Kilkenny, Labrecque and Leonard.
[108 NJSuper Page 240] Defendant Board of Health of Franklin Township appeals from an order of the Public Health Council of the New Jersey Department of Health (hereinafter
State Council) annulling certain provisions of Ordinance No. 0-1-69 B.H., passed by defendant on February 10, 1969.
The pertinent portions of the ordinance follow:
1. * * * no person, firm or corporation will be permitted to establish, maintain or continue a sanitary landfill or dumping place within the Township of Franklin.
3. No refuse, garbage, rubbish, ashes, trash, waste or other materials commonly described as refuse, originating outside of the corporate limits of the Township of Franklin shall be deposited in the Municipal landfill or dump or on any real property within the corporate limits of the Township of Franklin by any person, firm or corporation.
Following passage, defendant in compliance with N.J.S.A. 26:1A-12 filed a copy of the ordinance with the State Commissioner of Health. Thereafter, the State Council, pursuant to N.J.S.A. 26:1A-12, held a hearing, due notice thereof having first been given to defendant, and determined that section 3 of the ordinance, as above quoted, concerned a matter which affected the health of territory beyond the jurisdiction of defendant. It thereupon entered an order annulling said section.
N.J.S.A. 26:1A-12 in pertinent part provides:
The Public Health Council may modify or annul any order, regulation, by-law or ordinance of any local board of health if, after giving reasonable notice and affording an opportunity to be heard to the members of such local board, the council shall determine that such order, regulation, by-law or ordinance concerns a matter which affects the public health beyond the territory over which such local board has jurisdiction. (Emphasis added)
Generally, a municipality or its local board of health may legally prohibit the dumping within its borders of garbage originating outside thereof. Shaw v. Byram Tp. , 86 N.J. Super. 598 (App. Div. 1965). See also Edgeboro v. East Brunswick Tp. , 31 N.J. Super. 238, 245, 246 (Ch. Div. 1954); Earruso v. Board of Health, E. Hanover Twp. , 120 N.J.L. 463, 468 (Sup. Ct. 1938). An ordinance containing such a prohibition is not in conflict with chapter VIII of the
State Sanitary Code (N.J.S.A. 26:1A-7 et seq.) which deals with "Refuse Disposal." Shaw v. Byram Tp., supra , at 604.
As we interpret N.J.S.A. 26:1A-12, it does not abolish this right of a municipality to prohibit the dumping therein of garbage originating outside thereof. Rather, it gives the State Council the limited authority to modify or annul an ordinance of a local board of health which attempts to accomplish this purpose only in the instance where such an ordinance "affects the public health" beyond the territory over which such local board has jurisdiction. It ...