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Township of East Brunswick v. Middlesex County Board of Freeholders

Decided: December 14, 1987.

TOWNSHIP OF EAST BRUNSWICK, A MUNICIPAL CORPORATION; STANLEY FISCHER, SUSAN TAKACS, CECILIA SALVI, CLAIRE MARESE, AND AUDREY MANTEL, INDIVIDUALLY AND ON BEHALF OF ALL OTHER RESIDENTS OF THE TOWNSHIP OF EAST BRUNSWICK, SIMILARLY SITUATED, PLAINTIFFS,
v.
MIDDLESEX COUNTY BOARD OF FREEHOLDERS; UNION COUNTY BOARD OF FREEHOLDERS; MORRIS COUNTY BOARD OF FREEHOLDERS; SOMERSET COUNTY BOARD OF FREEHOLDERS; EDGEBORO DISPOSAL, INC., A NEW JERSEY CORPORATION; THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION; THE NEW JERSEY BOARD OF PUBLIC UTILITIES; AND JOHN DOE 1-10,000 REPRESENTING THE INDIVIDUAL GARBAGE HAULERS USING THE EDGEBORO LANDFILL, DEFENDANTS



Bachman, J.s.c.

Bachman

This is one of a series of cases which have emanated from the garbage crisis facing the State of New Jersey in general, and Central New Jersey in particular. It involves Edgeboro Landfill which has been serving, among others, Middlesex, Somerset, Union and Morris Counties.

The Complaint in this cause of action named as defendants the New Jersey Department of Environmental Protection (DEP) the Board of Public Utilities (BPU) Edgeboro Disposal, Inc. as well as the above numerated counties and various unidentified waste haulers. The plaintiffs are the Township of East Brunswick in which the Edgeboro facility is located and various citizens, taxpayers and residents of that municipality.

The complaint contained various allegations and prayers for relief. The court heard motions to dismiss on August 27, 1987. An order was entered dismissing Counts One and Two of the complaint and Counts Three and Four, in so far as injunctive relief was sought. The latter two counts also sought damages on behalf of the municipality and the individual plaintiffs for nuisance. The denial of that portion of the motion was without prejudice to the defendant's right to renew. It is that motion which is now before the court.

The DEP and BPU move to dismiss the remaining counts of the complaint based upon the immunities provided by the Tort Claims Act. In the alternative, the DEP and BPU seek to transfer this matter to the Appellate Division pursuant to the Single Controversy Doctrine. The counties of Middlesex, Morris, Somerset and Union as well as Edgeboro have joined in the State's motion.

In Count Three, plaintiffs contend that defendants' operation of the landfill constitutes a nuisance in that it has substantially interfered with plaintiffs use and enjoyment of their property. Specifically, it is alleged that due to the increase in the amount of waste being directed to the landfill and the manner in which such waste is being disposed of, there has been a concurrent

increase in truck traffic and, more importantly, in the vapors and odors emanating from the site. Plaintiffs argue that this situation endangers their health and safety and renders their property and homes uncomfortable.

In Count Four, it is contended that defendant counties have failed to make significant efforts to provide in-county garbage facilities. This failure, it is alleged, has permitted the counties to redirect their waste to Edgeboro thus contributing to and aggravating the nuisance conditions presently existing at the landfill.

In determining whether these two counts are actionable under the New Jersey Tort Claims Act, a two-step analysis is required. First, it must be established whether these particular defendants fall within the protection of the Act. And if so, it then must be determined whether the Act provides these defendants with immunity from the type of liability alleged herein.

Broadly speaking, the New Jersey Tort Claims Act reestablishes an all-inclusive immunity from tort liability for "public entities" except as otherwise provided by a specific provision therein imposing liability upon them. Fox v. Township of Parsippany-Troy-Hills, 199 N.J. Super. 82, 87 (App.Div.1985).

N.J.S.A. 59:1-3, the definitions section of the Act, states in pertinent part that "Public entity" includes "the State, and any other county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State." Moreover, the statute defines "State" as the State and any office, department, division, bureau, board, commission or agency of the State. In interpreting the meaning of these terms, the following analysis is generally applied:

The two definitions, "Public entity" and "State" should be viewed as follows: the former is a greater inclusive grouping based on sovereignty, i.e. political subdivision; the second is a lesser ...


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