August 9, 2012
F&M HOLDINGS, LLC, PLAINTIFF-RESPONDENT,
MERCER COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANT, AND EYES OF TRENTON CIVIC ASSOCIATION, INTERVENOR-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1807-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 15, 2012
Before Judges Yannotti, Espinosa and Kennedy.
Intervenor, Eyes of Trenton Civic Association (ETCA), appeals from a May 3, 2011 order of the Law Division invalidating an ordinance of the Mercer County Board of Chosen Freeholders (Board) that amended the Mercer County Solid Waste Management Plan to preclude the use of property owned by plaintiff F&M Holdings, LLC (F&M) as a recycling facility. In a fifty-five page written opinion, Judge Linda A. Feinberg determined that the action of the Board was not supported by "substantial evidence" as required by N.J.S.A. 13:1E-23(e) and was undertaken without a required referral to the Solid Waste Advisory Council (SWAC).
ETCA contends the trial court erred because the Board's action was supported by substantial evidence and because the Board consulted with the Solid Waste Advisory Council before deciding to amend the Mercer County Solid Waste Management Plan (Plan). The Board has not appealed from the order for summary judgment. Having considered the arguments of ETCA in light of the applicable legal standards, we affirm substantially for the reasons expressed by Judge Feinberg in her thoughtful and comprehensive written opinion. We determine that ETCA's arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
F&M owns property in Trenton located within a "Heavy Industrial B" zone that had been used for manufacturing since the 1920s. The property contains a 100,000 square foot building with various bays and warehouse doors that can accommodate trucks and tractor-trailers. In 2007, F&M leased the property to another entity, Central Jersey Waste & Recycling, Inc. (CJ), to house vehicles used for collecting and transporting solid waste and recyclable materials.
The Trenton Zoning Board of Adjustment determined that such use required no variance and was permitted in that zone. Subsequently, CJ applied to the Trenton Planning Board for preliminary and final site plan approval to use the building for offices and for vehicle maintenance and storage. In support of the application, CJ presented a traffic study, approved by the Trenton Traffic Engineer, stating essentially that streets in the area could accommodate the business.
The Planning Board approved the application pursuant to a resolution that stated, among other things, "no recycling will take place on the site." At this time, F&M applied to the Mercer County Improvement Authority (Authority) to amend the Plan to permit a class A recycling facility on the property.*fn1 A revised traffic study was submitted by F&M in support of its application.
F&M thereafter conferred with various officials and residents of Trenton concerning its application. The application was then forwarded by the Authority to the Solid Waste Advisory Council (SWAC), which held a public hearing on the application on August 11, 2009. SWAC approved the application and the Authority submitted the application, the SWAC resolution and other materials to the New Jersey Department of Environmental Protection (NJDEP) for review.
On October 5, 2009, based upon traffic and other concerns raised by Trenton's Mayor, as well as by local residents, the NJDEP remanded the matter to the Authority and SWAC for additional information on traffic issues and to allow further meetings with Trenton officials and ETCA, which opposed the application. As a consequence of its meetings, F&M submitted a revised traffic plan and study that essentially eliminated truck traffic on the "main residential streets" adjoining the property.
On January 4, 2010, the NJDEP approved the plan amendment. Thereafter, the Board held hearings and the adopted an ordinance amending the Plan to remove a class A recycling facility from the property. On July 12, 2010, F&M filed a complaint in lieu of prerogative writs against the Board. F&M and the Board filed opposing motions for relief, but agreed to adjourn the motions pending administrative action before the NJDEP.
On November 18, 2010, the NJDEP rejected the Board's action, based on its failure to provide notices required by the Solid Waste Management Act (the Act), N.J.S.A. 13:1E-1 to -223. The Board cured the notice deficiencies, and a hearing was then scheduled in the Law Division on the matter.
Judge Feinberg, as noted earlier, granted F&M's application for relief and explained her reasoning in a thorough fifty-five page written opinion. Judge Feinberg noted that F&M was challenging the Board's approval of the amendment to the Plan. The judge pointed out that N.J.S.A. 13:1E-23(e) requires that a solid waste management plan be supported by substantial evidence. The judge concluded that, based on the testimony and evidence presented to the Board, the Board's findings were not supported by credible evidence and therefore were arbitrary, capricious, and unreasonable. She also concluded that the Board failed to submit the amendment to SWAC. Judge Feinberg entered an order on May 3, 2011, declaring the ordinance "invalid and of no force and effect . . . ."
This appeal followed.
ETCA contends that the Board "did follow" the requirements of the Act for amending the Plan and that the Board's action was "supported by substantial credible evidence." We disagree.
Under the Act, a county's solid waste management plan can be amended in one of two ways. The first, by administrative amendment, governs the inclusion in existing county plans of new recycling facilities for class A recyclable materials. See N.J.A.C. 7:26-6.11. This type of amendment must be submitted to the NJDEP for approval. N.J.A.C. 7:26-6.11(d). The second way, by plan amendment, is a more comprehensive process and is required when removal of a solid waste facility from a county plan is sought. See N.J.A.C. 7:26-6.10.
A plan amendment requires the Board to hold a public hearing to receive comments from persons interested in the plan amendment. N.J.A.C. 7:26-6.10(c). Prior to the public hearing, the agency must publish notice twice within a strict timeframe. Further, the Board must consult with the local solid waste advisory council prior to adopting the plan. N.J.S.A. 13:1E-23 provides in relevant part: the respective boards of chosen freeholders . . . shall have the power, after consultation with the relevant advisory solid waste council, to adopt a solid waste management plan.
Here, the first action taken with regard to the recycling facility occurred with F&M's application for an administrative amendment in March 2009. F&M's application was reviewed by the Authority and then forwarded to SWAC for review. SWAC's August 11, 2009, public hearing concerned only the application to include the recycling facility in the county plan. After this hearing, SWAC voted to approve the administrative amendment and subsequently submitted it to NJDEP for approval. As we have noted, NJDEP then remanded for further factfinding, which the Authority completed. Thereafter, on January 4, 2010, NJDEP approved the administrative amendment to include the facility in the Plan.
A month after NJDEP's final agency action approving the administrative amendment, the Board initiated a new proceeding that constitutes the second action taken regarding the recycling facility. On February 5, 2010, the Board initiated its series of hearings in an effort to override the NJDEP's decision and remove the facility from the Plan. The Board did so without the input or support from either the Authority or SWAC, and thus, the Board did not comply with N.J.S.A. 13:1E-23.
Finally, as noted, we agree with the conclusion of Judge Feinberg that the Board's amendment to the Plan was not supported by substantial evidence.