SHORELINE SAND & GRAVEL, L.L.C v. OCEAN COUNTY BOARD OF CHOSEN FREEHOLDERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2934-07T32934-07T3

SHORELINE SAND & GRAVEL, L.L.C.,

Plaintiff-Appellant,

vs.

OCEAN COUNTY BOARD OF CHOSEN

FREEHOLDERS,

Defendant-Respondent.

__________________________________

 

Submitted: December 10, 2008 - Decided:

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1519-07.

Aimino & Dennen, LLC, attorneys for appellant (Walter B. Dennen, of counsel and on the briefs).

Berry Sahradnik Kotzas & Benson, attorneys for respondent (Laura M. Benson and William A. Bock, on the brief).

PER CURIAM

Plaintiff Shoreline Sand & Gravel, L.L.C., (Shoreline) owns and operates a sand and gravel mining facility in Barnegat Township, Ocean County. Shoreline received a temporary permit to operate a Class B recycling center at its site subject to inclusion in the county solid waste management plan. The application to amend the county plan was denied by defendant Ocean County Board of Chosen Freeholders (the Board). Shoreline commenced an action in lieu of prerogative writs to challenge the Board action. Shoreline appeals the January 11, 2008 order dismissing its complaint.

On appeal, plaintiff argues that Judge Grasso erred because defendant's March 7, 2007 decision not to include plaintiff's facility in its county solid waste management plan was arbitrary and capricious. Shoreline contends that, contrary to Judge Grasso's decision, the Board decision is not supported by substantial credible evidence in the record and that the objectors did not present sufficient credible evidence to overcome the expert testimony submitted by Shoreline in support of its application. We disagree. Our review of the record demonstrates that the action by the Board is consistent with governing law and well-supported by the record. We add the following brief comments.

The adoption of a solid waste management plan or a plan amendment constitutes a quasi-legislative administrative agency action. ERG Container Servs., Inc. v. Bd. of Chosen Freeholders, 352 N.J. Super. 166, 173 (App. Div.), certif. denied, 174 N.J. 546 (2002); In re Certain Amends. to the Solid Waste Mgmt. Plan of the Hackensack Meadowlands Dev. Comm'n, 275 N.J. Super. 375, 389 (App. Div.), certif. denied, 139 N.J. 289 (1994). When an administrative agency, like the Board, takes this type of action it is generally entitled to a strong presumption of validity. Solid Waste Mgmt. Plan of Hackensack, supra, 275 N.J. Super. at 389.

As such, the trial court was called upon to employ the traditional standard of review applicable in a review of decisions of an administrative agency, that is, whether the findings could reasonably have been reached on "sufficient" or "substantial" credible evidence in the record, considering the proofs as a whole, with due regard for the credibility judgments of those who heard the witnesses.

[ERG Container Servs., supra, 352 N.J. Super. at 173.]

The trial court's task is to review a board's decision to determine whether it was arbitrary or capricious. Id. at 174. In reviewing that decision, this court applies the same standard of review as the trial court. N.Y. SMSA, L.P. v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004).

In its assessment of an application to amend its solid waste management plan, a board may consider: a) whether the proposed facility will complement existing or planned recycling facilities or operations; b) whether the proposed facility will have a negative effect on existing agreements between the county and other operators; c) whether the proposed fees and charges are reasonable; d) whether the proposed facility is consistent with the planning and land development scheme of the municipality in which it is located; and e) whether the proposed design and operation of the facility will allow an efficient operation. In its March 7, 2007 resolution, the Board found that the proposed facility was incompatible with the zoning plan and that the proposed facility will have a detrimental impact on the health and safety of the surrounding residential neighborhoods. It also found that an alternative site exists for a facility of this type and the ground water must be protected.

Judge Grasso held that sufficient credible evidence supported the Board's action. The judge rejected the contention that the Board was bound to accept the expert evidence produced by Shoreline. He also noted that the Board's counsel provided appropriate instructions concerning the application of the five criteria.

Here, the record demonstrates that Shoreline's pre-existing sand and gravel mining operation is not in conformity with current zoning and is virtually surrounded by residential developments. More residential development is planned in close proximity to the site. The record also reveals that another recycling center that serves southern Ocean County was approved and commenced operation in the period between issuance of the temporary Class B recycling center permit and final action by the county. Thus, Shoreline cannot demonstrate that its facility satisfies an unmet need.

The record is also replete with testimony from nearby residents who reported increased noise levels, traffic and odors. This testimony is entirely different in character from the property value opinion evidence that neighboring property owners sought to offer in opposition to a proposed cell tower expansion in Cell South of New Jersey, Inc. v. Zoning Board of Adjustment of West Windsor Township, 172 N.J. 75, 87 (2002). Here, the neighbors offered evidence based on personal experience.

Moreover, the Board was entitled to critically evaluate the expert opinions offered by Shoreline. The Board did not act arbitrarily when it questioned and ultimately rejected the opinion of Shoreline's noise expert, who failed to measure the noise levels of the loudest piece of equipment, the tub grinder, while it was in use.

We, therefore, affirm the January 11, 2008 order.

 
Affirmed.

(continued)

(continued)

5

A-2934-07T3

December 23, 2008