M.T.S. TOWING, INC. VS. TOWNSHIP OF UNION (L-0242-16, UNION COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 25, 2019
• Docket: A-2911-17T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2911-17T3

M.T.S. TOWING, INC.,

Plaintiff-Appellant,

v.

TOWNSHIP OF UNION,

Defendant-Respondent. _____________________________

Submitted February 4, 2019 – Decided February 25, 2019

Before Judges Sabatino and Mitterhoff.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0242-16.

McKenna, DuPont, Higgins & Stone, PC, attorneys for appellant (William T. McGovern, on the briefs).

LaCorte, Bundy, Varady & Kinsella, attorneys for respondent (Robert F. Varady and Christina M. DiPalo, on the brief).

PER CURIAM Plaintiff M.T.S. Towing, Inc. ("M.T.S.") appeals the trial court's February

2, 2018 order granting summary judgment to defendant Township of Union, and

denying M.T.S.'s cross-motion for summary judgment. The trial court's order

dismissed M.T.S.'s lawsuit, which alleged that the Township had improperly

denied M.T.S. a license to tow disabled vehicles, when requested to do so by

police within the municipality's borders. The license application was denied

because M.T.S.'s facility is located outside of the two-mile radius prescribed by

the Township's ordinance. We affirm.

I.

Pursuant to N.J.S.A. 40:48-2.49, municipalities in New Jersey are

authorized to regulate by ordinance the removal of motor vehicles from private

or public property by towing companies engaged in such a business, provided

that the ordinance sets forth "non-discriminatory and non-exclusionary

regulations." Based on that statutory authority, the Township adopted an

ordinance with various provisions that allows towing companies to apply for

and, if qualified, obtain licenses to perform such towing within the municipality.

In November 2000, the Township Committee adopted Ordinance 4663,

which established Chapter 505 of the Township's Municipal Code. Section 505-

1 of the Ordinance recites the purposes of the Ordinance as follows:

A-2911-17T3 2 The purpose of this chapter is to provide standards, regulations, and rates for police-requested towing and storage services requiring a response thereto by the licensees. It is the further purpose of this chapter to regulate these services from both a public safety perspective that would result in the quickest response time in good and bad weather, thereby minimizing waiting time both for police officers on scene and the removal of motor vehicle cars from the roadway as a result of an accident and from an administrative perspective to ensure compliance with the requirements and specifications of this chapter.

[(Emphasis added).]

The Ordinance requires that "[n]o police-requested towing shall operate within

the Township of Union for police-requested towing services and/or storage

services unless the operator has obtained a license issued by the Township." The

term of each such towing license granted by the Township is three calendar

years. Consistent with N.J.S.A. 40:48-2.49's "non-exclusionary" requirement,

the licenses are not exclusive, and the record reflects the Township has issued

licenses to multiple approved operators. 1 The Ordinance contains in Section

505-15 a fee schedule of towing and storage charges that the licensees are to

charge the vehicle owners.

1 Apparently the towing licenses in this Township are particularly lucrative because the assigned area includes portions of the Garden State Parkway. A-2911-17T3 3 Section 505-6 of the Ordinance addresses the Township's procedures for

receiving applications by operators for towing licenses. In relevant part, it

provides:

A. Reference to Chief of Police. Applications received by the Township Clerk shall be referred within two business days to the Chief of Police for his review, along with a copy to the Township Attorney and the Business Administrator.

B. Inspection; recommendations; disputes.

(1) After such examination of the applications and such inspections as the Chief of Police, the Township Attorney and the Business Administrator may consider necessary to evaluate the applicant's compliance with and ability to continue to comply with the requirements of this section, the applications shall be returned to the Township Clerk with recommended approval or disapproval of each application by these individuals based upon his examination, inspection and evaluations.

Section 505-7(A) of the Ordinance confers upon the Township Committee the

power to authorize such towing licenses, as follows:

A. Authorization. The Township Committee shall at a public meeting by resolution authorize the issuance of a license to those who satisfy the requirements of this chapter, after consideration of the applications and the recommendations of the Chief of Police, the Township Attorney and the Business Administrator. Minor irregularities may be waived by the Township Committee.

A-2911-17T3 4 Notably, the Ordinance does not define the term "minor irregularities" that the

Township may choose to waive.

Section 505-11 sets forth detailed requirements for storage and garage

facilities of each applicant. Among other things, Section 505-11 repeatedly

states that the [operator's] storage and garage facilities "must be within two

miles, by radius, of the Township of Union Police Department . . . or located

within the established boundaries of the Township[.]" (Emphasis added). This

two-mile radius requirement is one of the key aspects of this case. Additionally,

Section 505-17 of the Ordinance designates the Chief of Police as the enforcer

of the provisions of the Ordinance.

On or about July 29, 2015, M.T.S. filed an application with the Township

for a towing license commencing in the 2016 license term. The application was

timely filed with the Township Clerk. The Clerk forwarded M.T.S.'s

application, along with those of four other applicants, to the Police Department.

The Police Chief's designee, Detective George Moutis, investigated each

applicant. Detective Moutis issued an investigation report documenting the

compliance or non-compliance of each applicant with Chapter 505 of the

Ordinance.

A-2911-17T3 5 On December 7, 2015, all five investigation reports were completed. The

reports were sent to the Township Clerk in accordance with customary

procedures. The Township Clerk then conferred with the Township Attorney

regarding the conclusions of the investigation reports provided by Moutis and

accepted them as recommendations for the Township committee. The

Township's Business Administrator was not involved in the decision-making

process. Instead, he "count[ed] on the professionals that work for the

[T]ownship." The Clerk then presented to the Township Council a municipal

resolution that included the names of only those companies recommended to be

granted a towing license under the Ordinance.

On December 8, 2015, the Township Committee adopted Resolution

2015-379 at a public meeting, granting towing licenses to three of the five

applicants. M.T.S. was not one of them. M.T.S. had been rejected primarily2

because its vehicle storage facility in Irvington was located outside of the

municipal borders and was 2.75 miles from the police department, in violation

of the two-mile-radius requirement. The next day, December 9, 2015, M.T.S.

2 Because the distance requirement is dispositive in itself, we need not comment on other concerns about M.T.S discussed in the investigation report. A-2911-17T3 6 was notified by letter that it had been denied the license, due to its non-

compliance with the Township's Ordinance.

M.T.S. sued the Township in the Law Division, contending that the

rejection of its license application was arbitrary, capricious and unreasonable

and materially deviated from the application review procedures set forth in the

Ordinance. After the parties conducted discovery, the Township moved for

summary judgment. M.T.S. cross-moved for summary judgment as well. Thus,

both parties agree there are no genuine disputed material issues of fact. See R.

4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Following oral argument, Assignment Judge Karen M. Cassidy issued an

oral opinion on February 2, 2018 granting the Township's motion and denying

M.T.S.'s cross-motion. Among other things, Judge Cassidy concluded that the

Township's rejection of M.T.S.'s application was neither arbitrary nor capricious

in light of M.T.S.'s storage location beyond the geographic radius that the

Ordinance prescribes. The judge emphasized in this regard the Ordinance's

declared policy goal in Section 505-1 to have vehicles towed in "the quickest

response time . . . thereby minimizing waiting time both for police officers on

scene and the removal of motor vehicle[s] . . . from the roadway as a result of

an accident[.]"

A-2911-17T3 7 The judge noted that another operator outside of the prescribed radius that

had applied for a license had similarly been rejected. Moreover, the Township

had enforced that geographic requirement for at least the past decade. The

current two-mile radius apparently is the result of an amendment to the

ordinance, which previously had prescribed an even shorter distance.

The judge was unpersuaded by M.T.S.'s procedural arguments. The judge

noted that M.T.S.'s application had been reviewed by multiple Township

officials and was found to be in non-compliance with the two-mile radius

requirement.

The judge rejected M.T.S.'s argument that its .75-mile deviation was

merely a minor irregularity. The judge concluded that Township officials had

reasonably rejected M.T.S.'s application because of that clear deviation, without

the need to present the deficient application to the Township Committee. The

judge observed that the Committee can reasonably rely on the Township's

reviewing officials to ascertain whether an application fails to comply with the

distance requirement, and that it was not necessary for the Committee members

to review the applications themselves and personally be involved with such

"minutia[e]."

A-2911-17T3 8 On appeal, M.T.S. essentially repeats the same arguments it made in the

trial court seeking to overturn the Township's rejection of its application.

M.T.S. asserts that the Township's actions were arbitrary, capricious, and

unreasonable, and did not strictly comply with the review procedures set forth

in the Ordinance. Having considered these arguments, we affirm the trial court's

summary judgment ruling, substantially for the sound and perceptive reasons

that Judge Cassidy articulated in her oral decision.

As Judge Cassidy appropriately recognized, municipalities are afforded

considerable discretion in exercising their delegated powers. Quick Check Food

Stores v. Twp. of Springfield, 83 N.J. 438, 447 (1980). Generally, our courts

are not to "substitute an independent judgment" for municipal bodies' decisions;

nor are we to "trespass on their administrative work." Charlie Brown of

Chatham, Inc. v. Bd. of Adjustment, 202 N.J. Super. 312, 321 (App. Div. 1985)

(quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)).

The policy objectives expressed in a municipal ordinance, like other

municipal determinations, deserve a presumption of validity, provided they are

within the scope of a municipality's delegated powers. Bryant v. City of Atlantic

City, 309 N.J. Super. 596, 610-11 (App. Div. 1998). Here, the Township's

towing license ordinance is clearly within the orbit of authority delegated by the

A-2911-17T3 9 Legislature in N.J.S.A. 40:48-2.49, and is non-discriminatory and non-

exclusionary in nature. Judge Cassidy rightly found the two-mile radius

contained in the Ordinance is neither arbitrary nor capricious. It is an objective

standard designed to assure prompt towing responses to accident scenes and is

not discriminatory.3

We agree with the trial judge that the manner in which the Township

officials reviewed the towing applications, although it apparently did not

involve a specific "recommendation" from the Police Department or review by

the Business Administrator, was not materially defective. The Township

Committee reasonably relied upon its officials to sift through the applications

and present for approval only those that warranted consideration. Given the

Township's past history of strict enforcement of the distance requirement, it was

not arbitrary, capricious, or unreasonable to consider M.T.S.'s non-compliant

location – almost a mile beyond the limit – to represent more than a "minor"

deviation.

3 We are unpersuaded that the Township's issuance of licenses to other applicants who had deviations from certain non-distance requirements reflects discriminatory treatment. There is no evidence the Township has ever waived or excused the distance requirement. A-2911-17T3 10 We have considered all of appellant's remaining arguments and find they

lack sufficient merit to warrant discussion here. R. 2:11-3(e)(1)(E).

Affirmed.

A-2911-17T3 11