On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-3000-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Weissbard.
Plaintiff, Select Towing (Select), appeals from an order of summary judgment dismissing its complaint in lieu of prerogative writs. Plaintiff's complaint challenged the constitutionality of a portion of an ordinance enacted by defendant, Township of West Orange (the Town), regulating towing. We reverse and remand for further proceedings.
On February 21, 2006, the West Orange Township Council enacted an amendment to the Township's ordinance entitled, "Police-Requested Towing and Storage Services," which included the following provision:
e. No licensee may be listed more than once and no licensee may rent or lease equipment, employees or storage spaces from or to any other licensee in the West Orange Township rotation, or enter into any other arrangements the effect of which will multiply the licensee's participation in the rotation. Additionally, no licensee shall lease equipment, employees or storage space from any towing vendor who currently leases equipment, employees or storage space to any other licensee.
Plaintiff is a towing company licensed under the West Orange ordinance. Plaintiff not only tows and stores vehicles, but also rents out tow vehicles, tow equipment and property for the storage of towed vehicles. On April 7, 2006, plaintiff filed a complaint in lieu of prerogative writs alleging that:
8. By adopting its ordinance and including such preclusionary provision therein, defendant, West Orange, has restrained and precluded any past or future applicant from towing within the municipality from renting or leasing from a licensee, [while] allowing such applicant to rent or lease from a company which is not itself a licensee, but which leases to others who are licensees.
9. By adopting its ordinance, defendant, West Orange, has acted arbitrarily and capriciously and without regard for the business of plaintiff or any other licensee or potential licensee of the Township.
10. By adopting its ordinance, defendant, West Orange, has interfered with plaintiff's ability to engage in its business, thus damaging plaintiff.
11. By adopting its ordinance, defendant, West Orange, has violated plaintiff's right to equal protection in contravention of 42 USC Section 1983 and the New Jersey Constitution.
12. By adopting its ordinance, defendant, West Orange, has unfairly discriminated against plaintiff to plaintiff's detriment and in violation of Federal and State Laws Against Discrimination.
13. By adopting its ordinance, defendant, Township of West Orange, has engaged in unfair practices in violation of its obligation to act fairly to all citizens of the municipality.
14. Defendant, West Orange, is further liable for plaintiff's counsel fees and costs pursuant to 42 USC Section 1988 and ...