Opinion
DOCKET NO. A-3253-12T4
03-03-2014
JAMES MAZZER, Plaintiff-Appellant, v. CITY OF GARFIELD, a Municipal Corporation of the State of New Jersey, Defendant-Respondent.
Marc J. Friedman, attorney for appellant. Bruno & Ferraro, attorneys for respondent (Robert A. Ferraro, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8866-11.
Marc J. Friedman, attorney for appellant.
Bruno & Ferraro, attorneys for respondent (Robert A. Ferraro, of counsel and on the brief). PER CURIAM
Plaintiff James Mazzer appeals the February 19, 2013 order granting summary judgment to defendant City of Garfield. Mazzer, the owner of several properties in Garfield, had sought a declaratory judgment that two ordinances creating and increasing sewer user fees were illegal and therefore void. We affirm.
Mazzer owns four rental properties located in Garfield: 222 Semel Avenue (a five-family house); 224/104 Prospect (eleven apartments and a retail store); 15 Faber Place (six apartments); and 140 Ray Street (six apartments).
Garfield operates a sewer system, which includes the installation and maintenance of sewer lines, and uses the Passaic Valley Sewerage Commission for the treatment and disposal of sewerage waste. The Commission bills Garfield for sewage treatment each quarter pursuant to the Passaic Valley Sewerage District Act (Passaic Act), N.J.S.A. 58:14-1 to -37. N.J.S.A. 58:14-15.1. In 2010, Garfield enacted an ordinance creating sewer user fees to cover part of the Commission bills, in addition to ad valorem taxes. A year later, Garfield amended the fee schedule.
Ordinance 2585 established the following pertinent user fees: (1) Residential; annual charge: (a) Single family: $50. (b) Two family: $200. (c) Three family: $300. (d) Four family: $400. (d) Condominium: $50/unit. (2) Apartments; annual charge (Includes Garfield Housing Authority): (a) Annual charge: $100/unit.
Ordinance 2606 amended the pertinent user fees: (1) Residential; annual charge: (a) Single family residential property: $50. (b) Two family residential property: $160. (c) Three family residential property: $330. (d) Four family residential property: $480. (2) Apartments and Condominiums: (a) Condominiums: $50/unit. (b) Multi family apartment buildings (Four residential units): $130/Unit. (c) Garfield Housing Authority property $100/Unit[.]
As a result, beginning in 2010, Garfield utilized user fees to help finance part of the sewer system, with the balance paid from ad valorem taxes., According to the certification of the Garfield Chief Financial Officer, "The system of charging user fees for part of the sewer budget along with using part of the ad valorem taxes has resulted in a more equitable per unit cost paid by property owners." The Garfield Manager certified that because "single family homes were carrying the largest per unit cost for the sewer system[,]" the ordinances were enacted "to create a system which would shift some of the costs away from the single family homes and thus provide a more equitable per unit charge."
An ad valorem tax is a "tax imposed proportionally on the value of something (esp[ecially] real property)[.]" Black's Law Dictionary 1469 (7th ed. 1999).
Year 2010: $400,000 (sewer user fees) and $1,286,280 (ad valorem taxes); Year 2011: $1,200,000 (sewer user fees) and $725,000 (ad valorem taxes); Year 2012: $1,200,000 (sewer user fees) and $725,000 (ad valorem taxes).
On October 24, 2011, Mazzer filed a complaint, seeking declaratory relief that the two ordinances were illegal. He argued that the payments due from Garfield to the Commission must be solely raised by ad valorem taxation because the Act provides that the payments to the Commission for maintenance and operation must be raised "by taxation." N.J.S.A. 58:14-31. Further, he claimed that the Municipal and County Sewerage Act (Municipal Act), N.J.S.A. 40A:26A-1 to -22, does not authorize Garfield to charge a user fee to pay the Commission because the provision for public utility services should be part of the municipal tax rate to cover the cost and Garfield was not charging for operation of the sewer facilities. He also argued that the user fee structure was not "uniform and equitable" as required by the Municipal Act because the owners of multi-family residences were bearing a disproportionate share of the costs. N.J.S.A. 40A:26A-10.
Garfield argued that a municipality was authorized to fund its sanitary sewer services through general municipal revenue from fees imposed on property owners who use the system, and that the Municipal Act authorizes the implementation of user fees to finance sewer services. In addition, Garfield claimed that its fee structure was consistent with the Municipal Act because it equalized the contributions of different classes of taxpayers to the cost of the service.
Garfield also argued that Mazzer's complaint was an action in lieu of prerogative writs and the forty-five-day temporal requirement expired prior to filing of the complaint. We need not reach that issue.
The motion judge held that the imposition of user fees for sewerage services was valid under the Municipal Act, and that the fees were equitable and uniform. On appeal, Mazzer argues only that Garfield is not statutorily permitted to charge a user fee to pay the Commission.
In reviewing an order granting summary judgment, we employ the same standard of review as the trial court. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005). Summary judgment should be granted if the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). Issues of law are reviewed de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).
In general, a municipality may fund its sewer system through a combination of user fees and taxes. New Providence Apartments Co. v. Mayor and Council of New Providence, 423 N.J. Super. 210, 213 (App. Div. 2011). When the municipality chooses to fund its sewer system through user fees, it must comply with the Municipal Act, which requires such fees be "uniform and equitable for the same types and classes of use and service of facilities."
Although Mazzer argued that the fees were not "uniform and equitable" in his complaint, he does not raise that argument on appeal.
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Mazzer distinguishes New Providence by arguing that Garfield may not choose to fund its sewer system through user fees because the Passaic Act, which Garfield is subject to, provides that the sewer shall be funded by taxes without any mention of user rates or fees. There was no analogous statute in New Providence requiring a municipality to fund its sewer system through taxation.
The Passaic Act provides that:
every municipality . . . shall pay annually to the commissioners, on demand, its proportion of the cost of maintenance and operation thereof, as the same may be certified to it from time to time by the commissioners pursuant to the terms of said contract, which cost of maintenance and operation shall be raised and provided for by said municipalities by taxation, or by the issuance of temporary loan bonds in anticipation of taxation.
[N.J.S.A. 58:14-31 (emphasis added).]
The term "taxation" is not defined anywhere in the Passaic Act. The Legislature, however, explicitly granted the statutory authority for a municipality to charge sewer user fees in the Municipal Act:
After the commencement of operation of sewerage facilities, the local unit . . . may prescribe and, from time to time, alter rates or rentals to be charged to users of sewerage services. Rates or rentals being in the nature of use or service charges or annual rental charges, shall be uniform and equitable for the same types and classes of use and service of the facilities[.] . . . Rates or rentals and types and classes of use and service may be based on any factors which the governing body . . . of that local unit . . . shall deem proper and equitable within the region served.
[N.J.S.A. 40A:26A-10.]
"The clearest indication of a statute's meaning is its plain language." G.S. v. Dep't of Human Servs., 157 N.J. 161, 172 (1999). Courts can look to dictionary definitions in determining the common meaning of words. See In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 264 (2010) (turning to a dictionary to interpret language not defined by a statute). A tax is a "charge . . . imposed by the government on persons, entities, or property to yield public revenue. Most broadly, the term embraces all governmental impositions on the person, property, privileges, occupations, and enjoyment of the people, and includes duties, imposts, and excises." Black's Law Dictionary 1469 (7th ed. 1999). A user fee is a "charge assessed for the use of a particular item or facility." Id. at 1542.
In interpreting a statute, "the court's main objective is to further the Legislature's intent." In re Tenure Hearing of Young, 202 N.J. 50, 63 (2010). Presumably, all Garfield residents use the sewer system. The Passaic Act clearly envisions a fair and equitable method for funding a municipality's sewer system by assessing payment from all of these users. In this context, "taxation" may be construed to include user fees. See Holmdel Builders Ass'n v. Holmdel, 121 N.J. 550, 582 (1990) ("If the primary purpose of the fee is to raise general revenue, it is a tax.").
In reviewing the charges imposed for sewer services, courts have only a "limited role." Meglino v. Twp. Comm. of Eagleswood, 103 N.J. 144, 152 (1986). Garfield created a system of "charging user fees for part of the sewer budget along with using part of the ad valorem taxes" for "a more equitable per unit cost paid by property owners." Thus, Garfield's system of funding sewer service is legal and should not be disturbed.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION