SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3885-00T2F
TOWN OF KEARNEY,
Plaintiff-Respondent,
v.
HACKENSACK MEADOWLANDS
DEVELOPMENT COMMISSION
and ALAN J. STEINBERG,
EXECUTIVE DIRECTOR,
Defendants-Appellants.
_______________________________
Argued: September 20, 2001 Decided: September 28, 2001
Before Judges Baime, Newman and Fall.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
L-6636-00.
Masha D. Rozman, Deputy Attorney General
argued the cause for appellants (John J.
Farmer, Jr., Attorney General, attorney;
Nancy Kaplen, Deputy Attorney General,
of counsel, Ms. Rozman, on the brief).
Kenneth P. Davie argued the cause for
respondent (Cifelli & Davie, attorneys;
Mr. Davie on the brief).
The opinion of the court was delivered by
NEWMAN, J.A.D.
On leave granted, this appeal concerns whether the
Department of Environmental Protection (DEP) is the proper forum
to determine whether a town in which an access road to a transfer
station is located is entitled to a "host community benefit"
payment under N.J.S.A. 13:1E-28.1. The trial court ruled that
while the DEP has exclusive jurisdiction to decide the amount of
the payment, the DEP and Law Division have concurrent
jurisdiction to determine what comprises a transfer station and
whether a town is eligible for payment under the host community
benefit statute. We now reverse and transfer the action to the
DEP for further proceedings.
The facts are not in dispute. Hackensack Meadowlands
Development Commission (HMDC) is a state agency that was created
to oversee the development or redevelopment of the Hackensack
Meadowlands District which encompasses several municipalities.
HMDC entered into an agreement with Waste Management of New
Jersey, Inc. (Waste Management) on September 7, 2000, leasing
10.73 acres located in the Borough of North Arlington (North
Arlington) to Waste Management for use as a transfer station. A
transfer station is a type of DEP regulated solid waste facility
as defined in the Solid Waste Management Act (SWMA), N.J.S.A.
13:1E-3. The transfer station serves as a facility where
nonhazardous waste is delivered to an enclosed building on the
property, the waste is sorted, useful materials are salvaged and
the remaining waste is collected and shipped by solid waste
vehicles to an off-site sanitary landfill or other disposal area.
Trucks delivering waste to and from the transfer station
must exit State Highway No. 7 - Belleville Turnpike, and utilize
Baler Boulevard to enter and subsequently exit the transfer
station. Baler Boulevard is a private road that is owned, in
part, by HMDC. This is the only access road to the transfer
station. Part of Baler Boulevard is located in the Town of
Kearny (Kearny).
Upon learning of the proposed lease agreement between HMDC
and Waste Management, Kearny met with HMDC representatives in
August 2000 asserting that Kearny was entitled to quarterly
payments under the host community benefit provision of N.J.S.A.
13:1E-28.1. Such host community benefit payments had been
provided to North Arlington under the contract between HMDC and
Waste Management. The statute provides in pertinent part:
Any municipality within which a transfer
station is located pursuant to an adopted and
approved district solid waste management plan
shall be entitled to an annual economic
benefit to be paid or adjusted not less than
quarterly in an amount established by
agreement with the owner or operator of the
transfer station or by order of the [DEP]See footnote 11, but
not less than the equivalent of $0.50 per ton
of all solid waste accepted for transfer at
the transfer station . . . . For the purposes
of calculating the payments, the owner or
operator of the transfer station may, subject
to the prior agreement of the relevant
municipality and the approval of the [DEP],
provide the municipality with any of the
following benefits in consideration for the
use of land within its municipal boundaries as
the location of a transfer station:
[alternative payment methods listed].
[N.J.S.A. 13:1E-28.1a.]
Kearny attempted to negotiate payments under the statute
with HMDC representatives since access to the transfer station in
North Arlington was only available by use of Baler Boulevard and
therefore, Kearny argued, the access road was an integral part of
the transfer station. Kearny also requested payments for use of
a weighing facility located in Kearny. However, use of the
Kearny weighing facility has been discontinued since November 20,
2000.
Kearny and HMDC were unable to reach an agreement. On
October 25, 2000, Kearny filed a Complaint in the Law Division in
Hudson County, asserting that it was entitled to a host community
benefit for use of the weighing station and access road and
requesting that the HMDC negotiate in good faith with Kearny to
determine the amount of the benefit.
On November 29, 2000, HMDC filed a motion to dismiss the
complaint for failure to exhaust administrative remedies or for
transfer of Counts I and II to the DEP. HMDC also filed a Motion
to Dismiss Count III of the Complaint for failure to state a
claim which relief upon can be granted. However, Kearny withdrew
Count III of the complaint without prejudice before consideration
by the court.
HMDC argued that under N.J.S.A. 13:1E-28.1, the DEP was
responsible not only for determining how much a host municipality
is entitled to, but whether, as a threshold issue, there is any
entitlement to those payments at all. HMDC further argued that
if a municipality and the owner or operator of a transfer station
cannot come to an agreement, the municipality must petition the
DEP for an appropriate order before resorting to the courts for
resolution.
The trial court concluded that while the DEP did have
exclusive authority to determine the amount of benefits a host
community is entitled to, the DEP did not have exclusive
jurisdiction to decide the threshold issue of entitlement to a
host benefit. The court reasoned that no special expertise was
needed in determining what constitutes a transfer station
location. The court decided that there was concurrent
jurisdiction between the DEP and the courts. In denying the
motion, the court considered the doctrine of exhaustion of
administrative remedies, but concluded it did not militate in
favor of transferring the action to the DEP.
On appeal, HMDC argues that the trial judge failed to
correctly analyze the exhaustion of administrative remedies
doctrine. Had it been properly done, there is no question that
the action should have been dismissed and transferred to the DEP.
More fundamentally, the HMDC argues that the primary jurisdiction
should have been with the DEP. We agree.
The SWMA was enacted to establish a statutory framework
within which all solid waste activity would be coordinated under
the supervision and regulation of the DEP. The DEP was given the
power to arbitrate disputes between solid waste management
districts and to take such other actions in accordance with the
policies set forth in the act. N.J.S.A. 13:1E-2b(1),(6).
Under the SWMA, DEP has the exclusive responsibility to
approve the locations of transfer stations. Anyone who proposes
to operate such a facility must file a registration statement and
engineering design to the DEP and obtain approval from that
agency. N.J.S.A. 13:1E-5; N.J.S.A. 13:1E-26. Upon receiving a
complete copy of any application for a registration statement
and/or engineering design approval for a solid waste facility,
DEP is required to transmit, by certified mail, a copy of the
application to the affected municipality. N.J.S.A. 13:1E-5.1.
Where an application for review by the DEP is for a proposed
solid waste facility "on a site located in more than one
municipality, the notices required herein shall be transmitted to
each affected municipality, and all of the affected
municipalities shall be considered a single party for the
purposes of the public hearing held concerning the application."
N.J.S.A. 13:1E-5.2.
This statutory scheme contemplates that the DEP is
exclusively responsible for approving the location of transfer
stations and for determining whether a proposed facility is
located in more than one municipality. N.J.S.A. 13:1E-28.1 and
N.J.S.A. 13:1E-5.2 should be read together. Brown v. Township of
Old Bridge,
319 N.J. Super. 476, 498 (App. Div. 1999)( citing
Mimkon v. Ford,
66 N.J. 426, 433 (1975) ("Statutes which deal
with the same matter or subject and which seek to achieve the
same overall legislative purpose should be read 'in pari
materia.'"). Doing so, it is apparent that the Legislature
intended to vest exclusive jurisdiction in the DEP to determine
whether the proposed facility is located in more than one
municipality.
For purposes of administering the host community benefit
statute, it would, therefore, be congruent for the DEP to make
the threshold determination of whether a particular municipality
is entitled to the host community benefit when it is indelibly
clear that the DEP has the jurisdiction to determine the amount
of payments where an agreement cannot be reached between the
municipality and the transfer station owner or operator. We are
satisfied that this is what has been envisioned in the
legislative scheme. A plaintiff may not seek relief in the trial
court when the Legislature has vested exclusive primary
jurisdiction in an agency. Abbott v. Burke,
100 N.J. 269, 297
(1985). This action should have proceeded before the DEP, not
the courts.
We are satisfied that the trial court erred in determining
that the DEP and the court had concurrent jurisdiction. In our
judgment, exclusive jurisdiction to determine this issue resided
with the DEP. Because we have so concluded, we need not further
analyze the applicability of the exhaustion of administrative
remedies doctrine. Even, were we to do so, it would be clear
that the doctrine would easily apply, achieving the same result
we have concluded should obtain here by way of legislative
expression.
The order entered is reversed and the action is transferred
to the DEP for further proceedings.
Footnote: 1 1The Board of Public Utilities was redesignated the Board of Regulatory Commissioners and transferred to the DEP in 1991.