Steve's Auto Body and Repair, LLC v. Township of Gloucester

• Court: New Jersey Superior Court Appellate Division
• Decided: November 13, 2025
• Docket: A-1102-24
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1102-24

STEVE'S AUTO BODY AND REPAIR, LLC,

Plaintiff-Appellant,

v.

TOWNSHIP OF GLOUCESTER, BARE MOTOR CO., INC., a/k/a BARE TOWING, IRRGANGS TOWING, WM PAUL IRRGANG III, d/b/a PAULS TOWING, BERNIE'S AUTO REPAIR, a/k/a BERNIE'S TOWING, ERIN'S TOWING, AUTO IMAGES TOWING, a/k/a AUTO IMAGES, RIEHL'S TOWING, and AMT TOWING AND RECOVERY, LLC,

Defendants-Respondents,

and

STEVE'S AUTO REPAIR, INC. a/k/a STEVE'S TOWING,

Defendant. _______________________________ Submitted October 30, 2025 – Decided November 13, 2025

Before Judges Mawla and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0655-20.

Puff, Sierzega & MacFeeters, LLC, attorneys for appellant (Ronald P. Sierzega and Christopher R. Versak, on the briefs).

Archer & Greiner, PC, attorneys for respondent Township of Gloucester (Vincent P. Sarubbi and Sean T. O'Meara, on the brief).

PER CURIAM

Plaintiff Steve's Autobody and Repair, LLC appeals from a November 8,

2024 order granting summary judgment to defendant Township of Gloucester

and dismissing plaintiff's complaint in lieu of prerogative writs. We affirm.

This matter returns to us after we vacated the trial court's entry of

summary judgment dismissing plaintiff's complaint and remanded for discovery

and further proceedings to determine the validity of defendant's ordinance

governing towing licenses and operators. Steve's Auto Body & Repair, LLC v.

Twp. of Gloucester, No. A-0620-20 (App. Div. July 14, 2022). Defendant

promulgated ordinance Township of Gloucester, N.J. Code § 79-2 "to

establish[,] pursuant to N.J.S.A. 40:48-2.49, an orderly system to provide for

towing services for removal of damaged motor vehicles in accidents and other

A-1102-24 2 abandoned, illegally parked[,] or disabled vehicles within [Gloucester

Township]." Id. at 3 (alteration in original).

The ordinance previously required towing operators to have a storage

facility within the Township. However, another operator, Riehl's Towing and

Maintenance, Inc. (Riehl's), sued claiming the ordinance violated due process

by excluding towing operators outside the Township. This resulted in a

settlement whereby defendant amended its ordinance to establish the five-mile

radius from the township's center point. The ordinance defined the center point

pursuant to a map prepared by the Township engineer. Id. at 4-5.

Plaintiff maintained a storage facility approximately five and five-eighths

miles from the point identified by defendant as the center point of the Township.

Defendant denied plaintiff a towing license because its storage facility was

beyond the five-mile radius of the center point.

Plaintiff sued, challenging the revised ordinance. Defendant moved for

summary judgment and attached a certification of a Township police lieutenant

stating the five-mile radius was established so residents could conveniently

retrieve their towed vehicles without traveling a long distance. The Township

attorney filed a certification, stating the ordinance was amended pursuant to the

settlement with Riehl's to avoid discriminating against operators outside the

A-1102-24 3 Township. Plaintiff opposed summary judgment and certified it could respond

to most of the calls from the township quicker than the existing licensed towers.

The motion judge granted defendant summary judgment, finding no

dispute in material fact. We held the motion "judge's conclusion was

unsupported by evidence of any analysis undertaken by defendant to achieve its

stated objective. The record contain[ed] no credible evidence regarding the

basis for deciding on the five-mile radius requirement for storage facilities, other

than the location of Riehl's within such a radius." Id. at 11. We credited

plaintiff's argument it should have discovery regarding adoption of the

ordinance and creation of the center point. Id. at 11-12. Also, we recognized

"that any choice of a specific geographical limitation will exclude some towing

operators who might plausibly be admitted[,] . . . include others who might

plausibly be excluded," and "[d]efendant's choice should not be disturbed unless

it is unreasonable." Id. At 12. However, discovery could support "plaintiff's

contentions and reveal arbitrary, exclusionary, or discriminatory decision -

making." Ibid.

Following our remand, the parties completed discovery and defendant

again moved for summary judgment. The motion was supported by a

certification from the Township's deputy chief of police explaining defendant

A-1102-24 4 amended the ordinance to allow towing operators who had storage facilities

"within a reasonable distance from the center" point to apply for licenses

because:

(a) It would be more convenient for residents and others who had their vehicles towed to retrieve their vehicles from the storage yard;

(b) It would be more convenient for police to retrieve evidence from stored vehicles;

(c) It would be more convenient for police to execute a search warrant to perform a search of a stored vehicle;

(d) It would be more convenient for police to perform an inventory of vehicle contents in stored vehicles;

(e) It would be more convenient for police to conduct spot inspections of storage yards of approved towers;

(f) It would be more convenient for police to investigate complaints about storage yards of approved towers; and

(g) It would be more convenient for police to conduct inspections of vehicles that were involved in automobile accidents.

Defendant retained an engineering firm to determine the center point of

the township. The firm's geographic information system map manager filed a

certification, which attached a "'[c]entroid [m]ap' depicting the mathematical

geometric center of the Township utilizing the Township's boundaries, . . . a

A-1102-24 5 five-mile radius from that point," and the location of plaintiff's facility outside

the radius. We replicate the map here:

At oral argument of the second summary judgment motion, plaintiff's

counsel conceded defendant had no discriminatory intent "to protect the

businesses within Gloucester Township[, but t]here was a . . . discriminatory

intent to include Riehl's." Counsel also argued the township does not have a

center since it is a rectangle. So, by setting the license qualification based on

the center point, defendant engaged in discriminatory and exclusionary actions.

The motion judge rejected this argument because no municipality has a perfectly

symmetrical outline or center point.

Plaintiff's counsel responded, the geographical limitations should have

been calculated from the borders of the Township, not the center point. Counsel

A-1102-24 6 contended the ordinance was exclusionary because it reached some parts outside

the Township, but not others.

The judge found the limitation used by defendant was reasonable because

other municipalities across the State had adopted similar ordinances based on a

model ordinance created by the League of Municipalities. The ordinance was

enforced in an unbiased manner as facially, it contained "fairly neutral[ and]

reasonable criteria[, used by] other municipalities." The settlement with Riehl's

was not exclusionary. There was no evidence defendant intended to reward one

group while preventing others from operating within the Township.

Defendant argued plaintiff failed to show any dispute in material fact and

presented no expert testimony in opposition to its evidence. Moreover, plaintiff

was not granted a license that was later terminated or disqualified because its

storage yard did not meet the requisite criteria from the start. The judge

concurred and granted defendants summary judgment.

I.

On appeal, plaintiff contends the motion judge improperly decided

material factual disputes, such as whether the use of a radius was arbitrary and

unsuitable to derive the center of a rectangle. Also, simply modeling its

ordinance after other ordinances did not legalize the Township's actions.

A-1102-24 7 Plaintiff claims the evidence, including the deposition testimony of the

Township police captain, maps, and engineering study, proved Township-

licensed towers could not respond in a timely manner and excluding plaintiff for

geographic reasons was unjust. The Township's ordinance was discriminatory

because it violated N.J.S.A. 40:48-2.49(b), which requires towing ordinances to

consider availability and response time, and does not authorize use of a radius

to determine license eligibility.

Plaintiff argues the ordinance violates local public contracts law because

after the Riehl's lawsuit, it was amended in an arbitrary, exclusionary, and

discriminatory manner. Amending the ordinance in this fashion deprived

plaintiff of due process because a towing ordinance must be non-discriminatory

and non-exclusionary under N.J.S.A. 40:48-2.49.

II.

Summary judgment must be granted "if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment or order as a matter of law." R.

4:46-2(c). "To decide whether a genuine issue of material fact exists, the trial

court must 'draw[] all legitimate inferences from the facts in favor of the non -

A-1102-24 8 moving party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in

original) (quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "The

court's function is not 'to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial.'" Rios v. Meda

Pharm., Inc., 247 N.J. 1, 13 (2021) (quoting Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995)).

"Summary judgment should be granted, in particular, 'after adequate time

for discovery and upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party's case,

and on which that party will bear the burden of proof at trial.'" Friedman, 242

N.J. at 472 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). "If

there is no genuine issue of material fact, [we] must then 'decide whether the

trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)).

We review the trial court's "grant of a motion for summary judgment de

novo, applying the same standard used by the trial court." Samolyk v. Berthe,

251 N.J. 73, 78 (2022). On de novo review, "[a] trial court's interpretation of

the law and the legal consequences that flow from established facts are not

A-1102-24 9 entitled to any special deference." Rowe v. Bell & Gossett Co., 239 N.J. 531,

552 (2019) (alteration in original) (quoting Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Ordinances are presumptively valid. Brown v. City of Newark, 113 N.J.

565, 571 (1989). The party challenging an ordinance bears the burden to show

it is arbitrary, capricious, or unreasonable. See Hutton Park Gardens v. Town

Council of W. Orange, 68 N.J. 543, 564-65 (1975). Courts do not weigh the

evidence "for and against the enactment nor review the wisdom of" the

ordinance. Id. at 565. Unreasonableness will only be found when the evidence

proffered demonstrates there were no sets of facts known to a legislative body

to "rationally support a conclusion that the enactment [was] in the public

interest." Ibid. A more reasonable ordinance is irrelevant if the ordinance is not

arbitrary. N.J. Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 38, 59 (2009).

N.J.S.A. 40:48-2.49 grants municipalities the authority to regulate towing

operators' services for "removal of motor vehicles from private or public

property." The statute specifically requires ordinances to "set forth non -

discriminatory and non-exclusionary regulations governing operators."

N.J.S.A. 40:48-2.49.

A-1102-24 10 Our caselaw demonstrates the sort of conduct that could violate N.J.S.A.

40:48-2.49. In DeFalco Instant Towing, Inc. v. Borough of New Providence,

the plaintiff towed for the defendant Borough for many years, but it was located

outside the Borough. 380 N.J. Super. 152, 155 (App. Div. 2005). The defendant

then amended its ordinance to grant preference to towing operators within the

Borough and provide access to towers with the earliest response times. Ibid.

The trial court found the amended ordinance was legal. Id. at 154. We

reversed because the plaintiff presented a letter from two towing operators in

the borough, requesting the defendant amend the ordinance to protect their

businesses, and minutes from the meeting adopting the amendment in which the

Borough Council stated it "only wanted to give preference to local vendors." Id.

at 154, 156-58. The evidence demonstrated a discriminatory and exclusionary

purpose in violation of N.J.S.A. 40:48-2.49. Id. at 158-59.

Here, neither the ordinance nor defendant's enactment of it bear similarity

to DeFalco. Preliminarily, we note there is no dispute full and adequate

discovery was completed. Our de novo review of the record does not

demonstrate the Township violated N.J.S.A. 40:48-2.49, let alone reveal a

dispute in material fact. The evidence in the record confirms the ordinance

amendment was rational and reasonable.

A-1102-24 11 Plaintiff offered no scientific basis to reject the calculation of the center

point or rebut the engineering firm's calculation. The police captain's testimony

did not create a dispute in material fact because it showed the Township denied

plaintiff a license because it was beyond the geographical radius, not because of

the response time requirement.

Aside from the fact the Township ordinance was based on the model

ordinance, the record is devoid of a discriminatory or exclusionary intent.

Plaintiff presented no evidence of an overt effort to give preference to in-

township businesses or circumstantial evidence of unlawful favoritism.

Affirmed.

A-1102-24 12