                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2661-15T2

TOWNSHIP OF HARDYSTON, a
Municipal Corporation of
the State of New Jersey,

        Plaintiff-Appellant,

v.

BLOCK 63, LOT 1.01, 3490 ROUTE
94, Assessed to BEAVER RUN
SHOPPING CENTER, LLC,

        Defendant,

and

SASS MUNI VI, LLC, through its
Custodian U.S. Bank,

     Defendant-Respondent.
_______________________________

              Argued May 17, 2017 – Decided August 3, 2017

              Before Judges Alvarez, Accurso and Lisa.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Sussex County, Docket No.
              F-42162-14.

              Susan C. Sharpe argued the cause for
              appellant (Dorsey & Semrau, LLC, attorneys;
              Fred C. Semrau and Ms. Sharpe, on the
              brief).
          Robin London-Zeitz argued the cause for
          respondent (Gary C. Zeitz, LLC, attorneys;
          Amber J. Monroe, on the brief).

PER CURIAM

     This is a tax sale foreclosure proceeding centering around

an unimproved sixty-seven-acre parcel on Route 94 in Hardyston

Township, which has contractually reserved sewer capacity in

excess of 25,000 gallons per day.   A prior owner, High Ridge

Properties, LLC,1 secured that allocation through an agreement

with the Hardyston Township Municipal Utilities Authority

(HTMUA), acting on behalf of the Township, which procured the

capacity from neighboring Sussex Borough on the HTMUA's promise

to pay for same.

     Subsequently, High Ridge and the developer of the property,

Beaver Run Shopping Center, LLC, filed two separate lawsuits

challenging the quarterly "transmission fees" Sussex charged the

HTMUA, which in turn charged High Ridge and Beaver Run, to

maintain the allocation.   High Ridge and Beaver Run alleged the

fees were ultra vires because the property remained undeveloped,

and thus the charges amounted to illegal user fees charged

against unimproved property.   The Law Division twice rejected

those challenges, and in June 2012 entered a judgment in favor


1
  We refer to High Ridge as the owner of the property throughout
for simplicity's sake.

                                2                           A-2661-15T2
of the HTMUA against High Ridge for $350,092 in past due sewer

charges.

    In addition to not paying its sewer charges, Beaver Run, to

which High Ridge had transferred the property, was also not

paying its taxes.   In September 2011, plaintiff Township of

Hardyston struck off tax sale certificate No. 11-19 to defendant

Sass Muni VI, LLC, for $173,720.62 at zero percent interest.

When Sass Muni instituted its action to foreclose its

certificate in January 2014, it represented that all municipal

taxes and other municipal liens against the property had been,

or would be, paid current.   Sass Muni joined the HTMUA as a

defendant in order to foreclose the HTMUA's 2012 judgment lien.

    Hardyston filed an answer in Sass Muni's foreclosure on

behalf of the HTMUA, denying that all municipal taxes and other

liens had been paid through the filing date of the foreclosure

complaint.   In its answer, the Township acknowledged its

judgment but also averred it had municipal liens against the

property for unpaid taxes and sewer charges.

    Sass Muni eventually moved for summary judgment striking

the Township's answer.   Hardyston opposed the motion, contending

its "$650,380.12 sewer charge lien" had priority over Sass

Muni's tax sale certificate lien, and that "[n]o foreclosure

judgment [could] be entered in [Sass Muni's] favor until all

                                3                           A-2661-15T2
municipal liens for municipal taxes and other charges have been

paid."   Sass Muni countered that Hardyston's lien "is merely a

simple judgment lien, which does not arise out of the Tax Sale

Law of New Jersey, it cannot be paid through the redemption

process set forth in the Tax Sale, and cannot be foreclosed

upon."   Sass Muni asserted any judgment lien was "subject to

[Sass Muni's] tax lien and [could] be extinguished in the

instant foreclosure action."   Hardyston replied "that

notwithstanding the sewer charge lien exists in the form of a

judgment against High Ridge Properties, LLC, it also exists

independently in the form of Certificate No. 2013-001A in the

name of Hardyston Township" in the total amount due of

$547,149.43, excluding the quarterly charges from December 2012.

Hardyston contended the total amount due on its sewer lien was

$650,380.12, which Sass Muni declined to pay in 2013.

    Judge McGovern granted Sass Muni's motion striking

Hardyston's answer and permitting Sass Muni to proceed to final

judgment upon "proof to the Hardyston Township Tax Collector

that all municipal utility authority liens and obligations as

well as all municipal tax liens and obligations have been

satisfied."   In a written statement of reasons, the judge

addressed, and rejected, Sass Muni's argument that the HTMUA's



                                4                            A-2661-15T2
sewer lien was not enforceable under the Tax Sale Law, N.J.S.A.

54:5-1 to -137.   Judge McGovern wrote:

              [Sass Muni's] contention that HTMUA's
         sewer lien is not of the same type of
         municipal lien as its tax sale certificate
         is clearly contradicted by the Court in DSC
         of Newark Enterprises v. South Plainfield
         Borough, [17 N.J. Tax 510, 513 (Tax Ct.
         1997)], where the [c]ourt places sewer
         charge liens within the category enforceable
         by the Tax Sale Law, N.J.S.A. 54:5-1 et seq.

              This [c]ourt is persuaded that under
         the holding in DSC of Newark Enterprises
         that the HTMUA lien belongs to the same
         group of liens as those which fall under the
         Tax Sale Law Statute and that they hold the
         same priority as the municipal liens under
         the Tax Sale Law Statute. N.J.S.A. 54:5-1
         et seq.

              The offer of [Township of Hardyston] to
         resolve the lien dispute by Consent Order,
         to allow this matter to proceed as
         uncontested, is not required. The [c]ourt
         finds that the statute, N.J.S.A. 54:5-99, is
         sufficiently clear on the issue. The
         statute provides: " No foreclosure judgment
         shall be entered, except in cases where a
         municipality is the plaintiff[,] unless
         evidence is produced in the foreclosure
         action that all subsequent municipal liens
         have been paid to the time of the
         commencement of the action." N.J.S.A. 54:5-
         99.

              In her papers, counsel for [Sass Muni]
         acknowledges that, pursuant to statute, all
         open municipal charges must be paid prior to
         the entry of Final Judgment. In oral
         argument on June 25, 2014, counsel for [Sass
         Muni] acknowledged and agreed that HTMUA's
         lien was superior to [Sass Muni's] lien and

                                5                        A-2661-15T2
           that [Sass Muni] is precluded from the entry
           of Final Judgment until all outstanding
           senior liens are satisfied.

               . . . .

                For the reasons stated herein, and for
           the reasons stated on the record on June 25,
           2014, [Sass Muni's] motion for summary
           judgment as to liability is granted, and
           this matter may proceed to the Office of
           Foreclosure as uncontested.

                The granting of this motion is subject
           to the following condition: Prior to
           Judgment being entered, [Sass Muni] must
           provide proof to the Hardyston Township Tax
           Collector that all municipal utility
           authority liens and obligations as well as
           all municipal tax liens and obligations have
           been satisfied.

    Sass Muni did not proceed to final judgment in its own tax

sale proceeding (presumably because of the express requirement

that it satisfy all outstanding sewer charges).   In the absence

of any action by Sass Muni to enter judgment on its tax sale

certificate, the Township filed its own complaint to foreclose

tax sale Certificate No. 2013-001A it acquired in 2013 in the

principal sum of $480,166.24 for unpaid sewer allocation

charges.   Sass Muni filed an answer and affirmative defenses,

alleging as a junior lien holder its statutory right to redeem

Hardyston's tax liens on the property pursuant to N.J.S.A. 54:5-

54, and requesting dismissal of the suit with prejudice and a



                                6                          A-2661-15T2
determination of "the extent, validity and priority of the City

[sic] of Hardyston's tax liens on the Property."

    Following discovery, the parties filed cross-motions for

summary judgment before a different Law Division judge.

Hardyston argued that Sass Muni only filed an answer in order to

delay the Township's foreclosure, thereby allowing Sass Muni

more time to market the property.   Sass Muni again pressed the

argument that the Township's tax sale certificate was invalid

because no sewer system had ever been constructed on the

property.   It argued that the Township's asserted tax lien was,

in reality, no more than a Law Division judgment for breach of

contract which could not be converted into a tax lien.

    Hardyston countered "that this [c]ourt and two other

[c]ourts have already established that satisfaction of all

municipal utility authority liens and municipal tax liens,

include the municipal sewer allocation charges."   The judge

granted the Township's motion and denied Sass Muni's.     Accepting

the Township's argument, the judge ruled that although Sass Muni

"raises a significant legal issue concerning the validity of the

[t]ax [l]ien," the law of the case doctrine prevented him from

considering the issue anew.

    Sass Muni moved for reconsideration, not only of the

summary judgment in Hardyston's foreclosure but also the summary

                                7                           A-2661-15T2
judgment entered in its favor in its own foreclosure more than a

year before, which required it to satisfy Hardyston's sewer

allocation liens before entering final judgment.   It argued that

"the validity of the Hardyston [t]ax [l]ien was never

challenged" in the Sass Muni foreclosure, and that it "has never

been afforded its rightful opportunity to litigate same."

Hardyston countered that the validity of its tax lien was

litigated in the Sass Muni foreclosure, and that Judge McGovern

considered and rejected the exact arguments Sass Muni reprised

in Hardyston's foreclosure.

    After two days of oral argument, the judge reserved

decision.   He framed the issue, however, as one of "conflicting

loyalties," in the sense that "the township has this $400,000

that they're on the hook for with the county, and . . . Sass

Muni's issue . . . [is] they spent over [$]200,000 on a piece of

property.   Now, suddenly, they're getting stuck with a bad deal

that the township entered into with the developer."     The judge

subsequently issued orders on January 8, 2016, granting Sass

Muni's motions for reconsideration in both the Sass Muni and the

Hardyston tax sale foreclosures and invalidating Hardyston's

sewer allocation lien.   In a written decision accompanying the

orders, the judge, relying on the Supreme Court's decision in In



                                8                           A-2661-15T2
re Passaic County Utilities Authority, 164 N.J. 270 (2000),

ruled that the Court had

         determined that authorized service charges
         are to be imposed only on users. The
         rationale is that N.J.S.A. 40:14B-2(5)
         reiterated that all such services were
         provided "at the expense of the users of
         such services or of counties or
         municipalities or other persons contracting
         for or with respect to the same." Although
         it is abundantly apparent that the
         unimproved property will benefit from this
         improvement, the actual improvement does not
         exist.

              This court has previously determined
         that it was foreclosed from considering the
         [Sass Muni] legal argument based upon the
         "law-of-the-case doctrine" in that Judge
         McGovern previously ruled that it must pay
         all past and future assessments. However,
         it is clear that the nature of this lien is
         such that it is an invalid assessment which
         is not contemplated in the 2014 order of
         Judge McGovern.

              Based upon the foregoing the Hardyston
         lien/assessment is invalid.

Hardyston appeals.

    We begin our analysis by noting the obvious, this is a

somewhat unusual tax sale foreclosure proceeding, even leaving

aside the various procedural irregularities attending it.

Indeed, we think it may present a novel issue, albeit not one

well-framed by the proceedings to date.   The dispute centers on

Sass Muni's contention that High Ridge's contractually bargained


                               9                            A-2661-15T2
for sewer allocation charge does not qualify as a "sewer service

charge" within the meaning of the Municipal and County Utilities

Authorities Law (MCUAL), N.J.S.A. 40:14B-3(19) and N.J.S.A.

40:14B-22, and thus cannot become a lien against the property of

the delinquent obligor under N.J.S.A. 40:14B-42.   Although we do

not question the general proposition Sass Muni asserts, that the

MCUAL "'does not authorize a special assessment or any immediate

charge against a non-user,'" Passaic Cty., supra, 164 N.J. at

293 (quoting Airwick Indus. v. Carlstadt Sewerage Auth., 57 N.J.

107, 121 (1970), cert. denied, 402 U.S. 967, 91 S. Ct. 1666, 29

L. Ed. 2d 132 (1971)), we are less convinced High Ridge can

fairly be considered a "non-user" in light of the "pass-through"

arrangement that apparently exists here.

    As appears from the record, in 2002, High Ridge, the then

contract purchaser of the property, sought the Township's

assistance in acquiring sewer capacity for a shopping center

High Ridge planned to build on the site.   The Borough of Sussex

was at that time auctioning off 25,000 gallons of excess

sewerage capacity it maintained with the Sussex County Municipal

Utilities Authority in order to "reduce its debt" to the Sussex

County Authority and "eliminate part of any penalties" imposed

pursuant to the Borough's contract with the Sussex County

Authority.

                              10                            A-2661-15T2
     High Ridge wished to acquire all 25,000 gallons for its

shopping center.2   The terms of the auction, however, required

bidders to come with a Letter of Intent from one of the Sussex

County Authority's member municipalities "indicating its intent

to be the actual purchaser of the allocation for the exclusive

benefit of the [b]idder."     High Ridge thus entered into a

January 2002 Agreement with the HTMUA, "acting for and on behalf

of Hardyston Township," to serve as the host municipality in

order to permit High Ridge to acquire Sussex Borough's 25,000

gallons of excess capacity.

     The Agreement between High Ridge and the HTMUA provided

that the HTMUA would be "the actual purchaser of the allocation

for the exclusive benefit of [High Ridge]."    The agreement

further provided that all monetary costs and fees for obtaining

and maintaining the capacity, "including but not limited to

professional fees, transmission fees, break-up fees, connection

fees, as well as any other costs and fees incurred," would be

the sole responsibility and obligation of High Ridge, which

would "indemnify and hold harmless" the HTMUA "for all expenses,

costs and obligations" incurred by the authority in furtherance


2
  The property already had reserved capacity of 10,000 gallons
per day acquired in 1992 by High Ridge's and Beaver Run's
predecessor in title. High Ridge subsequently transferred 350
gallons of that reserved capacity to another landowner.

                                 11                            A-2661-15T2
of the agreement.   Thus, although the record was not developed

on this point, it appears the costs for the allocation the HTMUA

billed to High Ridge, were costs the HTMUA was billed by Sussex

Borough, which it, in turn, was billed by the Sussex County

Municipal Utilities Authority.

    Further, although we have been provided nothing more than

the complaints and the judgments in the matters, High Ridge and

its transferor Beaver Run, the developer of the shopping center,

instituted separate Law Division actions challenging,

unsuccessfully, the transmission fees Sass Muni complains of

here.   The 2010 complaint by High Ridge refers to even earlier

litigation in 2004 in which Sussex Borough sued High Ridge in

the Law Division "to collect unpaid 'transmission fees' from

High Ridge."   The 2010 complaint avers that the 2004 litigation

was settled with an agreement "that High Ridge would pay

quarterly transmission fees to the Borough in the amount of

$10,630.54" based on an agreed methodology that "excluded the

Borough's total treatment costs pursuant to its contract with

[the Sussex County Municipal Utilities Authority], as High Ridge

does not transmit any sewage through the Borough's sewer lines

for treatment by [the Sussex County Municipal Utilities

Authority]."



                                 12                        A-2661-15T2
    In addition to those documents, the appendix also includes

a 1992 Developer's Agreement between the HTMUA and a prior owner

of the property memorializing the grant of the 10,000 gallon

sewer allocation for the property and the owner's commitment to

construct a sanitary sewerage collection system on site, to be

conveyed to the Authority upon completion.   There is also a

similar 2007 Sewer System Agreement between High Ridge and the

HTMUA memorializing the 25,000 gallon allocation and High

Ridge's commitment to construct a sewer system on the property

to be conveyed to the HTMUA upon completion.   In addition, in

response to our question at oral argument as to whether the

HTMUA was still making quarterly payments to Sussex Borough for

the 25,000 gallons allocated to the property, Hardyston provided

us a copy of a December 30, 2013 Agreement between Sussex

Borough, Hardyston and the HTMUA relating to those payments and

the sewer allocation.

    Because none of this information was developed or explained

in the trial court, we are unable to analyze its importance for

the legal issue presented, that is, whether the unpaid charges

are appropriately considered "sewer service charges" within the

meaning of the MCUAL, N.J.S.A. 40:14B-3(19) and N.J.S.A. 40:14B-

22, and thus properly a lien against the property under N.J.S.A.

40:14B-42.   We are, however, unwilling to dismiss the

                               13                           A-2661-15T2
information as without significance to resolution of that

question at this point in the proceedings.     We are aware that

municipal authorities have financed expansion of wastewater

systems by selling allocated capacity to landowners desirous of

ensuring sewer capacity for future development.      See e.g., 388

Route 22 Readington Realty Holdings, LLC v. Twp. of Readington,

221 N.J. 318, 328 (2015).      Although nowhere suggesting such

arrangements are ultra vires, the Court in Readington never

explained whether the payments for reserved allocation in such

situations qualify as "sewer service charges" within the meaning

of the MCUAL, N.J.S.A. 40:14B-3(19), N.J.S.A. 40:14B-22, and the

principles laid down by the Court in Airwick, supra, 57 N.J. at

120-22.

    The Airwick principles are straightforward.      First is the

understanding that the purpose of an annual sewer charge is to

raise a sum sufficient to pay the sewerage authority's cost to

(1) maintain and operate the system and (2) meet principal and

interest on its bonds and any reserves for the funding of its

debt.     Id. at 120.   As the Court explained, the first of these

has its genesis in the actual use of the system and the second

arises out of its original construction costs, for which the

bonds were issued and sold.      Ibid.



                                  14                         A-2661-15T2
    The second Airwick principle is the recognition that every

property within a sewerage authority's service area benefits by

construction and availability of the sewage system, regardless

of whether it is currently connected to that system.     Id. at

120-21.   Based on those pillars, the Court concluded that

"[t]hose properties actually using the system should alone

absorb the cost of 'operation and maintenance,' since the

expenditures for such purposes arise solely from that use," but

that "all properties, where service is available, whether

actually using the system or not, should absorb the debt cost."

Id. at 120.   The Court concluded:

               The logical construction of the
          foregoing . . . is that the [L]egislature
          intended that the installation and
          construction costs, i.e., debt service
          charges, should in the first instance be
          financed by the actual users but should
          ultimately be borne by all the properties
          benefited, including the unimproved lands.
          For that reason there was provided a charge
          in the nature of a connection charge to be
          imposed upon unimproved properties in order
          that they assume a fair share of the
          original construction costs when they become
          improved properties.

          [Id. at 122.]

    Thus the Airwick principles are generally understood to

require that the entire cost of constructing and operating a

sewerage authority be fairly apportioned among those using the


                               15                            A-2661-15T2
system and those non-users whose properties are benefitted by

the availability of sewerage capacity necessary to permit

development.   See Passaic Cty., supra, 164 N.J. at 293-94.     As

the Court explained in Passaic County, we interpret and apply

the MCUAL guided by the principles in Airwick.    Passaic Cty.,

supra, 164 N.J. at 292-94 (explaining that while Airwick was

addressed to the Sewerage Authorities Law, N.J.S.A. 40:14A-1 to

-45, the Court applied its principles to the MCUAL in White

Birch Realty Corp. v. Gloucester Twp. Mun. Utils. Auth., 80 N.J.

165, 176 (1979), and they have since guided interpretation of

that statute).    Thus, those connected to the system pay for its

operation and maintenance, as well as their share of the debt

costs, and non-users, because not immediately benefitted by the

system, make their fair share contribution to the authority's

debt costs when they hook into the system in the form of a

connection fee.

    From those principles have come the holdings on which Sass

Muni relies, that the MCUAL prohibits a municipality from

charging annual sewage fees on unimproved property not using the

sewage system.    See id. at 300 (concluding "the overarching

statutory scheme" of the MCUAL "is that the statutorily

authorized service charges are to be imposed only on users");

Hamilton Twp. Mun. Utils. Auth. v. Apple Tree Corp., 202 N.J.

                                16                          A-2661-15T2
Super. 440, 443 (App. Div.) (holding that because the

combination of service charges and connection fees is to be set

at a level sufficient to run the system, a "'reservation of

capacity' charge which exacts an amount in excess of the

authorized service or connection charges is ultra vires"),

certif. denied, 102 N.J. 327, 328 (1985).   Neither of those

cases, nor any other published authority of which we are aware,

however, addresses a situation in which a landowner has

specifically contracted with a municipal utilities authority for

an additional allocation of sewer capacity the authority does

not have, and thus must acquire from a different source, as High

Ridge did here.

    Sass Muni's assertion that non-users cannot be assessed a

sewerage charge begs the question of whether a landowner who

contracts with a municipal utilities authority to acquire and

specifically reserve capacity the authority lacks and must

obtain from another utility authority for a fee, is

appropriately considered a non-user.   It appears from the

limited record we have before us that High Ridge, the owner of

the unimproved property at issue here, may not fairly be

considered a "non-user" applying the principles of the Airwick

line of cases.



                              17                             A-2661-15T2
    According to Airwick, supra, 57 N.J. at 120-21, all

property owners in a sewer service area, regardless of whether

their property is improved, "benefit from the mere availability

of the system for service."   Here, from our limited record, it

appears the additional allocation purchased from the Sussex

County Municipal Utilities Authority inures only to the benefit

of High Ridge's unimproved property and provides no benefit to

current users of the HTMUA.   If High Ridge is receiving a

current benefit from allocated capacity not available to other

current users of the system, application of the Airwick

principles would appear to require High Ridge to pay for that

benefit to avoid unfairly burdening the current users of the

HTMUA system.

    The record does not permit us to resolve the question of

whether High Ridge's contractually bargained for sewer

allocation charge qualifies as a "sewer service charge" within

the meaning of the MCUAL, N.J.S.A. 40:14B-3(19) and N.J.S.A.

40:14B-22, and is thus a lien against the property for which

Sass Muni holds a tax certificate under N.J.S.A. 40:14B-42.       We

are simply without adequate information of the negotiations and

agreements between the parties, the settlement of the 2004

litigation and the reasons behind High Ridge's and Beaver Run's



                               18                            A-2661-15T2
unsuccessful challenges to the transmission charges Sass Muni

challenges here, and are thus left to apply the law in a vacuum.

     Accordingly we remand to the Chancery Division, General

Equity Part, where the matter should have originally been heard,3

for further proceedings designed to ascertain the facts and

apply the statutory law in accordance with the Airwick

principles.   Additionally, we take judicial notice of the "Rules

and Regulations of the Hardyston Township Municipal Utilities

Authority," especially sections 2.2, 2.4, 2.12, 4.1, 4.2, 4.5,

and 5.4, as they apply to the property and the 2007 Sewer System

Agreement, see Sections 16, 21, and 25.4   N.J.R.E. 201(a);

N.J.R.E. 202(b).

     We add but two final points.   First, it is clear to us that

the General Equity judge needs to consider both Hardyston's and



3
  Both Sass Muni's and Hardyston's tax sale foreclosures were
heard in the Law Division for reasons unclear to us.
Foreclosure being an equitable remedy, such actions should be
filed and heard in the Chancery Division, General Equity, where
the judges have developed considerable expertise in such
matters. See R. 4:3-1(a)(1).
4
  Neither party brought these regulations to our attention. As
they expressly address the 25,000 gallons of sewer capacity
allocated to High Ridge, section 4.1; acquisition of capacity
from other municipalities, section 4.2; sewer charges and fees,
sections 2.2, 2.4 and 4.5, including interest on "unpaid
developer allocation charges," section 2.12 and treatment of
delinquent accounts, section 5.4; the HTMUA's regulations appear
directly relevant to the issues to be resolved on remand.

                               19                         A-2661-15T2
Sass Muni's foreclosures on remand as these two cases have

become inextricably linked by Sass Muni's decision to move for

reconsideration of its favorable summary judgment decision in

its prior foreclosure before the judge hearing Hardyston's

foreclosure action.   We need not dwell on the irregularity of

such action.   The matter should be addressed on remand by

consideration of both matters.    We do not agree that law of the

case would apply here, as the Sass Muni foreclosure was an

entirely different matter.   See Sisler v. Gannett Co., 222 N.J.

Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304

(1988).   Our review of the record, however, does not permit us

to agree with Sass Muni that the validity of Hardyston's lien

was not litigated and decided, rightly or wrongly, in Sass

Muni's tax sale foreclosure proceeding.   Thus collateral

estoppel principles were certainly relevant, even though summary

judgment in a foreclosure proceeding is not a final order.      See

Busch v. Biggs, 264 N.J. Super. 385, 399 (App. Div. 1993).

    Finally, in the event the General Equity judge determines

the unpaid sewer charges are not properly a lien against the

property, the judge must consider whether the reserved sewer

allocation must be revoked in this proceeding.   There is no

question but that "[a]ccess to sewer service is vital to any

major development of property," 388 Route 22 Readington, supra,

                                 20                          A-2661-15T2
221 N.J. at 326, and thus a prime determinant of a property's

value.   The same principles Sass Muni relies on establishing

that users of a sewer system can alone absorb the cost of its

operation and maintenance, would seem to preclude burdening

those users with the costs of sewer capacity reserved for non-

users making no payment for same.     Cf. Apple Tree, supra, 202

N.J. Super. at 443.   Certainly, no tax sale final judgment

should be entered without resolution of whether the sewer

allocation remains with the property subject to the certificate.

    Vacated and remanded for further proceedings not

inconsistent with this opinion.     We do not retain jurisdiction.




                               21                           A-2661-15T2
