TRIPLE M SANITATION SERVICES INC. v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF MIDDLESEX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2688-08T32688-08T3

TRIPLE M SANITATION SERVICES,

INC. D/B/A STANDARD WASTE

SERVICES, INC. and STANDARD WASTE

SERVICES, INC.,

Plaintiffs-Appellants,

v.

BOARD OF CHOSEN FREEHOLDERS

OF THE COUNTY OF MIDDLESEX,

Defendant-Respondent.

__________________________________

 

Argued: December 2, 2009 - Decided:

Before Judges Axelrad and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1345-07.

Harry L. Starrett argued the cause for appellants.

Niki Athanasopoulos, Deputy County Counsel, argued the cause for respondent (Thomas F. Kelso, Middlesex County Counsel, attorney; Ms. Athanasopoulos, on the brief).

PER CURIAM

Plaintiffs, New Jersey and New York licensed solid waste and recycling haulers and transporters under common ownership, appeal from the judgment entered in their prerogative writs action affirming the Middlesex County Board of Chosen Freeholder's (Board) denial of their application for inclusion of their proposed Class A Recycling Facility in the county's solid waste management plan. Appellants assert error by the trial court in not excluding from the record, pursuant to their motion in limine, a January l0, 2008 memorandum to the Board from Richard Hills, a Division Head of the county's Division of Solid Waste Management (DSWM) and member of the Solid Waste Advisory Council (SWAC). Appellants also argue the court improperly ruled that it was their burden to show unequivocal need for the facility in Middlesex County and erred in finding that the Board's action was not arbitrary, capricious, or unreasonable. We affirm.

We briefly summarize the factual and procedural history of this case as it is set forth in detail in Judge Hurley's comprehensive written opinion of December 23, 2008. The site of appellants' proposed Class A Recycling Facility is in an industrial manufacturing district zone of East Brunswick improved with an office-type building in the front and a warehouse in the rear. The warehouse, in which the proposed recycling center would operate, is set back about 300 feet from the property's boundary with Edgeboro Road, placing it approximately l,l00 feet from the nearest residential lot. The property is also located near the county landfill. Edgeboro Road maintains a consistent flow of truck traffic providing direct access to Route l8, an arterial roadway intersecting the New Jersey Turnpike.

Appellants made several presentations to the SWAC with respect to their application for inclusion, participated in the public hearing before the DSWM and the Board, and submitted numerous site plans, as well as expert testimony and environmental, traffic, and noise studies to the SWAC and to the DSWM. The SWAC made a recommendation to the Board to reject appellants' application, memorialized in a memorandum from Hills dated December 8, 2006. Joseph Butrica, the Recycling and Solid Waste Coordinator for the Township of East Brunswick, the host community, who was also a member of the SWAC, appeared before the DSWM and the Board in opposition to the application, as did the president of the neighborhood association and several neighbors. Other neighbors expressed their concerns through letters, emails and petitions. The Board received copies of the DSWM public hearing transcript along with the evidence offered and compiled throughout appellants' application process.

At the close of the hearing on December 21, 2006, the Board adopted Resolution #06-2252, denying appellants' application for plan inclusion of a Class A Recycling Facility. Following an appeal to the court, Judge Hurley remanded the matter to the Board on December 4, 2007 to adopt findings of fact and conclusions of law. In accordance with the county departmental procedure, on January l0, 2008 Hills made a resolution request to the office of county counsel and attached backup information supporting the request, comprised of a memorandum that summarized the history of appellants' application and the SWAC's findings that formed the basis of its recommendation to the Board with reference to submissions that were part of the record at the time of the 2006 decision. Pursuant to the court's directive, by Resolution #08-224, dated February 7, 2008, the Board adopted findings of fact and conclusions of law, specifically set forth in the attached Exhibit "A," supporting its denial of appellants' application. This appeal ensued.

Appellants argue that Hills' January l0, 2008 memorandum should have been excluded from the record because it post-dated the December 21, 2006 date on which the Board adopted the resolution denying their application and contained his expert opinions and recommendations to which they had no opportunity to respond. Pointing to the similarity between Hills' memorandum and the attachment to the Board's resolution, appellants urge that the Board improperly and prejudicially relied on the post-remand memorandum when its function was to make findings of fact and conclusions of law based solely on the prior record.

We are not convinced the trial court abused its discretion when it did not exclude Hills' memorandum in response to appellants' in limine motion or hold that the Board's findings contained in the February 2008 resolution were deficient. Hills was not a rebuttal expert. To assist each board of chosen freeholders in the development, formulation, and adoption of its solid waste management plans, N.J.S.A. 13:1E-20(b)(1) provides for the establishment of a SWAC in every county, comprised, in part, of "municipal mayors or their designees, persons engaged in the collection or disposal of solid waste and environmentalists." The freeholders rely on the members who are appointed to this advisory council based on their individual areas of expertise, knowledge and experience, regarding such areas as solid waste management, environmental issues and citizen concerns. Hills, as a Division Head of the DSWM and a member of the SWAC, was involved in the review of appellants' application from the outset and prepared a variety of submissions throughout the process. His January 10, 2008 memorandum was merely a memorialization of information contained in the record. It is no different than a report routinely generated by a staff person who compiles and summarizes a lengthy administrative record and performs an analysis of the submissions and comments to assist a board in preparing a detailed resolution.

Moreover, the record considered by the Board when it voted to deny appellants' application, belatedly reflected in the findings contained in Exhibit A of Resolution #08-224, indicated, for example, the fact of and basis for the host community's opposition to the application; the township's, SWAC's and neighbors' repeated concerns with deficiencies in the application; increased traffic on the already-overdeveloped Edgeboro Road and impact on the infrastructure; increased noise, dust, odor and environmental impacts from the proposed facility's operations; close proximity of the proposed facility to a large single-family development; and the presence of automotive fluids on the site.

In reviewing the Board's denial of appellants' application, Judge Hurley correctly concluded that the Board had discretion to decide whether to include a new Class A Recycling Facility in its solid waste management plan. The court also recognized the longstanding principle that a board or agency's action is presumed valid and the party attacking the action has the burden of demonstrating otherwise. See Brady v. Dep't of Pers., 149 N.J. 244, 256 (l997); Nextel of N.Y. v. Borough of Englewood Cliffs Bd. of Adjustment, 36l N.J. Super. 22, 38 (App. Div. 2003). As the court noted, appellants' burden was even more difficult in this instance because of the strong objections of the host municipality and the SWAC to appellants' application, which the Board found persuasive. The court's reference to "a showing of unequivocal need" for another Class A Recycling Facility within the county was merely illustrative of the type of evidence that might be sufficient to overcome the Board's discretion and mandate the inclusion of another such recycling center into the district's solid waste management plan. The court also found that appellants did not present "substantial evidence . . . proving that the Board clearly erred in denying its application for inclusion." Accordingly, "the solid waste planning expertise embodied by the Board, as recognized by the State Legislature, would be undermined by th[e] [c]ourt forcing the inclusion of another Class A Recycling Center in Middlesex County."

The judicial role in reviewing decisions of administrative agencies is limited. Our sole function is to determine whether the administrative action is arbitrary, capricious or unreasonable. Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005); Henry v. Rahway State Prison, 81 N.J. 571, 579-580 (1980). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). In reviewing the agency's actions under this limited standard, we analyze whether the findings of the agency could have been reached on the substantial credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); see also N.J.S.A. 13:1E-23(e) (providing that a board of chosen freeholders may adopt or reject a solid waste management plan and setting forth a "substantial evidence" standard).

In establishing the requisite "substantial evidence" standard, the decision must be supported and evidenced by scientific and factual proof as not to be arbitrary, political and unreasonable. Waste Disposal, Inc. v. Monmouth County Bd. of Chosen Freeholders, 254 N.J. Super. 205, 220 (Law Div. l99l). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. l956). Furthermore, "[w]here there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990) (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)). In such a situation, we cannot substitute our judgment for that of the agency, even if we would have decided the case differently had we heard the evidence.

As noted by Judge Hurley, the agency's action enjoyed a presumption of validity and the burden of showing that the agency's decision was arbitrary, capricious or unreasonable rested upon appellants. Nextel, supra, 361 N.J. Super. at 38. See also Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. l986), aff'd, 107 N.J. 355 (1987). From our examination of the record, we are convinced appellants did not satisfy this burden. After receiving input and submissions from the DSWM, its advisory board, the host municipality, members of the public and appellants and their professionals, the Board carefully deliberated and reasonably determined, within its expertise and discretion, that inclusion of appellants' Class A Recycling Facility would have a "significant impact on the environment, property rights and the overall solid waste management system." Moreover, in consideration of appellants' "deficient proofs," the Board found that implementation of the proposed facility into the county's solid waste management plan would not be in the "best interest of the County of Middlesex and that of its constituents." We are satisfied there is substantial credible evidence in the record to support this conclusion and the decision by the Board to deny appellants' application as articulated in its findings of fact and conclusions of law contained in Resolution #08-224.

Affirmed.

 

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A-2688-08T3

December 18, 2009