NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 15, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10827-10.
Ivan J. Whittenburg, Assistant Corporation Counsel, argued the cause for appellant (Anna P. Pereira, Corporation Counsel, attorney; Mr. Whittenburg, of counsel and on the brief).
Sandra T. Ayres argued the cause for respondent (Scarinci & Hollenbeck, L.L.C., attorneys; Ms. Ayres, of counsel and on the brief).
Before Judges Ashrafi and Guadagno.
Defendant City of Newark (City) appeals from the June 22, 2012 order of the Law Division declaring that portions of the City's land use ordinances and redevelopment plan were preempted by the Solid Waste Management Act, N.J.S.A. 13:1E-1 to -174 (SWMA), and the Comprehensive Regulated Medical Waste Management Act, N.J.S.A. 13:1E-48.1 to -48.28 (CRMWMA), to the extent that they pertain to the licensing, location and operation of plaintiff's proposed medical waste processing facility.
Defendant argues that the CRMWMA does not conflict with the City's land use ordinances and redevelopment plan with regard to the siting of medical waste management facilities, and therefore does not preempt same. We disagree and affirm based on the comprehensive written decision of Judge Rachel N. Davidson.
Plaintiff proposed to demolish the existing structure at 100 Lister Avenue, Newark, and construct a new building which would accept and process regulated medical waste. On July 8, 2010, defendant City of Newark Zoning Board of Adjustment (Board) heard testimony as to plaintiff's site plan, business operations and medical waste treatment process. The hearing continued on October 28, 2010, when the Board denied plaintiff's application.
On May 16, 2011, plaintiff filed a complaint in lieu of prerogative writs, seeking a declaratory judgment that the Board's denial of its application was invalid. After the Board and the City filed answers to plaintiff's complaint, plaintiff filed a motion for a declaratory judgment. Judge Davidson heard oral argument on plaintiff's motion on October 3, 2011.
On June 22, 2012, Judge Davidson entered an order accompanied by a written decision finding that the City's land use ordinances and redevelopment plan, promulgated pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -22, "to the extent that they pertain to the licensing, location and operation of plaintiff's proposed ...