Cranberry Lake Quarry Co. v. Johnson

• Decision Date: 22 June 1967
• Docket Number: No. A--571,A--571
• Citation: 231 A.2d 837,95 N.J.Super. 495
• Parties: CRANBERRY LAKE QUARRY CO., Plaintiff-Respondent, v. Carl O. JOHNSON, Thomas Craig, Thomas M. Mackerley, Members of the Township Committee of Byram, and Byram Township, a municipal corporation, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 495

95 N.J.Super. 495

231 A.2d 837

CRANBERRY LAKE QUARRY CO., Plaintiff-Respondent, v. Carl O. JOHNSON, Thomas Craig, Thomas M. Mackerley, Members of the Township Committee of Byram, and Byram Township, a municipal corporation Defendants-Appellants.

No. A--571.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 9, 1967.

Reargued April 3, 1967.

Decided June 22, 1967.

Ervan F. Kushner, Paterson, for respondent (Edward H. Saltzman, Paterson, attorney).

Francis E. Bright, Newton, for appellants (Dolan & Dolan, Newton, attorneys).

Richard Newman, Deputy Atty. Gen., on behalf of amicus curiae (Arthur J. Sills, Atty. Gen.).

Before Judges CONFORD, FOLEY and LEONARD.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

Defendants appeal from that part of a judgment entered in the Law Division in an action in lieu of prerogative writs which invalidated an ordinance of the defendant township regulating the operation of quarries. A second ordinance limiting use of a road providing access to plaintiff's quarry property was also invalidated, but defendants do not appeal this determination. In view of the foregoing disposition the court found it unnecessary to pass upon plaintiff's attack on the regulatory ordinance on grounds of conflict of interest of defendant township committeemen.

Plaintiff is the assignee of a royalty lease agreement entered into with the owners of 70 acres of land in Byram Township, Sussex County, which allows the lessee to quarry, process and sell stone from the property. The leased property is almost entirely one solid rock ledge about 230 feet high and suitable for quarrying. Route 206 extends along the eastern face of the property, as does a railroad spur. Whitehall Road extends from Route 206 onto the property, runs northward within the property for a distance, and provides access to the ledge by connection with a road which doubles back in a southwesterly direction. It was found below that no other practical access route to the ledge could be afforded.

Byram Township comprises 20 square miles and has a year-round population of 1,600 which swells to approximately 8,000 during the summer months. Much of the summer population lives along Panther and Cranberry Lakes. The northern end of Cranberry Lake is about 1,500 feet from the quarry property.

Plaintiff commenced operating a small portable crusher on the premises, and clearing away trees and brush for quarrying the main rock ledge, almost immediately after the lease was assigned to it on August 1, 1962. Plaintiff and American Aggregates, Inc. were the only quarry operators in the township at this time. The latter, also operating on a limited basis, was the lessee of Malmberget Inc., in which the three individual defendants held stock. These individuals comprised Byram's township committee at the time the controverted ordinances were passed--September 27, 1962.

On October 24, 1962, subsequent to filing its complaint in this action, plaintiff obtained a temporary restraining order against the enforcement of the quarrying ordinance and part of the road ordinance. Defendants had previously attempted to divest themselves of their interests in the other quarry. They re-passed the ordinances on November 29, 1962 in somewhat amended text, and plaintiff thereafter filed the amended complaint on the basis of which the judgment below was rendered.

The trial court invalidated the entire quarry ordinance because in its judgment so many of its operative provisions were either pre-empted by state laws and regulations or unreasonable, or both, that a cohesive, integrated ordinance could not survive. Moreover, the court held that the standards to be met for the issuance of a license were invalid because not sufficiently definite. In reviewing these determinations we must set forth the challenged ordinance in some detail.

The ordinance requires a license to be obtained from the township committee before any quarrying may be conducted by a party within the township limits (§ 102). An application for a license is to contain the name and address of the applicant, location of the premises, statement of ownership, proof of prescribed liability insurance coverage, and plans and specifications covering buildings, equipment and fences (§ 103).

The ordinance as first promulgated in 1962 required the township committee to issue a license if such issuance would not adversely affect

'* * * the public health, safety and general welfare, and particularly the following factors:

A. Land values and uses in the area.

B. Proximity to residences, schools and churches in the area.

C. Such other factors as may bear upon or relate to the coordinated, adjusted and harmonious physical development (sic) of the Township.'

Subsequent to the decision of the trial court, however, the township committee amended § 107 to require the committee to consider with reference to the public health, safety and general welfare 'A. Drainage.

B. Lateral support slopes and grades of abutting streets and lands.

C. Land values and uses.

D. Proximity to residences, schools and churches.

E. Effect on Underground water supplies in use.

F. Such other factors as may bear upon or relate to the coordinated, adjusted and harmonious physical development of the Township.'

The amendment goes on to state:

'If the committee finds that the license as granted will not create conditions inimical to the public health, welfare and safety and will not result in the creation of any sharp declivities, pits or depressions, depress land values and will not create any drainage or sewage problems or other conditions of danger nor adversely affect any underground water supplies in use, the license shall be issued.'

Those subsections of § 106 of the ordinance regulating the operation of quarries which were specifically challenged as invalid by reason of pre-emption or unreasonableness are reproduced in full with the same letter designation as in the ordinance section:

'A. All quarrying and rock crushing shall be conducted so as to create a minimum of annoyance from noise and dust to nearby owners or occupants of property.

B. Quarrying and rock crushing may only be carried on from Monday through Friday between the hours of 8:00 a.m. and 5:00 p.m. prevailing time. No quarrying or rock crushing shall be conducted on legal holidays.

C. Any licensee shall provide water under pressure at the scene of all operations. All drifting (sic) must be done by wet drilling and stone or other material excavated must be washed before being removed for crushing or other processing. Areas where blasting has occurred must be sprayed with water as soon as possible after each blast to reduce dust.

D. The roads or rights of way within the tract must be treated with calcium chloride or road oil so as to reduce dust to a minimum. Calcium chloride must be applied at least once every ten days from May 1 to November 15 of each year.

E. All rock crushing must be done in a jaw type crusher with a capacity not in excess of thirty inches. All crushing and grading operations must be conducted in enclosed buildings and the design of such buildings must be approved by the Township Engineer so that it will be clear that the building will retain all dust created by crushing.

After crushing all stone must be washed before loading to reduce dust to a minimum.

G. A fence shall be erected around the outside limits of the premises to be licensed which shall be woven wire of the cyclone type at least five and one half feet high and gates shall be used as a means of entrance and exit which shall be of equal height. Such gates shall be locked shut when not in actual use and shall be attended during working hours.

H. A seismic recording shall be made of the blast level during any blasting on the licensed premises and the record thereof shall be available at all times for inspection by Township officials.'

Other subsections forbid the depositing of quarried material on adjacent property, require adherence to the terms of the application, and call for signs about the premises to identify the licensee. Monthly inspections are required, with deposits and costs to be paid by the licensee (§§ 104, 105). Licenses may be revoked or suspended after a hearing (§ 108), and fines or imprisonment may be assessed for any violations (§ 109). A standard severability clause is included.

I

At the outset we reject, as did the trial court, plaintiff's contention that the ordinance is invalid In toto because the subject matter has been pre-empted by the Mine Safety Act, N.J.S.A. 34:6--98.1 et seq. As its title accurately indicates, that act is purposed to provide 'for the regulation of safety and health Of workers and occupational conditions in the mines of the State and The protection of mining property'. (Emphasis added). Quarries are included in the definition of mines. N.J.S.A. 34:6--98.2. The Commissioner of Labor and Industry is empowered to promulgate rules and regulations having the force of law. N.J.S.A. 34:6--98.4. One of these regulations in evidence, Safety Regulation No. 12 governing pits and quarries, deals extensively with electricity and water on mining premises, safeguards for use of machinery, fire protection and sanitation. N.J.S.A. 34:6--98.6 requires, Inter alia, adequate medical care on the premises and availability of stretchers and emergency oxygen. N.J.S.A. 34:6--98.7 is concerned with guarding both the safety of employees and of other persons frequenting mines and quarries. N.J.S.A. 34:6--98.10 contains the following limitation on municipal action:

'No municipality or other governmental subdivision shall have the power to make any ordinance, by-law or resolution Providing for safety to workers in the mining industry or providing for protection of property that does not comply with the standards herein established by this act, and the rules and regulations promulgated by the commissioner here-under.' (Emphasis added)

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