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Ocean County Utilities Authority v. Planning Board of Township of Berkeley

Decided: May 13, 1987.

THE OCEAN COUNTY UTILITIES AUTHORITY, PLAINTIFF,
v.
THE PLANNING BOARD OF THE TOWNSHIP OF BERKELEY, OCEAN COUNTY, NEW JERSEY, DEFENDANT, BRICKTOWN MUNICIPAL UTILITIES AUTHORITY, AMICUS CURIAE



Clyne, J.s.c.

Clyne

The question before the court is whether a county utilities authority must obtain local planning board approval before constructing a sludge management facility. During the pendency of the matter, it came to the attention of the court that contractors' bids were about to expire. Counsel therefore agreed to have the court render its decision in an expedited, abbreviated form. That decision was spread upon the record May 8, 1987. It was further understood that the court would thereafter render this more detailed analysis of its decision.

The Ocean County Utilities Authority, hereinafter OCUA, plans to construct a sludge management facility to enable it to meet the present and future sludge disposal needs in Ocean County. Under its plan, the OCUA will collect sludge presently generated at its three regional treatment facilities in Brick, Berkeley and Stafford Townships, and will transport it to the new central sludge management facility. This new central facility will be situated entirely within the boundaries of the OCUA's already existing central water pollution control complex in Berkeley Township. There, the sludge will be dried and pelletized for marketing as a soil conditioner with fertilizer value.

Before submitting its application to defendant Berkeley Township Planning Board, plaintiff had already received numerous

approvals from federal, state and county agencies. The list of agencies included the United States Environmental Protection Agency, New Jersey State Department of Environmental Protection, The Department of Community Affairs, the Ocean County Planning Board and the Freeholders Solid Waste Advisory Council. Ultimately, the OCUA applied to the Berkeley Township Planning Board for site plan approval and a height variance for three silos that are part of the proposed facility. After several hearings, defendant Berkeley Township, by resolution dated March 23, 1987, denied the application, asserting that the applicant failed on eight separate concerns to meet its burden of proof.

Prior to the planning board hearings on this matter, plaintiff OCUA had reserved the right to challenge the board's jurisdiction to review the site plan and to grant variances. The OCUA contended that it had submitted its plan for formal approval by the planning board only because of the uncertainty surrounding any obligation by the OCUA to do so pursuant to the holding in Shupack v. Manasquan River Regional Sewerage, 194 N.J. Super. 199 (App.Div.1984).

In Shupack, a sewerage authority had planned to build a sewerage pumping station as part of its activities authorized by both the Sewerage Authority Law, N.J.S.A. 40:14A-1 et seq. and the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq. The court concluded that neither statute preempted the field traditionally reserved to the planning board and, therefore, the sewerage authority was not absolved of its obligation to obtain a local construction permit or site plan approval.

Shupack is inapplicable to the case at bar for two reasons. First, the activities of the OCUA as regards the proposed facility are not pursuant to either of the aforementioned statutes. Rather its present activities fall squarely within the purview of the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq. Second, the Solid Waste Management Act creates a comprehensive regulatory scheme which preempts from local regulation facilities such as the one here involved.

No one questions that the purpose of the proposed facility is to handle sewage sludge. Moreover, review of the following definitions makes clear that the sewage sludge to be handled by the facility is "solid waste" regulated by the Solid Waste Management Act. N.J.S.A. 13:1E-1 et seq. (hereinafter the act). As to "solid waste," the act provides:

For purposes of this act, unless the context clearly requires a different meaning:

(a) "Solid waste" means garbage, refuse, and other discarded materials resulting from industrial, commercial and agricultural operations, and from domestic and community activities, and shall include all other waste materials including liquids . . . except for solid animal and vegetable wastes collected by swine producers licensed by the State Department of Agriculture to collect, prepare and feed such wastes to swine on their own farms. [ N.J.S.A. 13:1E-3(a)]

Another definition for "solid waste" appears at N.J.A.C. 7:26-1.6:

(a) A solid waste is any garbage, refuse, sludge or any other waste material except it shall not include solid animal or vegetable wastes collected by swine producers, licensed by the State Department of Agriculture, who collect, prepare and feed such wastes to swine on their own farms.

(b) An "other waste material" is any solid, liquid, semisolid or contained gaseous material, resulting from industrial, commercial, mining or agricultural ...


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