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ERG Container Services, Inc. v. Board of CHosen Freeholders

June 24, 2002

ERG CONTAINER SERVICES, INC., AND GI AUTO SALVAGE CO., INC., PLAINTIFFS-APPELLANTS,
v.
BOARD OF CHOSEN FREEHOLDERS, MORRIS COUNTY, DEFENDANT-RESPONDENT, AND TOWNSHIP OF MONTVILLE, INTERVENOR/RESPONDENT.



On appeal from the Superior Court, Law Division, Morris County, Docket No. L-3592- 99.

Before Judges Pressler, Wefing and Coleman.

The opinion of the court was delivered by: Wefing, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 20, 2002

Plaintiffs ERG Container Services, Inc. and GI Auto Salvage Co., Inc. (ERG) appeal from an order of the trial court upholding a resolution of the Board of Chosen Freeholders of the County of Morris (Board, or Freeholders) denying ERG's request that the Board amend Morris County's solid waste management plan to include ERG as the operator of a materials recovery facility for construction and demolition debris. We have carefully reviewed the record in light of the contentions advanced on appeal and have concluded the order under review must be affirmed.

I.

Although the two companies operate different businesses, they are both owned by the same principals and do business from the same location, a 40-acre tract in Montville, New Jersey, which is located on Old Bloomfield Avenue near its juncture with Route 46. The property borders the Passaic River and is adjacent to a flood plain. It is zoned for business and industrial use. There are residential zones nearby, however. ERG Container Services, Inc. is licensed by the New Jersey Department of Environmental Protection (DEP) as a solid waste collector and transporter and it also leases containers. GI Auto Salvage Co., Inc. operates a junkyard under a license issued by Montville, which is subject to annual renewal. The site has been utilized as a licensed junkyard continuously since 1952. Montville's ordinance licenses ERG to receive "[o]ld or scrap copper, brass, rope, rags, batteries, paper, trash, rubber debris, waste or junked, dismantled, or wrecked automobiles, or parts thereof, iron, steel, and other old or scrap ferrous or nonferrous material."

Although Morris County has met the percentage goals set by the DEP for recycling (indeed, it is one of the few counties to do so), its solid waste management plan does not provide specifically for the handling of construction and demolition debris. One of the basic principles that Morris County has utilized in achieving its success in recycling is its insistence that materials be separated for recycling purposes at their source before entering the waste stream. As ERG's counsel argued to the trial court, source separation may often prove to be impracticable when dealing with construction and demolition waste; when a building is being renovated or rehabilitated, for example, a contractor generally will simply gut the building's entire interior and place the contents into trailers for disposal. It is DEP's view that this results in much of the debris being merely transported to landfills, rather than being diverted to other uses, including recycling.

In March 1998, DEP directed the Morris County Municipal Utilities Authority to submit a detailed administrative action plan (N.J.A.C. 7:26-6.11(b)9) setting forth how it proposed to increase recycling of construction and demolition waste. ERG proposed that it operate a materials recovery facility at its Montville location. According to ERG, it would collect construction and demolition waste in its own vehicles, transport it to a building it proposed to construct on-site, separate out those items which could be recycled, and then dispose of the remainder. ERG contended that such a facility would bring Morris County into compliance with the DEP's directive to the county and would also be a source of revenue to ERG.

ERG needed approval from the DEP to construct and operate such a facility, but under New Jersey's comprehensive system regulating the collection and disposal of solid waste, it could not seek such DEP approval without Morris County first amending its solid waste management plan in a manner that would include ERG.

All counties in New Jersey, as well as the Hackensack Meadowlands District, are mandated under N.J.S.A. 13:1E-23 to have a solid waste management plan. The statute provides that an amendment to such a plan must be submitted both to the county's Solid Waste Advisory Council and then to the Freeholders for approval. That procedure was followed here.

ERG's proposal generated significant opposition from the residents of Montville who lived in the area nearby ERG's property. They appeared both before the Solid Waste Advisory Council and the Freeholders to express that opposition. The Council considered ERG's application on two occasions and approved it on each. The intensity of the neighbors' opposition is reflected in a memorandum to the Freeholders by the Vice-Chairman of the Council, detailing the verbal abuse to which members of the Council were subjected by opponents to the project.

Following the approval of the proposed plan amendment by the Council, the matter was presented to the Freeholders, who then twice voted to reject the proposed amendment to the County's solid waste management plan. After the first resolution disapproving the amendment, ERG commenced an action in lieu of prerogative writs, and the trial court reversed and remanded the matter to the Board, finding certain deficiencies in how the Board had considered the matter. Thereafter, the Board held four additional hearings. It again voted to disapprove the amendment, and ERG responded by commencing a second action in lieu of prerogative writs in the trial court. This time, however, the trial court found that the Board had corrected the initial deficiencies, and refused to set aside the decision of the Board. ERG has appealed to this court from that order.

The trial court found that the Board, through the discussion among the members and the resolution they adopted, articulated four reasons why, in its view, the county's solid waste management plan should not be amended to include ERG's proposal to operate a materials recovery facility for construction and demolition waste: that there was no need for such a facility within the county; that plaintiff was not an environmentally responsible operator; that the site was ...


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