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DeFalco Instant Towing, Inc. v. Borough of New Providence

September 8, 2005

DEFALCO INSTANT TOWING, INC., BERKELEY COLLISION, INC., AND RICARDO A. VEGA, A TAXPAYER, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF NEW PROVIDENCE, DEFENDANT-RESPONDENT, AND GELORMINI'S AUTO REPAIR AND TOWING, INC., AND AGK TOWING AND RECOVERY, INC., DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Union County, UNN-L-810-03.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

APPROVED FOR PUBLICATION

Submitted January 4, 2005

Before Judges Stern, Coburn and Graves.

In this case, we are called upon to evaluate the validity of an amendment to a towing ordinance adopted by the Borough of New Providence (the Borough) on February 10, 2003, which gives preference to towing vendors who maintain a place of business within the Borough. Plaintiffs, DeFalco Instant Towing, Inc. (DeFalco), and Berkeley Collision, Inc. (Berkeley), towing vendors located outside of the Borough, and Ricardo A. Vega, a taxpayer, contend that the amendment is invalid because it is unlawfully discriminatory and exclusionary in violation of N.J.S.A. 40:48-2.49 and N.J.S.A. 40:11-3(1)(u). N.J.S.A. 40:48-2.49 authorizes a municipality to "regulate, by ordinance, the removal of motor vehicles from private or public property by operators engaged in such business," provided the ordinance sets forth "non-discriminatory and non-exclusionary regulations." N.J.S.A. 40A:11-5(1)(u) sets forth an exception to the public bidding requirement of the Local Public Contracts Law*fn1 for towing contracts, "provided that all such contracts shall be pursuant to reasonable non-exclusionary and non-discriminatory terms and conditions." The trial court concluded that "plaintiffs have not established that the Borough's decision was so egregious as to warrant judicial intervention." We disagree and reverse.*fn2

The Borough Code provides that the local Police Chief is responsible for maintaining an on-call list of licensed towing services (towers) available to respond to calls from the Borough Police Department. To be placed on the on-call list, towers must demonstrate to the Chief of Police that they maintain appropriate drivers, equipment, storage facilities, and insurance, and they are subject to such additional rules and regulations as may be promulgated by the Chief of Police. The Chief of Police is also authorized to remove a tower from the on-call list if the tower "fails to respond within twenty (20) minutes or refuses to respond and does not perform on-call service."

Plaintiffs, DeFalco and Berkeley, had been responding to service calls from the on-call list for a number of years. In 2002, the on-call list contained the names of four towing companies: DeFalco, Berkeley, Gelormini Auto Repair and Towing, Inc. (Gelormini), and Benham's Garage. The right to be the primary responder to towing calls from the Borough Police Department rotated on a weekly basis among these four companies.

In a memorandum dated March 3, 2003, the Borough's Police Captain of Community Services, E.J. Catallo, advised all towing vendors of the adoption of an amended ordinance that "gives towing preference to towing vendors who maintain a place of business within the Borough." Attached to the memorandum was a new towing schedule for March through December 2003. The on-call list included three columns designated as: "Primary Tower," "Secondary Tower," and "Reserve Tower." AGK Towing and Recovery, Inc. (AGK), and Gelormini, the only two towers with businesses located in the Borough, were the only towers scheduled as primary towers. During the weeks when Gelormini was listed as the primary tower, AGK was listed as the secondary tower and vice versa. DeFalco, Berkeley, and Benham's (all located outside the Borough) were listed on the on-call list only as reserve towers. Captain Catallo's memorandum explained that these "[o]utside vendors will be called if the primary or secondary vendor cannot perform their duties for whatever reason."

The amended ordinance, with additions underlined, reads as follows:

It is hereby determined under the lawful exercise of the police powers of the Borough of New Providence that public convenience and necessity require that the persons performing towing service for the Borough of New Providence or called for by a member of the New Providence Police Department shall perform on an on-call basis from a list promulgated by the Chief of Police pursuant to this chapter. Because the earliest possible response to a towing call is essential to the public health and safety, priority for on-call towing services shall be given to persons maintaining a place of business within the Borough of New Providence. [Emphasis added.]

We recognize that municipal ordinances, like statutes, are presumed to be valid and reasonable, and "[t]he burden of proof to establish that they are arbitrary and unreasonable rests on the party seeking to overturn them." Quick Check Food Stores v. Tp. of Springfield, 83 N.J. 438, 447 (1980) (citation omitted). Accord 515 Assocs. v. City of Newark, 132 N.J. 180, 185 (1993). "Legislative bodies are presumed to act on the basis of adequate factual support and, absent a sufficient showing to the contrary, it will be assumed that their enactments rest upon some rational basis within their knowledge and experience." Hutton Park Gardens v. Town Council of Town of W. Orange, 68 N.J. 543, 564-65 (1975) (citations omitted). "The underlying policy and wisdom of ordinances are the responsibility of the governing body, and if any state of facts may reasonably be conceived to justify the ordinance, it will not be set aside." Quick Chek, supra, 83 N.J. at 447 (internal citations omitted).

In the abstract, the stated purpose of the amendment, to provide "the earliest possible response to a towing call," seems rational and reasonable. Nevertheless, after examining the entire record, we conclude that plaintiffs have submitted ample proof, in the form of internal memoranda, minutes of a public hearing, and deposition testimony, to "preclude the possibility that there could have been any set of facts" known to the Mayor and Borough Council that would "rationally support a conclusion that the enactment [of the amended towing ordinance] is in the public interest." Hutton Park Gardens, supra, 68 N.J. at 565 (citations omitted).

The record reveals the following. In April 2002, the President of AGK and the President of Gelormini wrote a letter to the Mayor and Borough Council requesting that it enact an ordinance "to protect its business owners from outside ...


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