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Southern Ocean Landfill Inc. v. Mayor and Council of Township of Ocean

Decided: January 22, 1974.

SOUTHERN OCEAN LANDFILL, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
MAYOR AND COUNCIL OF THE TOWNSHIP OF OCEAN; THE TOWNSHIP OF OCEAN, A MUNICIPAL CORPORATION; THE TOWNSHIP OF OCEAN BOARD OF HEALTH AND WILLIAM SENKBEIL, DEFENDANTS-RESPONDENTS



For reversal -- Acting Chief Justice Jacobs and Justices Hall, Sullivan, Pashman and Clifford. For affirmance -- None. The opinion of the Court was delivered by Sullivan, J.

Sullivan

[64 NJ Page 191] Plaintiff Southern Ocean Landfill, Inc. is the operator of a sanitary landfill on property owned by it in Ocean Township. It has obtained the necessary permit to operate from the Board of Public Utility Commissioners under the Solid Waste Utility Control Act of 1970 (N.J.S.A. 48:13A-1 et seq.) and the approval of the Department of

Environmental Protection required by the Solid Waste Management Act (1970), (N.J.S.A. 13:1E-1 et seq.).

In February 1972 it filed a complaint in lieu of prerogative writs challenging a provision of a sanitary landfill regulatory ordinance adopted by the Township of Ocean in 1970. The provision in question, Section 5(e), originally banned the depositing in any part of a landfill site in the Township of "[s]ewerage or any other materials from septic tanks and cesspools.' The suit was precipitated by a summons issued out of the Municipal Court of the Township charging plaintiff with a violation of Section 5(e) of the ordinance.

In the in-lieu action the validity of the ordinance provision was upheld by the trial court on the basis of the then recent supplement to the Solid Waste Management Act which provided:

"No ordinances or regulations of any governing body of a municipality or county or board of health more stringent than this act or any rules or regulations promulgated pursuant thereto, and relating to health and environmental protection aspects of solid waste collection or solid waste disposal, shall be superseded by this act. Nothing in this act or in any rules or regulations promulgated pursuant thereto shall preclude the rights of the governing body of any municipality or county or board of health to adopt health or environmental protection ordinances or regulations more stringent than this act or any rules or regulations promulgated pursuant thereto.' (L. 1971, c. 461, ยง 2; N.J.S.A. 13:1E-17).

The trial court held in effect that the ordinance provision was a "more stringent' regulation within the ambit of the supplement, supra.

After plaintiff had appealed to the Appellate Division, and while the matter was pending there, the Township amended Section 5(e) so as to continue the ban on depositing of sewerage and any other materials from septic tanks and cesspools "unless such sewerage or materials emanated from sewerage, septic or cess pool systems located entirely within the municipal boundaries of the Township.'

The Appellate Division, in an unreported per curiam opinion, affirmed "substantially for the reasons both explicit and implicit' given by the trial court. This Court granted certification on plaintiff's petition. 63 N.J. 328 (1973).

Following oral argument before us, and at our request, the Attorney General submitted a brief as amici curiae setting forth the extent of State interest in the controversy. All parties were afforded the opportunity to reply to the Attorney General's brief. For reasons hereinafter stated, we declare the section in question facially invalid as in contravention of an expressed legislative plan.

The disposition of solid waste in this State has reached crisis proportions. In the past there was ample land area to accommodate the dumping of garbage and other waste. Consequently, regulation thereof was left largely to local authorities subject only to State Board of Health requirements. Shaw v. Byram Township, 86 N.J. Super. 598 (App. Div.), certif. den. 45 N.J. 35 (1965). As existing garbage dumps became filled and other available sites grew scarce, the State took notice of the fact that local government was unable to deal with the overall situation and that serious problems of public health, welfare and environmental control existed.

The legislative response to the crisis was the enactment of the two statutes heretofore mentioned, the Solid Waste Utility Control Act of 1970 and ...


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