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Township of Little Falls v. Bardin

Decided: September 27, 1979.

TOWNSHIP OF LITTLE FALLS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, APPELLANT,
v.
DAVID J. BARDIN, COMMISSIONER OF THE STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL., RESPONDENTS. TOWNSHIP OF LITTLE FALLS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, APPELLANT, V. BOARD OF PUBLIC UTILITY COMMISSIONERS AND CARRINO CONTRACTING & TRUCKING CO., INC., RESPONDENTS. CARRINO CONTRACTING & TRUCKING CO., INC., ETC., PLAINTIFF-RESPONDENT, V. TOWNSHIP OF LITTLE FALLS ET AL., DEFENDANT-APPELLANT



On appeal from the Department of Environmental Protection, the Board of Public Utility Commissioners, and the Superior Court, Chancery Division, Passaic County.

Matthews, Ard and Polow. The opinion of the court was delivered by Matthews, P.J.A.D.

Matthews

[173 NJSuper Page 401] This appeal consolidates three appeals, each of which arose from the same basic dispute. Appellant Township of Little Falls (township) appeals from the decision of the New Jersey Department of Environmental Protection (DEP) granting the application of respondent Carrino Contracting & Trucking Co.,

Inc. (Carrino) for registration of a solid waste disposal facility. The township also appeals from the decision of the Board of Public Utility Commissioners (PUC) granting Carrino's application for a certificate of public convenience and necessity. The third appeal is taken by the township from a final judgment of the Chancery Division declaring Little Falls Ordinance 375 and the township's zoning ordinance invalid, and holding the agreement between Montclair State College and plaintiff Carrino valid.

Carrino, as the successful bidder for the operation of a regulated sanitary landfill project at Montclair State College, was required to secure the necessary approvals from DEP and PUC. Consequently, Carrino submitted an application for registration to the Bureau of Solid Waste Management of DEP. On March 10, 1975 DEP issued a sanitary landfill registration to Carrino. On March 20, 1975 the township wrote to the Commissioner requesting a review of the Department's action and an administrative hearing. DEP's response was to deny the request for a hearing. On June 13, 1975 the township filed a notice of appeal from the issuance of the registration.

On March 31, 1975 Carrino submitted an application to PUC for a certificate of public convenience and necessity. PUC conducted a hearing on May 19, 1975 and on August 25, 1975 the certificate was issued. A notice of appeal was filed by the township on September 2, 1975. On January 5, 1976 this court granted a motion to remand the matter for a supplemental hearing. The hearing examiner recommended affirmation of the prior determination by PUC and an order in accord therewith was entered on October 19, 1978.

The final proceeding at issue herein is the hearing before the Chancery Division which began on September 3, 1975. Carrino had initiated an action against the township seeking an injunctive order restraining the township from interfering with its contract and seeking an adjudication holding the township's Ordinance 375 and its zoning ordinance invalid. The township's

zoning ordinance precludes the operation of a sanitary landfill within the geographical boundaries of the township. The trial judge found the section of the zoning ordinance establishing sanitary landfills a nonpermitted use invalid as applied to the Carrino operation, and the agreement between Montclair State College and Carrino valid. On June 21, 1978 the township filed a notice of appeal from that judgment.

During 1971-1972 Montclair State College acquired a parcel of land adjacent to its then existing campus facilities. The site in question was a worked-out and abandoned quarry.

The college, after considerable study and advice form consultants, decided to convert the quarry into an athletic field. The conversion or reclaiming was to be accomplished through the method of a regulated sanitary landfill operation of limited duration. The actual landfilling operation was to take 18 months.

As a result of the college's plan, it publicly advertised for bids from persons interested in undertaking the project. Respondent Carrino was awarded the contract.

I

In Little Falls Tp. v. Bardin (A-3280-74), appellant urges that the "Department of Environmental Protection improperly denied the township's request for a hearing."

As noted, Carrino submitted an application for registration to the Bureau of Solid Waste Management of DEP. On January 27, 1975 the township wrote a letter to DEP acknowledging its awareness of the pending application and requesting that it be informed of the status of the matter. The township also requested a copy of the application and design and, further, asked that it be given notice of future conferences in order that the township might participate. The township did not request a hearing. In response to the township's letter, DEP indicated in its letter of January 28, 1975 that although it did not have the facilities for reproducing engineering designs, they were available

for inspection and DEP would welcome comments from the municipality as to whether the proposed operation would comply with the rules of the Bureau of Solid Waste Management. The township asserts that it subsequently contacted DEP and requested a hearing to examine the engineers. However, it offers no proof that such contact was made and respondent Carrino insists that appellant ignored DEP's request for comments.

On March 10, 1975 DEP issued a registration of solid waste disposal and/or processing facility to the applicant, conditioned upon compliance with eight specific requirements. By letter of March 20, 1975 the township requested that DEP review its decision and it also requested an administrative hearing. On May 6, 1975 the township's request for a hearing was denied in a letter from Assistant Commissioner Ricci in which he detailed the basis for DEP's action.

The township argues that a hearing was required by the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. Section 52:14B-9(a) provides that "[i]n a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice." A contested case is defined in N.J.S.A. 52:14B-2(b) as

This argument was presented and considered in In re Modern Indust. Waste Service , 153 N.J. Super. 232 (App.Div.1977), which presented an analogous situation. There, DEP granted a certificate of registration to Modern for the operation of a solid waste transfer station and the township appealed, contending, among other things, that it had a right to a hearing under the Administrative Procedure Act, specifically N.J.S.A. 52:14B-9(a). We concluded that the act does not create a substantive right to a hearing, but merely details the procedure to be followed where a

hearing is otherwise required by statutory law or constitutional mandate. See Public Interest Research Group v. State , 152 N.J. Super. 191, 205 (App.Div.1977), certif. den. 75 N.J. 538 (1977); In re Environmental Protection Dep't. , 139 N.J. Super. 514 (App.Div.1976).

The township argues initially that a hearing was required by the provisions of N.J.A.C. 7:26-5.4(p), which provides:

In addition to any hearing mandated by the New Jersey Solid Waste Management Act (N.J.S.A. 13:1E-1 et seq.), any person aggrieved by any of the following actions of the Bureau of Solid Waste Management may, upon application made within 15 days after notice of the action be entitled to a hearing before the Department.

1. Denial of a rebate of a penalty paid pursuant to N.J.S.A. 13:1E-9;

2. Intent to deny a registration application;

3. Refusal to renew a registration application when renewal application has been timely made.

4. Approval with conditions of a registration application.

The township alleges that it is a "person aggrieved" by the approval of the application and, therefore, under subparagraph 4, is entitled to a hearing.

The foregoing regulation was considered by us in Modern , above, 153 N.J. Super. at 237. However, we found it unnecessary to decide whether the township there was an aggrieved person within the provisions of the regulation since the township had failed to comply with the time limit imposed by the section.

Respondent Carrino argues that the language of N.J.A.C. 7:26-5.4 indicates that the provision is intended to confer rights on the applicant or other direct party in interest who may be aggrieved. We agree. The first subparagraph refers to a denial of a rebate, the second refers to denial of a registration application, the third concerns a refusal to renew a registration application. The section was clearly designed to provide a

registrant or applicant some recourse after an adverse decision by the Bureau. Subparagraph 4 is consistent with this scheme. It refers to approval with conditions. Again, the imposition of conditions is a matter which might give rise to objections by the registrant. Thus, it appears that the regulation is intended to safeguard the interests of the applicant or registrant ...


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