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Leimpeter''s Disposal Service Inc. v. Mayor and Council of Borough of Carteret

Decided: November 26, 1973.

LEIMPETER'S DISPOSAL SERVICE, INC., A NEW JERSEY CORPORATION; AND JOHN F. LEIMPETER, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF CARTERET; AND THE BOROUGH OF CARTERET, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Carton, Seidman and Goldmann. The opinion of the court was delivered by Seidman, J.A.D.

Seidman

Plaintiff Leimpeter's Disposal Service, Inc., a licensed solid waste collector whose place of business is located in the Borough of Carteret, and whose principal stockholder is plaintiff John F. Leimpeter (collectively referred to herein as "plaintiff"), filed a complaint in lieu of prerogative writs challenging the validity of an ordinance adopted by the governing body of the Borough of Carteret prohibiting private scavengers from dumping or disposing of industrial or commercial refuse on the borough's waste disposal area. In addition, damages were sought because of plaintiff's inability to use the waste disposal area.

Defendant borough counterclaimed for damage to the area allegedly caused by plaintiff and also to recover moneys claimed to be owed by plaintiff for the use of the area between 1969 and 1971.

After a hearing the trial judge upheld the ordinance, dismissed plaintiffs' claim for damages, and awarded the borough $6340*fn1 for plaintiffs' use of the disposal area. 121

N.J. Super. 18 (Law Div. 1972). Plaintiff appeals, contending that (1) the ordinance regulating scavengers does not bear a substantial relation to the public health, safety and welfare; (2) it has standing to raise the constitutional rights of its customers "who are fellow taxpayers in Carteret," and (3) defendant failed to sustain its burden of proof with respect to the counterclaim.

The last point urged is without merit. Prior to the adoption of the ordinance under review, the municipality issued permits for the use of its disposal area and charged fees for the depositing of refuse and other materials in accordance with an established schedule. Defendant claimed, from its records, that plaintiff owed $6340 for the use of the facility between July 1969 and September 1971. Plaintiff did not deny receiving bills in that amount, but disputed their accuracy. The trial judge found for defendant on the counterclaim, noting that plaintiff had presented nothing to support its contentions. Considering the proofs as a whole, we are satisfied that the result could reasonably have been reached on sufficient credible evidence present in the record and, therefore, should not be disturbed. State v. Johnson, 42 N.J. 146, 162 (1964); Close v. Kordulak Bros., 44 N.J. 589, 598-599 (1965).

Plaintiff apparently does not question the dismissal of its claim for damages. In any event, as the trial judge correctly pointed out, a cause of action against a municipality cannot be grounded on the alleged invalidity of an official legislative determination. Visidor Corp. v. Cliffside Park, 48 N.J. 214, 222 (1966); Veling v. Ramsey, 94 N.J. Super. 459, 461 (App. Div. 1967).

We turn now to the ordinance in question. The proofs disclose that in 1969 the Borough of Carteret created a municipal disposal area. In September 1971 the "Garbage and Trash Disposal" chapter of the municipality's Revised General Ordinances was amended to prohibit, as had an earlier

ordinance, the depositing of refuse not originating in the borough, and by the addition of the following section:

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 upon any Borough of Carteret owned or operated municipal ground or refuse disposal area or landfill site.

Plaintiff claims that the above amendment is unconstitutional. It argues, in substance, that (1) it regulates business and singles out only those engaged in the lawful pursuit of solid waste removal; (2) government may not, in the guise of protecting the public, arbitrarily interfere with or impose unreasonable restrictions upon business; (3) there is no rational basis for excluding licensed solid waste collectors, and (4) the classification of private scavengers ...


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