Hillsdale Is Attacking Waste Management: Letter

Editor's note: The following letter was written to Anthony Fontana, chief of the Bureau of Solid Waste Permitting with the state Department of Environmental Protection.

Dear Mr. Fontana,

As a resident of Hillsdale, I reside about four blocks from the Waste Management Transfer Station. For the past 17 years, I have been a strong advocate for open, honest and transparent government.

The action of Hillsdale borough administration, appears so twisted they could hide behind a corkscrew.

Then-Hillsdale Mayor Douglas Frank's argument to deny Waste Management a state license renewal for the property is not only imprecise and unduly narrow, but it is incorrect in light of decisional law and common sense.

1) During a run for the election, the Republican Party blamed the Democratic council members for the loss of $250,000 to $300,000 in fees associated with the loss of the Waste Management operation in Hillsdale.

2) With the new Republican mayor in office, the push now is to permanently ban the Waste Management operation. The motive: To support their plans for redevelopment of the area with high density housing units.

The prior Mayor (Arnowitz) commented during a Council Meeting about taking over the Waste Management property via eminent domain and selling it to a developer.

3) April 26, 2016: At the Hillsdale Planning Board, Mayor Frank and Council President Frank Pissella supported a presentation made by Mr. Benenke in support of economic redevelopment of the area.

http://www.hillsdalenj.org/vertical/Sites/%7BFE916F8D-CA48-4788-B4B7-6A2BF8501398%7D/uploads/April_26_2016_Minutes.pdf

The meeting minutes document Beneke stating he would extend a written report on his finding in 30 to 45 days.

Eight months later, despite repeated requests for a report tax payers spent $12,000 to receive, the Benenke written report is still not been made available for public view. Why?

On Jan. 17 at the Hillsdale Mayor and Council Meeting, this resident asked when the report, promised eight months ago would be made available. "When it is ready"... was the response.

4) On Aug. 26 the Hillsdale Planning Board made reference to a report created by the Hillsdale COAH planner being extended to the Bergen County Superior Court.

The so called "DJ" action, was a Declaratory Judgment on Affordable House before Bergen County Superior Court, Judge William C. Meehan...Docket # L-5680-11.

An OPRA request was extended for the above mentioned report, access to the government record was denied. Hillsdale stated it was a document extended in support of a legal matter.

On Sept. 26 this resident petitioned the Superior Court to grant access to the Court File under New Jersey Court Rule 1:38-1 as define by R 1:38-2 and R 1:38-4. The Court granted access to its file to be review and copied.

This measure was required because Hillsdale refused to provide access to the written report created by the planner.

6) Within the report, the Borough of Hillsdale lists five properties capable of supporting its legal obligation to COAH. Among those five properties is the Waste Management property. It is for this reason Hillsdale is seeking to permanently ban Waste Management from being re-licensed.

a) Maser Consultant's created the report, sent to the Court, dated March 7, 2016.

Page four of eight states the Borough has identified five different properties in response to the action: "The Borough's vision is to redevelop this portion of the Industrial Zone to allow mixed-use development, multi-family residential and assisted living residences. The Borough believes this is an appropriate location for affordable housing as it is roughly five blocks from the train station."

7) This report was then offered to oppose an apartment complex before the Hillsdale Planning Board. Based on the properties listed in the report (Borough's defense to the litigation matter), Hillsdale claimed to have enough low cost housing units planned to defeat the litigation.

The Planning Board Attorney stated the report extended to Judge Meehan "was merely a placeholder." The written report to the Judge made so such claim. Hillsdale fails to comprehend, it is not good to mislead a judge.

The trustworthiness of official written statements is found in the official duty and the high probability that the duty performed to make an accurate report has been performed. State v. Fortin, 189.NJ 579, 605 (2007). NJDEP v. Duran 251, NJ Super, 55, 65 (App Div 1991) State v. Hudes, 128 NJ Super 589 (Cty. Ct. 1974)

It was alarming to learn a document sent to the Court, was nothing more than a sham, an intent to dupe the court. Hillsdale wrote they had a COAH solution, when in fact, it does not!

The smoke and mirrors response to the court, included properties owned by Waste Management and Verizon.

8) In support of Habit and Routine...Hillsdale extended an NJDOT grant seeking $1.4 million for capital improvements and revitalization of Patterson Street. Hillsdale is seeking the funds to install decorative street lights costing $360,000, mill the road, add sidewalks on both sides of the street, install new curbing and a bike path.

In speaking with NJDOT, they were puzzled why Hillsdale would seek such funding from state tax payers when the costs would be and should be included in a developer’s agreement if the Waste Management property is taken over by Hillsdale as part of its redevelopment plan.

Hillsdale claims the improvements/grants funds are justified by safety. Silly putty can't stretch that far.

Hillsdale failed to consider sidewalks on one side of the street would mandate carving away 10 feet of the stabilization bank for the Pascack Valley Train Line.

The sidewalks failed to support a loop to the shopping area. Children and the disabled would be left to walking in the street. The non-compliant ADA railroad tracks and the lack a pedestrian safety gate at the train crossing as safety issues. So much for their view on safety!

Hillsdale also is attacking Waste Management on the traffic it will generate.

Hillsdale recently approved a 40-unit apartment complex. Based on US Transportation Bureau statistics, the apartments will generate an additional 115,340 trips per year. This property was previously undeveloped. The mayor had no issue with this dramatic increase in traffic.

The proposed redevelopment of the Waste Management property would add at least another 385,000 trips per year on the same street. Combining the two, the additional traffic count would be almost 500,000 trips per year...how does that compare to the truck traffic at Waste Management? Never mind the impact to our school district.

What is the number of accidents resulting from the so called high truck traffic on Patterson Street?

10) Hillsdale has two form letters on the Borough Website directing residents to protest the re-license of the Waste Management site. I find it appalling the extent Hillsdale has undertaken to denying Waste Management their license.

11) At the Jan. 17 mayor and council meeting, Council President Pissella stated the borough would be holding an open meeting in opposition to the Waste Management application.

In seeking fundamental fairness, I asked if Waste Management and NJDEP would be presenting so residents can hear both sides of the story. The response did not leave residents with a warm feeling of open and honest government.

12) Within the last 18 months, tbe Hillsdale Planning Board approved a dog kennel to be built on the property directly adjacent to the Waste Management property. The owner then had challenges and did not move it forward after being approved by the Planning Board.

Who in their right mind would support a dog kennel having a long term lease, to be placed next to a future high density housing complex?

13) Not in my backyard is a common phrase raised over such things as a waste transfer station, a cell tower or a solar farm. Hillsdale falls to comprehend such business are a necessary requirement and are inherently beneficial for our way of life.

LEGAL POINTS TO CONSIDER:

N.J.S.A. 48:13A-4 authorizes the DEP to regulate, similar to a public utility, all aspects of solid waste disposal and transportation. The required permit, the CPCN, N.J.S.A. 48:13A-6, can be revoked for violating the Act. N.J.S.A. 48:13A-9. Similarly, chronic environmental offenders may be the cause of the non-renewal of an A-901 permit and an individual's debarment from the industry. It is the past practice of violations that triggered the decision to deny renewal of the permits and to seek debarment. N.J.S.A. 13:1E-134; N.J.S.A. 48:13A-9. To the best of my knowledge, Waste Management has not exhibited a past practice of violations. When a potential concern is raised, WM has been more than responsive.

There is no evidence to support Waste Management failed to "exhibit integrity, reliability, expertise and competence" in its "prior performance record in the collection . . . or disposal of solid or hazardous waste, . . . or to operate the solid waste facility[.] N.J.A.C. 7:26-16.8(a). WM is a first class operation, its past performance was never "irresponsible" and "adverse" to "human health and the environment."

The statutes pursuant to which Waste Management operates are regulatory. See State v. Lewis, 215 N.J. Super. 564, 575 (App. Div. 1987) (stating "the goals of the environmental laws are both remedial and preventative"); see also United States v. Salerno, 481 U.S. 739, 747, 107 S. Ct 2095, 2101, 95 L. Ed.2d 697, 709 (1987) ("There is no doubt that preventing danger to the community is a legitimate regulatory goal.")….based on information and belief there are no regulatory violation by Waste Management to prevent them from re-operating their facility.

The public should have no doubt that a person or company who has violated the Act or any regulation adopted there under may be found not 'qualified by experience' and hence may be denied permission under N.J.S.A. 48:13A-6 to engage in the solid waste business." Scioscia, supra, 216 N.J. Super. at 656. See also In re J.I.S. Industrial Service Co., 206 N.J. Super. 234, 237-38 (App. Div. 1985) (holding that "in the appropriate case the revocation of a license . . . [pursuant to] N.J.S.A. 13:1E-133 would justify a revocation of all licenses under N.J.S.A. 13:1E-134[(a)]"), aff'd, 110 N.J. 101 (1988). Waste Management is a $14 Billion a year company that has had a solid working relationship within the communities where ever they are located. They are experts in their profession.

The Hillsdale Transfer Station is a public utilities subject to its general jurisdiction under N.J.S.A. 48:2-13. Any solid waste facility, including a transfer station, constructed or operated pursuant to the provisions of the Solid Waste Management Act, N.J.S.A. 13:1E-1, et seq., shall be deemed a public utility and shall be subject to the rules and regulations of the Board. N.J.S.A. 13:1E-27. The Transfer Stations each hold a Certificate of Public Convenience and Necessity to engage in the business of solid waste disposal and, if [sic] fact, are so engaged. It would be unlawful for them to be engaged in the solid waste disposal business unless they held certificates. N.J.S.A. 48:13A-6.

Any solid waste facility constructed, acquired or operated pursuant to the provisions of this amendatory and supplementary act shall be deemed a public utility and shall be subject to such rules and regulations as may be adopted by the Board of Public Utility Commissioners in accordance with the provisions of the "Solid Waste Utility Control Act of 1970" (P.L. 1970, c. 40, C. 48:13A-1 et seq.). Hillsdale has another public utility in the immediate area which it has bent over backwards to support, including allowing PSE&G to upgrade its operation well beyond the hours permitted in the borough construction ordinance...among other things.

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-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.

According to N.J.S.A. 52:14B-11, of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, no "agency shall revoke or refuse to renew any license unless it has first afforded the licensee an opportunity for a hearing in conformity with the provisions of this act applicable to contested cases."

More specifically, the Act provides for the opportunity "to respond, appear and present evidence and argument on all issues involved." N.J.S.A. 52:14B-9(c).

The summary decision process authorized by N.J.A.C. 1:1-12.5 allows a determination of the record without further testimony when there are no issues of material fact in dispute.

Any review must encompass "the proofs as a whole" and must take into account “the agency's expertise where such expertise is a pertinent factor." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The Court will not upset the ultimate determination of an administrative agency unless it is shown to be arbitrary, capricious or unreasonable, or to have violated legislative policies expressed or implied in the enabling legislation. Hemsey v. Bd. of Trs., Police & Fireman's Ret. Sys., 198 N.J. 215, 223-24 (2009).

Generally, the actions of administrative agencies are entitled to a presumption of reasonableness. East Orange Bd. of Educ. v. N.J. Sch. Constr. Corp., 405 N.J. Super. 132, 143 (App. Div.) (citing City of Newark v. Natural Res. Council, 82 N.J. 530, 539 (1980)), certif. denied, 199 N.J. 540 (2009); In re Holy Name Hosp., 301 N.J. Super. 282, 295 (App. Div. 1997). New Jersey Courts afford substantial deference to an agency's interpretation of the statute it is charged with enforcing. R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999). Further, the Courts are not authorized to substitute our judgment for that of the agency. Division of Alcoholic Beverage Control v. Maynards, Inc., 192 N.J. 158, 183 (2007).

Should the matter be challenged, the Court must analyze the agency's grant of summary decision "in accordance with the principles set forth by the Supreme Court in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)." National Transfer, Inc. v. N.J. Dep't of Envtl. Prot., 347 N.J. Super. 401, 408 (App. Div. 2002). In opposing the DEP's motion, appellants must offer more than sworn conclusions or bald assertions of disputed facts. Cf. Triffin v. Am. Int'l Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004). The existence of a disputed fact is not enough; it must be a material disputed fact. Bally Mfg. Corp. v. N.J. Casino Control Comm'n, 85 N.J. 325, 334, appeal dismissed by 454 U.S. 804, 102 S. Ct. 77, 70 L. Ed.2d 74 (1981). "[D]ue process does not require an evidentiary hearing unless there are contested material issues of fact." Contini, supra, 286 N.J. Super. at 121 (citing Codd v. Velger, 429 U.S. 624, 97 S. Ct. 882, 51 L. Ed.2d 92 (1977)). "'[I]t is the presence of disputed adjudicative facts, not the vital interests at stake, that requires the protection of formal trial procedure.'" Ibid. (quoting High Horizons Dev. Co. v. N.J. Dep't of Transp., 120 N.J. 40, 53 (1990)).

In short, Hillsdale is spinning its wheel... it is attempting to make a big deal of things that are completely out of its control. The mayor has been abusing his power and is now placing taxpayers at risk over yet another expensive legal battle.

Please note, I am not an employee of Waste Management, nor do I have any relationships with any person who works there. In my opinion, the application should be based on facts, on its merits and the professionalism of Waste Management...not on the emotional spin created by Mayor Frank.

Respectfully,
Kevin M. O’Brien

Photo: A Waste Management truck/Patch file photo