Opinion
DOCKET NO. A-2296-12T4
04-27-2015
GARY WALKER d/b/a OMEGA MATERIAL RECOVERY, Plaintiff-Appellant, v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BURLINGTON, Defendant-Respondent.
Franklin W. Boenning argued the cause for appellant. Anthony T. Drollas, Jr. argued the cause for respondent (Capehart Scatchard, P.A., attorneys; Mr. Drollas, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2929-11. Franklin W. Boenning argued the cause for appellant. Anthony T. Drollas, Jr. argued the cause for respondent (Capehart Scatchard, P.A., attorneys; Mr. Drollas, on the brief). The opinion of the court was delivered by NUGENT, J.A.D.
Seeking authority to operate a solid waste transfer station and material recovery facility on an Eastampton Township site owned by his wife, plaintiff Gary Walker applied to the Burlington County Board of Chosen Freeholders (the Freeholder Board) to amend the Burlington County District Solid Waste Management Plan (the District Plan) to approve the site for the facility. The Freeholder Board denied his application. Thereafter, in a civil action filed by plaintiff against the Freeholder Board, the trial court upheld the Freeholder Board's decision and dismissed plaintiff's complaint with prejudice. Plaintiff appealed. Having considered plaintiff's arguments in light of the record and controlling law, and having determined that the Freeholder Board's decision could reasonably have been reached on sufficient credible evidence in the record, we affirm.
I.
Plaintiff's wife owns land designated as Block 1200, Lot 24 in Eastampton Township (the property). The size of the property is approximately 2.64 acres and it is located in a Commercial Highway District on the west side of State Highway Route 206, approximately 550 feet south of the intersection of Route 206 with Woodbine-North Pemberton Road. The Commercial Highway Zoning District's permitted uses include government buildings, restaurants, professional offices, medical facilities, home offices and businesses in certain dwellings, shopping centers, and garden supply centers. Walker Container Services, LLC, which plaintiff owns, leases the property from plaintiff's wife and parks solid waste collection vehicles, stores solid waste collection containers, and operates a maintenance and service yard for the company's vehicles.
Plaintiff proposed to operate the Omega Material Recovery Facility (the Omega Facility) as a transfer station for certain solid waste. The Facility was designed to receive up to 623 tons of solid waste per day, although plaintiff proposed a daily "throughput" of 600 tons per day, which he subsequently reduced to 500 tons per day. During daily operations, collection vehicles would discharge solid waste classified by New Jersey Department of Environmental Protection (NJDEP) as types 13 and 13C, Omega Facility employees would separate recyclable material from the solid waste stream, and non-recoverable material would then be discharged in accordance with the District Plan.
A "materials recovery facility" is defined in N.J.A.C. 7:26-1.4 as "a solid waste facility such as a transfer station which is primarily designed, operated and permitted to process a non-hazardous solid waste stream by utilizing manual and/or mechanical methods to separate from the incoming waste stream categories of useful materials which are then returned to the economic mainstream in the form of raw materials or product of reuse." A "transfer station" is defined in the same administrative code section as "a solid waste facility at which solid waste is transferred from one solid waste to another solid waste vehicle . . . for transportation to an off-site solid waste facility . . . ."
N.J.A.C. 7:26-2.13(g)1.iii.13 defines bulky waste as "[l]arge items of waste material, such as appliances and furniture. Discarded automobiles, trucks and trailers and large vehicle parts, and tires are included under this category." N.J.A.C. 7:26-2.13(g)1.iv.13C includes construction and demolition waste.
A.
The procedural history of plaintiff's application is essentially undisputed. During more than a year of pre-application planning, plaintiff, his engineering experts, and his attorneys met informally with state and local officials to anticipate and address local and regional concerns. After completing the "pre-application" phase of the project, plaintiff filed an application for an amendment to the District Plan with the Freeholder Board. Once the application was deemed complete by the County, a public information meeting and hearing took place before the County's Solid Waste Advisory Council (SWAC). At the hearing, the SWAC requested additional information. After receiving it, another hearing took place at which the SWAC recommended that the County adopt plaintiff's amendment.
Following SWAC's recommendation, the staff of the County's Department of Solid Waste (Department Staff) prepared a forty-seven page report (Department Report) for the Freeholder Board "to summarize the record and set forth the recommendations of the [SWAC] and the [Department Staff] regarding [plaintiff's proposed amendment to the District Plan]." The Freeholder Board subsequently held a public hearing and adjourned the matter for two weeks because of concerns raised by residents. Following the second hearing, the Freeholder Board rejected plaintiff's application.
Plaintiff filed an Amended Complaint in Lieu of Prerogative Writs challenging the Freeholder Board's rejection of his application. After the Freeholder Board filed its answer and the parties filed briefs, the trial court ordered the matter remanded to the Freeholder Board for "further explanation, based on substantial credible evidence in the record, of the reasons why the [Freeholder Board] rejects the Plaintiff's application[.]" The trial court retained jurisdiction.
It is not clear from the record when the original complaint was filed, as only the amended complaint has been provided.
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On remand, the Freeholder Board adopted a Resolution and rejected plaintiff's application mostly for the reasons set forth in the Department Report. The trial court thereafter issued an opinion upholding the Freeholder Board's decision. Plaintiff filed this appeal.
B.
Although the parties do not dispute many of the facts in the record, they sharply dispute the assessment of those facts by the Freeholder Board, particularly the facts asserted in the Department Report and the opinions of the plaintiff's experts. The following are facts pertinent to that dispute.
Plaintiff's application and amended application included an Engineering Report describing the proposed Omega Facility, a Geotechnical Report, an Environmental and Health Impact Statement (EHIS), a Sound Level Report, a Traffic Report, and a Proposed Operations & Maintenance Manual. According to the engineering report, the site would "consist of a 150' X 90' material recovery building with attached 12' X 30' storage/employee room, and 10' X 7' scale office."
Collection vehicles would enter the site, proceed to an inbound scale, and then enter the building. The vehicles would deposit the waste on the tipping floor, where it would be sorted and the recovery process undertaken. The vehicles would proceed to an outbound scale, and then leave the Omega Facility. According to plaintiff's engineer's report, there would be an average processing time of ten minutes per vehicle for queuing, weighing, dumping, and exiting the site, allowing for up to twenty-four trucks per hour to enter the Omega Facility given its ability to queue four discharging vehicles, and seven others onsite at a time.
After the SWAC recommended that the County approve plaintiff's proposed amendment, the Department Staff prepared the Department Report for the Freeholder Board. The Department Staff's concerns were significant. First, the Department Staff questioned whether eighteen Omega Facility employees working a "one-shift operation" could process five hundred tons of solid waste daily. As a result of the SWAC recommendation that the Omega Facility's hours of operation on Monday through Friday be between 7:00 a.m. and 8:30 p.m., Department Staff members had visited a Mercer County facility that was accepting five hundred tons of solid waste daily. The Mercer facility operated longer hours, had twenty-five employees per shift, and operated two shifts. The Department Staff commented that in view of insufficiently detailed information from plaintiff's engineer and the "information gathered during the site visit to the Mercer Group calls into question the applicant's ability to process . . . 500 tons per day."
In addition to questioning plaintiff's ability to process 500 tons of solid waste daily with eighteen employees working a single shift, the Department Staff had concerns about traffic, dust, odors, noise, and lighting at the site. The Department Report noted that traffic in the area of the Omega Facility had already resulted in the lowest achievable "level of service" at nearby intersections. The Department Report further noted the County Engineer had stated during SWAC hearings that Route 206 was "already saturated." The County Engineer had also stated in a memorandum that "field observations by county engineering staff found that AM Peak queues repeatedly block the [Omega Facility's] driveway." For those reasons, the County Engineer had recommended that plaintiff's experts "perform a gap study during peak periods to determine whether there are sufficient gaps for the site generated traffic to safely enter or exit the site."
Noting that plaintiff's expert "did not attempt to address the anticipated dust loading rate for the air handling system (tons/day) or calculate the amount of dust that would be released from the air handling system[,]" and "did not attempt to characterize the chemical constituents of the dust which also must be known in order to evaluate the impact to the surrounding community[,]" the Department Staff remained concerned about the design, operation, and efficiency of the air handling system.
Further, because a proposed sixteen-foot high sound wall along the Omega Facility's western property line did not take into consideration the noise produced by an air handling system, parts of which system were above the height of the proposed sound wall, the Department Staff believed "that sufficient information to determine the required height of the sound wall has not been presented by the applicant."
The Department Staff also pointed out that plaintiff's experts' representations concerning the Omega Facility's lighting plan were inaccurate and therefore "insufficient to prove that neighboring property owners will not be negatively impacted by the proposed site lighting"; opined "that insufficient attention ha[d] been given to space and facilities for equipment maintenance and spare parts storage" based on "operational experience" at other solid waste facilities; and expressed concern that the 2.64 acre site "[did] not afford the applicant the flexibility to reposition or relocate structures or ancillary features required for operation if required to do so by other regulatory agencies . . . [and] d[id] not allow for any margin or error during operations."
In addition to the foregoing concerns related to the Omega Facility's operation, the Department Staff did not find "a compelling need to circumvent local zoning to include this facility at this location in the District Plan[,]" and stated that plaintiff's professionals had provided insufficient information on the impact of the Omega Facility on surrounding property values. Specifically, the Department Staff criticized the applicant for not providing "analysis conducted by a licensed appraiser experienced in evaluating the impacts of solid waste facilities on nearby commercial and residential properties."
For the reasons recited in the Department Report, the Department Staff recommended that the Freeholder Board reject plaintiff's proposed amendment to the District Plan. The Department Staff made alternative recommendations in the event the Freeholder Board acted favorably on plaintiff's application.
Two days after the Department Staff issued its report, the Freeholder Board held its first public hearing on plaintiff's application. Following public comments, plaintiff's attorney addressed some of the Department Staff's concerns. Counsel made factual assertions about other solid waste facilities, noting that many processed a greater daily tonnage of solid waste at facilities situated on property with smaller acreage than the proposed site for the Omega Facility. Based on the facts concerning other facilities, counsel asserted that "[t]he idea that the site is too small to accommodate this facility is flat out wrong."
Plaintiff's engineer provided an overview of the site's size and surrounding area, noting that the closest house was 167 feet from the property. The engineer also believed that permit variances could be obtained for the building for all of the proposed structures and the sound wall. The engineer, upon questioning, admitted that the sound report had not included the air processing system, but stated that the sound would be comparable to that of a diesel truck. The engineer admitted that it would be additive, however, and promised to conduct further sound testing if there would be another hearing.
The engineer also discussed the placement of lights but gave no firm answers regarding the height of the lights, saying only that they would "probably" be lower than the sound wall. He also testified that the facility would be profitable for plaintiff at 350 tons, but provided no direct support for this assertion. Plaintiff testified that they could not be sure of the minimal tonnage for profitability, but stated that fifty to sixty tons a day would probably be enough "[t]o stay open."
When asked about traffic, plaintiff's engineer testified that there would be no noticeable off-site traffic delays. He stated that they were committed to a left turn lane and that a gap study could be undertaken. He then stated that no traffic report would be revised for tonnage changes until plaintiff applied to the DEP after his proposed District Plan amendment had been granted. Freeholder Board members responded that the intersections involved were already quite bad and that increased traffic was a major concern, comments to which the engineer could not directly respond.
When asked if the traffic experts had considered what a "no left turn" restriction would have upon the site, the engineer replied that it had not been considered, but that plaintiff would be willing to look into it. When asked about the air system, the engineer stated that because the system was proprietary, no more information would be provided until the DEP phase of the application.
The freeholders voted to adjourn the hearing to give plaintiff more time to address the Department Staff's concerns. Plaintiff thereafter performed a gap study. The study suggested a gap of ten seconds or more would be needed for the trucks to make a left turn into the facility. The gap study concluded that there were nearly twice as many gaps as necessary to accommodate all of the anticipated turns during peak traffic hours.
During the second hearing before the Freeholder Board, plaintiff discussed other facilities and their relative sizes, though most were in urban environments, not rural like plaintiff's proposed facility. Plaintiff's traffic expert discussed the gap study he had conducted and testified that there were enough gaps in traffic to support the turns needed for the proposed facility. He also explained that only gaps longer than ten seconds were considered, though ten-second gaps were sufficient for large trucks to safely turn. The expert then testified that it was feasible to add a left turn lane to Route 206, but the Department of Transportation would have to approve it. When asked about any increase in danger or accidents, the expert denied that the facility would add to the danger in the area but could not predict whether the number of accidents would increase.
Plaintiff's sound expert testified that she conducted a sound level measurement study. She met plaintiff at the property where he brought a truck similar to those that he would be using when the Omega Facility was operational. She performed her study at five locations: two on site, one across the street, one at the entrance driveway, and one near a residential development. According to the expert, the state standard for noise level was sixty-five decibels. Calculating the noise level for "several transfer trailers either idling, backing up, pulling in, pulling out, excavators, moving waste around and then the air handling system," the expert recorded on a noise meter at a distance of fifty feet "from everything, . . . a combined decibel of 96.24 as the high and then a combined decibel of 87.58 peak low." The expert explained that the building itself would reduce the levels, but because no building yet existed, she measured the noise in "an open air situation." Consequently, the building was not accounted for in her calculations.
Based on 87.58 decibels, and the state code requiring sixty-five decibels, the Omega Facility when operational needed a noise reduction system. The expert testified that the proposed sound wall would reduce the decibel level to 64.6. The expert anticipated that when the building was included in the noise reduction, the building and sound wall combined would reduce the noise level to sixty-one or sixty-two decibels.
The expert's testimony was based on thirteen trucks operating at one time. The site could accommodate thirty-three trucks operating at one time. The expert insisted that thirty-three trucks, spread over the site, would not produce a decibel level fifty feet away of more than sixty-one or sixty-two.
The Freeholder Board expressed its doubts as to the expert's contentions, noting, for example, that her testimony conflicted with their experience with large truck backup warning bells. In response, plaintiff's representatives reminded the Freeholder Board that the sound wall to be installed was specifically designed to mitigate these sounds. Several members of the public then expressed their concerns over the noise, traffic, and pollution that would result from the site.
Before the Freeholder Board voted on plaintiff's proposal amendment, one freeholder commented that while the Omega Facility was a good idea, it should be placed elsewhere. The freeholder doubted the viability of the facility at reduced rates, based on 350 tons per day, given the multimillion dollar investment involved in building the facility.
The Freeholder Board unanimously voted to reject the application and subsequently adopted a memorializing resolution.
Following plaintiff's filing of the prerogative writs action and the trial court's remand, the Freeholder Board again denied plaintiff's application, adopting the list of concerns provided in the Staff Report as part of the basis for its decision. The Freeholder Board's resolution stated in pertinent part:
Importantly, the Board of Chosen Freeholders finds that the Department Staff's concerns remained unresolved following the public hearing before the Freeholders that took place on July 27, 2011. The applicant's noise and sound expert did not testify to the satisfaction of the Freeholders that noise levels from the facility would be mitigated by the proposed construction, particularly given the confusion that was evident over the number of trucks that were the subject of the noise study, and the extent to which the applicant's expert used the appropriate truck count in the study
data[.] In particular, in response to testimony from the applicant's expert that noise issues with the proposed operation could be sufficiently attenuated, the applicant's claim was undermined by the testimony of its own witnesses during the July 27, 2011 public hearing before the Freeholders where, in general, Omega's engineer and their noise expert could not even agree on how many trucks would be on the site for purposes of measuring sound from the operation. In addition, the Board adopts Freeholder Brown's concerns, expressed at the public hearing, concerning the economic viability of the project. At best, and similar to the applicant's handling of several crucial issues over this project, the applicant deferred to the post-approval and post-construction time period the notion of follow-up testing to ensure the adequacy of a proposed sound wall for noise mitigation purposes. Whether such testing ever takes place, and whether sufficient noise mitigation can be achieved, was an issue left unresolved for the Freeholders at the time of their decision in 2011, and the proposed Plan Amendment is thereby rejected on those grounds.
Plaintiff notified the court of the Freeholder Board's resolution and the court scheduled proceedings to dispose of the prerogative writs action. After considering the parties' briefs and hearing oral argument, the court upheld the Freeholder Board's denial of plaintiff's application. In a comprehensive written decision, the trial court determined that the Freeholder Board acted well within its authority when it rejected plaintiff's expert's testimony; did not overstep its authority when it requested from plaintiff information beyond that contained in plaintiff's application and amended applications; did not act outside the scope of the District Plan; and based its decision on facts supported by substantial evidence in the record.
The court filed an implementing order. Plaintiff appealed.
II.
We begin our analysis with our standard of review. When a Freeholder Board considers and votes on a proposed amendment to a county's solid waste management plan, the board acts in a quasi-legislative capacity. ERG Container Servs. v. Bd. of Chosen Freeholders, 352 N.J. Super. 166, 173 (App. Div.) (citing In re Certain Amendments to Adopted and Approved Solid Waste Mgmt. Plan of Hackensack Meadowlands Dev. Comm'n Solid Waste Mgmt. Dist., 275 N.J. Super. 375, 389 (App. Div.), certif. denied, 139 N.J. 289 (1994)), certif. denied, 174 N.J. 546 (2002). The Freeholder Board's decision concerning a plan amendment is "entitled to a strong presumption of validity." In re Certain Amendments, supra, 275 N.J. Super. at 389. An appellate court's review of such quasi-legislative policy decisions is therefore limited. ERG Container Servs., supra, 352 N.J. Super. at 173-74; In re Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. 322, 328 (1989). Thus, as a general proposition,
appellate courts have a limited and structured role in reviewing the decisions of administrative agencies. We will not reverse an agency decision unless it is "arbitrary, capricious, or unreasonable or is not supported by the substantial credible evidence in the record as a whole." If we find sufficient credible, competent evidence in the record to support the agency's conclusion, we are bound to uphold the agency findings . . . . We may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result.
[ERG Container Servs., supra, 352 N.J. Super. at 174 (quoting Petition of Cnty. of Essex, 299 N.J Super. 577, 591-92 (App. Div.), certif. denied, 151 N.J. 463 (1997)).]
When a trial court reviews the action of a Freeholder Board concerning an amendment to a solid waste management plan, the trial court must determine "whether the [Freeholder Board's] findings could reasonably have been reached on 'sufficient' or 'substantial' credible evidence in the record, considering the proofs as a whole, with due regard for the credibility judgments of those who heard the witnesses." Id. at 173 (citations omitted). Whether the trial court applied the correct standard of review "is a question of law and thus our review is plenary." Ibid. Similarly, we review de novo the "trial court's interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
A.
With those standards in mind, we turn to plaintiff's arguments. Plaintiff first contends the Freeholder Board "overstepped the limit of its authority when it applied 'criteria established by [NJDEP] for approval of transfer stations and material recovery facilities (N.J.A.C. 7:26-2B.1 et seq.)' in its decision to reject Omega [Facility]'s application to be included in the District [Plan]." We disagree.
The Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 to -48, "establishe[d] a comprehensive system for the regulation of solid waste collection, reprocessing and disposal." In re Certain Amendments, supra, 275 N.J. Super. at 379. 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." Holgate Prop. Assocs. v. Twp. of Howell, 145 N.J. 590, 597 (1996) (citing N.J.S.A. 13:1E-2b).
The SWMA authorizes each county, under the supervision of the DEP, "to develop and implement a comprehensive solid waste management plan which meets the needs of every municipality within each such county . . . ." In re Certain Amendments, supra, 275 N.J. Super. at 379 (quoting N.J.S.A. 13:1E-2(b)(2)). In adopting the plan, a Freeholder Board must comply with both statutory and regulatory provisions. Under the SWMA, the board must provide for public notice and a hearing, after which the board may adopt a plan, which must then be submitted to the DEP. N.J.S.A. 13:1E-23.
An owner seeking to operate a new solid waste facility, including transfer stations and materials recovery facilities, must seek an amendment to a district solid waste management plan and the amendment "must be submitted both to the county's Solid Waste Advisory Council and then to the Freeholders for approval." ERG Container Servs., supra, 352 N.J. Super. at 171; N.J.S.A. 13:1E-23; N.J.A.C. 7:26-6.10(b)(7).
If a Freeholder Board grants an owner's application for a plan amendment, the facility still cannot operate until the owner receives from DEP all necessary permits. In re Certain Amendments, supra, 275 N.J. Super. at 379-80. The information that must be provided to the DEP for permits is far more extensive than that which must be provided to a Freeholder Board for plan amendment approval. ERG Container Servs., supra, 352 N.J. Super. at 177.
The Freeholder Board makes its decision as part of a preliminary "planning phase," whereas the DEP grants permits as part of a "technical phase" involving "a detailed showing of the economic, technical and environmental feasibility of the project." Ibid. Even at the planning phase, however, the Freeholder Board is permitted to "expect the submission of evidence detailing how plaintiff propose[s] to construct and operate such a facility, together with evidence of how such facilities operate in other locations." Ibid. Those seeking to open a new facility must provide more than mere net opinions in support of their application to a Freeholder Board. Ibid.
Here, plaintiff argues that by requiring technical information in support of plaintiff's application, the Freeholder Board usurped the role of the DEP. Plaintiff asserts the Freeholder Board was entitled to "planning" information but not the detailed information on "economic, technical, and environmental feasibility." We are unpersuaded by plaintiff's argument.
To be sure, some of the information required by the Freeholder Board required detailed specifications concerning the operation of the Omega Facility that entailed a level of technical expertise beyond the Freeholder Board's ken. Ibid. For example, the District Staff's concern that plaintiff had not addressed the anticipated dust loading rate for the air handling system, calculated the amount of dust that would be released from the air handling system, or attempted to characterize the chemical constituents of that dust, were technical matters that appear to be beyond the ken of the Freeholder Board but within the expertise of DEP.
Nevertheless, that the Freeholder Board was not the proper venue for plaintiff to present those detailed specifications of his proposal does not require reversal if the Freeholder Board's decision to reject the application on proper "planning phase" issues was supported by ample credible evidence in the record. See Id. at 177-178. "Planning" issues which are within the ken of a Freeholder Board include the suitability of the site for construction of a solid waste management facility within the District Plan, id. at 176; and, whether the projected rate of recovery of a materials recovery facility is in any way realistic, id. at 177.
Here, plaintiff sought to construct a materials recovery facility in a rural setting with homes in the immediate vicinity. The Freeholder Board was well-suited to consider the potential of increased traffic and noise on neighboring property owners. The County Engineer's staff's "field observations" found that "AM Peak [traffic] queues repeatedly blocked the site's driveway." Moreover, the County Engineer and the Freeholder Board members were well suited, more so than DEP, to assess Route 206 in the vicinity of the proposed Omega Facility as "already saturated." And though plaintiff produced gap studies to show there would be sufficient time for trucks to turn into the facility, the Freeholder Board was well within its discretion to take into consideration at the planning stage the existing traffic congestion on Route 206 in the area of the property that would be, to some extent, exacerbated by the number of trucks entering and exiting the facility on a daily basis.
The noise issues the Freeholder Board discussed with plaintiff's sound engineer during the second public hearing were also properly considered within the "planning" stage. That plaintiff's sound engineer had misunderstood the number of trucks that would use the Omega Facility, but nonetheless provided testimony that the level of sound produced by thirteen operating vehicles would be identical to the level of sound produced by thirty-three, provided ample reason for the Freeholder Board to conclude such testimony provided no basis for assessing the facility's noise impact on the surrounding area. The Freeholder Board was acting reasonably when it found the information provided was confusing and contradictory, and therefore, insufficient to support adopting the proposed amendment.
The issue of the Omega Facility's impact on property values was also a proper "planning" stage concern. Plaintiff's experts claimed this to be "unpredictable" and therefore did not attempt to address it. The Board acted well within its discretion by rejecting the assertion of unpredictability.
Moreover, when asked about the solvency of the facility if it were to process a reduced tonnage of solid waste, plaintiff and his wife relied only upon their own unsupported assertions as to the number of tons needed to operate day-to-day, further demonstrating that plaintiff's application was lacking in information that would be reasonably necessary to consider even in the "planning" phase. The Freeholder Board, understandably, was disinclined to approve plaintiff's application without some assurance of viability. As the information requested would be necessary for the Freeholder Board to determine how realistic plaintiff's claims regarding his proposed facility would be, the requests were within the Freeholder Board's purview and did not involve usurpation of the DEP's role in the process. ERG Container Servs., supra, 352 N.J. Super. at 177-78.
Plaintiff next argues that the Freeholder Board's requests exceeded the bounds the Freeholder Board had established for an application to amend the District Plan. Those rules state that a complete application for an amendment to the District Plan shall consist of the following: all the information required by statute; a report discussing the need for such a facility; what types of waste will be dealt with; analysis of the existing market for such facilities and a study sufficient to show the facility will meet state standards; a preliminary or conceptual engineering plan including a general site plan; a list of the benefits to be afforded to the host municipality; a preliminary EHIS, including a health risk assessment and emergency plan as required by the DEP; a disclosure sheet; and a filing fee.
The Freeholder Board's rules also provide that an applicant, at the public hearing, must provide a presentation of the application and "be available to answer all questions raised by the Board or the public." The Freeholder Board's regulations do not explicitly state the criteria on which the Freeholder Board will make its decision to accept or reject a proposed amendment. The required documents, however, suggest that the County intended the rules to permit it to consider the very issues it examined here, such as site suitability, environmental impact, noise, and traffic. As the Freeholder Board's regulations do not otherwise specify that the Freeholder Board will not consider these and other issues, plaintiff's argument that the Freeholder Board violated its own regulations is without merit.
We reiterate that the Freeholder Board is expected to make use of its quasi-legislative discretion to make policy decisions for the County it represents. Holgate Prop. Assocs., supra, 145 N.J. at 597-98. The concerns that were dispositive here are mostly of the type of policy concerns that a Freeholder Board should have: the suitability of a site within the District Plan for a solid waste facility; the impact of a facility's operation on property values and the surrounding environment; and the financial viability of the facility. The Freeholder Board concerned itself with policy considerations that were within its purview during the planning stage and did not usurp the DEP or exceed the standards set by its own regulations. In reviewing the Freeholder Board's decision, the trial court applied the appropriate standard of review, and the planning phase issues on which the board rejected plaintiff's application were supported by ample credible evidence in the record. Accordingly, we affirm the trial court's order upholding the Freeholder Board's decision.
B.
In his final argument, plaintiff contends the Freeholder Board's findings were not supported by substantial, credible evidence in the record. Plaintiff addresses each subject of concern expressed by the Department Staff, reiterates the testimony of his own experts concerning the issues, and asserts that the trial court's disposition of each issue was either predicated on an erroneous fact or overlooked countervailing testimony from plaintiff's witnesses.
As previously discussed, we have considered the record and found ample evidence to support the Freeholder Board's decision based on the planning phase issues the Board properly considered. Plaintiff's point-by-point arguments concerning the Department Staff's concerns are without sufficient merit to warrant further extended discussion. R. 2:11-3(e)(1)(E). We note only that an administrative agency "is not bound to accept the testimony of [an] expert." Reich v. Borough of Fort Lee Zoning Bd. of Adjustment, 414 N.J. Super. 483, 505 (App. Div. 2010). A board is "free to either accept or reject the testimony of [] experts. Where reasonably made, such a choice is conclusive on appeal." Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J Super. 514, 537 (App. Div.) (internal quotation marks and citations omitted), certif. denied, 175 N.J. 75 (2002).
For the foregoing reasons, we affirm the trial court's order upholding the Freeholder Board's rejection of plaintiff's application.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION