MON-L-002495-20 10/26/2020 4:46:00 PM Pg 1 of 34 Trans ID: LCV20201915021

RESOURCE ENGINEERING, LLC, SUPERIOR COURT OF NEW JERSEY

LAW DIVISION: MONMOUTH COUNTY
Plaintiff,
Docket No.: MON-L-2495-20
v.
Civil Action
MONMOUTH COUNTY BOARD OF
FREEHOLDERS; MONMOUTH
COUNTY SOLID WASTE ADVISORY
COUNCIL; MONMOUTH COUNTY
DEPARTMENT OF PUBLIC WORKS
AND ENGINEERING,

Defendants.

______________________________________________________________________________

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MONMOUTH COUNTY

BOARD OF FREEHOLDERS’ AND MONMOUTH COUNTY DEPARTMENT OF
PUBLIC WORKS AND ENGINEERING’S MOTION TO DISMISS PLAINTIFF’S
COMPLAINT IN LIEU OF PREROGATIVE WRIT
______________________________________________________________________________

ARCHER & GREINER

A Professional Corporation
Kira S. Dabby, Esq. (#016592004)
10 Highway 35
Red Bank, NJ 07701
732-268-8000
Attorneys for Defendants Monmouth County
Board of Chosen Freeholders and
Monmouth County Department of Public
Works and Engineering
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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS AND PROCEDURAL HISTORY.......................................................3

ARGUMENT ...................................................................................................................................6

I. OVERVIEW OF SOLID WASTE MANAGEMENT PLAN AMENDMENT

PROCESS ............................................................................................................................7

II. MANDAMUS RELIEF IS NOT AVAILABLE AGAINST THE BOARD OF

FREEHOLDERS BECAUSE THE TIMING OF THE SWMP AMENDMENT
PROCESS IS DISCRETIONARY. ...................................................................................12

A. The Board of Freeholders Has No Legal Obligation to Hold a Public Hearing

or a Vote Within a Particular Timeframe. ...................................................................13

B. The Board of Freeholders Has No Legal Obligation to Vote Because Resource

Engineering Has Not Satisfied DEP’s 2019 Public Hearing Requirements. ...............16

C. Any Mandamus Decision by this Court Would Violate the Separation of

Powers by Intruding on the Board of Freeholders’ Legislative Prerogative. ..............17

III. RESOURCE ENGINEERING CANNOT CHALLENGE OMISSIONS IN THE

COUNTY’S SOLID WASTE MANAGEMENT PLAN THAT HAVE BEEN
APPROVED BY DEP. ......................................................................................................20

IV. RESOURCE ENGINEERING CANNOT CLAIM DAMAGES FROM THE

COUNTY FOR VOLUNTARILY-INCURRED APPLICATION EXPENSES. ..............22

A. Resource Engineering’s Claim for Damages is Gratuitous and Speculative. ..............22

B. The County is Immune to Resource Engineering’s Claim for Damages under

the Tort Claims Act. .....................................................................................................23

C. There is No Private Right of Action Under the Solid Waste Management Act. .........24

V. BECAUSE PLAINTIFF CHALLENGES ACTIONS FROM 2017, PLAINTIFF’S

LAWSUIT IS TIME-BARRED. ........................................................................................26

CONCLUSION ..............................................................................................................................28

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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Baker v. Carr,
369 U.S. 186 (1962) .................................................................................................................18

State Cases

Banco Popular N. Am. v. Gandi,

184 N.J. 161 (2005) ...........................................................................................................5, 6, 7

Camden Cnty. Energy Recovery Assocs. v. N.J. Dep’t of Envtl. Prot.,

320 N.J. Super. 59 (App. Div. 1999), aff’d 170 N.J. 246 (2001) ..............................................7

Case v. Daniel C. McGuire, Inc.,

53 N.J. Super. 494 (Ch. Div. 1959) .........................................................................................12

In re: Certain Amendments to Adopted and Approved Solid Waste Mgmt. Plan of
the Hackensack Meadowlands Dev. Comm’n Solid Waste Mgmt. Dist.,
275 N.J. Super. 375 (App. Div. 1994) ............................................................................. passim

City of Newark v. Essex Cty. Bd. of Chosen Freeholders,

221 N.J. Super. 558 (App. Div. 1987) .....................................................................................21

Dep’t of Envtl. Prot. v. Middlesex County Bd. of Chosen Freeholders,

206 N.J. Super. 414 (Ch. Div. 1985) .................................................................................20, 24

ERG Container Servs., Inc. v. Bd. of Chosen Freeholders, Morris Cty.,

352 N.J. Super. 166 (App. Div. 2002) .............................................................................8, 9, 17

In re Failure by Dep’t of Banking & Ins. to Transmit Proposed Dental Fee

Schedule,
336 N.J. Super. 253 (App. Div. 2001) ...................................................................12, 14, 15, 16

Faulhaber v. Twp. Comm. of Twp. of Howell,

274 N.J. Super. 83 (Law Div. 1994) ........................................................................................27

Feldmesser v. Lemberger,
101 N.J.L. 184 (1925) ..............................................................................................................22

Ferraro v. City of Long Branch,

314 N.J. Super. 268 (App. Div. 1987) .....................................................................................25

Finn v. Township of Wayne,

45 N.J. Super. 375 (App. Div. 1957) .................................................................................19, 20

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Gilbert v. Gladden,
87 N.J. 275 (1981) .............................................................................................................18, 20

Green v. Morgan Props.,

215 N.J. 431 (2013) ...................................................................................................................7

Harvey v. Twp. of Deptford,

402 N.J. Super. 156 (2008) ......................................................................................................25

Holgate Prop. Assocs. v. Twp. of Howell,

145 N.J. 590 (1996) ...................................................................................................8, 9, 21, 22

Ivy Hill Park Apts. v. N.J. Prop. Liab. Ins. Guar. Ass’n,
221 N.J. Super. 131 (App. Div. 1987) .........................................................................17, 18, 20

Jalowiecki v. Leuc,
182 N.J. Super. 22 (App. Div. 1981) .......................................................................................25

Kearny v. Hackensack Meadowlands Dev. Comm’n,

344 N.J. Super. 55 (App. Div. 2001) ...................................................................................3, 26

Kelly v. Berlin,
300 N.J. Super. 256 (App. Div. 1997) .....................................................................................23

Loigman v. Twp. of Middletown,

297 N.J. Super. 287 (App. Div. 1997) .....................................................................................12

Matawan Borough v. Monmouth Cty. Tax Bd.,

51 N.J. 291 (1968) ...................................................................................................................17

Megie v. Bd. of Chosen Freeholders of Morris Cty.,

84 N.J.L. 159 (1913) ................................................................................................................13

Milford Mill 128, LLC v. Borough of Milford,

400 N.J. Super. 96 (App. Div. 2008) .........................................................................................7

Mooney v. Edwards,
51 N.J.L. 479 (1889) ................................................................................................................12

Moss v. Shinn,
341 N.J. Super. 77 (App. Div. 2001) .......................................................................................13

Printing Mart-Morristown v. Sharp Elecs. Corp.,

116 N.J. 739 (1989) ...............................................................................................................6, 7

Regional Recycling, Inc. v. Dep’t of Envtl. Prot.,

256 N.J. Super. 94 (1991) ....................................................................................................8, 11

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Rezem Family Assocs., LP v. Borough of Millstone,

423 N.J. Super. 103 (App. Div.), certif. denied, 208 N.J. 368 (2011) .......................................7

Stanley Co. of Am. v. Hercules Powder Co.,

16 N.J. 295 (1954) ...................................................................................................................23

Switz v. Twp. of Middletown,

23 N.J. 580 (1957) ...................................................................................................................12

Tri-State Ship Repair & Dry Dock Co. v. City of Perth Amboy,
349 N.J. Super. 418 (App. Div. 2002) ...............................................................................26, 27

Twp. of Chester v. Dep’t of Envtl. Prot.,

181 N.J. Super. 445 (App. Div. 1981) .......................................................................................8

Twp. of Little Falls v. Bardin,

173 N.J. Super. 397 (App. Div. 1979) .......................................................................................7

Twp. of Neptune v. N.J. Dep’t of Envtl. Prot.,

425 N.J. Super. 422 (App. Div. 2012) .........................................................................15, 16, 17

Vacca v. Stika,
21 N.J. 471 (1956) .......................................................................................................12, 13, 17

Velantzas v. Colgate-Palmolive Co.,

109 N.J. 189 (1988) ...................................................................................................................7

Warren Cty. Bar Ass’n v. Bd. of Chosen Freeholders of Cty. of Warren,

386 N.J. Super. 194 (App. Div. 2006) .....................................................................................25

Warren Cty. Cmty. Coll. v. Warren Cty. Bd. of Chosen Freeholders,

350 N.J. Super. 489 (App. Div. 2002) ...............................................................................19, 20

Waste Disposal, Inc. v. Monmouth Cty. Bd. of Chosen Freeholders,

254 N.J. Super. 205 (Law Div. 1991) ............................................................................7, 10, 13

Zimmer v. Castellano,
432 N.J. Super. 412 (App. Div. 2013) .....................................................................................12

State Statutes

N.J.S.A. 13:1E-1 to -48.......................................................................................................... passim

N.J.S.A. 59:2-3...............................................................................................................2, 23, 24, 28

N.J.S.A. 59:8-3...............................................................................................................................24

N.J.S.A. 59:8-4...............................................................................................................................24

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N.J.S.A. 59:8-8...............................................................................................................................24

Rules

Rule 4:6-2.........................................................................................................................................6

Rule 4:69-6...........................................................................................................................1, 26, 27

Regulations

N.J.A.C. 7:26-2.4 ...........................................................................................................................12

N.J.A.C. 7:26-6.10 .........................................................................................................9, 10, 13, 14

Other Authorities

“Solid Waste and Recycling Facility Solid Waste Management Plan Amendment
Guidance,” N.J. Dep't Envtl. Prot. (April 23, 2019) ................................................................16

“Solid Waste and Recycling Facility Solid Waste Management Plan Amendment
Guidance During the COVID-19 Public Health Emergency,” N.J. Dep't Envtl.
Prot. (July 31, 2020).................................................................................................................11

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Defendants Monmouth County Board of Chosen Freeholders (improperly pleaded as

“Monmouth County Board of Freeholders”) and Monmouth County Department of Public Works

and Engineering1 (together, “Monmouth” or the “County”) submit this Memorandum of Law in

Support of their Motion to Dismiss Plaintiff’s Complaint in Lieu of Prerogative Writ under Rules

4:6-2(e) and 4:69-6 for failure to state a claim and untimeliness.

PRELIMINARY STATEMENT

A private solid waste facility operator wants this Court to intrude upon the legislative

process and force the County to take actions it is not legally obligated to take, on a timeline it is

not required to follow. Plaintiff Resource Engineering, LLC seeks to build a new solid waste

facility in Monmouth County to profit from construction waste generated in Ocean County.

Plaintiff requests mandamus relief because Monmouth County has not acted on its application to

add the proposed facility to Monmouth’s Solid Waste Management Plan (“SWMP”). But the

Solid Waste Management Act, N.J.S.A. 13:1E-1, et seq. (“SWMA”), does not require the County

to amend its SWMP to promote private business interests or to address waste generated in

another county. Nor does the SWMA require the County to act on a SWMP amendment request

within a particular timeframe. Because mandamus is available only when the right to

performance is clear and certain, leaving no element to discretion, Resource Engineering cannot

state a mandamus claim here. In addition, the separation of powers doctrine prevents this Court

from dictating whether, how, and when the County must proceed on this quasi-legislative

administrative issue, especially where Resource Engineering concedes the political nature of the

dispute. Moreover, Resource Engineering’s application is not even ripe for consideration by the

1 The Monmouth County Department of Public Works and Engineering is a division of the
County and not a separate legal entity capable of being sued; thus, the County will respond to
allegations asserted against the Department of Public Works and Engineering.

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Board of Freeholders because it has not complied with the public hearing and public notice

requirements mandated by the New Jersey Department of Environmental Protect (“DEP”) last

spring. These requirements apply to Resource Engineering’s application, and Resource

Engineering cannot obtain mandamus relief while they remain unsatisfied.

Resource Engineering’s remaining claims fare no better: It complains that the County’s

SWMP fails to include timelines for county action per the 2006 Statewide SWMP, but this claim

is precluded by DEP’s plenary authority over SWMPs. DEP must reject or modify a county’s

SWMP amendment in the face of a deficiency. In 2009, DEP reviewed the County’s SWMP

against the 2006 updated Statewide SWMP and found no deficiency regarding timelines. Not

only is DEP entitled to substantial deference on this issue, but this claim also cannot be raised by

action in lieu of prerogative writ; it must be brought to the Commissioner of DEP.

Resource Engineering’s request to recover voluntarily-incurred application expenses also

must fail. The Tort Claims Act, the absence of a private right of action in the SWMA, and the

fact that these expenses did not result from the County’s allegedly wrongful delay, preclude a

valid claim for damages. Resource Engineering chose to incur these costs when it chose to retain

professionals for the application it voluntarily made to try to expand its private business. And

even if the County did not have immunity for legislative action and inaction, which it does,

Resource Engineering’s application expenses between 2015 and early 2017 still could not have

been caused by the County’s alleged delay between mid-2017 and 2020.

Because none of Plaintiff’s claims can survive the pleading stage, the County respectfully

requests that the Court dismiss the Complaint in its entirety.

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STATEMENT OF FACTS2 AND PROCEDURAL HISTORY

Resource Engineering operates an existing recycling facility at 34 Randolph Road in

Howell Township, Monmouth County, New Jersey. (Id. at ¶¶ 12, 33.) It now seeks to construct

and operate a solid waste transfer station at the same location.3 (Compl., ¶ 2.) Plaintiff claims

its proposed new facility is necessary to address “construction debris and other materials

generated by the rapid expansion of residential housing in Lakewood [Ocean County] and

surrounding municipalities . . .” and “to handle the significant solid waste being generated by the

Lakewood building boom . . . .” (Id. at ¶¶ 3, 54.) In other words, Resource Engineering wants to

build a private solid waste facility in Monmouth County to accept Ocean County’s waste.

On or about August 19, 2015, Resource Engineering submitted a Request for Inclusion to

the Monmouth County Solid Waste Advisory Council (“SWAC”) asking the County to amend its

SWMP to include Resource Engineering’s proposed solid waste transfer facility. (Id. at ¶¶ 26-

27.) The proposed facility would handle 1,500 tons per day of Type 13 solid waste (appliances,

furniture, etc.) and Type 13-C solid waste (construction debris). (Id. at ¶¶ 39-40.)

Following its Request for Inclusion, Resource Engineering and its professionals engaged

in back-and-forth negotiations with SWAC regarding the proposed operation of the facility and

its traffic impact, among other issues. (Id. at ¶ 46.) On September 17, 2015, SWAC deemed the

Request for Inclusion administratively complete. (Id. at ¶ 48.) Between Fall 2015 and Spring

2017, Resource Engineering engaged with SWAC and representatives of Howell Township to

2 For purposes of this motion only, the County accepts allegations in the Complaint as true.
3 “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.” Kearny v.
Hackensack Meadowlands Dev. Comm’n, 344 N.J. Super. 55, 57 (App. Div. 2001).

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discuss issues regarding the proposed facility, including Howell’s concerns regarding traffic.

(Id. at ¶¶ 55-71, 75, 77.) On March 6, 2017, Howell Township Manager Jeff Mayfield wrote a

letter to SWAC expressing support for the transfer station subject to certain conditions regarding

traffic. (Id. at ¶ 77.) On May 16, 2017, Mayfield wrote to SWAC that Howell has “no objection

to this project moving forward.” (Id. at ¶ 80.)

On May 18, 2017, SWAC voted to submit Resource Engineering’s application for

consideration by the Board of Freeholders. (Id. at ¶ 81.) A public hearing before the Board of

Freeholders was scheduled for July 27, 2017 at the Union Beach Borough Hall and publicly

noticed in the Asbury Park Press. (Id. at ¶¶ 82-83.)

On July 27, 2017, the day of the Freeholders’ Meeting, the Mayor of Howell Township

sent an email to the Board of Freeholders opposing the proposed transfer station, raising issues

about increased pollution, traffic, and impact on the neighborhood. (Id. at ¶¶ 84, 86.) The

Howell Deputy Mayor and three Councilmembers also sent a letter stating that the governing

body of Howell opposes inclusion of the facility in the County’s SWMP due to increased traffic,

noise, and air pollution. (Id. at ¶¶ 87-89.) This letter requested a hearing to be held in Howell

“to allow [Howell] residents to voice their concerns.” (Ibid.)

Based on this new information, the Board of Freeholders cancelled the July 27, 2017

public hearing and suspended the process pending further review by SWAC. (Id. at ¶¶ 90-93.)

On or about September 15, 2017, Howell Township Manager Mayfield resigned. (Id. at ¶ 114.)

On January 25, 2018, SWAC held its regular meeting at the Howell Township Municipal

Building to allow Howell residents to comment on Resource Engineering’s application to

supplement the record for the Freeholders’ review. (Id. at ¶¶ 124-125.) During this meeting,

Howell elected officials, Township department heads and members of the public voiced their

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concerns about the solid waste transfer station. (Id. at ¶ 127.) Resource Engineering’s

application was scheduled for consideration at the Board of Freeholders’ meeting on February

22, 2018; however, on February 5, 2018, SWAC Chairman Scott Johnson requested additional

time to review the comments from the January 25, 2018 meeting and new information. (Id. at ¶¶

128-30.)

Between April 17, 2018 and September 27, 2018, the County followed the mandatory

public contracting process to retain Boswell Engineering to perform a traffic study in connection

with Resource Engineering’s application. (Id. at ¶¶ 138-141.) The traffic study was delayed due

to a bridge collapse, and SWAC did not confirm receipt of a draft of the Traffic Study until July

18, 2019. (Id. at ¶¶ 145-150.)

On January 10, 2019, the County awarded a contract to Wayne DeFeo, LLC t/a DeFeo

Associates to provide professional services in connection with the County’s SWMP, including to

analyze what type(s) of facilities the County currently has and/or requires in order to accept,

process, and market solid waste and recyclable materials generated in the County now and in the

future (the “Needs Analysis”). (Dabby Cert.4 at ¶¶ 3 and 4; Exs. A and B.) The Needs Analysis

will assess whether the County needs any additional facilities for Types 13 and 13-C solid waste,

the two waste types targeted by the proposed facility. The Complaint does not reference this

Needs Analysis, despite the public nature of this professional services procurement.

4 Citations to “Dabby Cert.” refer to the Certification of Kira S. Dabby, filed herewith. In
adjudicating this motion to dismiss, the Court may consider the public proposal in response
to County of Monmouth Request for Proposals 58-2018 because it is a public record. See
Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005) (“In evaluating motions to
dismiss, courts consider ‘allegations in the complaint, exhibits attached to the complaint,
matters of public record, and documents that form the basis of a claim.’”)

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Resource Engineering characterizes its application as “a political football that is being

tossed back and forth between SWAC, the County and Howell.” (Compl., at ¶ 170.) The Board

of Freeholders has not scheduled a public hearing on Resource Engineering’s application for

inclusion in the County’s SWMP.

On or about August 10, 2020, in the middle of the COVID-19 pandemic, Resource

Engineering filed the instant lawsuit for mandamus. The First Count seeks mandamus relief

against the Board of Chosen Freeholders for purportedly failing to hold a public hearing and vote

on Resource Engineering’s application to amend the County’s SWMP to add a proposed facility

to take Ocean County’s waste. (Compl., ¶¶ 3, 54, 178-81.) Resource Engineering’s Second

Count seeks mandamus relief against SWAC for allowing public comment on Resource

Engineering’s application at SWAC’s meeting in Howell, which Plaintiff claims constitutes a

failure to assist the Board of Freeholders. (Compl., ¶ 191.) The Third Count seeks mandamus

relief against the County’s Department of Public Works and Engineering for its purported failure

to include “time frames for county approvals or rejections” in the County’s SWMP that has been

approved by DEP. (See Compl., ¶ 197.) In addition, although not stated in its counts for relief,

Resource Engineering seems to request damages from the County based on application expenses

that it voluntarily incurred. (Id. at ¶11.)

ARGUMENT

In deciding a motion to dismiss under Rule 4:6-2(e), the Court must examine the legal

sufficiency of the facts alleged in the pleadings. Printing Mart-Morristown v. Sharp Elecs.

Corp., 116 N.J. 739, 746 (1989). The Court must “assume the facts as asserted by plaintiff are

true” and give the plaintiff “the benefit of all inferences that may be drawn[.]” Banco Popular,

184 N.J. at 166. The “essential test” is “whether a cause of action is ‘suggested’ by the facts.”

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Green v. Morgan Props., 215 N.J. 431, 451 (2013); Printing Mart, 116 N.J. at 746 (quoting

Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)).

While the plaintiff is entitled to every reasonable inference of fact, a pleading cannot be

devoid of the essential elements of the cause of action asserted. Printing Mart, 116 N.J. at 746.

“[I]f the complaint states no basis for relief and discovery would not provide one, dismissal is the

appropriate remedy.” Banco Popular, 184 N.J. at 166; Rezem Family Assocs., LP v. Borough of

Millstone, 423 N.J. Super. 103, 113 (App. Div.), certif. denied, 208 N.J. 368 (2011). “For

example, if a plaintiff’s complaint is manifestly untimely or procedurally deficient, the defendant

should not be compelled to suffer the burdens of continued litigation.” Milford Mill 128, LLC v.

Borough of Milford, 400 N.J. Super. 96, 109 (App. Div. 2008) (emphasis added); see also

Camden Cnty. Energy Recovery Assocs. v. N.J. Dep’t of Envtl. Prot., 320 N.J. Super. 59, 64-65

(App. Div. 1999), aff’d 170 N.J. 246 (2001) (dismissing complaint because it failed to state a

claim “no matter how ‘generously’ or ‘indulgently’ respondents’ pleadings are scrutinized”).

I. OVERVIEW OF SOLID WASTE MANAGEMENT PLAN AMENDMENT

PROCESS

“The Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 to -48, establishes a

comprehensive system for the regulation of solid waste collection, reprocessing and disposal.”

In re: Certain Amendments to Adopted and Approved Solid Waste Mgmt. Plan of the

Hackensack Meadowlands Dev. Comm’n Solid Waste Mgmt. Dist., 275 N.J. Super. 375, 379

(App. Div. 1994). Under the SWMA, “each county is designated a ‘solid waste management

district,’ . . . with the obligation of developing its own solid waste management plan.” Waste

Disposal, Inc. v. Monmouth Cty. Bd. of Chosen Freeholders, 254 N.J. Super. 205, 218 (Law Div.

1991); Twp. of Little Falls v. Bardin, 173 N.J. Super. 397, 416 (App. Div. 1979). “[T]he

adoption of a solid waste management plan or plan amendment [by the board of freeholders]

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constitutes quasi-legislative administrative agency action.” In re: Certain Amendments, 275 N.J.

Super. at 389; ERG Container Servs., Inc. v. Bd. of Chosen Freeholders, Morris Cty., 352 N.J.

Super. 166, 173 (App. Div. 2002) (holding board of freeholders “acted in a quasi-legislative

administrative capacity when it voted on the proposed amendment to the county’s solid waste

management plan.”)

“The district plan is required to describe the types, numbers and locations of the solid

waste facilities to handle the district’s waste flow,” in part to “assure that adequate facilities are

established” to handle waste generated in that district. Regional Recycling, Inc. v. Dep’t of

Envtl. Prot., 256 N.J. Super. 94, 101 (1991). Each county’s SWMP must “meet[] the needs of

every municipality within each such county . . . .’” In re: Certain Amendments, 275 N.J. Super.

at 379 (quoting N.J.S.A. 13:1E-2(b)(2)).

The Legislature passed the SWMA to manage solid waste through a coordinated

statewide system: “The DEP is primarily responsible for the regulation of solid waste

management, through development of a statewide plan, and through regulatory and supervisory

control of new and existing facilities.” Holgate Prop. Assocs. v. Twp. of Howell, 145 N.J. 590,

598 (1996). “Nevertheless, the Legislature appreciated the significant impact that state-level

decisions governing the management of solid waste would have throughout the state. It therefore

required that the management of solid waste must be effectuated at the local level and must

involve maximum government and public participation at that level.” Id. at 597 (citing N.J.S.A.

13:1E-2b); see also Twp. of Chester v. Dep’t of Envtl. Prot., 181 N.J. Super. 445, 453 (App. Div.

1981) (“The Solid Waste Management Act specifically provides for local input into solid waste

management decisions.”) “The SWMA contemplates local participation in management

decisions through local solid waste districts, which are charged with the responsibility to develop

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a solid waste management plan.” Holgate, 145 N.J. at 597. “The Act also mandates public

participation to be accomplished by public notice and public hearings and comment periods, as

well as consultation with district councils . . . .” (Ibid.)

“The SWMA sets forth detailed procedures which govern a district’s adoption and the

Commissioner of DEP[]’s review of a solid waste management plan.” In re: Certain

Amendments, 275 N.J. Super. at 379-80. “These procedures also apply if a district proposes to

amend its plan.” Ibid. “[A]n amendment to such a plan must be submitted both to the county’s

Solid Waste Advisory Council[5] and then to the Freeholders for approval.” ERG Container

Servs., 352 N.J. Super. at 171.

The SWMA required each solid waste management district to develop its initial SWMP

within 360 days of the effective date of the SWMA. N.J.S.A. 13:1E-20. Although the SWMA

requires re-adoption of the SWMP at least every ten years, and automatic review every two

years, the SWMA imposes no timelines on a district’s discretionary decision to entertain an

amendment to its SWMP.6 See ibid.; N.J.S.A. 13:1E-23. In fact, the SWMA provides that a

public hearing regarding SWMP adoption “may be adjourned from time to time . . . .” N.J.S.A.

13:1E-23(e).

DEP’s regulations similarly impose no temporal limits on boards of freeholders’

discretion vis-à-vis the SWMP amendment process. N.J.A.C. 7:26-6.10 governs the process by

which a district may choose to amend its SWMP, including to add a new transfer station. See

N.J.A.C. 7:26-6.10(b)(7). This regulation states only that “[u]pon the development of a solid

5 The SWMA requires a Solid Waste Advisory Council (“SWAC”) to be constituted in each
district to advise and assist the county board of freeholders in developing its SWMP.
N.J.S.A. 13:1E-20(b)(1).
6 The only timeline applicable to the board of freeholders’ process is that N.J.S.A. 13:1E-23(d)
requires notice of a public hearing to be published at least 10 days in advance of the hearing.

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waste plan amendment, a board of chosen freeholders . . . shall hold a public hearing for the

purpose of receiving comments from persons interested in or affected by the adoption of the plan

amendment.” N.J.A.C. 7:26-6.10(c). The regulation is silent as far as the timing of that hearing

and the timing of any vote that may take place on the proposed amendment.

If the board of freeholders votes in favor of a plan or plan amendment, “[t]he plan (and

any subsequent amendments) must be submitted to the Commissioner of DEP together with all

supporting documentation.” Waste Disposal, 254 N.J. Super. at 219. “[T]he Commissioner of

[DEP] shall determine whether a solid waste management plan conforms with both the SWMA

and other environmental requirements.” In re: Certain Amendments, 275 N.J. Super. at 386.

“The Commissioner . . . has complete power to approve, reject or modify the district plan.”

Waste Disposal, 254 N.J. Super. at 219. In contrast to the lack of deadlines for boards of

freeholders’ action, the SWMA does impose timelines on DEP’s review of a district’s SWMP

and the district’s response to DEP’s comments following DEP’s review. See N.J.S.A. 13:1E-

24(d), (e). Likewise, DEP’s regulations impose deadlines on DEP’s review of a SWMP

amendment sent to DEP for certification. See N.J.A.C. 7:26-6.10(f), (h).

On April 20, 2018, Governor Philip D. Murphy’s signed Executive Order No. 23, which,

among other items, charged DEP with developing guidance for considering environmental

justice in implementing executive branch statutory and regulatory responsibilities. In response,

DEP promulgated the “Solid Waste and Recycling Facility Solid Waste Management Plan

Amendment Guidance” on April 23, 2019 (“DEP 2019 Guidance”). N.J. Dep’t Envtl. Prot.

(April 23, 2019). DEP established “minimum elements for Plan Amendments and associated

Public Notices” “to ensure robust public input by providing sufficient Public Notice and

convenient public access to complete Plan Amendment information, as well as to ensure

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accessibility to public hearings . . . .” Ibid. Under the DEP 2019 Guidance, if the Plan

Amendment may impact traffic, a description of traffic routes must be included in the public

notice “to provide[] information to potentially interested or affected parties who may not be

physically in proximity to a proposed facility, but who may be impacted by traffic.” Ibid. In

addition, the DEP 2019 Guidance adds the following requirements to the public hearings

required for SWMP amendments:

 Notices of public hearings in language(s) commonly spoken by the impacted

communities;

 Direct notification to established community groups and environmental justice

groups to ensure full participation in the public hearing process;

 Posting of notices of public hearings in community buildings, municipal offices,

supermarkets, and other places that affected parties may frequent;

 At least one public hearing during the business day and at least one public hearing
during evening hours, which shall take place in the affected community

Ibid. The DEP 2019 Guidance states that “[f]or plan amendments currently in progress as of the

date of this letter,” the district should contact their DEP representative “to discuss how to

proceed.”7 Ibid.

Even once a district’s SWMP has been amended to include a new solid waste facility, and

DEP has certified that amendment, the proposed facility still requires a permit from DEP before

construction and operation. See Regional Recycling, 256 N.J. Super. at 99, 102 (stating DEP

7 On July 31, 2020, DEP modified this Guidance for the COVID-19 public health emergency
to allow for virtual review of Plan Amendment materials and virtual public hearings. “Solid
Waste and Recycling Facility Solid Waste Management Plan Amendment Guidance During
the COVID-19 Public Health Emergency,” N.J. Dep’t Envtl. Prot. (July 31, 2020). DEP also
limited the requirement of posting physical notices to local supermarkets and allowed a
freeholder meeting concerning a plan amendment to suffice as the required evening public
hearing. Ibid.

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will not begin processing a solid waste facility permit application until the facility has been

included in the applicable district SWMP) (citing N.J.S.A. 13:1E-26; N.J.A.C. 7:26-2.4).

II. MANDAMUS RELIEF IS NOT AVAILABLE AGAINST THE BOARD OF

FREEHOLDERS BECAUSE THE TIMING OF THE SWMP AMENDMENT
PROCESS IS DISCRETIONARY.

“Mandamus is a proper remedy: (1) to compel specific action when the duty is ministerial

and wholly free from doubt, and (2) to compel the exercise of discretion, but not in a specific

manner.” Loigman v. Twp. of Middletown, 297 N.J. Super. 287, 299 (App. Div. 1997).

“Mandamus issues ‘to compel the performance, in a specified manner, of ministerial duties so

plain in point of law and so clear in matter of fact that no element of discretion is left as to the

precise mode of their performance . . . .’” Switz v. Twp. of Middletown, 23 N.J. 580, 588

(1957) (quoting Mooney v. Edwards, 51 N.J.L. 479 (1889)) (emphasis added). A duty is

ministerial when “the law which imposes it prescribes and defines the time, mode and occasion

of its performance with such certainty that nothing remains for judgment or discretion.” In re

Failure by Dep’t of Banking & Ins. to Transmit Proposed Dental Fee Schedule, 336 N.J. Super.

253, 262 (App. Div. 2001) (quoting Case v. Daniel C. McGuire, Inc., 53 N.J. Super. 494, 498

(Ch. Div. 1959)). “Mandamus is the appropriate remedy only in a case where the right to the

performance of a ministerial act is clear and certain.” Vacca v. Stika, 21 N.J. 471, 476 (1956).

In addition, mandamus “should not issue to compel the doing of a vain and fruitless act.” Ibid.

In Zimmer v. Castellano, for example, the Court held that mandamus relief was not

available to compel a vote on filling a vacant Council seat because the Council was “not required

to fill the vacancy,” but rather had “the discretion to fill a vacancy”. 432 N.J. Super. 412, 418

(App. Div. 2013). The Appellate Division reiterated that courts “are not authorized to so compel

public officials or governmental bodies unless the official’s or the governing body’s obligation to

act is ‘wholly free from doubt.’” Ibid. (quoting Loigman, 297 N.J. Super. at 299); see also

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Vacca, 21 N.J. at 473, 476 (denying mandamus because plaintiff did not have “clear right to

relief” on requested license and grant of relief would have been “idle” act); Moss v. Shinn, 341

N.J. Super. 77, 79 (App. Div. 2001) (affirming dismissal of mandamus complaint because DEP’s

alleged failure to enforce trail use restrictions is within DEP’s discretion); Megie v. Bd. of

Chosen Freeholders of Morris Cty., 84 N.J.L. 159, 162 (1913) (denying mandamus relief

because board of freeholders was not legally required to build bridge over impassable waters).

A. The Board of Freeholders Has No Legal Obligation to Hold a Public Hearing

or a Vote Within a Particular Timeframe.

“Pursuant to N.J.S.A. 13:1E-24, the Monmouth County Board of Freeholders adopted a

solid waste management plan for the county by resolution dated December 1983.” Waste

Disposal, 254 N.J. Super. at 208. As explained in Section I of this brief, the SWMA does not

mandate that the Board of Freeholders consider an application to amend its SWMP within any

specified timeframe. Although DEP’s regulations require a public hearing “[u]pon the

development of a solid waste plan amendment,” N.J.A.C. 7:26-6.10(c), they do not require the

Board of Freeholders to develop a SWMP amendment, nor do they require the public hearing to

take place within any specified time period following the development of such an amendment.8

DEP’s regulations do not require the Board of Freeholders to vote on a SWMP amendment

within any set timeframe. DEP’s regulations – like the SWMA – leave these elements to the

Freeholders’ discretion. In fact, DEP’s regulations do not require the Board of Freeholders to

8 Resource Engineering includes the conclusory allegation in its First Cause of Action “that a
solid waste plan amendment had been developed,” (Compl., ¶ 178(a)), but this allegation is
not referenced anywhere in the Facts Applicable to All Counts, nor does Resource
Engineering allege who developed any supposed plan amendment, when it supposedly was
developed, or what it supposedly contains. Given the painstaking detail with which Resource
Engineering lays out its case, Resource Engineering presumably would have included these
critical facts if they, in fact, existed. Under N.J.A.C. 7:26-6.10(c), if a plan amendment is not
developed, then there is no obligation to hold a public hearing.

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vote on a SWMP amendment at all. The discretion the Legislature granted to the Freeholders

stands in stark contrast to the discrete timelines the Legislature imposes on DEP with respect

reviewing a SWMP amendment approved by the Freeholders. See N.J.S.A. 13:1E-24(d), (e);

N.J.A.C. 7:26-6.10(f), (h). Simply put, the Legislature decreed that the Freeholders are not

obligated to entertain a privately-requested, self-serving amendment to their SWMP if they do

not want to. If and when they choose to consider an amendment to their SWMP, they can set

their own timeline.

In Dental Fee Schedule, the plaintiff sued the Department of Banking and Insurance

(“DOBI”) for its inaction with respect to revising a dental fee schedule as required by statute and

administrative regulations. 336 N.J. Super. at 256. In response, DOBI argued that the statute did

not impose an “exact deadline” and explained that its efforts to gather additional information

caused the delay, including soliciting bids from contractors and soliciting views of interested

parties. Id. at 258-59. The Appellate Division held that “[h]ad the agency not done any work

toward revising the schedule, we could issue mandamus compelling the [DOBI] to begin its

work, but any directive, issued at this time, requiring that the [DOBI] complete the task or even

directing completion by a specific time has the potential of interfering with the orderly workings

of the [DOBI].” Id. at 262-63 (internal citation omitted). As to the plaintiff’s argument that it

merely seeks an order compelling DOBI to do what the Legislature already required, the Court

held that “[i]n the absence of any deadline, we conclude that it would be inappropriate in this

matter to impose such a deadline by judicial fiat.” Id. at 263, 265. The Appellate Division

voiced its concern regarding DOBI’s “apparent lack of progress” and “much unexplained delay.”

Id. at 268. Nevertheless, the Court declined to “issue mandamus to compel [DOBI] to complete

the schedule ‘forthwith’” as plaintiff requested. Ibid.

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In another case, the Department of Transportation gave Neptune $20,700 to create a

sediment plan for the Shark River Bay. Twp. of Neptune v. N.J. Dep’t of Envtl. Prot., 425 N.J.

Super. 422, 429 (App. Div. 2012). Neptune retained an engineering firm to develop the plan and

sued DEP for its inaction in approving Neptune’s final draft and providing a site for dewatering

dredged material. Id. at 429-30. Reciting the components of mandamus, the Court concluded

that DEP “does not have a statutory duty to dredge the navigational channels in the Bay nor is

it required to do so by a date certain.” Id. at 435 (emphasis added). In addition, the project

had not satisfied all State and federal permitting requirements. Id. at 436. “Under these

circumstances, the court cannot order the DEP to dredge the State’s navigational channel in the

Bay or to do so by a date certain.” Id. at 436. Moreover, DEP’s delay was caused by

environmental concerns, and DEP was working with Neptune and other stakeholders to identify

an appropriate site. Id. at 437. Because DEP was in the process of evaluating the request, the

Appellate Division was “satisfied that the court may not compel the DEP to take any

discretionary action with regard to the selection of the site at this time.” Ibid.

Like in Township of Neptune, the County has no legal obligation to consider a privately-

requested amendment to its SWMP. And like in Township of Neptune and Dental Fee Schedule,

the County has no obligation to do so by a date certain. See 425 N.J. Super. at 435; 336 N.J.

Super. at 258-59. Plaintiff concedes that the County has taken multiple steps after cancelling the

July 27, 2017 public hearing: the Board of Freeholders directed that the January 2018 SWAC

meeting be held in Howell to gather input from Howell residents on the proposed facility, and

this meeting took place on January 25, 2018. (Compl., ¶¶ 124-125.) On February 5, 2018,

SWAC Chairman Johnson requested additional time to review the application based on

comments received at the January 25, 2018 meeting. (Id. at ¶¶ 128-30.) Between April 2018

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and July 2019, the County pursued and procured a traffic study regarding the proposed facility.

(Id. at ¶¶ 138-141, 145-150.) In late 2018-early 2019, the County awarded a contract for a Needs

Analysis to assess the need for another Type 13 / 13-C facility. (Dabby Cert. at ¶¶ 3 and 4, Exs.

A and B.)

Thus, the County has (more than) begun its work on evaluating Resource Engineering’s

application. See Dental Fee Schedule, 336 N.J. Super. at 262-63. Similar to Township of

Neptune, the County has been working with stakeholders to address various concerns. 425 N.J.

Super. at 437. For all of these reasons, “any directive, issued at this time, requiring that the

[County] complete the task or even directing completion by a specific time has the potential of

interfering with the orderly workings of the [County].” See Dental Fee Schedule at 262-63. In

the absence of temporal deadlines in the SWMA or DEP’s regulations, “it would be

inappropriate in this matter to impose such a deadline by judicial fiat.” See id. at 263, 265; see

also Township of Neptune, 425 N.J. Super. at 437. For these reasons, the County respectfully

requests that Resource Engineering’s claims against the Board of Freeholders be dismissed.

B. The Board of Freeholders Has No Legal Obligation to Vote Because Resource

Engineering Has Not Satisfied DEP’s 2019 Public Hearing Requirements.

Besides the fact that the Board of Freeholders has no obligation to act, or to act within a

specified timeframe, Resource Engineering’s application is not even ripe for review. As

described above, DEP bolstered the public hearing and notice requirements with respect to

SWMP amendments to conform to Governor Murphy’s 2018 Executive Order on environmental

justice. “Solid Waste and Recycling Facility Solid Waste Management Plan Amendment

Guidance,” N.J. Dep’t Envtl. Prot. (April 23, 2019); Executive Order No. 23 (April 20, 2018).

Because DEP did not issue these requirements until April 23, 2019, it is not surprising

that Resource Engineering does not allege that it satisfied those requirements before the

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scheduled July 27, 2017 public hearing. Nor does Resource Engineering allege that it has

satisfied those requirements since that time. (Compare Complaint with Dabby Certification at

¶5, Ex. C (Letter from DEP confirming Resource Engineering must comply with the DEP 2019

Guidance). To the contrary, the allegations in Resource Engineering’s Complaint confirm that it

has not satisfied those requirements because no public hearing has taken place. The DEP 2019

Guidance requires at least two public hearings in the affected community, one during the day and

one at night, which both must be noticed in a certain manner. Because Resource Engineering

cannot demonstrate that its application is ripe for the relief it seeks, namely, a vote by the Board

of Freeholders, the County respectfully submits that its Complaint must be dismissed for this

reason as well. See Twp. of Neptune, 425 N.J. Super. at 436 (noting project had not satisfied all

regulatory requirements and denying mandamus relief); Vacca, 21 N.J. at 476 (holding

mandamus “should not issue to compel the doing of a vain and fruitless act.”)

C. Any Mandamus Decision by this Court Would Violate the Separation of

Powers by Intruding on the Board of Freeholders’ Legislative Prerogative.

Resource Engineering characterizes its application as “a political football that is being

tossed back and forth between SWAC, the County and Howell.” (Compl., at ¶ 170.) Plaintiff’s

admission that this is a political dispute constitutes an independent basis for dismissal.

A court’s scope of review is limited in a matter involving “an elected Board acting in a

quasi-legislative capacity and making policy choices.” ERG Container Servs., 352 N.J. Super. at

174 (upholding board of freeholders’ rejection of proposed amendment to county’s SWMP). “If

the statute works inequitably, it is up to the Legislature to correct the difficulty.” Ivy Hill Park

Apts. v. N.J. Prop. Liab. Ins. Guar. Ass’n, 221 N.J. Super. 131, 140 (App. Div. 1987) (quoting

Matawan Borough v. Monmouth Cty. Tax Bd., 51 N.J. 291, 298 (1968)). “The relief sought

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requires the exercise of political and business judgments which this court may not usurp from the

elected representatives of the people.” Ibid.

“The nonjusticiability of a political question is primarily a function of the separation of

powers.” Gilbert v. Gladden, 87 N.J. 275, 281 (1981) (quoting Baker v. Carr, 369 U.S. 186, 210

(1962)). The purpose of the separation of powers is to safeguard the essential integrity of each

branch of government. Ibid. In Gilbert v. Gladden, the plaintiffs challenged the longstanding

practice of “gubernatorial courtesy,” under which bills that passed the Legislature are not

presented to the governor for signature until s/he requests them, thus allowing the governor to

delay presentment until the Legislature cannot override a veto, which lets the governor prevent a

bill from becoming law merely by not signing it. 87 N.J. at 279. The plaintiffs argued that this

practice frustrates the legislative process and contravenes the constitution. Id. at 280. The Court

held that “although the legislature is constitutionally required to present passed bills to the

Governor, the timing of such presentment is discretionary, and a rule or practice delaying

presentment is well within the legislative prerogative.” Id. at 283. “In the absence of

constitutional or statutory standards, it is not the function of this Court to substitute its

judgment for that of the Legislature with respect to the . . . procedures followed” in giving

effect to the process. Id. at 282 (emphasis added). Regarding an alleged eighteen month delay,

the Court conceded that “the selection of the manner in which elected representatives exercise

their legitimate powers short of a constitutional or statutory violation cannot be remedied by the

courts.” Id. at 287. Rather, it “must be determined either by the Legislature or at the bar of

public opinion.” Id. at 287-88. Because “this case present[ed] a nonjusticiable political question

the resolution of which is constitutionally committed to the Legislature,” the Court denied

mandamus relief. Id. at 288.

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In another case, the Appellate Division similarly held that granting mandamus relief

would violate separation of powers principles. Warren Cty. Cmty. Coll. v. Warren Cty. Bd. of

Chosen Freeholders, 350 N.J. Super. 489 (App. Div. 2002). Despite a statute stating that the

board of freeholders “shall” appropriate necessary funds to complete a community college

capital project, the Court held that “the elected body still had the power, under the local bonding

law, to issue or not issue bonds” and could “exercise its discretion.” Id. at 503, 506. “What is at

issue is the function of county government and responsibility of the Freeholders.” Id. at 507.

“The function of a court does not include intruding on a legislative process.” Id. at 507-08.

Importantly, the Court noted that “if this case is as politically charged as alluded to in the record,

judicial involvement should be circumspect.” Id. at 512.

In Finn v. Township of Wayne, the plaintiffs sued for mandamus relief to protest the

township’s inaction on their request to amend a zoning ordinance. 45 N.J. Super. 375 (App. Div.

1957). The Court noted that the committee has the “authority” to enact and amend zoning

ordinances, but the Legislature “did not impose a fiat to do so,” and “courts cannot

metamorphose the grant into a duty.” Id. at 380. The Court explained:

Courts have no general supervisory power over the exercise of that

discretion. . . . Even if it could be said that a certain ordinance
would be very much in the public interest and welfare, the courts
will not issue their mandate to compel the legislative body to enact
it; nor do we have the power to avoid the effects of inaction in that
domain, as distinguished from the situation where there is an
express or implied duty to act . . . We cannot enter the committee
room and interfere with or substitute our judgment for that of the
governing body. . . . The remedy in such case must be with the
electorate.

[Id. at 379.]

Resource Engineering’s Complaint is indisputably a request for this Court to interfere

with the discretion of the Board of Freeholders’ exercise of their legislative functions with

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respect to the County’s SWMP. See In re: Certain Amendments, 275 N.J. Super. at 389

(recognizing that adopting or amending SWMP is quasi-legislative administrative action). Like

in the cases cited above, the Board of Freeholders is exercising its “political and business

judgments” in not taking action on Resource Engineering’s request that the County amend its

SWMP to locate a transfer station in Howell to take Ocean County’s waste. See Ivy Hill Park

Apts., 221 N.J. Super. at 140. As in Gilbert v. Gladden, even if the Board were obligated to

address Resource Engineering’s application at some point in time, the timing is “discretionary”

and “well within the legislative prerogative.” See 87 N.J. at 283. Accordingly, “it is not the

function of this Court to substitute its judgment for that of the Legislature.” Id. at 282; see also

Warren Cty. Cmty. Coll., 350 N.J. Super. at 507-08; Finn, 45 N.J. Super. at 379. “If the

[SWMA] works inequitably, it is up to the Legislature to correct the difficulty.” See Ivy Hill

Park Apts., 221 N.J. Super. at 140.

III. RESOURCE ENGINEERING CANNOT CHALLENGE OMISSIONS IN THE

COUNTY’S SOLID WASTE MANAGEMENT PLAN THAT HAVE BEEN
APPROVED BY DEP.

Besides seeking mandamus relief against the County for discretionary, legislative

judgments not mandated by the SWMA, Resource Engineering also claims that the County’s

SWMP fails to include “time frames for county approvals or rejections” under the Statewide

SWMP. (Compl., ¶¶ 196, 197.) Because this claim fails to appreciate DEP’s plenary authority

over the County’s SWMP, it also should be dismissed.

In addition to conferring power on each county to develop a SWMP, the SWMA requires

DEP to develop a statewide SWMP with which all district plans must conform. Dep’t of Envtl.

Prot. v. Middlesex County Bd. of Chosen Freeholders, 206 N.J. Super. 414, 428 (Ch. Div. 1985)

(citing N.J.S.A. 13:1E-6(a)(3), N.J.S.A. 13:1E-2(b)(6)). The SWMA gives DEP “the authority . .

. to fill any gap caused by a county’s inaction or noncompliance with the Department’s statewide

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scheme.” Ibid. (internal quotation omitted.) That authority may be exercised when a district

either fails to adopt any plan at all or adopts a plan that DEP concludes is inadequate. Ibid.; see

also City of Newark v. Essex Cty. Bd. of Chosen Freeholders, 221 N.J. Super. 558, 568 (App.

Div. 1987) (“Although the [SWMA] empowers and requires the counties to develop their own

solid waste plans, N.J.S.A. 13:1E-23, the DEP, as the central coordinator, must either approve,

reject or modify these plans.”) (citing N.J.S.A. 13:1E-24b).

“[A] claim that a district has adopted a plan or plan amendment without complying with

the procedural requirements of the SWMA or other applicable statutory provisions may be raised

by an action in lieu of prerogative writs filed pursuant to N.J.S.A. 13:1E-23(f) but any claim that

a plan is inconsistent with the substantive provisions of the SWMA or other environmental

legislation lies within the Commissioner’s jurisdiction under N.J.S.A. 13:1E-24.” In re: Certain

Amendments, 275 N.J. Super. at 387. “[S]ubstantial deference” is “afforded to the DEP as the

administrative agency charged with the regulation of the operations of entities” engaged in solid

waste disposal. Holgate, 145 N.J. at 600. “We impute to the DEP the specialized expertise in

this area that reflects its administrative authority and responsibilities.” Ibid.

DEP’s public website states that the Statewide SWMP was updated most recently in

2006. N.J. Dep’t Envtl. Prot. Planning https://www.nj.gov/dep/dshw/recycling/planning.htm

(last visited October 14, 2020). Plaintiff’s Complaint cites this version of the Statewide SWMP

in claiming that the County’s SWMP fails to include timeframes for county approvals. (See

Compl., ¶ 196 (citing USSWMP at A-7).) But this same public website also links to SWMP

“Amendments, Certifications, and Administrative Actions,” by county, which reflects that DEP

has reviewed the County’s SWMP 36 times since 2006.

https://www.nj.gov/dep/dshw/recycling/planning.htm. Most importantly, DEP substantially

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certified the County’s March 12, 2009 amendment to its SWMP, which directly addressed its

conformance to the Statewide SWMP as updated in 2006.9 N.J. Dep’t Envtl. Prot. Certification

of the March 12, 2009 Amendment to the Monmouth County District Solid Waste Management

Plan https://www.nj.gov/dep/dshw/recycling/admentme/Monmouth/031209cert.pdf (last visited

October 14, 2020). In other words, DEP considered the precise issue raised by Resource

Engineering, i.e., whether the County’s SWMP properly conforms to the updated Statewide

SWMP, and found no deficiency with respect to timeframes for county approvals. See id.

Because the Commissioner of DEP alone has jurisdiction over this claim, In re: Certain

Amendments, 275 N.J. Super. at 387, and because “substantial deference is afforded NJDEP” in

this arena, Holgate, 145 N.J. at 600, DEP’s approval of the County’s SWMP forecloses any

claim by Resource Engineering that this plan is deficient.

IV. RESOURCE ENGINEERING CANNOT CLAIM DAMAGES FROM THE

COUNTY FOR VOLUNTARILY-INCURRED APPLICATION EXPENSES.

Although its causes of action do not request money damages, Resource Engineering’s

Complaint alludes to a supposed entitlement to recoup the monies it spent on “experts, lawyers

and other professionals” when it chose to seek inclusion in the County’s SWMP. (Compl., ¶ 11.)

Resource Engineering cannot state a claim for money damages.

A. Resource Engineering’s Claim for Damages is Gratuitous and Speculative.

The law “takes account of those damages which are the natural and proximate result of

the wrongful act.” Feldmesser v. Lemberger, 101 N.J.L. 184, 187 (1925). “It is fundamental

9 The only two aspects of the County’s SWMP Amendment not certified by DEP relate to the
inclusion process for Class B and D recycling centers (because the County’s SWMP did not
specify the need for a public hearing) and the incomplete site designations of Class A
recycling centers, neither of which is at issue here.
https://www.nj.gov/dep/dshw/recycling/admentme/Monmouth/031209cert.pdf at p. 9.

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that a plaintiff must ‘prove damages with such certainty as the nature of the case may permit,

laying a foundation which will enable the trier of the facts to make a fair and reasonable

estimate.” Kelly v. Berlin, 300 N.J. Super. 256, 268 (App. Div. 1997). “A plaintiff's recovery

of damages may not be based upon conjecture and speculation.” Stanley Co. of Am. v. Hercules

Powder Co., 16 N.J. 295, 312 (1954).

Resource Engineering is not entitled to recoup any “damages” because its voluntary

payments to professionals, lawyers and experts between the Fall of 2015 and the Spring of 2017

to strengthen its voluntary application were not the “natural and proximate result” of the

County’s allegedly wrongful delay beginning in July 2017. The claimed damages were not only

voluntarily incurred, but also could not have proximately resulted from subsequent conduct.

Resource Engineering chose to spend that money irrespective of the County’s alleged actions

between July 2017 and the present. Moreover, at the time Resource Engineering incurred those

costs (and still today), the success of its efforts remains uncertain: If the County votes on the

proposed amendment, it could vote to approve or disapprove inclusion. If the County votes to

approve the amendment, DEP could certify or not certify it. And if DEP certifies it, DEP may or

may not grant Resource Engineering a permit to construct and operate the facility, which may be

profitable or not profitable. There is no, and has never been any, certainty of a return on

Resource Engineering’s voluntary expenditures. These are not recoverable costs.

B. The County is Immune to Resource Engineering’s Claim for Damages under

the Tort Claims Act.

Even if Resource Engineering’s costs were recoverable, “[a] public entity is not liable for

legislative or judicial action or inaction, or administrative action or inaction of a legislative or

judicial nature.” N.J.S.A. 59:2-3(b). “[T]he New Jersey Tort Claims Act provides absolute

immunity for ‘administrative action or inaction of a legislative’ nature, N.J.S.A. 59:2-3(b), which

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is the type of governmental action involved in adoption of a solid waste management plan.”

Middlesex Bd. of Chosen Freeholders, 206 N.J. Super. at 426. “[I]f the Legislature had intended

to take the unusual step of subjecting counties to monetary penalties for failing to properly carry

out regulatory responsibilities, it would have said so in clear and unmistakable language.” Ibid.

“[I]t would be highly unusual to impose monetary penalties upon a government agency for

failing to properly carry out its regulatory responsibilities,” such as adopting an adequate

SWMP. See ibid. Furthermore, the Tort Claims Act (“TCA”) requires presentment of a “Notice

of Claim” within 90 days of the accrual of a claim against a public entity. N.J.S.A. 59:8-3;

N.J.S.A. 59:8-4; N.J.S.A. 59:8-8. Once two years have elapsed since the accrual of the claim,

the “claimant shall be forever barred” from recovery. Ibid.

Any claim by Resource Engineering to “recoup from Defendants” its application costs is

therefore precluded by the TCA because the County is not subject to monetary penalties for

allegedly failing to carry out its regulatory responsibilities or for legislative inaction. Nor did

Resource Engineering file a Notice of Claim within 90 days of the accrual of its claim (i.e., the

July 27, 2017 meeting) or file suit within two years of that date. Accordingly, Resource

Engineering is “forever barred from recovering” money damages against the County on this

claim. See N.J.S.A. 59:8-8.

C. There is No Private Right of Action Under the Solid Waste Management Act.

Even if Resource Engineering’s purported damages claim were cognizable, allowed

under the TCA, and not time-barred, the SWMA creates no private action under which Resource

Engineering could recover damages.

In determining whether a statute implicitly creates a private cause of action, our Supreme

Court has directed that courts should consider: (1) whether plaintiff is a member of the “class for

whose especial benefit the statute was enacted”; (2) “whether there is any evidence that the

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Legislature intended to create a private cause of action under the statute”; and (3) whether such

an implied private cause of action would be “consistent with the underlying purposes of the

legislative scheme.” Harvey v. Twp. of Deptford, 402 N.J. Super. 156, 164 (2008) (quoting

Ferraro v. City of Long Branch, 314 N.J. Super. 268, 288 (App. Div. 1987)). “In applying this

test, we may give ‘varying weight’ to each of the factors but ultimately the result turns upon the

Legislature’s intent in enacting a particular statute.” Warren Cty. Bar Ass’n v. Bd. of Chosen

Freeholders of Cty. of Warren, 386 N.J. Super. 194, 200 (App. Div. 2006).

The Legislature enacted the SWMA because it found “that the collection, disposal and

utilization of solid waste is a matter of grave concern to all citizens and is an activity

thoroughly affected with the public interest; that the health, safety, and welfare of the

people of this State require efficient and reasonable solid waste collection and disposal service

or efficient utilization of such waste . . . .” N.J.S.A. 13:1E-2(a) (emphasis added). This language

conveys that the “legislative intent of the statutory schemes which the [DEP] is charged with

enforcing is to protect the environment for the public as a whole, not for any single person or

group of people.” Cf. Jalowiecki v. Leuc, 182 N.J. Super. 22, 31032 (App. Div. 1981) (rejecting

private right of action under DEP’s sewage system regulations). Resource Engineering cannot

claim to be “a member of the ‘class for whose especial benefit the statute was enacted.’” See

Harvey, 402 N.J. Super. at 164.

Furthermore, there is no evidence that the Legislature sought to create a private right of

action under the SWMA insofar as the Legislature consistently vests implementation, regulation,

and enforcement of the SWMA in DEP. See N.J.S.A. 13:1E-4(b); N.J.S.A. 13:1E-5(c); N.J.S.A.

13:1E-5.1(d); N.J.S.A. 13:1E-6; N.J.S.A. 13:1E-9(a); N.J.S.A. 13:1E-24. Rather than allowing

private citizens to enforce the SWMA and collect money damages, the SWMA instead offers a

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“reward” to any member of the public who supplies information to “an enforcing authority,”

which results in a penalty under the law. N.J.S.A. 13:1E-9.2. Given that the SWMA

“establish[es] a statutory framework within which all solid waste activity would be coordinated

under the supervision and regulation of [DEP],” Kearny, 344 N.J. Super. at 57, allowing a

private right of action would undermine the purposes of the legislative scheme. For this reason

also, Resource Engineering cannot state a claim for damages against the County.

V. BECAUSE PLAINTIFF CHALLENGES ACTIONS FROM 2017, PLAINTIFF’S

LAWSUIT IS TIME-BARRED.

Rule 4:69-6(a) imposes a forty-five-day limitation on challenges to governmental action.

R. 4:69-6(a) (“No action in lieu of prerogative writs shall be commenced later than 45 days after

the accrual of the right to the review, hearing, or relief claimed . . . .”) “The 45-day time frame .

. . ‘is designed to give an essential measure of repose to actions taken against public bodies.”

Tri-State Ship Repair & Dry Dock Co. v. City of Perth Amboy, 349 N.J. Super. 418, 423 (App.

Div. 2002). It is aimed at those who “slumber” on their rights. Ibid.

Here, Plaintiff’s lawsuit arises almost exclusively from actions that took place years ago:

Plaintiff’s demand for mandamus relief is based on the Board of Freeholders’ having cancelled a

July 27, 2017 public hearing (Compl., at ¶ 178(a)); not receiving comments from the public at

that July 2017 hearing (id. at ¶ 178(b), (c)); cancelling the February 22, 2018 public hearing (id.

at ¶ 178(d)); not rescheduling a public hearing since July 2017 (id. at ¶ 178(e)); and not

approving or rejecting Resource Engineering’s application since July 2017 (id. at ¶ 181).

Plaintiff also challenges SWAC’s “re-open[ing] the Request for Inclusion proceedings to take

additional testimony” in January 2018 (id. at ¶ 189); supposed omissions in the SWMP that have

been damaging Resource Engineering for “more than three years” (id. at ¶ 197-98); and costs

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that Resource Engineering voluntarily incurred between 2015-2017 (id. at ¶¶ 11, 61-67, 71, 75).

None of these claims are remotely timely under Rule 4:69-6(a).

“Because of the importance of stability and finality to public actions, courts do not

routinely grant an enlargement of time to file an action in lieu of prerogative writs.” Tri-State

Ship Repair, 349 N.J. Super. at 423. “The 45-day limit may be extended when “it is manifest

that the interest of justice so requires.” R. 4:69-6(c); Faulhaber v. Twp. Comm. of Twp. of

Howell, 274 N.J. Super. 83, 90 (Law Div. 1994) (“The time may be enlarged only when

exceptional circumstances exist and upon the most persuasive of grounds.”) Courts recognize

three grounds for enlarging the time to sue: (a) when a substantial and novel constitutional issue

is involved; (b) when certain informal or ex parte determinations are made by administrative

officers without sufficient crystallization of a dispute; or (c) when an important public, rather

than private, question requires clarification or adjudication. Faulhaber, 274 N.J. Super. at 91.

Only the last ground even potentially applies, and Resource Engineering cannot satisfy the

standard on these facts.

Although the disposal of solid waste is generally considered an issue of public interest,

N.J.S.A. 13:1E-2(a), this case presents only the private issue of whether Resource Engineering, a

private company, can force its application onto the Board of Freeholders’ agenda despite that the

Freeholders have discretion over this process. Resource Engineering does not allege – because it

cannot allege – that Monmouth County suffers due to a purported shortage of solid waste transfer

facilities. Rather, it seeks to expand its private enterprise with a new solid waste transfer station

to capitalize on residential growth in Ocean County. This is not the type of “public interest” that

requires clarification or adjudication such that Resource Engineering should be permitted to sue

years too late. See R. 4:69-6(c).

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CONCLUSION

Resource Engineering’s Complaint fails to state a claim as a matter of law, even under

the liberal pleading standard applicable to motions to dismiss. Its claim for mandamus must fail

because the County has no legal obligation to vote on Resource Engineering’s application and no

obligation to do so within any specified timeframe – and Resource Engineering has not satisfied

the updated public hearing and public notice requirements mandated by DEP. Moreover, the

doctrine of separation of powers precludes this Court from inserting itself into this political

dispute and/or attempting to mandate issues squarely within the County’s discretion.

Resource Engineering cannot challenge the content of the County’s SWMP by action in

lieu of prerogative writ: that issue falls within DEP’s jurisdiction, and DEP already signed off on

the County’s SWMP as consistent with the 2006 updated Statewide SWMP. DEP’s

determination is entitled to substantial deference.

Resource Engineering’s request to recoup the costs it voluntarily paid to professionals is

equally futile: it is foreclosed by the Tort Claims Act, the absence of a private right of action

under the SWMA, and the fact that its claimed damages are speculative, gratuitous, and were not

proximately caused by any alleged act of the County.

Because all of Resource Engineering’s claims must fail as a matter of law, the County

respectfully requests that this Court dismiss the Complaint in its entirety.

Respectfully submitted,

ARCHER & GREINER, P.C.

Attorneys for Defendants Monmouth County
Board of Chosen Freeholders and
Monmouth County Department of Public
Works and Engineering

By: s/ Kira S. Dabby _

KIRA S. DABBY, ESQ.
Dated: October 26, 2020

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