Princeton v. Mercer County

• Decision Date: 31 July 2000
• Citation: 755 A.2d 637,333 N.J. Super. 310
• Parties: BOROUGH OF PRINCETON, a municipal corporation, Plaintiff-Appellant, v. BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF MERCER and Mercer County Improvement Authority, Defendants-Respondents, Waste Management of Pennsylvania, Inc., Defendant/Intervenor-Respondent. In the Matter of Certain Amendments to the Adopted and Approved Solid Waste Management Plan of Mercer County. Borough of Princeton, a municipal corporation, Plaintiff-Respondent, v. Board of Chosen Freeholders of Mercer County and Mercer County Improvement Authority, Defendants, Waste Management of Pennsylvania, Inc. Defendant/Intervenor-Appellant. In the Matter of the Adoption and Approval of an Administrative Action Concerning the Morris County District Solid Waste Management Plan. American Ref-Fuel Company of Essex County, Plaintiff-Appellant, v. Morris County Municipal Utilities Authority and Waste Management of Pennsylvania, Inc., Defendants-Respondents.
• Court: New Jersey Superior Court

755 A.2d 637

333 N.J. Super. 310

BOROUGH OF PRINCETON, a municipal corporation, Plaintiff-Appellant, v. BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF MERCER and Mercer County Improvement Authority, Defendants-Respondents, Waste Management of Pennsylvania, Inc., Defendant/Intervenor-Respondent.

In the Matter of Certain Amendments to the Adopted and Approved Solid Waste Management Plan of Mercer County.

Borough of Princeton, a municipal corporation, Plaintiff-Respondent, v. Board of Chosen Freeholders of Mercer County and Mercer County Improvement Authority, Defendants, Waste Management of Pennsylvania, Inc. Defendant/Intervenor-Appellant.

In the Matter of the Adoption and Approval of an Administrative Action Concerning the Morris County District Solid Waste Management Plan.

American Ref-Fuel Company of Essex County, Plaintiff-Appellant, v. Morris County Municipal Utilities Authority and Waste Management of Pennsylvania, Inc., Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued December 15, 1999.

Decided July 31, 2000.

Lewis Goldshore, Plainsboro, argued the cause for Borough of Princeton, appellant in A-2291-97T3 and A-2343-97T2; respondent in A-2776-97T3 (Goldshore & Wolf, attorneys; Mary S. Henifin, Princeton, and Robert J. Cash, Plainsboro, of counsel and on the brief).

Michael R. Cole, Troy, MI, argued the cause for Mercer County Board of Chosen Freeholders and Mercer County Improvement Authority, respondents in A-2291-97T3 and A-2343-97T2 (DeCotiis, Fitzpatrick & Gluck, Teaneck, attorneys for Mercer County Improvement Authority; Alfred B. Vuocolo, Jr., Mercer County Counsel, Trenton, attorney for Mercer County Board of Chosen Freeholders; Mr. Cole, of counsel; Andrew Bayer, Teaneck, on the brief in A-2291-97T3; and Mr. Bayer and Cecelia Haney, Trenton, on the brief in A-2343-97T2).

Sandra T. Ayres, Montclair, argued the cause for Waste Management of Pennsylvania, Inc., appellant in A-2776-97T3; respondent in A-2291-97T3, A-2343-97T2, A-1704-98T3 and A-3291-97T3 (Schwartz, Tobia, Stanziale, Becker, Rosensweig & Sedita, attorneys; Ms. Ayres, on the brief).

Leslie Dannin Rosenthal, Deputy Attorney General, argued the cause for Department of Environmental Protection, respondent in A-2343-97T2 and A-3291-97T3 (John J. Farmer, Jr., Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Rosenthal, on the brief).

Ross A. Lewin, Princeton, argued the cause for American Ref-Fuel Company of Essex County, appellants in A-3291-97T3 and A-1704-98T3 (Jamieson, Moore, Peskin & Spicer, attorneys; Mr. Lewin, of counsel; Mr. Lewin and David G. Glazer, on the brief).

Joseph J. Maraziti, Jr., Short Hills, argued the cause for Morris County Municipal Utilities Authority, respondent in A-3291-97T3 and A-1704-98T3 (Maraziti, Falcon & Healey, attorneys; Mr. Maraziti, Jr., of counsel; Todd L. Normane and Brent T. Carney, on the brief).

Before Judges STERN, WEFING and STEINBERG. The opinion of the court was delivered by WEFING, J.A.D

These five appeals were argued together before us on December 15, 1999. They involve related issues concerning solid waste disposal and we therefore consolidate them for purposes of this opinion. Two of the matters arise out of Morris County, three from Mercer County. The two Morris County matters are A-3291-97 and A-1704-98. In A-3291-97, In re Adoption and Approval of an Administrative Action Concerning the Morris County District Solid Waste Management Plan, American Ref-Fuel Co. of Essex County (American Ref-Fuel) appeals from a final decision of the New Jersey Department of Environmental Protection (DEP). In A-1704-98, American Ref-Fuel Co. v. Morris County Municipal Utilities Authority, American Ref-Fuel appeals from the trial court's grant of summary judgment to defendants Morris County Municipal Utilities Authority (Morris County) and Waste Management of Pennsylvania, Inc. (Waste Management). The three Mercer County matters are A-2291-97, A-2776-97 and A-2343-97. A-2291-97, Borough of Princeton v. Board of Chosen Freeholders, began as a challenge in lieu of prerogative writs by the Borough of Princeton (Princeton) to an amendment to Mercer County's solid waste management plan; it was transferred to this court by the trial court under R. 2:2-3(a)(2). In A-2776-97, Borough of Princeton v. Board of Chosen Freeholders, Waste Management appeals a trial court order permitting Princeton to amend the prerogative writs complaint at issue in A-2291-97. Finally, in A-2343-97, In re Certain Amendments to the Adopted and Approved Solid Waste Management Plan, Princeton appeals from a final decision of the DEP approving certain amendments to Mercer County's solid waste management plan.

I

Before turning to the factual complexes and merits of the individual appeals, it is necessary to set forth some background so that the particular arguments asserted may be understood and analyzed in the proper context. Commencing in 1970, New Jersey undertook to adopt and implement a comprehensive system to regulate and control the disposal of solid waste within the State. New Jersey Solid Waste Management Act, N.J.S.A. 13:1E-1 to -207; Solid Waste Utility Control Act, N.J.S.A. 48:13A-1 to -13. One of the underlying goals of the structure New Jersey put in place was that the State would be self-sufficient in terms of solid waste disposal. Thus, if any of the State's twenty-two solid waste districts wanted to utilize an out-of-state facility to dispose of its solid waste, it had to obtain the approval of the DEP to do so. One condition of such DEP approval was a certification that no suitable site was available in that solid waste management district. N.J.S.A. 13:1E-21(b)(3). The background of the regulatory development is set forth in Waste Management of Pa., Inc. v. Shinn, 938 F.Supp. 1243, 1246-47 (D.N.J.1996).

Much of this State's solid waste management control was eventually struck down as unconstitutional under the dormant commerce clause to the United States Constitution and the State was enjoined from enforcing its restrictions against the disposal of solid waste outside the confines of a solid waste district. Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders, 112 F.3d 652, 667 (3d Cir.), cert. denied, 522 U.S. 966, 118 S.Ct. 413, 139 L.Ed.2d 316 (1997), amended, 135 F.3d 891 (3d Cir.1998) (Atlantic Coast II). Since that decision, parties across the State have struggled to deal with its consequences. IMO Passaic County Utils. Auth., 164 N.J. 270, 753 A.2d 661 (2000); Pollution Control Fin. Auth. v. County of Somerset, 324 N.J.Super. 391, 735 A.2d 633 (App.Div.1999); Camden County Energy Recovery Assocs. v. New Jersey Dept of Envtl. Protection, 320 N.J.Super. 59, 726 A.2d 968 (App.Div.1999).

Prior to Atlantic Coast II, both Mercer County and Morris County sought to achieve long-term stability in meeting their responsibilities for solid waste disposal by entering into agreements with Waste Management.¹

In 1988, Mercer County and Waste Management² executed an agreement under which Waste Management granted Mercer County "all rights, title and interest in an irrevocable non-exclusive license which shall run with the land." That "license" gave Mercer County the right, over a twenty-five year period, to dispose of 4.5 million tons of solid waste in a Pennsylvania landfill owned and controlled by Waste Management. In return for this license, Mercer made a down payment of $30 million. It also agreed to pay monthly "service fee purchase payments," which were computed on the basis of tonnage received at the landfill, together with operation and maintenance costs.

In 1993, Morris County and Waste Management executed a contract under which the County, in exchange for a $1 million down payment and monthly "deferred purchase payments," obtained "all rights, title and interest to an undivided interest in the Premises owned by [Waste Management], consisting of the acquisition of certain easement rights ... which rights shall run with the land." The "easement" created under this agreement gave Morris County the right to deposit 4.5 million tons of solid waste in a Pennsylvania landfill owned and controlled by Waste Management, over a ten year period, as well as an option to extend the agreement for an additional five years. The monthly "deferred purchase payments" were computed on the basis of tonnage received at the landfill and a specified "unit charge." The cost per ton varied according to the nature of the waste deposited, i.e., whether it was characterized as municipal waste, bulky waste, baled waste or industrial waste or residue.

While each set of appeals involves questions particular to that county, the core issue projected in all the appeals is the validity of the purported Mercer County "license" agreement and the Morris County "easement" agreement. Princeton challenges the Mercer contract, while American Ref-Fuel contests the Morris agreement; both assert that the respective agreements should be struck down for violating the provisions of the Local Public Contracts Law, N.J.S.A. 40A:11-1 to -50.

At the time these agreements were initially entered into, this statute required that all contracts "for the performance of any work or the furnishing or hiring of materials or supplies" that called for the expenditure of more than $7,500 in public funds had to be publicly advertised for bidding. N.J.S.A. 40A:11-3 and -4. (The threshold amount has subsequently been increased to $17,500. In light of the size and scope of these contracts, that amendment is immaterial to our analysis.) While the statute further requires that the contract be awarded to the lowest responsible bidder, N.J.S.A. 40A:11-6.1, it also exempts certain transactions from the bidding process entirely, including purchases of real property or any interest therein, N.J.S.A. 40A:11-2(4), contracts for professional services, N.J.S.A. 40A:11-5(1)(a)(i), and...