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In re Department of Community Affairs Order of March 15

Decided: April 12, 1989.

IN RE DEPARTMENT OF COMMUNITY AFFAIRS ORDER OF MARCH 15, 1988 REGARDING BURLINGTON COUNTY RECYCLING FACILITY


On appeal from a final administrative decision of the Commissioner of the Department of Community Affairs, State of New Jersey.

Petrella, Gruccio and Landau. The opinion of the court was delivered by Landau, J.A.D.

Landau

Delran Township (Delran) appeals from a final decision of the Department of Community Affairs (DCA) whereby it exercised power under N.J.S.A. 52:27D-124(k) to issue a Certificate of Occupancy to the County of Burlington (the County) for a recycling facility in Delran. We affirm.

FACTS

In 1984, Burlington County decided to construct a recycling center in Delran, and purchased 4.5 acres of land near Route 130 for its construction. On March 27, 1987, in accordance with the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq., the Department of Environmental Protection (DEP) issued an Environmental Impact Statement Approval and Findings of Facility Consistent with the Solid Waste Management Plan for the recycling center, thereby allowing construction and operation of the center. The facility was constructed, but not without court proceedings required to compel Delran's construction official, Donatius McMahon, to issue a construction permit.

When the County applied to McMahon for a Certificate of Occupancy in January 1988, it was denied. One reason given was asserted plumbing subcode violations. It was also denied by McMahon, on advice of the township attorney, because "prior approvals" had not been obtained, particularly adoption and approval of a recycling plan by DEP in accordance with the New Jersey Statewide Mandatory Source Separation and Recycling Act, N.J.S.A. 13:1E-99.11 et seq.

Thereafter, the County Administrator sought the DCA's intervention to impartially perform the final construction code inspection. The Administrator suggested that Delran was trying to delay the project. The Administrator urged: "Burlington County has invested considerable financial resources in an effort to accommodate numerous requests by the municipality. However, at this time existing landfill capacity is quickly diminishing, and it is essential to fully implement Burlington County's

Recycling Program which necessitates the operation of this facility."

The DCA concluded that there were no outstanding DEP "prior approvals" required which would bar issuance of a Certificate of Occupancy. This was based on information received from a DEP representative and confirmed by letter dated February 25, 1988. On February 29, 1988, the DCA advised McMahon that DEP "prior approvals" were not at issue, and ordered him to issue a Certificate of Occupancy within 48 hours or advise the DCA of the remaining outstanding issues within the same time frame. No certificate was issued, nor did McMahon respond to the DCA by supplying a list of remaining problems.

The County again applied for a Certificate of Occupancy on March 14, 1988. However, by March 15, the DCA had issued an order, pursuant to N.J.S.A. 52:27D-124(k), assuming State Uniform Construction Code Act (Code) jurisdiction over the project to ensure that the Code was administered objectively.

Although Delran claims that the DCA issued the order before it had an opportunity to act on the County's application, it ignores the previous history of denial and delay.

On March 16, 1988, the DCA inspected the premises and issued a temporary certificate. A permanent certificate was conditioned upon correction of a sprinkler system problem and final approval by the County Soil Conservation District. Neither condition was determined to ...


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