981, plaintiff, Morris, and Florham Park entered into a written contract permitting plaintiff to connect to the Morris sewer system. Under the contract's terms, plaintiff agreed to construct a sewer pump station and force main to deliver its effluent to the Morris system. Plaintiff would own this new system and would operate it as a private utility.

Plaintiff further agreed that "[n]either [Morris, Florham Park], nor the [Florham Park Sewerage Authority (FPSA)] will, under any circumstances, be responsible for the construction, maintenance or operation of [plaintiff's] System or its connection to the [Morris] System." (emphasis added). However, the agreement stated that Florham Park had the right to "demand" that plaintiff's system "be disconnected from the [Morris] System and connected to the FPSA System" if Florham Park extended its system to a road adjacent to plaintiff's property.

Plaintiff retained a private company to operate the pump station and force main in Florham Park. However, it did not identify this company in its trial court papers and its attorney did not do so at oral argument. While plaintiff alleged in its complaint that the Board of Public Utilities did not want the system to be owned and operated by it, plaintiff did not submit any written evidence to support this assertion and its attorney conceded at oral argument that he did not "think there's been any threat that they've been shut down."

Indeed, in the forty years that plaintiff has owned and operated its system, plaintiff also has used its pump station and force main to transport effluent from at least two other entities in Florham Park to the Morris sewer system. These entities include the Morris County Golf Club and a housing development known as The Villa at Florham Park.^[1]

On June 12, 2017, plaintiff contracted with Toll Brothers, a construction company, to sell it a "portion" of its Florham Park property. According to the complaint, Toll Brothers proposed to build 198 units of multi-family housing on that property and set aside twenty percent of those units for "low and moderate income households."

Plaintiff did not provide the trial court with a copy of its contract of sale with Toll Brothers or any other related documents. At oral argument, the trial court acknowledged that without those documents, it had no basis for knowing whether plaintiff and Toll Brothers had made any agreement concerning the provision of sewer services to the development site or whether plaintiff's "contract with Toll Brothers may be in peril" if plaintiff did not immediately receive the permanent injunctive relief it sought in this case. At the time the August 11, 2020 order that is the subject of this appeal was entered, no closing on the sale of the property had occurred and nothing in the record indicates whether there was any deadline by which such a closing had to take place in order for the sale to be consummated.

On October 31, 2018, the Law Division entered a Final Judgment of Compliance and Repose in a Mt. Laurel^[2] dispute between Morris and the Fair Share Housing Center (FSHC). Under the terms of the settlement agreement that formed the basis for that judgment, Morris agreed to rezone a portion of plaintiff's property in that township for affordable housing. Although not stated in the settlement agreement, Morris asserted that the effluent generated by that development would be accepted into the Morris sewer system by gravity flow and without the need for a separate pump station or force main.

On March 7, 2019, the Law Division entered a similar judgment resolving a Mt. Laurel lawsuit between Florham Park and the FSHC. Under the terms of a July 28, 2017 settlement agreement that resulted in the judgment in that case, Florham Park agreed to rezone approximately twenty-two acres of the land plaintiff owned in that borough for affordable housing. The settlement stated there was a plan that twenty percent of the housing on the site would be used for "affordable dwelling units." Neither the settlement agreement nor the judgment said anything about plaintiff's or Florham Park's responsibility to provide sewer service to, or operate the pump station and force main for the benefit of, the Toll Brothers development.

At some unknown point in time, plaintiff decided that Morris should take over the responsibility of owning and operating its pump station and force main. In its complaint, plaintiff stated that "the ownership and operation of the pump station and force main [wa]s both costly and burdensome to" it and it "need[ed] to get 'out of the sewer business.'"^[3] Although plaintiff acknowledged that the operation of its system was both "costly and burdensome," it did not provide any information to the trial court as to the yearly cost it incurs for operating and maintaining the pump station and force main.

Just a few weeks after the court approved Florham Park's Mt. Laurel settlement, representatives for plaintiff, Florham Park, and Morris met. At the March 15, 2019 meeting, plaintiff asked that the effluent from the proposed Toll Brothers development be permitted to enter either the Morris or Florham Park sewer system for treatment. Plaintiff also asked that one of the towns take over the pump station and force main. In return, plaintiff stated it would pay for any repairs or improvements needed in its system as part of any agreement. If plaintiff submitted a written document setting forth its proposed terms to the two towns, it was not submitted to the trial court and is not part of the appellate record.

According to plaintiff's complaint, Florham Park stated that it did not have the capacity in its sewer system or treatment system to accept additional effluent flow. Critically, the complaint does not assert that Florham Park ever demonstrated that it lacked the capacity to take over the operation of the pump station and force main. Morris asserts that Florham Park already owns and operates several pump stations of its own in its borough, which send effluent into the Morris sewer system. As discussed below, Florham Park "stayed out of the fray" of this litigation and did not submit any certifications or documents setting forth its position in the trial court.

At the March 2019 meeting, Morris indicated it would review plaintiff's request. However, it asked plaintiff to fund a study by Morris' consulting engineers to determine the scope of any improvements in plaintiff's system that would have to be made. Although plaintiff states in his brief that plaintiff paid for this survey and that it was completed, plaintiff did not submit a copy of it to the trial court and, therefore, it is not a part of the record on appeal.

In addition, there is nothing in the record indicating the cost plaintiff would have to incur to bring the pump station and force main up "to present day engineering standards." At oral argument, the trial court asked plaintiff's attorney...