                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             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Precedential or Non-Precedential: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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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 risk-
averse 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
