The 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NOT FOR PUBLICATION WITHOUT THE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:
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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.
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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.
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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.
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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.
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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[.]"
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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]."
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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
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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.
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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.
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