DeFalco Instant Towing, Inc. v. Borough of New Providence
Court: New Jersey Superior Court Appellate Division; September 8, 2005; New Jersey; State Appellate Court
The court, represented by Judge Graves, evaluated the legality of an amendment to the towing ordinance adopted by the Borough of New Providence on February 10, 2003, which prioritized towing vendors with a business presence in the Borough. Plaintiffs DeFalco Instant Towing, Inc. and Berkeley Collision, Inc., both located outside the Borough, along with taxpayer Ricardo A. Vega, argued that the amendment was discriminatory and exclusionary, violating N.J.S.A. 40:48-2.49 and N.J.S.A. 40A:11-3(1)(u). These statutes require municipal regulations on towing to be non-discriminatory. The trial court upheld the Borough’s decision, but the appellate court reversed this ruling, finding the Borough's actions unjustifiable.
The Borough's towing system required operators to be licensed and responsive to calls from the Police Department within 20 minutes, with the local Police Chief maintaining an on-call list. Prior to the ordinance amendment, the on-call list included four companies, rotating primary responsibilities weekly. Following the ordinance change, the Police Captain informed vendors that only AGK Towing and Recovery, Inc. and Gelormini Auto Repair and Towing, Inc., both located in the Borough, would be primary towers, relegating DeFalco, Berkeley, and Benham’s Garage to reserve status. The amendment cited public convenience and safety as justification for favoring local businesses in towing services.
Municipal ordinances are presumed valid and reasonable, placing the burden of proof on those challenging them to demonstrate they are arbitrary or unreasonable. Legislative bodies are thought to act based on adequate factual support, and unless proven otherwise, it is assumed their decisions have a rational basis. The policy behind ordinances falls under the purview of the governing body, and an ordinance will not be overturned if any reasonable justification can be conceived.
In this case, while the amendment's stated purpose—to ensure a prompt response to towing requests—appears rational, the plaintiffs provided sufficient evidence indicating that no facts known to the Mayor and Borough Council could support the ordinance as being in the public interest. Evidence included internal memos, public hearing minutes, and depositions.
In April 2002, local towing business owners requested an ordinance to protect their interests against outside vendors, citing challenges faced in neighboring towns. They argued that the Borough should enact a similar ordinance to ensure local businesses are prioritized for towing services, thereby enhancing community ties and ensuring quicker response times to service requests. The business owners asserted that such measures would benefit local residents by providing more convenient vehicle storage and direct towing options.
Chief of Police Douglas Marvin raised several concerns regarding a towing ordinance amendment proposed by AGK and Gelormini in memoranda dated May 14, November 18, and November 22, 2002. Key issues included the adequacy of local towers’ storage facilities and their capacity to respond to heavy-duty towing situations. Chief Marvin confirmed that all local tow vendors generally meet the Borough's requirement to respond within twenty minutes. He expressed that reducing the number of vendors on the rotation list would not serve the community's best interests, highlighting the successful operation with four vendors providing adequate coverage, especially for heavy-duty calls.
Despite these concerns, the Borough Council approved the amended ordinance following a public hearing on February 10, 2003. Council President Lifrieri noted that a similar ordinance exists in other communities and emphasized preference for local vendors, despite a lack of complaints regarding existing towing services. Chief Marvin acknowledged that DeFalco and Berkeley, both long-standing vendors located less than five miles from the Borough, had served effectively. He also stated that the police department did not request changes to the towing ordinance and had not received complaints about response times. The text highlights that arbitrary actions are based on unsupported findings, referencing Bryant v. City of Atlantic City. It concludes that the record lacks evidence that the amended ordinance will improve towing response times or benefit public health, safety, and welfare as per N.J.S.A. 40:48-2.
The plaintiffs successfully argue that the Borough enacted an amended ordinance contrary to the recommendations of its police department, primarily aimed at benefiting local businesses under the pretext of improving towing response times. The amendment lacks a rational connection to its stated goal, namely, providing the fastest possible response to towing calls, and discriminates against non-local towing businesses in violation of N.J.S.A. 40:48-2.49 and N.J.S.A. 40A:11-5(1)(u). This is akin to the precedent set in Taxi’s Inc. v. Borough of E. Rutherford, which invalidated a similar ordinance for unfairly favoring local taxicab operators over non-residents. The court notes that creating a list of preferred local towing firms while excluding non-residents may constitute an improper municipal regulation. The court reversed the lower decision and remanded for a judgment aligned with this opinion. It is also noted that the Borough has not yet implemented the towing ordinance, having voluntarily suspended its implementation.
