Township of Howell v. Fred McDowell, Inc.
Township of Howell v. Fred McDowell, Inc.
Opinion of the Court
The opinion of the court was delivered by
Defendant Fred McDowell, Inc. (McDowell) has operated a hot asphalt mix plant in Howell Township since the 1940s.
Around the same time, McDowell applied to the Monmouth County Department of Planning for an amendment to the Monmouth County Solid Waste Management Plan (County Plan) to
On December 2, 1993, the DEP certified the amended Monmouth County plan, subject to certain modifications, including a change in the language relating to municipal approvals, which explicitly stated that inconsistent municipal ordinances were preempted.
[T]he County specifies that any recycling center which processes Class A or Class B recyclables shall be in compliance with appropriate municipal approvals or ordinances. Since the DEPE’s solid waste and recycling regulations preempt municipal approvals or ordinances which overlap or are inconsistent with DEPE’s solid waste management or recycling regulations, the County requirement is hereby modified to read “... compliance with applicable municipal approvals or ordinances which are not preempted by DEPE solid waste regulations at N.J.A.C. 7:26-1 etseq., and recycling regulations at N.J.A.C. 7:26A-1 etseq.”
Howell neither sought reconsideration nor appealed the DEP’s certification of the amended county plan.
After its inclusion in the county plan, McDowell resubmitted its application to the DEP for a permit authorizing it to blend nonhazardous petroleum contaminated soil with asphalt at its property in Howell. At that time, McDowell complied with N.J.A.C. 7:26A-3.2(d), which requires all submissions to the DEP for permits to be forwarded to the municipality within which the site is located to afford an opportunity for comment
Howell then brought this action in the Superior Court, Chancery Division, to restrain McDowell from using its property as a Class B recycling center, contending that McDowell must first obtain a use variance. After Howell moved for summary judg
Subsequent to the Chancery Division’s ruling, the DEP has issued a recycling permit which authorizes McDowell to accept asphalt and concrete for recycling, and McDowell is now operating a Class B recycling center for asphalt and concrete. The soil mixing portion of McDowell’s permit application, which appears to be the focus of Howell’s objections, remains under review pending the DEP’s issuance of an air pollution control permit for soil blending activities.
Howell appeals from the summary judgment in favor of McDowell and the DEP. We affirm substantially for the reasons expressed in Judge McGann’s oral opinion of February 2, 1996. We add the following supplemental comments.
This court has previously recognized that the Statewide Mandatory Source Separation and Recycling Act, L. 1987, c. 102, N.J.S.A. 13:1E-99.11 to 99.32 (the Recycling Act) “was enacted as a supplement to the [SWMA].” Kohlbrenner Recycling Enters., Inc. v. Burlington County Bd. of Freeholders, 248 N.J.Super. 531, 537, 591 A.2d 962 (App.Div.), certif. denied, 127 N.J. 551, 606 A.2d 364 (1991). “Thus, a county’s recycling plan must take the form of an amendment to its solid waste management plan under the SWMA and must implement the State Recycling Plan goals established by DEP as part of the statewide solid waste management plan adopted pursuant to N.J.S.A. 13:lE-6a(3). N.J.S.A. 13:lE-99.13(a).” Ibid. Consequently, based on our analysis of the pertinent statutory provisions, we previously concluded that “the Legislature clearly envisioned the same need for DEP’s exercise of pervasive supervisory authority under the Recycling Act as under the SWMA.” Id. at 537-38, 591 A.2d 962. Moreover, even though the DEP regulations governing the establishment and operation of recycling centers differ from those govern
Affirmed.
A small part of McDowell’s property extends into Wall Township.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.