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State of New Jersey v. Veolia Environmental Waste

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 5, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VEOLIA ENVIRONMENTAL WASTE, DEFENDANT-APPELLANT,

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 10-041.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 24, 2012

Before Judges Baxter and Nugent.

Defendant Veolia Environmental Waste appeals from the May 17, 2011 Law Division order that denied its motion to dismiss two summonses to which it had conditionally pled guilty in the Township of East Hanover Municipal Court. The summonses charged defendant with collecting solid waste on two separate days, once at 7:15 a.m. and once at 7:16 a.m., in violation of the Township of East Hanover (the Township) ordinance that restricts collection of solid waste in the Township's B-2 Highway Business Zone to the hours of noon to 5:00 p.m. Defendant argues in this appeal:

POINT ONE

THE STANDARD OF REVIEW IS PLENARY POINT TWO

THE LAW DIVISION ERRED IN ENTERING JUDGMENT AGAINST VEOLIA, BECAUSE EAST HANOVER'S ORDINANCE EXCEEDS THE SCOPE OF REGULATORY AUTHORITY DELEGATED BY THE LEGISLATURE AND IS THEREFORE INVALID POINT THREE EAST HANOVER'S ORDINANCE IS ARBITRARY, CAPRICIOUS, AND UNREASONABLE, IS AGAINST PUBLIC POLICY, AND IS, THEREFORE, VOID AS A MATTER OF LAW

A. The Ordinance Is Arbitrary, Capricious, and Unreasonable Because It Selects Only One of Many Types of Noise-Generating Commercial Activity for Special Restrictions, and Because Those Restrictions Dramatically Exceed the Identified Need

B. The Ordinance Is Void As Against Public Policy

POINT FOUR

THE LAW DIVISION FAILED TO TAKE JUDICIAL NOTICE THAT THE ORDINANCE APPLIES TO HOURS WHEN MOST RESIDENTS ARE AWAKE

We agree with defendant that the Township's ordinance is inconsistent with the legislation that delegates to municipalities the authority to regulate the hours when garbage and other solid waste can be collected. Accordingly, we reverse defendant's convictions.

I.

The facts are undisputed. Defendant conducts a business that includes the collection of solid waste. Its tariff*fn1 provides that it "shall pick-up waste between the hours of 2:00 a.m. and 6:00 p.m. throughout the year 6 days per week," with the exception of certain designated holidays. Defendant collects solid waste in the Township.

Section 207-3C(1) of the Township Code restricts collection of solid waste in the B-2 Highway Business Zone "to the hours of noon to 5:00 p.m. unless waiver therefrom has been granted by the Township Council following application by the responsible solid waste generator and a public hearing thereon."

On July 28, 2010 at 7:15 a.m. and on August 30, 2010 at 7:16 a.m., defendant's employees collected garbage at establishments located in the Township's B-2 Highway Business Zone. On each occasion, the employees received summonses for violating Section 207-3C(1) of the Township Code. Defendant entered conditional guilty pleas in municipal court, filed for a trial de novo in the Law Division, then moved before the Law Division to dismiss the complaints.

The Law Division denied defendant's motion and imposed a $100 fine plus court costs on each conviction. The Law Division provided a written statement of reasons for its decision. Rejecting defendant's argument that the Township's ordinance exceeds the scope of regulatory authority delegated by the Legislature, the Law Division reasoned:

This Court notes that Veolia has not offered any evidence in support [of] its argument. That is, Veolia has not presented any evidence to demonstrate that there are certain hours between 5:00 p.m. and noon when most residents are not sleeping. Without any factual support, this Court does not lend significant weight to this argument and instead defers to the rule of the Court, that "[l]egislative 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 West Orange, 68 N.J. 543, 564-565 (1975). In deferring to the presumed factual basis of the Municipality and absent any factual support to Appellant's argument, this Court finds that the ordinance does not exceed the regulatory authority delegated within N.J.S.A. 40:66-1.6(b).

This appeal followed.

II.

When reviewing a trial court's decision, we generally defer to the court's findings of fact, but the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Accordingly, review of defendant's challenge to the Township's ordinance is de novo. See State v. Clarksburg Inn, 375 N.J. Super. 624, 631 (App. Div. 2005).

A.

We begin with the well-settled principle, "established beyond question[,] that municipalities . . . have no powers save those delegated to them by the Legislature and the State Constitution." Dome Realty, Inc. v. City of Paterson, 83 N.J. 212, 225 (1980). The Legislature has vested municipalities with general and regulatory powers. See N.J.S.A. 40:48-1. Additionally, "N.J.S.A. 40:48-2 constitutes an abundant reservoir of police power granted municipalities by the Legislature." Plaza Joint Venture v. City of Atlantic City, 174 N.J. Super. 231, 237 (App. Div. 1980). "Ordinances enacted in support of this police power carry a presumption of validity and there is a heavy burden on anyone seeking to overturn such ordinances." Ibid. (citing Hutton Park Gardens v. Town Council of W. Orange, 68 N.J. 543, 564 (1975)).

In addition to granting general powers such as those contained in N.J.S.A. 40:48-1 and -2, the Legislature may authorize municipalities to act under statutes that place limitations on municipal power. In sum, the Legislature may grant power to local government in a variety of ways:

It may grant power without any restriction by way of stated standards for its exercise.

This of course is the usual format. Or the Legislature may limit the grant by specifying standards as it did in the case of zoning (the Constitution itself contains some standards with respect to delegation of that power, Art. IV, § 6, ¶ 2). Or the Legislature may itself fashion a detailed treatment of a subject, and leave it to local government (or to the local electorate) to choose whether the statute shall operate within its borders. [Inganamort v. Borough of Fort Lee, 62 N.J. 521, 528 (1973).]

When analyzing the validity of municipal ordinances, a court must consider whether the local regulations are preempted by state law. Preemption is "a judicially created principle based on the proposition that a municipality, which is an agent of the State, cannot act contrary to the State." Overlook Terrace Mgmt. Corp. v. Rent Control Bd. of W. N.Y., 71 N.J. 451, 461 (1976) (citing Summer v. Teaneck, 53 N.J. 548, 554 (1969)). Where the Legislature has preempted a field, but expressly granted a limited power to municipalities to adopt ordinances in furtherance of the State's goals, the court must determine whether the ordinance is consistent with the enabling statute. See D.L. Real Estate Holdings, L.L.C. v. Point Pleasant Beach Planning Bd., 176 N.J. 126, 132 (2003). This is our task in the case before us.

B.

Time-of-day waste collection ordinances have a well-known judicial and legislative history. We held in Forgione, supra, 322 N.J. Super. at 451, that regulation of "the hours of solid waste collection" had been preempted by the State, and therefore a municipal ordinance that restricted collection hours conflicting with those authorized by "[t]he State agency with authority to administer the field" was invalid. In response to our decision in Forgione, the Legislature amended the relevant statutes and authorized municipalities to restrict the hours of solid waste collection. N.J.S.A. 40:66-1.6 provides in relevant part: a. . . . [A] municipal governing body . may adopt an ordinance limiting solid waste collection service to specified operating hours in order to preserve the peace and quiet in neighborhoods during the hours when most residents are asleep.

b. Any solid waste collection uniform tariff for the provision of residential solid waste collection service, which designates hours of operation that are contrary to the operating hours specified in the ordinance adopted pursuant to subsection

a. of this section, shall be superseded by the hours of operation indicated in the ordinance. [(Emphasis added).]

Another statute, N.J.S.A. 40:66-5.1, authorizes municipalities to adopt ordinances requiring "proof of service" for solid waste collection. The part of the statute relevant to this appeal states:

Any proof of service ordinance may include provisions limiting regular solid waste collection service to specified operating hours in order to preserve the peace and quiet in neighborhoods during the hours when most residents are asleep. [Ibid. (emphasis added).]

The underscored statutory language makes clear that municipal authority to regulate hours of waste collection is not absolute, but is instead restricted to "the hours when most residents are asleep." The Township Code is inconsistent with that restriction.

The ordinance does not expressly state that it is being adopted under the enabling authority of N.J.S.A. 40:66-1.6 or 5.1; and does not suggest that it is being adopted to preserve the peace and quiet in neighborhoods during the hours when most residents are asleep. Rather, the ordinance's prefatory language implies that it is being adopted under the Township's police power. The ordinance's preamble provides:

WHEREAS, it has come to the attention of the Township Council that the health and welfare of persons living in close proximity to certain commercial operations are being endangered by the lack of control over the hours of collection of garbage and other solid waste at such commercial operations, and

WHEREAS, The Township wishes to readopt Chapter 207 of the Code of the Township of East Hanover with certain amendments, revisions and supplements to incorporate provisions to address the lack of such control,

NOW THEREFORE . . .

The Township's expressed need to regulate because "the health and welfare of persons living in close proximity to certain commercial operations are being endangered" suggests the exercise of the Township's police power under N.J.S.A. 40:48-2, which authorizes a municipality to make and enforce ordinances "not contrary" to state laws when the municipality deems such regulation "necessary and proper" for, among other things, "the preservation of the public health, safety and welfare of . . . its inhabitants[.]"

The absence of any reference to N.J.S.A. 40:66-1.6 or -5.1, and the governing body's adoption of the ordinance under its police power, rather than under the enabling legislation in the State-preempted field of solid waste management, neutralizes the presumption of validity ordinarily associated with a piece of municipal legislation. The noon to 5:00 p.m. window permitted under the ordinance is facially untethered to the Legislature's concern that solid waste collection service not take place "during the hours when most residents are asleep." N.J.S.A. 40:66-1.6.

We emphasize that our holding should not be construed as suggesting what time restrictions may be appropriate for a particular municipality. Any such ordinance, however, must be adopted pursuant to N.J.S.A. 40:66-1.6 or 40:66-5.1, and be based on a rational explanation for the selection of the restricted hours.

In view of our determination, we need not reach defendant's other claims.

Reversed.


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