For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
On September 13, 1963 Joint Meeting No. 1 For Solid Waste Disposal, created pursuant to the Consolidated Municipal Service Act (N.J.S.A. 40:48B-1 et seq.), filed a complaint seeking condemnation of 328 acres of Erie Lackawanna Railroad Company land located largely in the Township of Lyndhurst south of the railroad tracks. Shortly thereafter the County of Bergen filed a complaint seeking condemnation of the same land. Joint Meeting advised Lyndhurst that it intended to acquire the railroad land for the disposal of solid waste; the county desired the land for the same purpose. On October 7, 1963 the governing body of Lyndhurst, acting under N.J.S.A. 40:48B-2.1(i), adopted a resolution to the effect that acquisition of the land for such use "would adversely affect the governmental operations and functions and the exercise of the police powers of the Township of Lyndhurst."
After hearing argument on an order to show cause and considering the submitted affidavits which disclosed no material factual disputes, Judge Leyden concluded that the condemnation proceeding instituted by Joint Meeting should be dismissed and that commissioners in condemnation should be appointed in the proceeding instituted by the county. His reasons, set forth in Bergen County v. Erie Lackawanna R.R., 81 N.J. Super. 344 (Law Div. 1963), included a determination that in view of Lyndhurst's resolution, Joint Meeting could not legally acquire the land for the disposal of solid
waste. See 81 N.J. Super., at p. 349; N.J.S.A. 40:48B-2.1(i). Joint Meeting filed notices of appeal to the Appellate Division from the orders entered by Judge Leyden, but evidently recognizing that its position could not be sustained if the Lyndhurst resolution remained in effect, it had also instituted an action in lieu of prerogative writ to set it aside. After its appeals from Judge Leyden's orders were certified by us on our own motion, we directed that the County of Bergen be permitted to intervene in the prerogative writ action and that that matter proceed forthwith to trial and determination. Trial was duly held before Judge Schneider who filed an opinion in favor of Lyndhurst.
In the course of his opinion, Judge Schneider explicitly found that Joint Meeting had not established "any arbitrary, capricious or unreasonable action in the adoption of the resolution." Joint Meeting filed its notice of appeal to the Appellate Division from the judgment against it in the prerogative writ action and, after certification of this appeal on our own motion, it was argued along with the appeals in the condemnation actions. It is clear that, if the judgment refusing to set aside Lyndhurst's resolution is sustained by us, Joint Meeting is not entitled to prevail in its condemnation proceeding and has no legal standing in the county's condemnation proceeding. We proceed therefore to consider Joint Meeting's contention that the trial judge erred in refusing to set the resolution aside as arbitrary, capricious or unreasonable or as otherwise invalid.
Joint Meeting was established by a contract dated August 10, 1961 between the Borough of Glen Ridge, the Township of Cedar Grove, the City of Orange, the Town of Montclair, the City of East Orange, the Town of Bloomfield and the Borough of Verona, all municipalities in Essex County. Although some land in Essex County was available for sanitary landfill purposes, its location was not considered suitable by Joint Meeting which instituted steps toward acquisition of the railroad land in Lyndhurst. Its representatives negotiated with the railroad and also met with Mayor Garde of
Lyndhurst and with several members of Lyndhurst's Board of Commissioners. Testimony was introduced by Joint Meeting to indicate that during these meetings it offered to make payments to Lyndhurst in lieu of taxes on the basis of acquisition price and costs of improvements and that Lyndhurst's representatives invited Joint Meeting to submit written proposal which would be more attractive to the municipality. Testimony was also introduced by Joint Meeting to indicate that Lyndhurst claimed ownership of an adjacent tract and had suggested a willingness to lease that tract to Joint Meeting for sanitary landfill purposes provided a proposal sufficiently attractive to the municipality was made.
Mayor Garde, in his testimony before Judge Schneider, acknowledged his meetings with representatives of Joint Meeting, his expression of concern for loss of ratables, and his discussion of a lease of the adjacent tract which Lyndhurst claimed to own. But he stressed that the meetings were simply exploratory, that no determinations or commitments were made, and that no specific written proposal was submitted by Joint Meeting. He testified at length in support of the October 7th resolution and his objections to the use of the railroad land as a dumping area. He referred to difficulties in controlling the smoke, fire and odors and recalled that in 1953, when he was Lyndhurst's Director of the Department of Public Affairs, he had discontinued its dumping area south of the railroad tracks because of the serious fire hazards, the noxious odors and the vermin infestation. When he was asked whether Lyndhurst would object to the county's proposed operation of the dump he stated that it would, although he indicated that if Lyndhurst could not lawfully prevent dumping operations in the area it would prefer that they be done by the county rather than Joint Meeting.
Mr. Polito, Commissioner in charge of Lyndhurst's Public Affairs Department, testified that he voted for the October 7th resolution and believed that the proposed operation of Joint Meeting would adversely affect the municipality's governmental operations. He referred to the need of furnishing
additional municipal fire and police protection, to the applicable health problems, and to the fact that the proposed "dumping area was to be located in the southeast of Lyndhurst, which is an area composed of a great deal of our industrial plants and it is adjacent to a residential area." He described the proposed dumping area as a "problem area," located in a hollow and lacking necessary cross-winds, and pointed out that the only dumping area now being used in Lyndhurst is located north of the railroad tracks and that that area is being used primarily, although not exclusively, for Lyndhurst's own waste disposal. He referred to the several occasions on which he had met with Joint Meeting's representatives and stated that the meetings were exploratory in nature and that he was interested in ...