This is an action in lieu of prerogative writs challenging the validity of an ordinance amendment limiting use of the Borough of Carteret municipal disposal area.
Plaintiffs John Leimpeter and Leimpeter's Disposal Service, Inc. (hereinafter referred to collectively as "Leimpeter") are, respectively, the principal stockholder and operator of a solid waste collection business located in Carteret. Leimpeter holds an environmental protection number issued by the Bureau of Solid Waste Management, N.J.S.A. 13:1E-4, and is licensed by the Public Utilities Commission.
The amendment under consideration, ordinance 71-14, was adopted by the defendant borough council on September 21, 1971, effective October 4, 1971. It reads in pertinent part:
19-10 (b). No person or party engaged in the act, business or practice of a private scavenger, or transporter and disposer of garbage, refuse, trash or wastes, of any nature whatsoever having its origin in any commercial, mercantile, business or industrial operation or establishment situated in the Borough of Carteret shall dump or dispose of same in any Borough of Carteret owned or operated municipal ground or refuse disposal area or landfill site.
Prior to the adoption of this amendment Leimpeter, as well as other solid waste collectors, had utilized the Carteret disposal site on a fee basis. Carteret had created a municipal disposal area in 1969 by ordinance 69-09, effective July 23, 1969.
It is clear from a reading of the amendment that proprietary waste collectors are no longer permitted to dispose of nonresidential waste originating in Carteret in the municipal area. However, the amendment does allow owners of such property to deposit their own refuse in the municipal facility. In effect, a Carteret mercantile, business or commercial establishment might purchase or lease a vehicle to transport its waste to the local site, but under the amendment it cannot engage an independent contractor such as plaintiffs to perform the same service. Leimpeter alleges
this distinction makes the amendment unreasonable, arbitrary and capricious, thereby denying plaintiffs the equal protection of the laws. Leimpeter also seeks damages to the extent of its added business expenses in transporting Carteret originated waste to a commercial disposal area outside the borough. Defendants contend that the amendment is a reasonable exercise of municipal police power. The borough counterclaims for fees allegedly owed it by Leimpeter under the prior 1969 ordinance.
At the hearing of this matter defendants moved to dismiss plaintiffs' complaint on the ground that the action was not timely under R. 4:69-6(a), which reads as follows:
General Limitation. No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed, except as provided by paragraph (b) of this rule.
Paragraph (b) lists a number of special time limitations inapplicable here.
The amendment in question took effect October 4, 1971, whereas plaintiffs' complaint was not filed until March 23, 1972. Leimpeter was aware of the amendment soon after its adoption, for he filed a petition with the Public Utilities Commission on October 13, 1971 seeking to compel defendants to open the Carteret site to him. This petition was denied, the Commission apparently lacking jurisdiction of the matter since the Carteret area no longer imposed a fee, thus disqualifying it as a "public utility." See N.J.S.A. ...