JONES INDUSTRIAL SERVICE COMPANY, t/a JIS CO., INC v. MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3607-05T1A-6219-07T3

JONES INDUSTRIAL SERVICE

COMPANY, t/a JIS CO., INC.,

Plaintiff-Appellant,

v.

MIDDLESEX COUNTY BOARD

OF CHOSEN FREEHOLDERS,

Defendant-Respondent.

______________________________

 

Submitted May 19, 2009 - Decided

Before Judges Skillman and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-4583-07.

Thomas J. Buck, attorney for appellant.

Thomas F. Kelso, Middlesex County Counsel,

attorney for respondent (Niki Athanasopoulos,

Deputy County Counsel, on the brief).

PER CURIAM

Jones Industrial Service Company t/a JIS Co. Inc. (JIS), appeals from the dismissal of its complaint in lieu of prerogative writs to compel the Middlesex County Board of Chosen Freeholders (Board) to approve its application for inclusion in the County's solid waste management plan. We affirm.

In 1956 JIS acquired property located at 999 Cranberry-South River Road in the Township of South Brunswick. It has used the property in connection with its solid waste operations to recycle concrete, asphalt, scrap metal, wood and cardboard as well as to conduct a collector/hauler operation.

The property includes a landfill contaminated from ground water, and it has been listed as a federal superfund site since 1982. As such, it is also the subject of a Department of Environmental Protection (DEP) mandated site remediation plan.

In 1998 the Middlesex County Health Department filed suit alleging that JIS was illegally operating a recycling facility without proper permits and demanding that JIS file for inclusion as a solid waste facility in the County's solid waste management plan pursuant to N.J.S.A. 13:1E-4(b) and N.J.S.A. 13:1E-26. A final consent order specified that JIS was to apply for inclusion in the County plan and submit its application to the Board's Solid Waste Advisory Committee (SWAC) for review. However, after JIS submitted the application for plan inclusion, the SWAC recommended to the Board that the application be rejected, and the Board followed the recommendation in a resolution on January 25, 2005. JIS then filed an action in lieu of prerogative writs on September 29, 2005, against SWAC and the Board to compel its inclusion in the County plan as a class B recycling facility operating at its site.

On December 5, 2006, the South Brunswick Township Council responded to a request by the County Planning Board for comment as host community by adopting a resolution opposing JIS's application for inclusion in the County waste management plan. The resolution set forth numerous reasons for opposition including claims of excessive volume of concrete and excessive noise. The resolution concluded with the statement that, "[t]he history of the site and the prior actions of the owner indicate the owner is unreliable and will not abide by all laws, ordinances, rules and regulations governing the operation and maintenance of a recycling facility."

The following day, December 6, 2006, the SWAC reviewed the results of a subcommittee visit at the JIS site and voted eleven to one to recommend approval of JIS's application to the Board.

Meanwhile, the head of the County Division of Solid Waste Management inquired of the DEP whether its prior concerns about the site had been adequately addressed. By letter of March 6, 2007, the DEP chief of recycling and planning responded affirmatively but added,

[T]he impact that any proposed recycling operation could have on the ongoing remediation activities at the site will have to be addressed during the General Approval process. . . . Please note that this letter shall not be construed as an expression of the DEP's intent to issue a General Approval of the proposed recycling center or operation.

A public hearing was held by SWAC on March 8, 2007, to gather public comments on the inclusion of JIS in the County plan. Carol Barrett, Deputy Mayor of South Brunswick, articulated the Township's objection to granting JIS permission to use the site as a recycling center. She stated that throughout the history of JIS's use of the site there had been improper discharge to ground water. Moreover, she objected because while both the Township and the County had sought but not received written verification that JIS's recycling operations would not affect the superfund operations at the site, no such assurance was given by the DEP.

Counsel for JIS responded that JIS was not a "responsible party" for the superfund contamination and that the recycling and other JIS operations were unrelated to the superfund cleanup. He further stated that there had been no violation or complaints filed against JIS in the past two years.

Although there were no further comments at the public meeting, the record was left open for any written comments from interested members of the public.

Written objections to JIS's proposed use of the property included a petition from twenty-two households in a neighboring development, a letter from the owner of neighboring property and a letter from the owner of a site in the area scheduled for residential development.

On April 19, 2007, the Board addressed JIS's application at a public meeting. The Board director expressed objections to the application, citing the following: (1) opposition of South Brunswick, the host community; (2) noise and air pollution concerns with the asphalt and concrete crushing operations; and (3) no assurance was given by the DEP that JIS's operations would not affect the superfund remediation process. The Board voted unanimously to reject JIS's application and adopted a resolution stating that JIS's inclusion in the waste management plan was not in the best interests of the County.

JIS then filed this action in lieu of prerogative writs against the Board. Following a scheduled trial and oral argument, Judge Jessica R. Mayer issued a letter opinion dismissing JIS's complaint. The judge noted that her standard of review required deference to the Board and that the Board's action could be overturned only by showing it was arbitrary, capricious and unreasonable. She found to the contrary that there was ample evidence in the record to support the Board's denial of JIS's application for inclusion. She noted that the Board could properly give weight to the local objections to the application, especially those raised by South Brunswick Township as the host municipality. She also found that the Board could properly consider its environmental concerns about JIS's operations as well as the possibility of an adverse impact on superfund remediation if the application were granted. Finally, she stated that the recommendation of the SWAC for JIS's inclusion in the plan was not determinative since the Board could reject the recommendation of its advisory body.

Our standard of review is limited to determining whether the trial court in its review utilized the proper substantial evidence standard and whether the standard was properly applied, that is, whether in this case there was substantial credible evidence in the record to support the Board's resolution. As we have stated,

[T]he Board [of Chosen Freeholders] acted in a quasilegislative administrative capacity when it voted on the proposed amendment to the county's solid waste management plan. 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.

. . . .

It is, moreover, particularly appropriate that a court exercise a limited scope of review in a matter such as this, which involves an elected Board acting in a quasi-legislative capacity and making policy choices. Those policy choices are, to a large degree, the purview of the Board, and a court must be careful not to substitute its own views of a desirable policy for those of the Board.

[ERG Container Servs., Inc. v. Bd. of Chosen Freeholders, Morris County, 352 N.J. Super. 166, 173-74 (App. Div.), certif. denied, 174 N.J. 546 (2002) (citations omitted).]

In the instant case the trial judge applied the proper substantial evidence standard after giving proper deference to the policy choices by the Board. She correctly found that review of the action of a County Board of Freeholders as to management of solid waste properly includes consideration of participation on the local level. Our Supreme Court has stated:

It is clear that in passing the [Solid Waste Management Act], the Legislature understood that the management of solid waste affects matters of public policy and important concerns relating to the public health, safety and welfare. It recognized that the management of solid waste should be coordinated as a statewide system and that it entails a degree of expertise that transcends the capacities and interests of local government. Nevertheless, the Legislature appreciated the significant impact that state-level decisions governing the management of solid waste would have throughout the state. It therefore required that the management of solid waste must be effectuated at the local level and must involve maximum government and public participation at that level. The SWMA contemplates local participation in management decisions through local solid waste districts, which are charged with the responsibility to develop a solid waste management plan. The Act also mandates public participation to be accomplished by public notice and public hearings and comment periods, as well as consultation with district councils consisting of water and waste agency members, mayors and environmentalists. N.J.S.A. 13:1E-2b(3), 13:1E-7, 13:1E-20, 13:1E-23.

[Holgate Prop. Assocs. v. Twp. of Howell, 145 N.J. 590, 597-98 (1996) (citations omitted).]

Judge Mayer gave consideration to relevant factors including those enunciated by the Supreme Court in Holgate. Our review of the record convinces us that her conclusion was based on substantial credible evidence in the record.

Finally, while JIS suggests it is the victim of invidious or discriminatory action by the Board, there is no proof of such, only allegations.

 
Affirmed.

(continued)

(continued)

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A-6219-07T3

August 14, 2009