CLIFFORD AYMES v. DAVID FRIED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CLIFFORD AYMES,

Plaintiff-Appellant,

v.

DAVID FRIED,

Defendant-Respondent.

__________________________________________

March 19, 2014

Argued February 24, 2014 - Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2444-12.

Clifford Aymes, appellant, argued the cause pro se.

Mark Roselli argued the cause for respondent (Roselli Griegel Lozier & Lazzaro, PC, attorneys; Paul R. Adezio, of counsel and on the brief).

PER CURIAM

Plaintiff Clifford Aymes appeals from the November 29, 2012 order of the Law Division dismissing his complaint for failing to state a claim upon which relief can be granted pursuant to Rule 4:6-1. Aymes also appeals from orders entered February 28, 2013, and May 24, 2013, denying his motions for reconsideration and for additional relief. For the reasons that follow, we affirm.

On October 11, 2012, plaintiff, a resident of the Township of Robbinsville, filed a complaint in the Law Division against defendant David Fried in his official capacity as Mayor of Robbinsville. Aymes sought to compel Mayor Fried to enforce Robbinsville Local Ordinance 7-24 by posting four ton weight limit signs on Windsor Road and to compel the Robbinsville Police Department to strictly enforce the ordinance. Plaintiff, who lives on Windsor Road in Robbinsville, sought to prevent large trucks from traveling on the road.

Defendant moved to dismiss plaintiff's complaint for failure to state a claim on which relief could be granted pursuant to Rule4:6-1. Judge Mary C. Jacobson, dismissed plaintiff's complaint with prejudice. Plaintiff filed a motion for reconsideration which was denied by Judge Jacobson. Plaintiff then filed a motion to amend the trial court's findings, a second motion for reconsideration, and a second motion to amend the trial court's findings.

On May 24, 2013, Judge Jacobson denied plaintiff's motions. After plaintiff filed a notice of appeal, Judge Jacobson submitted an amplification of her May 24, 2013 decision pursuant to Rule2:5-1(b).

Robbinsville Ordinance 2003-31 7-24 (2003) is entitled "Routes for trucks over four tons," and provides:

Pursuant to N.J.S.A. 40:67-16. 1, the streets or parts of streets as described are hereby designated as routes for vehicles over four tons. All trucks having a total combined registered gross weight of vehicle plus load in excess of four tons shall be excluded from all streets, except from those streets listed which form a part of the system of truck routes. Vehicles will be permitted on all streets for the purpose of the pickup and delivery of materials.

Name of Street Location

(Reserved)

[Robbinsville Twp., N.J., Traffic Ordinance 2003-31 7-24 (2003).]

Ordinance 7-25 is entitled "Vehicles over designated weight excluded from certain streets," and provides:

Vehicles over the registered gross weight are hereby excluded from the streets or parts of streets described except for the pickup and delivery of materials on such streets.

Name of Street Tons Location

(Reserved)

[Robbinsville Twp., N.J., Traffic Ordinance 2003-31 7-25 (2003).]

Both ordinances were enacted by Robbinsville Township in October 2003 pursuant to N.J.S.A. 40:67-16.1, which provides:

The governing body of any municipality may, by ordinance, establish a system of truck routes in such municipality, subject to the provisions of this act. Any such ordinance may provide that all trucks having a total combined gross weight of vehicle plus load, in excess of four tons, shall be excluded from all streets in such municipality, except from those streets which form a part of the system of truck routes upon which trucks are permitted to travel and operate, which should be designated in the ordinance.

The New Jersey Department of Transportation reviewed and approved the ordinances in January 2004.

"In reviewing a complaint dismissed under Rule 4:6-2(e), our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989) (citing Rieder v. Department of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)). The reviewing "court searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957). The plaintiff is entitled to every reasonable inference of fact. Independent Dairy Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956).

A.

Distilled to its essence, plaintiff's primary argument is that 7-24 prohibits all trucks exceeding four tons in weight from all streets, except from those streets listed. Since no streets are listed, the ordinance must be read to prevent all trucks over four tons from all municipal roads in Robbinsville.

Defendant responds that by not listing any streets in the ordinance, the Township has exercised its discretion not to restrict trucks over four tons to any specific truck routes. Defendant notes that both 7-24 and 7-25 employ the "Reserved" language, and do not identify any streets as either designated for, or restricted from heavy truck traffic.

Defendant also noted that the language of N.J.S.A. 40:67-16.1, does not require that the Township adopt a truck route, but provides it "may, by ordinance, establish a system of truck routes" and may exclude trucks from all other streets in the municipality.

Judge Jacobson agreed and, in dismissing plaintiff's complaint, she concluded:

The Court cannot accept . . . Mr. Aymes'[s] interpretation of the statute because . . . Section 7-24 specifically states that pursuant to N.J.S.A. 40:67-16.1, the streets or parts of streets as described, are hereby designated as routes, essentially as truck routes. And the town has not designated any truck routes. And Mr. Aymes wants me to take from that, that it means that all of the roads in the town that aren't county or state roads, four ton trucks are excluded and I simply can't accept that interpretation. The statute, the state statute, 40:67-16.1 authorizes the municipality to create a truck route but it doesn't require them to do it. And the fact that Robbinsville did it in the past doesn't require them to continue to do it. Conditions change, you know, construction, you know, the burden on the roads and so forth can change. And the policy decision as to whether to regulate or not is clearly vested in the authority of the township -- the governing body.

. . . .

And so, looking at the ordinance, I do agree with Robbinsville's interpretation that it has decided not to establish a truck route and, therefore, cannot -- Mr. Aymes cannot rely upon the statutory provision that excludes the trucks over four tons from municipal roads.

. . . .

So I will grant the defendant's motion, but only on the basis that there was failure to state a claim based upon the ordinance itself and not on the procedural aspects of the argument.

"[A]ny law concerning municipal corporations formed for local government . . . shall be liberally construed in their favor." N.J. Const. (1947), Art. IV, VII, par. 11. "Municipal action will be overturned by a court if it is arbitrary, capricious or unreasonable." Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998). "However, municipal actions enjoy a presumption of validity." Ibid. "The underlying policy and wisdom of ordinances are the responsibility of the governing body, and if any state of facts may reasonably be conceived to justify the ordinance, it will not be set aside." Quick Chek Food Stores v. Springfield, 83 N.J. 438, 447 (1980) (internal citations removed). The regulations of motor vehicles on particular streets is within the police power delegated to municipalities. Braen v. Mayor & General Council of Waldwick, 28 N.J. 476 (1958).

A township's power to ban overweight trucks on its roads is permissive, not mandatory. A prior version of 7-24 designated at least one municipal road for use by trucks over four tons. Clearly, the Township had the ability to make such designations and chose not to do so. Defendant's position that the failure to identify a truck route suggests an intention by the Township not to regulate truck weight on roads is reasonable.

B.

Plaintiff also claims that defendant, as the mayor, does not have the power to "challenge" the ordinance, as he does not have legislative power. While plaintiff is correct that the legislative power is delegated to the municipal council, see N.J.S.A. 40:69A-36, defendant is not challenging the ordinance, he is merely offering an interpretation that differs from plaintiff's.

Robbinsville operates under the mayor-council plan of the Faulkner Act, N.J.S.A. 40:69A-1 to -210. N.J.S.A. 40:69A-32(a) provides that "unless the explicit terms and context of the statute require a contrary construction, any administrative or executive functions assigned by general law to the governing body shall be exercised by the mayor, and any legislative and investigative functions assigned by general law to the governing body shall be exercised by council." While a mayor's authority in a Faulkner Act mayor-council plan of government is "substantial," McCann v. City of Jersey City, 167 N.J. 311, 330-31 (2001), and includes the enforcement of ordinances, N.J.S.A. 40:69A-40(a), it does not include the power to adopt or modify legislation. "The legislative power of the municipality shall be exercised by the municipal council . . . ." N.J.S.A. 40:69A-36.

Judge Jacobson permitted the complaint against defendant to proceed because he "is charged as a public official with enforcing the ordinances in the town." However, in her amplified opinion, she clarified that the suit proceeded against defendant only in his official capacity as mayor, as N.J.S.A. 59:3-2 provides him immunity from personal liability.

C.

Plaintiff next argues that defendant should be judicially stopped from arguing that 7-24 does not prohibit trucks over four tons on all municipal streets because the September 2002 version of the code prohibited overweight trucks on all municipal roads except county routes 526, 539, and 641. He claims this is inconsistent with defendant's current interpretation of 7-24 as not prohibiting overweight trucks on any municipal roads.

This argument was not presented to the trial court. "It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). As plaintiff's argument is not related to the trial court's jurisdiction and does not concern great public interest, we decline to consider it.

D.

The remainder of plaintiff's arguments lack sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(2).