Bergen County v. Department of Public Utilities

• Decision Date: 02 December 1971
• Citation: 284 A.2d 543,117 N.J.Super. 304
• Parties: , 3 ERC 1879 COUNTY OF BERGEN, a body politic and corporate of the State of New Jersey, Appellant, v. DEPARTMENT OF PUBLIC UTILITIES of the State of New Jersey and William E. Ozzard, President of the Board of Public Utility Commissioners, Respondents. COUNTY OF BERGEN, a body politic and corporate of the State of New Jersey, Plaintiff-Respondent, v. DEPARTMENT OF PUBLIC UTILITIES of the State of New Jersey and William E. Ozzard, President of the Board of Public Utility Commissioners, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 304

117 N.J.Super. 304

284 A.2d 543, 3 ERC 1879

COUNTY OF BERGEN, a body politic and corporate of the State

of New Jersey, Appellant, v. DEPARTMENT OF PUBLIC UTILITIES of the State of New Jersey and William E. Ozzard, President of the Board of

Public Utility Commissioners, Respondents.

COUNTY OF BERGEN, a body politic and corporate of the State

of New Jersey, Plaintiff-Respondent, v. DEPARTMENT OF PUBLIC UTILITIES of the State of New Jersey and William E. Ozzard, President of the Board of

Public Utility Commissioners,

Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Submitted Nov. 30, 1971.

Decided Dec. 2, 1971.

Michael J. Ferrara, Bergen County Counsel for County of Bergen (James T. Murphy, Asst. Bergen County Counsel, of counsel).

George F. Kugler, Jr., Atty. Gen., for Department of Public Utilities of the State and William E. Ozzard, President of the Board of Public Utility Commissioners (Joseph W. Ferraro, Jr., Deputy Atty. Gen., of counsel and on the brief).

Before Judges KILKENNY, LABRECQUE and LANE.

The opinion of the court was delivered by

LANE, J.A.D.

These appeals are before us upon leave granted in each case.

Plaintiff Bergen County appeals from a determination by the Board of Public Utility Commissioners denying its motion to dismiss for lack of jurisdiction. Defendants Department of Public Utilities and William E. Ozzard, president of the Board of Public Utility Commissioners, appeal from a Law Division order denying a motion by the Board to dissolve temporary restraints placed on the Board of Public Utility Commissioners.

Plaintiff operates sanitary land fill disposal sites in Teaneck and Lyndhurst, both located in Bergen County. The use of the disposal sites is limited to: Bergen County municipalities, private scavengers contracted by Bergen County municipalities, private scavengers contracted by Bergen County residents, and Bergen County residents.

On January 6, 1971 the Bergen County Board of Chosen Freeholders announced an increase in rates for the use of the County's disposal sites. On January 8, 1971 the Board of Public Utility Commissioners issued an order directing Bergen County to suspend its rate increase and to appear before the Board on January 21, 1971 to show cause why 'such increase should not be permanently suspended or why said County of Bergen should not comply with the Board's Rule of Practice 14:6--16 before increased rates, for disposal of solid waste at the land fill sites in Bergen County, be permitted,' and to show that the proposed increase was reasonable.

On January 21, 1971 plaintiff filed a complaint in the Law Division of the Superior Court seeking to restrain the Board from suspending the increased rates, from conducting the hearing on the reasonableness of the rates, and from ordering the County to show cause why the rates should not be permanently suspended or why the County should not comply with the Board's Rule of Practice 14:6--16 before the increase was permitted. On February 3, 1971 the Law Division issued an order temporarily restraining the suspension of the rate increase until the Board made findings of fact and conclusions of law on the jurisdictional issue and until all time for appeal had expired. Plaintiff was ordered to hold in escrow the amounts representing the increase in rates.

A hearing was held on the jurisdictional issue and on February 10, 1971 the Board denied the plaintiff's motion. On February 26, 1971 plaintiff filed a motion for leave to appeal.

Subsequent to the Board's determination, defendants moved in the Law Division to dissolve the restraints. The motion was denied on March 10, 1971. On March 10 defendants filed a motion for leave to appeal.

A

By the enactment of the Solid Waste Management Act, N.J.S.A. 13:1E--1 et seq., effective May 6, 1970; the Solid Waste Control Act, N.J.S.A. 48:13A--1 et seq., effective November 6, 1970; the County Solid Waste Disposal Financing Law, N.J.S.A. 40:66A--31.1 et seq., effective October 28, 1970, and the Solid Waste Management Authorities Law, N.J.S.A. 40:66A--32 et seq., effective August 16, 1968, the Legislature has set forth a comprehensive scheme for dealing with the problems of solid waste collection and disposal.

The purpose of N.J.S.A. 48--13A--1 et seq. is to provide for an efficient and reasonable solid waste collection, disposal and utilization service by vesting in the Board of Public Utility Commissioners the duty to set forth and enforce standards and rates regulating the economic aspects of such service. N.J.S.A. 48:13A--2. The Board of Public Utility Commissioners is specifically directed to provide for the regulation of the rates of the solid waste industry. N.J.S.A. 48:13A--4.

The purpose of N.J.S.A. 40:66A--31.1 et seq. is to provide for the proper collection, treatment and disposal of solid waste and other refuse on a regional or multi-unit basis. N.J.S.A. 40:66A--31.2. To that end any county coming within the provisions of the act is empowered to 'purchase, construct, improve, extend, enlarge or reconstruct garbage disposal facilities within such county either alone or jointly with any municipality, joint meeting or incinerator authority located within such county * * *.' N.J.S.A. 40:66A--31.4(1). The county may operate, manage and control the solid waste facilities purchased or constructed to supply services to municipalities in accordance with applicable law, rules, regulations or orders. Id.

The powers of a county are restricted to those granted to it by statute. Bergen County v. Port of N.Y. Authority, 32 N.J. 303, 313, 160 A.2d 811 (1960). Statutory provisions concerning counties must be liberally construed. Essex County v. Hindenlang, 35 N.J.Super. 479, 486, 114 A.2d 461 (1955), app. dism. 24 N.J. 517, 132 A.2d 807 (1957); N.J.Const. (1947) Art. IV, § VII, par. 11; N.J.S.A. 40:23--5.6.

Plaintiff argues that its power to regulate the rates for the use of its land fill sites is established by N.J.S.A. 40:66A--31.8, which provides:

After the commencement of operation of solid waste disposal facilities, the county may prescribe and change from time to time rates or rentals to be charged for the use of the services of such facilities. Such rates or rentals being in the nature of use or service charges or annual rental charges, shall be uniform and equitable for the same type and class of use or service of such facilities. Such rates or rentals and types and classes of use and service may be based on such factors as the board of chosen freeholders of the county shall deem proper and equitable.

N.J.S.A. 40:66A--31.5 directs that no county may exercise any of the powers granted by N.J.S.A. 40:66A--31.1 et seq., without first having obtained approval of the State Commissioner of Environmental Protection. Plaintiff has not obtained such approval and therefore may not exercise any powers under N.J.S.A. 40:66A--31.8.

The County argues that it has substantially complied with N.J.S.A. 40:66A--31.5. Even if there had been such compliance and approval had been obtained from the State Commissioner of Environmental Protection, the position of the County would not be improved.

The purpose of N.J.S.A. 40:66A--31.8 was to give authority to counties to charge users of solid waste disposal facilities. Without statutory authority a county would not be able to make such a charge. Cf. Moyant v. Paramus, 30 N.J. 528, 543, 154 A.2d 9 (1959); Lyon v. Elizabeth, 43 N.J.L. 158, 161 (Sup.Ct.1881). By N.J.S.A. 48:13A--1 et seq., the Legislature vested in the Public Utility Commission regulatory authority over the rates established by a county where the county is acting as a public utility. There is no indication that the Legislature intended by N.J.S.A. 40:66A--31.8 to exempt counties acting as public utilities from the regulatory powers of the Public Utility Commission.

B

The County argues that it is not a 'public utility' within the meaning of Title 48. Title 48 governs public utilities. N.J.S.A. 48:2--1 establishes the Department of Public Utilities and a Board of Public Utility Commissioners. N.J.S.A. 48:2--13 defines the general jurisdiction of the Board. It directs that the Board 'shall have general supervision and regulation of and jurisdiction and control over all public utilities * * *.' 'Public utility' is defined in part as:

* * * every individual, co-partnership, association, corporation or joint stock company * * * that now or hereafter may own, operate, manage or control within this State any * * * solid waste collection, solid waste disposal * * * system, plant or equipment for public use, under privileges granted or hereafter to be granted by this State or by any political subdivision thereof.

N.J.S.A. 48:13A--4 directs that:

The Board of Public Utility Commissioners Shall, after hearing, by order in writing, make appropriate rules, regulations and administrative orders for the regulation of rates and public utility aspects of the solid waste collection industry and the solid waste disposal industry. (Emphasis added)

The Board of Public Utility Commissioners was intended by the Legislature to have the widest range of regulatory power over public utilities. The provisions of Title 48 are to be construed liberally. Deptford Tp. v. Woodbury Ter. Sewerage Corp., 54 N.J. 418, 424, 255 A.2d 737 (1969); In re Public Service Electric and Gas Co., 35 N.J. 358, 371, 173 A.2d 233 (1961); State v. New York Central R. Co., 52 N.J.Super. 206, 208, 145 A.2d 54 (Ch.Div.1958). The powers delegated by the Legislature to the Board are to be read broadly. Any exception must be carefully circumscribed. Deptford Tp. v. Woodbury Ter. Sewerage Corp., Supra, 54 N.J. at 426, 255 A.2d at 737. Title 48 reflects a legislative...