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Clean Capital County Committee v. Albert E. Driver

Decided: September 21, 1988.

CLEAN CAPITAL COUNTY COMMITTEE, AN ASSOCIATION, COCOLA LIQUORS, MARK LAURENTI, PLAINTIFFS-RESPONDENTS,
v.
ALBERT E. DRIVER, JR., COUNTY CLERK OF MERCER COUNTY; AND THE MERCER COUNTY BOTTLE BILL COMMITTEE, AN ASSOCIATION CONSISTING OF AND AS REPRESENTATIVE OF THE DEFENDANT CLASS OF PETITIONERS JANINE BAUER, KATE ESPOSITO, EDWARD LLOYD, SEN. GERALD R. STOCKMAN, RICHARD J. SULLIVAN, FRIEDA APPLEGATE, TODD BRYAN, VIOLET COX, SAM SCOZZARO, DIANE WALKER, DEFENDANTS-APPELLANTS



On appeal from Superior Court, Law Division, Mercer County.

Petrella, Shebell and Landau.

Per Curiam

[228 NJSuper Page 508] The trial judge enjoined the County Clerk of Mercer County and defendants from placing on the November 1988 general election ballot a question proposed by initiative petition*fn1 (see N.J.S.A. 40:41A-104) filed by the Mercer County Bottle Bill Committee as to whether Mercer County should adopt an ordinance requiring deposits on certain bottles and cans (the

"Bottle Bill"). Suit opposing the initiative was brought by plaintiffs, comprised of an association of beverage distributors known as the Clean Capital County Committee, a beverage retailer, and an individual who is a resident of Mercer County. Although the trial judge rejected most of plaintiffs' contentions, and concluded that in other circumstances a county might enact a bottle bill deposit ordinance, he held that a deposit program had to be enacted as part of Mercer County's comprehensive solid waste management plan and also held that the Bottle Bill had been preempted by the Clean Communities and Recycling Act, N.J.S.A. 13:1E-99.1 et seq.

We are advised that Mercer County has not yet developed and obtained approval from the Department of Environmental Protection (DEP) of its own solid waste management plan. See N.J.S.A. 13:1E-1 et seq. Nor has it adopted a district recycling plan as required by the Laws of 1987, chapter 102 (N.J.S.A. 13:1E-99.11 et seq. and amending certain other statutes).*fn2 The Clean Communities and Recycling Act mandates statewide source separation and recycling of solid waste.

The trial judge concluded that the container deposit bill would not conflict with the Solid Waste Management Act, but that it would have to be part of a comprehensive recycling plan. Since there was no such plan then in effect for Mercer County he reasoned that the Bottle Bill ordinance could not be adopted prior thereto.

On this appeal defendants argue, among other things, that there was no preemption and that it was premature for the trial court to rule on the validity of the proposed ordinance.*fn3 We have considered the matter on an accelerated basis, and now reverse and remand with direction that the injunction be set

aside. The question is to be put on the ballot for consideration by the electorate of Mercer County.

Ordinarily, the court's review of the validity of an initiative ordinance prior to its enactment is limited to whether it is defective on its face, or the petitioners have failed to follow the statutory requirements. See McCrink v. West Orange, 85 N.J. Super. 86, 90-91 (App.Div.1964). We recognize that an initiative proposing an ordinance which is invalid on its face would result in useless effort and expenditures. City of Newark v. Benjamin, 144 N.J. Super. 58, 66-67 (Ch. Div.1976), aff'd 144 N.J. Super. 389 (App.Div.1976), aff'd 75 N.J. 311 (1978). There is, however, a strong public policy favoring the right of the voters to exercise their power of initiative. See N.J.S.A. 40:41A-104 and Concerned Citizens of Wildwood Crest v. Pantalone, 185 N.J. Super. 37, 43 (App.Div.1982) (liberal construction favored).

We agree with the judge below that there is no clear or facial preemption of such county legislation by the Solid Waste Management Act, particularly in light of the adoption of the various recycling statutes. However, the trial judge's conclusion that a container ordinance cannot validly be adopted unless it is part of the enactment of Mercer County's district recycling plan and comprehensive solid waste management plan does not necessarily invalidate this initiative. We note that the proposed ordinance states that it is to be deemed part of the District Recycling Plan required by N.J.S.A. 13:1E-99.13. While we recognize that under N.J.S.A. 40:41A-116 an initiative or referendum approved by the voters is binding on the county, nonetheless, the question presented in this instance would be subject to review and approval by the DEP before final implementation. N.J.S.A. 13:1E-24b.

Some municipal solid waste regulations have been preempted as a duplication of state regulation. See South Ocean Landfill, Inc. v. Mayor & Council, Tp. of Ocean, 64 N.J. 190 (1974); Chester Tp. v. Environmental Protection Dept.,

181 N.J. Super. 445, 452 (App.Div.1981). A county solid waste management plan, however, is not duplicative of the State plan because each county is required by statute to devise its own plan. Hence, cases dealing with municipal action are inapposite. A separate and distinguishable area of preemption may be seen with respect to the handling of toxic wastes. See, e.g., Rollins Environmental Services (N.J.), Inc. v. Logan Township, 209 N.J. Super. 556 (App.Div.1986), certif. den. 105 N.J. 510 (1986). Preemption does not occur unless there is a clear legislative intent to preempt, and this has not been demonstrated here. See Ringlieb v. Tp. of Parsippany-Troy Hills, 59 N.J. 348, 351 (1971).

We find no facial preemption by operation of N.J.S.A. 13:1E-99.1a which provides for certain taxes to support waste disposal efforts. Under the provisions of N.J.S.A. 13:1E-99.2 the tax collected is to be distributed in part to eligible municipalities to provide for litter pickup and removal programs. Section 2e recites that:

The Department of Environmental Protection shall develop model municipal and county litter control programs. To be eligible for a grant, a municipality or county must certify to the Department of Environmental Protection the adoption of one of the programs.

The tax is not levied if a state or federal container deposit law is enacted. N.J.S.A. 13:1E-99.6. The statute thus encourages local litter control programs. This purpose appears to be furthered by the Legislature's failure to revoke the tax and its distribution where a county bottle ordinance is enacted. While we recognize that a county deposit ordinance raises a ...


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