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Kohlbrenner Recycling Enterprises Inc. v. Burlington County Board of Chosen Freeholders

Decided: August 5, 1987.

KOHLBRENNER RECYCLING ENTERPRISES, INC., PLAINTIFF,
v.
BURLINGTON COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANT



Haines, A.j.s.c.

Haines

The County of Burlington adopted Recycling Plan Amendment # 86-3 to its Solid Waste Management Plan on August 13, 1986. The plan was approved by the Department of Environmental Protection ("DEP") on December 5, 1986.

The County's plan is a broad implementation of its Solid Waste Management Plan. It relies in part upon a contract executed on May 28, 1986, with the Occupational Training Center of Burlington County, Inc. ("OTC") for the actual collection and marketing of recycled materials. The agreement includes but is not limited to the recycling of newspapers, glass and cans.

Kohlbrenner, before and after January 1, 1986, has operated a recycling business, dealing with glass, cans, white goods, metals and tires. It serves a substantial number of municipalities through contractual arrangements. This suit, filed on June 11, 1987, seeks an order providing various forms of injunctive relief. Among other things, Kohlbrenner claims the right to be included in the County's recycling plan and requests the court to enjoin completion of the latter's new recycling facility in Delran Township, a facility now about one-third completed. The OTC and the Township of Delran have filed amicus briefs.

Kohlbrenner's principal argument rests upon the provisions of the Mandatory Recycling Program, L.1987, c. 102 (the "act"), an act which became effective on April 20, 1987. Section 3 of the act requires every county to "accord priority consideration to persons engaging in the business of recycling . . . on behalf of a county or municipality on January 1, 1986." Kohlbrenner, in that business on that date, claims correctly that the County's recycling plan fails to provide the required consideration. The County, however, argues that this court lacks jurisdiction, that

the suit is time-barred and that Burlington County is exempt from the priority requirement upon which Kohlbrenner relies.

This opinion responds to an order to show cause obtained by Kohlbrenner.

A. Jurisdiction

The County's jurisdictional argument, with which OTC agrees, is correct.

R. 2:2-3(a)(2) establishes jurisdiction in the Appellate Division ". . . to review final decisions or actions of any State administrative agency or office. . . ." The section of the act upon which Kohlbrenner relies provides: "Each district recycling plan . . . shall accord priority consideration to persons engaged in the business of recycling. . . ." The claimed consideration therefore must be provided in the plan itself. That plan was adopted by the County August 13, 1986.*fn1 The DEP approved the plan on December 5, 1986. It is the action of the DEP in approving the plan, which in fact does not give "priority consideration" to Kohlbrenner, that is the object of the present suit. That action cannot be bypassed by suing only the County. A challenge to the DEP is necessary; it has to be filed in the Appellate Division, not here. This court does not have jurisdiction.

A restraint against construction of the Delran Recycling Plant is also sought in this suit. That construction is part of the plan approved by the DEP. Furthermore, acquisition of the Delran ...


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