Miller, Edward S., J.s.c.
This prerogative writ action challenges the actions of the Board of Chosen Freeholders of Gloucester County in selecting a certain area in the Township of South Harrison in Gloucester County as the site for a county sanitary landfill. The suit not only challenges the environmental wisdom of the selection but further raises issues as to the legitimacy of the actions taken by the Board of Freeholders. Prior to a discussion of this case, certain observations are in order:
If, over three centuries ago, John Donne pointed out that "no man is an island entire of itself," the truth of this saying is demonstrated by the setting of the instant controversy. This case forms but one facet of a crisis in waste disposal which envelopes not only the County of Gloucester but the entire State of New Jersey and probably the country as a whole. The case simply cannot be viewed as a separate specimen, but must be regarded in the light of the surrounding circumstances. As Justice Pollock stated in Glassboro v. Gloucester County Board of Freeholders, 100 N.J. 134 (1985), "Understanding the legal significance of the preceding facts begins with the recognition that New Jersey is in the throes of a solid waste crisis." Id. at 53.
While a separate case, and tried by a separate judge, the instant case is inexorably intertwined with the Glassboro case. Glassboro ordained the closure of the Kinsley Landfill; South Harrison, the instant case, deals with the course of subsequent events leading up to and following the closure of Kinsley. Regardless of which case one considers, the simple fact remains, as the trial court, the Appellate Division and the Supreme Court found in Glassboro, there is in existence a state of urgency, impelling to the point of being critical, as to the disposition of solid waste in the State of New Jersey. While meetings debate, counsel argue and courts consider, the inescapable truth is that every day there is deposited within the confines of the State of New Jersey thousands of cubic yards of
solid waste and, like the fate of the sorceror's apprentice, the influx never stops. Every court which has approached the Gloucester County situation has emphasized that there is a public health emergency pending. This Court concurs.
On this same issue, Judge Stanley Brotman has further pointed out:
The court takes judicial notice of the political turmoil that often besets communities when local land use boards begin choosing the location for a new landfill. Pressures abound from individuals and municipalities who acknowledge the need for such facilities but urge that they be built somewhere other than their own neighborhood. As in the case at bar, planners are placed in a classic "damned if they do, damned if they don't" situation, where any location they choose would engender protests and litigation. [ Fenning v. Materio, Civ. No. 83-3986 (D.N.J.1984), slip opinion at 21, n. 5. (emphasis in original).]
Prior to and during the trial of this case, plaintiffs made repeated efforts to supplement the record. The thrust of the arguments advanced was that the actions of the freeholders attacked in this prerogative writ proceeding were improper because of factors dehors the record. Examples of these contentions are the argument that the freeholders had prejudged the matter prior to the meeting and hence, their decision was tainted; the argument that the Open Public Meetings Act was not complied with, etc. The Court repeatedly admonished counsel that this was a prerogative writ proceeding, that it would be only tried upon the record below except insofar as the Court, in its discretion, would permit evidence in support of the theories hereinabove set forth. The Court, at the pretrial conference and in subsequent proceedings, divided the issues into two categories: (a) "governmental issues", the arguments that the proceedings were tainted because of matters outside the record and (b) "environmental issues", these being the issues pertaining to the merits of the site from an environmental and sanitary waste perspective; in short, those which were to be passed upon by the Department of Environmental Protection pursuant to the Solid Waste Management Act, R.S. 13:1E-23 et seq.
The Court has previously discussed in an opinion filed in this case the "double track" procedure provided by the statute in that the Solid Waste Management Plan must be approved by the Department of Environmental Protection, pursuant to R.S. 13:1E-24, and the prerogative writ procedures specifically provided for in 13:1E-23(f). As the Court pointed out, the only way this procedure makes sense is to recognize the dichotomy between a review of the environmental features and the ability to challenge irregularities in the procedure by way of prerogative writs. This Court has neither the expertise nor the resources to intelligently review the environmental aspects of the Solid Waste Management Plan; hence, deferred to the Commissioner and granted partial summary judgment striking those aspects from consideration by this Court. On the other hand, it is equally obvious that the Commissioner has neither the expertise nor the legal power to properly adjudicate the governmental issues such as those raised in this case.
(Notwithstanding the actions of the Court in refusing to consider the environmental aspects of the case, the Court has nevertheless read and studied the record below and states unequivocally that had it passed upon the "environmental aspects", its decision would have been the same as that of the Board of Freeholders. In so finding, it would appear this is a necessary concomitant to a finding that the Board of Freeholders acted within the boundaries of its discretion and did not abuse the same.)
It becomes very easy in a case of this type and magnitude to lose sight of the essentially simple nature of the issues to be decided. What this Court is asked to determine is whether or not the Board of Chosen Freeholders abused its discretion by its adoption on December 27, 1984 of a resolution authorizing an amendment to the Gloucester County Solid Waste Management Plan. The sole purport of this amendment is to include the designation of the subject site as the proposed site for the landfill mandated by the courts.
(It is significant that the resolution in question specifically provides limitations upon its effect, thus:
Be it further resolved that the designation of said site be provisional in that there shall be no condemnation proceedings or construction commenced until the appropriate environmental impact study, economic assessments and hydrogeological assessments are completed by an engineering firm(s) other than Speitel Associates . . . No site construction shall commence until such time as the Board shall direct.
It can thus be seen that no irrevocable step has been taken by the Board. It is conceivable that the environmental impact statement referred to might well negate further consideration of this site; test borings are to be analyzed and other preliminary work performed prior to the finalization of this site.)
Within this framework, the Court tried this case for seven trial days. Based upon the issues framed, the facts follow.
Plaintiff, Kinsley's Landfill, Inc. (Kinsley) is a corporation of the State of New Jersey, having an office at Route 41, Deptford Township, Gloucester County, New Jersey. Kinsley operates a sanitary landfill at the intersection of Routes 41 and 47 in Deptford Township, New Jersey (Kinsley's Landfill). It has also been a major disposal site for solid waste from the City of Philadelphia.
Plaintiff, the Township Committee of the Township of South Harrison (Township) is the governing body of the Township of South Harrison. Certain other interested citizens, taxpayers and owners of some of the affected lands have also joined in as plaintiffs.
South Harrison Township has a population of approximately 1500 residents. There are 908 registered voters in the Township. (Gloucester County has 11,970 registered voters).
On June 11, 1979, the Gloucester County Board of Chosen Freeholders adopted the Gloucester County Solid Waste Management Plan (Plan). The Plan was submitted to the New Jersey Department of Environmental Protection (DEP) for review and approval.
On November 13, 1979, the DEP issued a Certification of Modification of the Plan detailing deficiencies and recommending certain necessary modifications.
On August 4, 1980, the Board adopted modifications to the Plan in response to the DEP Certification of Modification.
On September 26, 1980, the DEP issued a Certification of Approval with Modification of the Plan, which again specified remaining deficiencies and necessary modifications.
On February 9, 1983, the Board adopted the Gloucester County Solid Waste Management Plan Update (Update). The Update consisted of a Policy-Objective "Ten-Year Plan" and a detailed "Two-Year Program." This Update was intended to provide a review of the solid waste disposal alternatives available to the County. It recommended that the County meet its solid waste disposal needs for the next ten years by: continuing landfilling at Kinsley's Landfill until 1988; implementing a waste-to-energy plant by 1987 and a county-owned landfill by 1988; proceeding with interdistrict waste flow agreements to meter out-of-county wastes and implementing county-wide recycling.
Pursuant to the Update, the policy of utilizing Kinsley's Landfill as the authorized county landfill until 1988 was subject to certain conditions. These conditions included, inter alia, that Kinsley's Landfill operate within the permitted design capacity with no expansion, and subject to the DEP's permit of May 19, 1980 as revised on September 24, 1980.
On July 28, 1983, the DEP issued a Certification of Approval of the February 9, 1983 Update with deficiencies noted. One of the deficiencies was the failure to designate any suitable additional sites for disposal of the County's solid waste for the remainder of the ten-year period after 1986-1987.
On January 3, 1984, the DEP and the Board of Public Utilities (BPU) promulgated waste flow orders, N.J.A.C. 7:26-6.1 et seq. These waste flow orders designated specific facilities state-wide to serve the solid waste disposal needs of specific
geographic areas in the State. Pursuant to these waste flow orders, Kinsley's Landfill was designated as the landfill for the majority of Gloucester County and for a number of Salem County and Camden County municipalities.
On June 20, 1984, Kinsley filed an application with the Board for a vertical and horizontal expansion of Kinsley's Landfill, due to the fact that the landfill was reaching its permitted capacity.
The Gloucester County Solid Waste Advisory Council (SWAC) is a public body which was created by the Board pursuant to the Solid Waste Management Act, (SWMA). R.S. 13:1E-1 et seq.
On July 25, 1984, SWAC voted (6-4-1) to recommend to the Board that the County Plan be amended to provide for the requested expansion of Kinsley's Landfill.
On August 2, 1984, the Board of Freeholders was notified by Robert E. Hughey, Commissioner of the DEP, that the County had not fulfilled its obligations, under the SWMA, to provide adequate waste disposal sites or alternate means of disposing of its solid waste.
On August 23, 1984 and September 13, 1984, the Board conducted two public hearings on the proposed expansion of Kinsley's Landfill and on September 24, 1984, at a special meeting of the Board, it voted (7-0) to deny the application for expansion.
The Board resolution of September 24, 1984 denying the expansion of Kinsley's Landfill required the immediate implementation of the portion of the Plan relating to the development of a county-owned landfill.
On October 17, 1984, the Borough of Glassboro, Gloucester County, New Jersey filed a verified complaint in lieu of prerogative writ in the Superior Court of New Jersey, Law Division, Gloucester County Bor. of Glassboro v. Gloucester Cty. Bd. of
Chosen Freeholders Docket No. L-070476-84 P.W., seeking, inter alia, injunctive relief to keep Kinsley's Landfill open.
On November 13, 1984, the Honorable Samuel G. DeSimone, A.J.S.C., entered an order for preliminary injunction in that case. The salient points of this order are:
1) That defendants were restrained from taking any action which would prevent the continued uninterrupted use of Kinsley's Landfill in accordance with the terms of this order;
2) The Counties of Camden, Gloucester and Salem were ordered to proceed immediately with implementation of one or more landfills within their borders, with such landfills to become operational within 12 months of the date hereof in accordance with Exhibits B and C attached hereto with respect to Camden and Gloucester Counties, and with respect to Salem County, in accordance with a schedule to be filed with the Court;
3) Not later than November 27, 1984 at 4:00 P.M. Kinsley's Landfill should cease accepting all solid waste generated within the City of Philadelphia and other Pennsylvania communities and shall cease accepting other out of district solid waste not subject to interdistrict agreements;
4) Not later than November 27, 1984, all municipalities within the borders of Camden, Gloucester and Salem using the Kinsley's Landfill should maximize their recycling efforts, including curbside pickup, mandatory ordinances, stepped up public awareness campaigns, and increased enforcement efforts and shall report to the Court and the DEP within such time;
5) Except as provided in paragraph number 3 above, all wastes presently disposed of at the Kinsley's Landfill would be disposed of at the vertical expansion to the Kinsley's Landfill until it reached capacity, at which time said wastes were to be redirected to the new landfills to be implemented in the Counties of Camden, Gloucester and Salem;
6) Disposal of sewage sludge at Kinsley's Landfill must cease on March 15, 1985;
7) Kinsley's Landfill might implement a vertical expansion for one additional life of compacted solid waste to be conducted in accordance with the engineering design submitted by Kinsley and in accordance with the report submitted to the Court by DEP;
8) The Counties of Salem, Gloucester and Camden must report to the Court not later than December 24, 1984 on the status of site selection for county landfills;
9) The Township of Deptford must issue the building permits necessary for the vertical expansion of Kinsley's Landfill;
10) Any provision of this Order could be modified or dissolved by application of any party on one-day notice to all other parties;
11) The Court retained jurisdiction; and
12) The motion of the City of Philadelphia to stay this order pending appeal is denied.
On December 19, 1984, the County and the DEP entered into an Administrative Consent Order. This Administrative Consent Order contains a timetable to implement the order for preliminary injunction entered in the Glassboro case. Pursuant to this Consent Order, the County was required to adopt and submit amendments to the DEP to its Plan designating a site for the county landfill facility by January 1, 1985. The DEP review of the amendments was to be completed by February 1, 1985.
On November 21, 1984, the County entered into a contract with Gerald E. Speitel Associates, Consulting Environmental Engineers (Speitel). Under this contract, Speitel agreed to provide professional engineering services necessary to bring about the completion of a county owned landfill. The contract authorized Speitel to undertake the first phase of the landfill project, the siting of the county landfill. Any further work to be done by Speitel was required under the contract to be authorized by the County.
On December 12, 1984, Speitel submitted to the Board a document entitled "Gloucester County Landfill Site Selection." The report recommended a site in South Harrison Township, Gloucester County, New Jersey for the county landfill (South Harrison site). This site is the one which forms the basis of this suit.
The South Harrison site consists of approximately 420 acres situated on the westerly side of Swedesboro-Monroeville Road northwest of Route 45. The northwesterly boundary of the site is the South Harrison-Woolrich Municipal Line. The site is designated on the tax map of South Harrison Township as Block 9, Lots 2, 3, 10, 11, 12, 13, 17, 18, 19 and an unnumbered lot near 18 and 19 and parts of Lots 4, 5 and 9.
The South Harrison site is largely wooded and contains part of a peach orchard, cultivated farm fields, some old fields and five houses. The Court inspected this site and recognizes its natural advantages and that it is, to a significant degree, intelligently and profitably farmed. The area surrounding the
proposed site is an active farming community, with fruit orchards and cultivated fields.
The Court has examined the Speitel report which was stipulated into evidence as Exhibit E-15. It is noted that the report frankly indicated that it was made on an "expedited schedule," in compliance with the orders of Judge DeSimone in the Glassboro case. Nevertheless, the report, in its initial stages sets forth criteria to be employed in the selection of a site.
In selecting the site, Speitel utilized two levels of criteria which were developed and discussed with the County Planning Department staff and with a committee of SWAC.
The initial criteria were as follows: substantially vacant land about 200-300 acres in size; not in the Pinelands; not on the Cohansey or Potomac-Raritan-Magothy formations outcrop; not in Wetlands; not containing significant flood plains; not in recreation areas or parks; not within 5000 feet of a commercial airport.
The second level of criteria used by Speitel related to evaluating the site. These criteria were as follows: surface hydrology; population density around the site; groundwater conditions; geology and soil conditions; topographic relief; presence of endangered species or historic; archeological or cultural resources; surrounding land use and area and capacity.
Significantly, the report states "visual inspections were made of potential site areas. During this inspection, a team of engineers, planners, an environmental scientist and a geologist reviewed the site areas and then assembled relevant information about them". Speitel Report, at 8.
It is significant that this portion of the report was not factually challenged by plaintiffs. From it, it is clearly stated that what the evaluating team did was to select the South Harrison site as its choice over other areas.
From the presentation made by Speitel at the public hearing held on December 27, 1984 and other ...