November 30, 2007
GAETA RECYCLING CO., INC., PLAINTIFF-APPELLANT,
CITY OF PATERSON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-1667-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 7, 2007
Before Judges Skillman, Winkelstein and Yannotti.
Plaintiff, Gaeta Recycling Co., appeals from the provision of an October 13, 2006 final judgment that dismissed its challenge to an amendment to the City of Paterson's (the City) zoning ordinance, which changed an industrial I-1 zone to a residential R-2 zone in an area surrounding plaintiff's property.*fn1 We affirm.
Plaintiff operates a recycling facility in the City as a conditional use in an industrial zone that is surrounded by a residential neighborhood. At a special meeting on February 7, 2006, the City Council (the Council) discussed pending modifications to the City's zoning ordinance. An issue of concern to the Council was the effect of plaintiff's recycling facility and its potential expansion on the surrounding residential neighborhood.
The Council again addressed proposed ordinance changes at a meeting in March 2006. Councilman Thomas Rooney discussed calls from residents about rotting garbage and odors from the recycling facility. He was concerned that the recycling facility was "destroying the residential area." To address those concerns, the Council discussed changing the use of the property adjacent to plaintiff's facility from industrial to residential, and amending the zoning ordinance to provide the City with some regulatory authority over the facility.
During this meeting, the Council's consultant discussed rezoning the entire neighborhood. The consultant subsequently submitted a report that included a map illustrating the proposed rezoning of the neighborhood surrounding plaintiff's property from industrial to residential.
The ordinance passed on first reading on March 14, 2006, and was adopted on second reading on March 28, 2006. The ordinance reclassified the industrial district adjacent to plaintiff's recycling facility to residential. Another portion of the ordinance included provisions regulating solid waste facilities.
Plaintiff challenged the ordinance. In its complaint, plaintiff asserted that the ordinance was not adopted "in conformity with the applicable provisions of the Municipal Land Use Law;" however, the primary thrust of the complaint was at section 500-5.28 of the ordinance, which regulated solid waste facilities. Plaintiff claimed that jurisdiction to regulate those facilities reposed with the New Jersey Department of Environmental Protection.
In a June 28, 2006 pretrial order, the court established a briefing schedule and a trial date. The order listed the issues as whether "the ordinance was  adopted in conformity with the applicable provisions of the Municipal Land Use Law and [whether] the legislation is preempted by the Solid Waste Management Act, (N.J.S.A. 13:1K-1 et seq)."
The case was tried before the Law Division on September 29, 2006. The parties presented limited arguments. The focus of plaintiff's claim was on the preemption issue, not on the rezoning issue. Plaintiff made no argument before the trial court about the City's alleged procedural deficiencies in adopting the ordinance.
Following oral argument, the judge reached two conclusions:
(1) rezoning the property from industrial to residential was not arbitrary, capricious or unreasonable, and (2) the section of the ordinance that attempts to regulate recycling activities is invalid as it is preempted by the Solid Waste Management Act. In reaching his conclusion, the trial judge reasoned:
In this particular case, there has been . . . virtually no attempt to demonstrate that this ordinance is arbitrary, capricious or unreasonable. The only argument found in the brief is one of preemption and the
[c]court holds that there is no basis that the preemption argument . . . would invalidate the re-zoning of this property which is primarily residential from what I have been able to read in the papers. The area has been developed primarily as residential and the [c]court finds that there is nothing arbitrary, capricious or unreasonable in the Paterson City Council changing the zone of that area from industrial to residential.
On appeal, plaintiff raises the following issues:
A. The Change from I-1 to R-2 Constituted Reverse Spot Zoning.
B. Modification of the Zoning Ordinance to Eliminate Part of the I-1 Zone and Substitute it with an R-2 Zone Required Republication and Proper Notice.
C. The Council Should Have Referred the Amendments Back to the Planning Board.
D. No Consideration was Given to the City's Master Plan.
Plaintiff did not raise these issues in the trial court. Consequently, we choose not to address them on appeal. See Deerfield Estates, Inc. v. Twp. of E. Brunswick, 60 N.J. 115, 120 (1972) ("ordinarily no issue will be considered by the reviewing court unless raised and argued below"); see also County of Essex v. First Union Nat'l Bank, 186 N.J. 46, 51 (2006) (because bank asserted election of remedies argument against county for first time on appeal, appellate panel declined to address that issue and Supreme Court denied petition for certification); Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2008).
Though plaintiff's complaint makes a vague reference to the ordinance not being adopted in conformity with applicable provisions of the Municipal Land Use Law, in the Law Division proceedings plaintiff did not make the specific claims it makes here. We are mindful that the complaint was timely filed, see Rule 4:69-6(a) (providing forty-five days after accrual of right of review to file complaint in lieu of prerogative writs challenging municipal board decisions); nevertheless, plaintiff failed to raise the issues it now raises during the forty-five-day period within which to challenge the ordinance.
Plaintiff claims that we should remand the case to the Law Division because its complaint raises issues of public importance. We disagree. Unless the issue affects the court's jurisdiction or presents a "matter of real public importance," review is normally denied. Deerfield Estates, supra, 60 N.J. at 120. While the amendment of any ordinance has public ramifications, we do not find the issues raised by plaintiff to constitute matters of "real public importance" as to justify a remand.