December 27, 2011
Re: Update on recent Council on Local Mandates case
As you may remember, the League is involved as amicus curiae in IMO Township of Roxbury, a case before the Council on Local Mandates. The Council has announced its decision in this case.
Essentially, Roxbury filed a complaint with the Council on Local Mandates seeking a declaration that DEP regulations found at N.J.A.C. 7:14A-15.15 constituted an unfunded mandate. Those regulations required the municipality to act as the enforcement agent ensuring that (1) outside dumpsters and other refuse containers exposed to stormwater are covered at all times (the “cover the trash” requirement) and (2) existing private catch basins are retrofitted in conjunction with any repair or reconstruction of private property.
The Council held that the retrofitting requirement was not an unfunded mandate, since it only requires action when there is “repaving, repairing . . ., reconstruction, resurfacing . . ., or alterations on [private] property.”
The Council held that projects of this sort are “ordinarily the subjects of local permits, inspections and approvals of the municipal engineer, building inspector or other local official” and that “there is no reason to conclude that additional direct municipal expenditures will be required to do that limited task.”
However, the Council did find that the “cover the trash” requirement was an unfunded mandate, and as such, is unenforceable.
As argued by Roxbury with the support of the League, the cover the trash requirement forced the “municipality to act as the enforcement agent to ensure compliance with DEP requirements that outside dumpsters and other refuse containers exposed to stormwater are covered at all times.” The Council rejected all DEP arguments to the contrary and agreed with Roxbury and the League that this requirement will increase costs to municipalities without any compensation. As such, they found it to be an unfunded mandate.
A copy of the decision should be posted soon at http://www.state.nj.us/localmandates/recent/.
We strongly encourage you to discuss this impact of this decision with your municipal attorney and/or environmental attorney to see how it affects your situation.
In addition, the League reminds you that legislation signed last year permits the League to bring complaints on behalf of two or more towns before the Council on Local Mandates. If you have any questions, or would like the League to bring a case to the Council, contact League Staff Attorney Matthew Weng at 609-695-3481 ext 137 or at firstname.lastname@example.org.
Very truly yours,
William G. Dressel, Jr.