Shaw v. Byram Tp.

• Decision Date: 01 March 1965
• Docket Number: No. A--771,A--771
• Citation: 86 N.J.Super. 598,207 A.2d 570
• Parties: Madeline SHAW, et al., Plaintiffs-Appellants, v. TOWNSHIP OF BYRAM, et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 598

86 N.J.Super. 598

207 A.2d 570

Madeline SHAW, et al., Plaintiffs-Appellants, v. TOWNSHIP OF BYRAM, et al., Defendants-Respondents.

No. A--771.

Superior Court of New Jersey Appellate Division.

Argued Feb. 8, 1965.

Decided March 1, 1965.

Bernard F. Conway, Morristown, for appellants.

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

Before Judges GOLDMANN, SULLIVAN and LABRECQUE.

The opinion of the court was delivered by

SULLIVAN, J.A.D.

Plaintiffs appeal from that portion of a judgment of the trial court upholding the validity of an amendment to the 'Waste Matter Disposal Ordinance of the Township of Byram' which, in effect, prohibits the depositing of any garbage or other refuse, originating from beyond or outside of the limits of the Township of Byram, in, on or upon any licensed dump in said township.

In March 1952 plaintiffs Robert Shaw and Madeline Shaw acquired a 25-acre tract of land in Byram Township. Shortly thereafter the Township Committee of Byram Township adopted an ordinance regulating the dumping of garbage and other waste matter within township limits and providing for the licensing of dumping operations. The ordinance contained a provision that it was unlawful to deposit garbage or refuse originating from beyond and outside the township in and upon a licensed dump 'without first securing permission from the governing body of the Township of Byram.'

Pursuant to said ordinance Robert Shaw applied for a license to conduct dumping operations on the above-mentioned tract of land and, on October 15, 1952, was issued a ten-year permit to so operate.

Either tacitly or explicitly Shaw received permission to pick up garbage and refuse from several other municipalities and to deposit the same in and upon his licensed dump. Eventually, the greater part of Shaw's dumping operations involved 'out of town' garbage and refuse.

In September 1958 the township board of health adopted a 'Waste Matter Disposal Ordinance of the Township of Byram' regulating dumping operations in the township. Insofar as it concerns this litigation, said ordinance was similar to the 1952 ordinance adopted by the township committee. In September 1962 the township board of health amended the foregoing ordinance and eliminated the provision for the obtaining of permission to dump 'out of town' garbage and refuse. The effect of the amendment was to make it unlawful to deposit any garbage or refuse originating from beyond or outside township limits, in, on or upon any licensed dumps in said township.

On October 15, 1962 the ten-year permit issued to Shaw expired by its terms. Thereafter when Shaw applied for another permit he was notified that he would not be permitted to dump in or upon his dump any garbage or refuse which originated from beyond and outside the township. The instant suit followed.

At the trial Show estimated that approximately 40 yards of garbage per week are collected within the township and deposited in his dump, as compared with 450 yards per week which would be collected outside the township and deposited if permitted.

The trial court held that the aforesaid amendment constituted a valid reasonable health regulation and was not illegal, unconstitutional or void.

On this appeal plaintiffs contend that the amendment is (1) arbitrary and capricious, and discriminatory in classification; (2) a deprivation of the lawful use of private property without due process of law, and (3) incompatible with the spirit and content of the State Sanitary Code established under N.J.S.A. 26:1A--7 et seq.

We find no merit in any of these contentions.

Plaintiffs base their argument that the amendment is arbitrary, capricious and discriminatory on the proposition that garbage or refuse is the same whether it originates within or without the township. Therefore, say plaintiffs, to differentiate between garbage or refuse originating within the township, and garbage or refuse originating beyond and outside township limits is an abuse of defendant's legislative authority.

We do not agree. Garbage or refuse is unsightly, smelly, attracts flies and rodents, and is a potential fire hazard. It is a prime source of disease and contamination. It has been called a necessary evil because it is a by-product of civilized society. Ordinarily, some provision is made for its collection and disposal by the local government. However, problems of public health and welfare are involved, and no matter how carefully regulated, garbage dumps present some hazard to a community, the degree of hazard being directly related to the amount of garbage dumped. A local government may properly make suitable provisions for the disposal of its own garbage and refuse. At the same time it can prevent its area from becoming a dumping ground for other municipalities and thus aggravating the hazard inherent in this type of operation. Cf. Earruso v. Board of Health, E. Hanover Twp., 120 N.J.L. 463, 200 A. 755 (Sup.Ct.1938); Township of Dover v Witt, 7 N.J.Super. 259, 72 A.2d 884 (App.Div.1950); State v. Wittenberg, 50 N.J.Super. 74, 141 A.2d 52 (App.Div.1957), affirmed 26 N.J. 576, 141 A.2d 57 (1958).

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