No force and effect

It is becoming increasingly clear that the City of Trenton and New Jersey American Water Co. completely botched the $80 million sale of Trenton Water Works infrastructure by failing to hold a city-sponsored referendum at the start of the process, way back in 2007.

State law says that sales of public utilities serving over 5 percent of a municipality’s population must be put to a public vote during a general election, yet the city and the water company chose to ignore this rule.

Instead they took the position that the system serves no Trenton residents and thus followed a different process for a sale under the jurisdiction of the state Board of Public Utilities.

The interesting thing about this decision-making is that the argument can be made that the entire approval and amendment process undertaken under the direction of the BPU can be construed as completely illegitimate.

The board’s involvement cannot be labeled as insignificant, since it changed the terms of sale and other significant features of the deal, yet now it looks like the board had no right to do so.

This apparent illegitimacy could open up the process to legal challenge by any party with standing – basically any resident of Ewing, Hamilton, Hopewell, Lawrence, or Trenton and any governing body in those towns.

Any person wanting to restart the game clock on the Trenton Water Works sale could perhaps do so by simply filing a challenge in Mercer County Superior Court or contacting the state Public Advocate’s office.

A favorable reaction from a judge or some officials on the state level could cast the sale into months or years of litigation, no doubt severely increasing the chances of New Jersey American Water Co. telling Trenton to keep its water utility.

Any takers?

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