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12 N.J.A.R. 824

Sudler & Steiner v. Environmental Disposal Corp
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Citation: 12 N.J.A.R. 824
Decision Date: 1986
Agency: BOARD OF PUBLIC UTILITIES
Synopsis: Petitioner, a real estate developer, sought an order from the Board of Public Utilities compelling respondent to allocate to peti- tioner some of its sewage treatment capacity. Respondent contended it is bound by contract to allocate its entire capacity to Hills, another developer. Hills owns all of respondent's common stock. The matter was transmitted to the Office of Administrative Law for a hearing. The administrative law judge assigned to the case identified the main issue as whether Hills, by contract, could reserve to itself the entire developmental potential of respondent's franchise area. Re- spondent claimed its agreement with Hills makes it impossible to service petitioners. Petitioner argued that respondent's agreement with Hills, its parent company, constituted undue preference by the utility, in violation of N.J.S.A. 48:3-4. The agreement would make it impos- sible for other parties to develop real estate in the area. The administrative law judge concluded that petitioner's demand for sewage treatment was a service which reasonably can be demanded under N.J.S.A. 48:3-3. However, because of the uncertainty involved in any real estate development, the judge ordered that respondent reserve a 30,380 gallon per day capacity for petitioner for a period of two years. If petitioner did not make physical attachment of a completed project at that time, the allocation would dissolve. State of New Jersey 825 This initial decision was adopted by the Board of Public Utilities, but the Board thereafter granted a motion to reconsider its decision. Upon reconsideration, the Board vacated its first decision and rejected the initial decision. The Board found there was no undue or un- reasonable preference within the meaning of N.J.S.A. 48:3-4 in the allocation of respondent's capacity to Hills. Petitioner's request for an allocation was dismissed. Board President Curran dissented, saying the decision permitted a utility to discriminate between future sewage treatment customers. The decision of the Board was affirmed by the Appellate Division. Sheppard A. Guryan, Esq., Bruce H. Snyder, Esq. (Lasser, Hochman, Marcus, Guryan & Kuskin, attorneys) and Peter D. Sudler, Esq., for petitioners Kenneth P. Westreich, Esq., for respondent (Conway & Reiseman, attorneys) Rocky L. Peterson, Esq., for intervenor, The Hills Development Com- pany (Brener, Wallack & Hill, attorneys)
Statute(s) Cited: 48:3-2 48:3-3 48:3-4 
Citation Tracker rejected-Bd. of Public Utilities; affirmed -219 N.J. Super. 52 (App. Div. 1987); certification denied-109 N.J. 56 (1987) [Updated through 1991]