Holgate Property Associates v. Township of Howell
| Decision Date | 28 July 1995 |
| Citation | 283 N.J.Super. 311,661 A.2d 1305 |
| Parties | HOLGATE PROPERTY ASSOCIATES, a New Jersey Partnership, Plaintiff-Respondent, v. TOWNSHIP OF HOWELL, Zoning Board of Adjustment of Howell Township and Thomas Savino, Engineering Coordinator, Defendants-Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
William Gilroy, Sea Grit, for appellants (Gilroy, Cramer & McLaughlin, attorneys; Dennis M. Crawford, on the brief).
Nancy G. Wright, Lakewood, for respondents (Bathgate, Wegener, Dugan & Wolf, attorneys; Ms. Wright, on the brief).
Judeth A. Piccinini, Deputy Atty. Gen., for amicus curiae New Jersey Dept. of Environmental Protection and Energy .
Before Judges SKILLMAN, WALLACE and KLEINER.
The opinion of the court was delivered by
SKILLMAN, J.A.D.
The primary issue presented by this appeal is whether the Department of Environmental Protection (DEP) must designate the site for a solid waste or sludge disposal facility in conformity with the procedures and criteria that govern solid waste planning under the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 to -48, in order to preempt municipal zoning.
It is appropriate at the outset to set forth the pertinent provisions of the SWMA. This legislation designates each county and the Hackensack Meadowlands Development District as solid waste management districts (districts), N.J.S.A. 13:1E-2(b)(2), which are required to "develop and formulate ... solid waste management plan[s]" (plans). N.J.S.A. 13:1E-20(a). Such a plan must include a "site plan" which identifies "all existing solid waste facilities" and designates "sufficient additional available suitable sites to provide solid waste facilities to treat and dispose of the actual and projected amounts of solid waste" generated within the district. N.J.S.A 13:1E-21(b)(3). In formulating a plan, a district must consult with the advisory solid waste council established in the district, which includes "municipal mayors or their designees," N.J.S.A. 13:1E-20(b)(1), and with "the ... municipal government agencies ... responsible for ... land use within the ... district." N.J.S.A. 13:1E-20(b)(2)(a). Before adopting a plan, a district must hold a public hearing at which "persons interested in, or who would be affected by" the plan, including municipalities within the district, are given an opportunity to be heard orally or in writing. N.J.S.A. 13:1E-23(c). If a district approves a plan, it must be transmitted together with a transcript of the hearing to the Commissioner of the DEP for review and approval. N.J.S.A. 13:1E-23(g); N.J.S.A. 13:1E-24.
Districts are also authorized to enter into agreements to provide for the disposal of waste originating in other districts. N.J.S.A. 13:1E-21(b)(3). If districts are unable to reach such an agreement, the Commissioner of the DEP, in conjunction with the Board of Public Utilities, may order the districts to amend their plans to provide for the interdistrict flow of waste. See A.A. Mastrangelo, Inc. v. Commissioner, Dept. of Envtl. Protection, 90 N.J. 666, 449 A.2d 516 (1982). Moreover, if a district fails to adopt a plan in conformity with the SWMA, the DEP may formulate and adopt a plan for that district. N.J.S.A. 13:1E-23(a), (i). See State, Dept. of Envtl. Protection v. Middlesex County Bd. of Chosen Freeholders, 206 N.J.Super. 414, 427-30, 502 A.2d 1188 (Ch.Div.1985), aff'd o.b., 208 N.J.Super. 342, 506 A.2d 13 (App.Div.1986).
In addition to these provisions governing solid waste planning, which include the designation of sites for disposal facilities, the SWMA confers comprehensive authority upon the DEP to regulate the construction and operation of such facilities. The DEP's supervisory powers include "the registration of new and existing solid waste ... disposal facilities and operations." N.J.S.A. 13:1E-4(a). Such a registration may be granted only if it "conform[s] to" the district's plan. N.J.S.A. 13:1E-4(b). However, if the DEP has not yet approved a district's plan, it may nevertheless "grant approval to any new solid waste ... disposal operation or facility planned to be located in any such district and that district shall include said operation or facility in its plan." Ibid. Thus, the SWMA envisions that planning in conformity with the statute generally will precede the approval of new disposal facilities, but that some new facilities may be authorized during a transitional period before the development of a comprehensive plan. See In re Amendments to Solid Waste Management Plan of Hackensack Meadowlands Dev. Comm'n, 275 N.J.Super. 375, 392-93, 646 A.2d 463 (App.Div.), certif. denied, 139 N.J. 289, 654 A.2d 470 (1994). The Supreme Court has described these provisions as establishing "a framework for the coordination of solid waste collection, disposal and utilization activity in New Jersey." A.A. Mastrangelo, Inc. v. Commissioner of Dept. of Envtl. Protection, supra, 90 N.J. at 672, 449 A.2d 516.
In 1977, the Legislature extended the provisions of the SWMA to sludge, L. 1977, c. 328, which is defined as "the solids, precipitates and liquids, other than effluent, which are produced as a result of the storage or treatment of domestic and industrial sewage." N.J.S.A. 13:1E-44(a). The Legislature found, among other things, that "land disposal methods and new technological processes now make it feasible to minimize the adverse effects of sludge while deriving useful products therefrom," N.J.S.A. 13:1E-43(a), "that State programs which seek to provide for comprehensive approaches to the proper disposal or utilization of solid waste sludge must be regional in nature[,] and that the interests of the citizens of this State would best be served through an integration of sludge management with the regional solid waste planning and management process." N.J.S.A. 13:1E-43(b). The Legislature therefore required each district, as part of its plan, to provide:
a. An inventory of the sources, composition, and quantity of sludge presently generated within the solid waste management district;
b. Projections of the amounts and composition of sludge which will be generated within the district in each of the subsequent 10 years c. An inventory and appraisal, including the identity, location and life expectancy, of any solid waste facility or recycling facility located within the district which could be utilized for the processing or land disposal of sludge;
d. An analysis of the present systems of sludge disposal for the district.
e. A statement of the sludge disposal strategy to be applied in the district, which strategy shall provide for the maximum practical processing of all sludge generated within the district following the adoption of the solid waste management plan by such district and for the processing or land disposal of any sludge generated within the district after December 31, 1981; ...
f. A site plan, which shall include all existing solid waste facilities or recycling facilities which could be utilized for the processing or land disposal of sludge, provided that they are operated and maintained in accordance with all applicable health and environmental standards, and sufficient additional available suitable sites to provide for the processing or land disposal of the amounts of sludge presently generated within the district as well as the amounts of sludge projected to be generated in each of the subsequent 10 years.
[ N.J.S.A. 13:1E-45.]
In addition, the Legislature directed that "[a]ll sludge generated within the boundaries of any ... district in this State shall be disposed of in a manner which conforms to the Statewide ... plan and the solid waste management plan for the district wherein such sludge is generated." N.J.S.A. 13:1E-47.
Although the amendment extending the provisions of the SWMA to sludge became effective on January 10, 1978, the DEP informs us that it did not adopt a Statewide Sludge Management Plan until 1987 1 and that only Burlington County has adopted a district level sludge management plan as required by N.J.S.A. 13:1E-45. In addition, the Deputy Attorney General appearing on behalf of the DEP informed us at oral argument that the DEP has not exercised the authority conferred upon it by N.J.S.A. 13:1E-23(a) and (i) to adopt plans for the processing or land disposal of sludge in any of the other twenty-one districts. Consequently, the comprehensive regional planning for the processing and land disposal of sludge mandated by the Legislature in 1977 has not yet been undertaken in most areas of the State.
The facts relevant to this appeal must be viewed in light of this statutory and regulatory backdrop. Plaintiff is the owner of a fifty-five acre tract of land in Howell Township which has been used for a substantial period of time for quarrying operations, including soil removal. Plaintiff's property is located in an area recently rezoned as a "Special Economic Development--Office Research" district, and thus its business constitutes a nonconforming use.
On February 11, 1993, the DEP issued a "NJPDES Permit Exemption" to the Middlesex County Utilities Authority (MCUA) to produce and store sludge-derived product mixtures at plaintiff's property for distribution to end users. 2 Under this permit exemption, plaintiff began transporting sludge-derived material from the MCUA, mixing the sludge with excavated clay material, and storing the resulting material on site. The Township of Howell (the Township) notified plaintiff that this sludge processing and storage operation constituted an unauthorized expansion of a nonconforming use, and issued a stop work order.
Plaintiff then filed this lawsuit against the Township, its Board of Adjustment and one of its officials, seeking a determination that the Township's enforcement of its zoning ordinance to...
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