The NJ Supreme Court decision issued on May 5, 2015 was against Readington Township regarding its Sewer Allocation Case. Again the Courts have found Readington’s past Township Committee members at fault. They used a blanket policy of not recapturing unused sewer capacity that is the functional equivalent of a moratorium on development. The Court is requiring the Township within 90 days both to undertake a detailed analysis of the unused capacity and to explain whether any of that capacity can be recalled.
The Court reversed the Appellate Division in part, adopted Judge Buchsbaum’s approach, and has ordered the Township to undertake a critical review of the unused sewer capacity identified by the plaintiff to determine whether any such capacity can be recaptured from the defendants to satisfy plaintiff’s development needs.
The Court: “The township’s no-buy-back policy has rendered the [sewer capacity recapture ordinance] toothless, and, as the trial court determined, “functioned as a de facto moratorium on any development which requires sewerage”. It found that 1/3 of Readington’s unused sewer capacity – 322,009 gallon per day (gpd) – is not in use (Merck has 141,900 gpd, Belle Mead Dev. has 66,060 gpd).
In a not-so-veiled reference to Merck, the Court: “We add that if a property owner presently holding a substantial amount of unused capacity has moved its business operations to another municipality and there is no realistic prospect the approvals previously acquired will result in a project coming to fruition, that factor must be given significant weight in deciding whether to recall capacity”.
In effect, this breaks apart long-standing Township policy of thwarting development by contending the Township has no sewer capacity because it has contracted its unused sewer capacity away to private parties, particularly those who have no realistic prospect of ever using it. The Township can now be forced to consider a recall and re-purchase of the same for itself or for developers looking for sewerage capacity to meet their development project needs.
Given the Township’s re-computed Third Round net prospective need affordable housing obligation of a possible 1,000 units, coupled with the desperate need for new commercial ratables in town to offset the Township debt and the loss of Merck and the recent imminent domain Solberg decision), this decision will enable the Township to actually pro-actively entertain judicious commercial and residential development going forward, and pave the way to invite businesses back to town, without fear of the de facto moratorium on development requiring sewerage created by the Township’s historical “no-buy-back policy” of the past.
The Readington Sewer Advisory Committee has for years also covered up the fact that the Readington-Lebanon Sewerage Authority’s (RLSA’s) sewer capacity currently artificially set at 1.2 million gallons per day (mgd) can be increased to 1.6 mgd for less than $2,000,000 depending on NJ-DEP requirements. The average capacity used each month is less than .7 mgd which leaves another .5 mgd unused.
I was involved in the planning, construction and operation of the initial Readington-Lebanon Sewer Authority built in 1980 and doubled capacity from .8 mgd to 1.6 mgd in 2000. I have been on the Board from 1976 to 2013 and Chairman of the RLSA from 1980 to 2013.