Borough of Carlstadt v. Board of Public Utility Commissioners
Borough of Carlstadt v. Board of Public Utility Commissioners
Opinion of the Court
The opinion of the court was delivered by
(temporarily assigned). This is an appeal by the Borough of Carlstadt under B. B. 4:88-8 to review a determination of the Board of Public Utility Commissioners
The board’s decision was rendered pursuant to the authority of R. S. 40:55-50, a part of the zoning enabling legislation, which reads:
“This article or any ordinance or regulation made under authority thereof, shall not apply to existing property or to buildings or structures used or to be used by public utilities in furnishing service, if upon a petition of the public utility, the board of public utility commissioners shall after a hearing, of which the municipality affected shall have notice, decide that the present or proposed situation of the building or structure in question is reasonably necessary for the service, convenience or welfare of the public.”
The water company, a public utility corporation, furnishes service to consumers in some 54 municipalities in northern Hudson and Bergen Counties. Its service area in the latter county covers the entire territory bounded by the Hudson River, the New York state line, the Saddle and Passaic Rivers, and the southerly boundaries of the Boroughs of Rutherford and East Rutherford. The method of distribution used in the various sections depends on the topography, which consists of a high area along the Hudson River from the Jersey City line to the state boundary, another small high area in the southwestern corner including parts of Oarlstadt and Wood-Ridge, and the remainder and great bulk of the territory lying at a very considerably lower elevation, designated as the New Milford Low Service System. Generally speaking, this large low area is supplied by pumping from the company’s main station in the town of that name, operated in conjunction with impounding and distributing reservoirs located at appropriate places, and the high areas by gravity from storage tanks situate at sufficient elevation. The supply and distribution system for the entire territory is integrated.
Since before the turn of the century the company has operated, as a part of this system, a pumping station with
This elevated tank supplies by gravity the high area in Carlstadt and Wood-Ridge and the ground storage tank, while also acting as a suction for the pumps pumping water into the high level tank, serves more importantly to sustain pressures and provide additional water at a high rate for the low service system in the company’s southwest area in times of peak demand. The absence of an adequate supply of water in such a tank for such purpose would so reduce pressure in the low area as to practically deprive consumers there of all water service during high consumption periods. It is apparent that the three structures at this site are interrelated in function, and that the installation is an essential part of the entire system serving not only Carlstadt but surrounding communities.
The location of the plot in question is in the midst of the “A Residence” zone under the borough ordinance, one block from the Wood-Ridge boundary. This zone classification is designated for one and two-family dwellings. Carlstadt is described as a community built to the saturation point
The company proposes to replace the present ground storage tank by a larger one on the same spot, ten feet less in diameter, but 60 feet high and with a capacity of 3,200,000 gallons. It would be of solid cylindrical design and roughly twice the height of neighboring houses. There is no question but that the structure would constitute an extension of a non-conforming use prohibited by the zoning ordinance (Borough of Rockleigh, Bergen County v. Astral Industries, Jnc., 29 N. J. Super. 154 (App. Div. 1953)), although its height alone is not violative of the ordinance limit of 35 feet, since this requirement is expressly made inapplicable to water tanks or standpipes.
After being unable to obtain a hearing on its application for a variance to the borough board of adjustment because of continued lack of a quorum (which borough officials testified unequivocally would not have been granted even if recommended), the company instituted the present proceeding in September 1955. Parenthetically it may be observed that prior application for a variance is not a necessary prerequisite to relief under the statute. The petition alleged necessity for the new tank by reason of rapidly increasing demands for water service in the southwestern portion of the system beyond the capacity of the present installation and asserted the location in question to bo the best available in view of the topography.
The particular plot was described by the company witnesses as "ideal” and "the best site we were able to find.” Maximum elevation with sufficient ground area for the larger tank
The opposing contentions advanced by the borough, by affirmative evidence and through the medium of cross-examination, did not seriously attack the company’s claim of need for additional facilities of some kind in the southwestern section, but stressed injury from location at this particular site in the light of the actual characteristics of the neighborhood and the zone plan. The testimony was confined to the quite natural objections of nearby residents and of the community generally based on aesthetic aspects and some claimed interference with light and air, and to the opinion of a local real estate broker, not very solidly grounded, that adjacent property values would decrease substantially.
The board found, in adopting the findings of fact of its hearing examiner, that the proposed tank was required in order that the company might continue to render safe, adequate and proper service to present and future customers in the southwestern part of its territory and that the premises in question was the best available location, any other site having requisite area and elevation also being in a residential area. Mention was made in the findings of the present structures on the site and the zoning regulations. The determination was in the statutory language that the erection of the tank at this site “is reasonably necessary for the service, convenience or welfare of the public.”
On this appeal the borough advances two grounds of attack on the board’s determination: first, that a proper construction of the statute requires a weighing of the detriment to the public welfare inherent in allowing a use contrary to a municipal zoning ordinance against the benefit conferred by the erection of the facility, which the board failed to do; and second, that in order to establish “reasonable necessity,” it was incumbent upon the company to present
Our consideration of these questions must, of course, lie within the framework of the principles now well settled in this State defining the power and function of an appellate court in reviewing the determination of an administrative agency. The court concerns itself with whether there has been any violation of the State or Pederal Constitutions, whether the result is within and in accordance with the legislative grant and the standards prescribed thereby, and whether there has been fraud, bad faith, or manifest abuse of discretion in the sense of unjustly discriminatory, arbitrary, or capricious action. In re Sanders, 40 N. J. Super. 477, 483 (App. Div. 1956). Any review of the facts must be confined to the question of whether they are supported by substantial evidence, i. e., such evidence as a reasonable mind might accept as adequate to support a conclusion. In re Plainfield-Union Water Co., 14 N. J. 296, 307 (1954); In re Central Railroad Co. of New Jersey, 29 N. J. Super. 32, 38 (App. Div. 1953); In re Sanders, supra; Hornauer v. Division of Alcoholic Beverage Control, 40 N. J. Super. 501 (App. Div. 1956). The rule has also been expressed as confinement to an inquiry of “ascertainment of whether the evidence before the board furnished a reasonable basis for its action.” In re Greenville Bus Co., 17 N. J. 131, 137 (1954); New Jersey Power & Light Co. v. Borough of Butler, 4 N. J. Super. 270, 279 (App. Div. 1949). Cf. R. S. 48:2-46. It is soundly and frequently stated that a reviewing court should not substitute its independent judgment for that of the administrative tribunal where there is “a mere difference of opinion concerning the evidential persuasiveness of relevant testimony.” In re Sanders, supra, 40 N. J. Super., at page 483. The rule-given power (R. R. 4:88-13) to review facts and make independent findings
It is also fundamental that the function of the administrative tribunal under this type of legislative delegation, where it is under a duty to consider evidence and apply the law to the facts as found, is quasi-judicial in nature and not merely ministerial. Pennsylvania Railroad Co. v. New Jersey State Aviation Commission, 2 N. J. 64, 70 (1949). The agency must make an independent determination in each case on the facts. Fornarotto v. Board of Public Utility Commissioners, 105 N. J. L. 28, 33 (Sup. Ct. 1928). Its duty in the instant type of case, for example, goes far beyond a mere rubber stamp of approval on the utility’s choice so long as the latter has not acted “wantonly, capriciously or unreasonably.” Cf. Lower Chichester Township v. Pennsylvania Public Utility Commission, 180 Pa. Super. 503, 119 A. 2d 674, 676, 678 (Super. Ct. 1956). The agency, especially one experienced and of demonstrated competence, must assume a real responsibility in weighing and considering the facts and judicially adjudicating the controversy before it. See In re Larsen, supra, 17 N. J. Super., at page 577.
R. S. 40:55-50, never before construed by our courts, is, essentially, a legislatively created method for the resolving of conflicts between different interests and policies, to bo determined by the criteria set forth in the statute in the light of oilier expressions of public policy found in related statutory enactments. So the basic question is one of intent to ascertain the will of the Legislature as to which policy or interest shall prevail in a given situation or type of situation and by what standards or tests the decision between the two shall be made under particular circumstances. Cf. Town of Bloomfield v. New Jersey Highway Authority, 18 N. J. 237 (1955); Aviation Services, Inc., v. Board of Adjustment of Hanover Township, 20 N. J. 275 (1956). Tn our case the Legislature has said the broad public interest in utility services shall prevail over local interests expressed
Comparable statutes are found in related fields of conflict involving public utilities versus other public interests or private rights. R. S. 48:2-14 provides that no privilege or franchise granted to any public utility by a political subdivision of this State shall be valid until approved by the board, which shall be given on its determination that the same “is necessary and proper for the public convenience and properly conserves the public interests.” The right of eminent domain granted to a utility may only be exercised against the private landowner if the board finds that “the property desired is reasonably necessary for the service, accommodation, convenience or safety of the public and that the taking of such property is not incompatible with the public interest and would not unduly injure the owners of private property.” R. S. 48:7-4. The board is given power to determine disputes between electric companies as to territories to be served by the standards of “necessary and proper for the public convenience” and to “properly conserve the. public interest.” R. S. 48:7-5. See also R. S. 40:62-12 and 40:62-65, both as amended.
Counterparts of the section under consideration are found in other states, notably Massachusetts and Pennsylvania, whose statutory enactments follow the same procedural pattern and prescribe the criteria in substantially the same language. Town of Wenham v. Department of Public Utilities, 127 N. E. 2d 791 (Mass. Sup. Jud. Ct. 1955); Lower Chichester Township v. Pennsylvania Public Utility Commission, supra. Connecticut provides a two-step procedure, first, the local zoning commission, and then an appeal to the state utility regulatory body. Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 103 A. 2d 535 (Sup. Ct. Err. 1954). The wisdom of a definite statutory expression of public policy, with standards and procedure to be applied in resolving conflicts, is evidenced by the contrariety
While citing the statutes of other states, it may not be amiss to point out differences in coverage, so to speak, from our own. Massachusetts covers “building, structure or land.” Pennsylvania refers only to a “building.” R. S. 40:55-50 expressly mentions only “building or structure,” thereby precluding its application to uses of land alone not involving buildings or structures. This omission may well be due to the fact that the section was enacted as part of the legislation (L. 1928, c. 274) authorizing municipal zoning ordinances to limit and restrict the construction and use of buildings and structures pursuant to the 1927 amendment to Article IV, Section VI, paragraph 5 of the 1844 Constitution and has not been amended since the Constitution of 1947 (Article IV, Section VI, paragraph 2) and subsequent legislation (L. 1948, c. 305) expressly included the nature and extent of the uses of land within the local regulatory power.
Perhaps it should also be noted that our statute is applicable to those private entities furnishing those services for public use specified in R. S. 48:2-13, as amended, as well as to those municipally operated utilities referred to in R. S. 40:62-24 in respect to acts in supplying services beyond the corporate limits of the municipality. Nothing said in this opinion is intended to express any view on the resolution of intra-municipal conflicts, i. e., on the question whether a municipal corporation operating a utility within its own boundaries is bound, in its operation thereof, by the provisions of its own zoning ordinance. Compare Sunny Slope Water Co. v. City of Pasadena, supra, with Taber v. City of Benton Harbor, 280 Mich. 522, 274, N. W. 324 (Sup. Ct. 1937). Cf. Thornton v. Village of Ridgewood, 17 N. J. 499, 512-515 (1955). The subject of the applicability of
The prime importance to modern living, commerce and industry of water, electricity, gas, sewage disposal, public transportation of goods and people and rapid means of personal communication requires no elaboration. Governmental regulation of these essentials when furnished by private corporations, as well as direct governmental furnishing of many of them, has long since been had and upheld as in the highest public interest. The greatest public good generally requires the private public utility corporation to be given a monopoly, or nearly so, in the geographical area of its operation, subject to strict regulation. This regulation in Hew Jersey has imposed upon the Board of Public Utility Commissioners, at least since 1911, “general supervision and regulation of and jurisdiction and control over all public utilities * * * and their property, property rights, equipment, facilities and franchises so far as may be necessary for the purpose of carrying out the provisions of this Title.” R. S. 48:2-13, as amended. The board has the power to “require every public utility * * * to conform to the duties imposed upon it thereby [the laws of the State and municipal ordinances] or by the provisions of its own charter.” R. S. 48:2-16. It is obligated to “require any public utility to furnish safe, adequate and proper service and to maintain its property and equipment in such condition as to enable it to do so.” R. S. 48:2-23. See also R. S. 48:2-25.
The proper regulation of public utilities and the enforcement of the obligations of proper service are obviously
Municipal zoning ordinances likewise bear a real and substantial relation to the public welfare under the principle that the exercise of rights incident to the ownership of private property may be restricted in the interest of the general welfare of the inhabitants of the municipality, and in some instances those of adjoining governmental units, for purposes specified by the Legislature. R. S. 40:55-32. But such regulation is basically from the local aspect for a local public purpose. This exercise of the police power is also of relatively recent origin and development. Broadly speaking the legislative intent is clear that such local regulation, however beneficent and important, is of secondary importance to the broader public interest involved in assuring adequate water service to a much larger area.
This concept is inherent in ascertaining the intent as to R. S. 40:55-50. It is further borne out by the language of the standard prescribed to govern administrative action, which, though general in nature, is sufficient to guide the board and satisfy constitutional requirements. Cf. R. S. 48:2—14; In re Greenville Bus Co., supra, 17 N. J., at page 135. The only criterion is reasonable necessity of the situation of the building or structure “for the service, convenience and welfare of the public.” The conclusion is irresistible that “the public” refers to the public served by the utility and not the limited group benefited by the zoning ordinance. There is no additional language such as we find in R. S. 48:7-4, setting the standards for utility condemnation of private property, where the board must also find that ihe taking of the property is “not incompatible with the public interest and would not unduly injure the
R. S. 40:55-50, and its underlying concept of superiority of the broader public welfare, is an unwritten exception to be read into every municipal zoning ordinance. The concept is certainly powerful enough to overcome the present seemingly strong judicial expression of, a policy against the extension of non-conforming uses even by the variance procedure. See Ranney v. Istituto Pontificio Delle Maestre Filippini, 20 N. J. 189 (1955). In fact, the entrusting of the decision to a state agency presumably with broader horizons is clearly indicative of the intention that a utility should not have to depend on securing a local variance in cases where the importance of the installation to the general good overshadows the municipal policy. But despite this primary emphasis of the statute, the intent is equally clear that the Legislature did not intend the local regulation to be overridden willy-nilly in all cases. Otherwise the Legislature could simply and shortly have said that no public utility shall be subject to a municipal zoning-ordinance. The constantly growing importance to all of zoning and planning, particularty in the present unprecedented period of residential and industrial growth in our suburban and formerly rural areas, has its place in the composite picture. So the board must take into account in arriving at its determination the provisions of the local zoning ordinances and the community zone plan finding expression through it, as well as the actual physical characteristics of the plot involved and the surrounding neighborhood. It is the “situation,” i. e., the particular site or location, which must be found “reasonably necessary.” We do not
In passing on appellant’s second point that it was incumbent upon the water company to present for consideration alternative solutions or methods not involving the site in question, we are first concerned with the meaning to be ascribed to the term “reasonably necessary.” Although the statute speaks only of necessity of the particular site, necessity for the building or structure at all at any location is a required element of the petitioner’s proofs. There can be no doubt of the sufficiency of the evidence here on the need for additional facilities in this sector of the company’s territory. Our courts have long viewed the vital need for an adequate public water supply as requiring that all contingencies must be provided for and the supply be so ample that a lack of water could not be reasonably apprehended, especially since consumption cannot be estimated with precision. Olmsted v. Proprietors of Morris Aqueduct, 47 N. J. L. 311, 328 (E. & A. 1885), a case involving the necessity for lands sought to be condemned for water supply purposes.
The word “necessary” standing alone does not mean absolutely necessary or indispensable. It has been so uniformly construed when used in other statutes specifying
We come to the application of these legal principles to the evidence and findings in finally passing upon appellant’s contentions. Although the findings of the agency are somewhat sparse and sketchy, it is clear that the board did weigh any detriment to the public welfare inherent in allowing a use contrary to the zoning ordinance. This is so despite a seemingly contrary statement by the examiner early in the hearing. The evidence fully presented the residential character and other physical characteristics of the neighborhood and community, the company’s present structures and long continued use, and the possible injury to the locale if the new tank were permitted. The findings sufficiently advert thereto, both expressly and inherently, to warrant a conclusion of due consideration. The specific finding that the plot in question is the best available location and that any other suitable site was also in a residential zone is further evidence of a weighing of the adverse interests.
We think there was adequate evidence presented by the company on the question of alternative sites and methods of meeting the water needs of the area. The borough offered nothing affirmative on this score. The company showed that other possible sites with satisfactory area and elevation were equally restricted by zoning. This neighborhood had successfully lived with one large ground tank, an elevated tank and a pumping station for many years — in fact a large part of the neighborhood was established after the company started its operations. The method of water distribution by pump and tanks had been in use here for decades and is like that used in other parts of the company’s system. The three structures present and proposed are closely interrelated in function and operation, both locally and as a
The board’s determination that the location of the proposed tank is reasonably necessary for the service, convenience and welfare of the public is supported by substantial evidence of such quality that a reasonable mind might accept it as adequate to support this conclusion, all relevant factors and circumstances having been sufficiently presented and considered.
The order under review is affirmed.
Reference
- Full Case Name
- IN THE MATTER OF THE APPLICATION OF HACKENSACK WATER COMPANY UNDER R. S. 40:55-50 FOR A DETERMINATION THAT THE ERECTION OF A CERTAIN STRUCTURE ON LANDS IN THE BOROUGH OF CARLSTADT IS REASONABLY NECESSARY FOR THE SERVICE, CONVENIENCE AND WELFARE OF THE PUBLIC BOROUGH OF CARLSTADT, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY AND HACKENSACK WATER COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY
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- Published