The within action seeks declaratory relief invalidating a December 31, 1984 resolution by the Atlantic County Board of Chosen Freeholders which purported to amend Atlantic County's solid waste management plan. Plaintiffs, Atlantic County Executive Richard Squires and the County of Atlantic, contend that amendments to the solid waste management plan are required to be made by ordinance rather than by resolution. No reported decision addresses this issue. The conclusion of this court is that amendments to the solid waste plan are to be made by ordinance.
The facts giving rise to this complaint in lieu of prerogative writs are not disputed by the parties and require only brief recitation. In 1980, Atlantic County adopted a solid waste management plan (plan) by resolution.*fn1 An amendment to the plan was later enacted by ordinance. On August 2, 1984 Atlantic County received a letter from Robert E. Hughey, Commissioner of the Department of Environmental Protection
of the State of New Jersey (DEP), alleging that there were deficiencies in the county plan. Negotiations between the county and the DEP representatives took place thereafter culminating in the development of an administrative consent order. Defendant board of chosen freeholders authorized signature of that order by a resolution of November 20, 1984. The order was signed by Freeholder Board Chairman John F. Gaffney. Plaintiff Richard Squires signed the order of November 21, 1984 and it was finally executed by Commissioner Hughey on December 10, 1984. The relevant provision of that consent order provides that the county shall adopt amendments to its solid waste management plan no later than December 31, 1984. The amendment to the plan was necessary in order to designate a site or sites for the disposal of waste generated within the county.
Atlantic County is governed by the Optional County Charter Law, Executive Plan, N.J.S.A. 40:41A-31 et seq. On December 21, 1984 plaintiffs filed the original complaint in this action alleging that the failure of defendant to introduce an ordinance amending the plan injured plaintiffs by essentially negating the county executive's role in the amendment process. Plaintiffs further allege that because of the required time delays in adopting ordinances, defendants have caused the county to be in breach of the administrative consent order with DEP. An amended complaint was filed after the freeholders' adoption of a resolution to amend the plan on December 31, 1984. In addition to declaratory relief invalidating the resolution, plaintiffs also seek relief in the nature of mandamus which would require defendant to introduce and consider an ordinance amending the plan.
The dispute between the executive and legislative branches of Atlantic County government has arisen because of the apparent conflict over the construction of two state statutes; the Optional County Charter Law, N.J.S.A. 40:41A-31 et seq. (hereinafter charter law) and the Solid Waste Management Act, N.J.S.A. 13:1E-23.
The Optional County Charter Law is a comprehensive statute for organization of county government. It specifically details the governmental roles of both the freeholders and the county executive. Each has a very specific sphere of authority. The county executive's role is managerial and administrative. The role of the freeholders is, on the other hand, primarily the legislative function. The freeholders also have budgetary authority, advice and consent, and general policy-making powers. See N.J.S.A. 40:41A-38 to -41.
The charter law is very specific in enumerating which legislative matters are appropriately enacted by resolution. N.J.S.A. 40:41A-38 provides that:
The legislative power of the county shall be vested in the Board of Chosen Freeholders. Such legislative power shall be exercised by ordinance, except for the exercise of the following powers which are required to be, or are permitted to be, exercised by resolution. [emphasis supplied]
The enumerated exceptions to the above quoted statute are not relevant in the instant case. The intent of the statute is clear in that if an action is: a) legislative in nature; and, b) not in the enumerated list appearing at N.J.S.A. 40:41A-38(a) through -38(p), then an ordinance would be required. Amendments to the solid waste management plan do not fall within the list. Therefore, if amendments to the plan are legislative in nature an ordinance would be required.
It is necessary to determine if amendments to the solid waste management plan are, in fact, legislative in nature. In the context of the ...