On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
King, O'Brien and Simpson. The opinion of the court was delivered by King, P.J.A.D.
This appeal challenges the action of the Board of Chosen Freeholders taken on December 28, 1984 amending the Gloucester County Solid Waste Management Plan to designate a site in South Harrison Township as the location of the county-wide landfill. We conclude that the members of the Board violated the Open Public Meetings Law, sometimes called the "Sunshine Law," by attending private meetings on December 10 and 11, and that these violations were not cured by the conduct of the public meeting of December 27 and 28, 1984. We therefore reverse the trial judge and hold the action of the Board in siting the landfill void. Because the Board's action was void, we need not reach the other points on this appeal. Indeed, since the action of the Board was void, the companion appeals,*fn1 challenging the environmental aspects of the decision made by the Board and approved by the Department of Environmental Protection (DEP) are presently moot and will be dismissed.
Pursuant to the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1, et seq., each of the State's 21 counties and the Hackensack Meadowlands were designated as a solid waste district and required to develop a solid-waste management plan. N.J.S.A. 13:1E-20. To assist the board of freeholders in each county the SWMA requires that a Solid Waste Advisory Council (SWAC) be constituted and consulted before a plan or amendment is adopted. N.J.S.A. 13:1E-20b. In addition, the Act requires consultation with the regional, county and municipal agencies responsible for land use and zoning. N.J.S.A. 13:1E-20b.
The original Gloucester County Plan adopted in June 1979 recommended that existing landfills, including Kinsley Landfill, in Deptford be relied upon. This plan was approved by DEP in September 1980. However, Kinsley's capacity continued to diminish quickly and the Board ultimately voted to deny Kinsley's
application for expansion in September 1984. At this time, the freeholders turned their attention away from Kinsley and began to think of other potential sites. Meanwhile, a law suit entitled Borough of Glassboro v. Gloucester County Board of Chosen Freeholders, 98 N.J. 186 (1984); 199 N.J. Super. 91 (App.Div.), aff'd 100 N.J. 134 (1985), cert. den. U.S. , 106 S. Ct. 532, 88 L. Ed. 2d 464 (1985), which made its way eventually to our State's and the federal Supreme Court, ostensibly sealed the fate of Kinsley as a working landfill. On November 13, 1984 Judge DeSimone entered a preliminary injunction which, among other things, directed the county officials to implement an operational landfill within its borders in 12 months. Judge DeSimone's order withstood Commerce Clause and other challenges from the City of Philadelphia, which was barred from Kinsley in November 1984, and also challenges from many Camden County municipalities, which were barred as of January 1, 1986. Today, only Gloucester County residents may dump at Kinsley, with some very minor contribution from Salem County residents.
In late November 1984 the Gloucester County Board of Freeholders hired Speitel Associates as environmental and engineering consultants for the purpose of assisting them in selecting a site and implementing the new county landfill, and then the events concerning us unfolded. The focus of this particular appeal is on two private meetings held on December 10 and 11, 1984 and the public meeting of December 27 and 28.
The December 10 meeting, held at the home of the assistant county counsel for environmental affairs, was attended by the five Democrat members of the Board, including the Freeholder Director, two representatives of Speitel Associates, and the county planner. No Republicans were invited. The December 11 meeting was held at the Gloucester County Courthouse Complex and was attended by the Freeholder Director, the two Republican freeholders, one Republican freeholder-elect, the Speitel representatives, and the county planner.
The testimony is quite clear that the proposed landfill site was the sole item of discussion among the members of the Board in the company of their publically paid consultants and counsel at these two meetings. Prior to these meetings, Speitel Associates had made no siting recommendation to the SWAC and indeed had never met with that body. Two days after the December 10 meeting, Speitel's report publically recommended the subject South Harrison Township*fn2 site on the Swedesboro-Monroeville Road to the SWAC. This apparently was the main site discussed at the December 10 meeting of the all-Democratic effective majority of the Board. Two other sites in South Harrison Township and one in adjoining Woolwich Township were also discussed briefly at the December 10 and 11 meetings. At the December 12 meeting the SWAC quickly approved the subject South Harrison site and recommended it to the Board. That very night, the Board voted to adopt the SWAC recommendation at its own December 12 meeting and immediately scheduled a public hearing on the proposed plan for December 27, 1984.
Notice of the December 27 public hearing was published on December 14 and 16. At the public meeting on Thursday, December 27 attended by about 800 people, many comments from the public were heard. The December 27 meeting started at 7 p.m. and continued until 6:30 a.m. on December 28. The Board then moved to recess or adjourn the meeting, which was resumed at 6:30 p.m. on December 28 without any further formal published notice. Upon resumption with about 300 in attendance, the Board members discussed the proposed plan amendment and after about an hour and one-half voted 6-1 to approve the South Harrison site.
At the closed December 10 and 11 meetings held without notice to the public, all agreed that ...