SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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STEVE'S AUTO BODY AND REPAIR, LLC, Plaintiff

- Appellant,

v. TOWNSHIP OF GLOUCESTER, Defendant

- Respondent, and 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, STEVE'S AUTO REPAIR, INC. , a/k/a STEVE'S TOWING & AMT TOWING A N D RECOVERY, LLC, Defendants

.

__________________ _ ____________ NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

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– Decided July 14, 2022 Before Judges Hoffman, Whipple , and Geiger. On appeal fro m the Superior Court of New Jersey, Law Division, Camden County, Docket No. L

- 0655

- 20. Michael Wiseberg argued the cause for appellant (Fruchter, Weiss & Associate s, attorneys; Harvey Fruchter and Michael Wiseberg, on the briefs).
Sean T. O'Meara argued the cause for respondent (Archer & Greiner, PC, attorneys; Vincent P. Sarubbi and Sean T. O'Meara, on the brief).
PER CURIAM Plaintiff Steve's Auto Body and Repai r appeals from the October 30, 2020 Law Division order granting the summary judgment dismissal of its complaint against defendant Township of Gloucester . P laintiff's complaint challeng ed Chapter 79, Gloucester Township 's Towing Ordinance , alleging that th e ordinance violated plaintiff's due process and property rights under Article 1, paragraph 1 of the New Jersey Constitution. Plaintiff further alleged the ordinance violated N.J.S.A. 40:48

- 2.49 by unlawfully discriminating against towing operators locate d outside of Gloucester Township. 1 The Law Division

1 To avoid confusion, we refer to Township of Gloucester as "defendant" and the Township of Gloucester , as a geographic entity, as "Gloucester Township

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entered the order without allowing plaintiff to complete any discovery. We vacate the dismissal order and remand for further proceedings

. I. We discern the following facts and procedural history from the record. A towing operator, plaintiff maintain s a storage facility at 1717 North Tuckahoe Road in Williamstown, approximately five and five

- eighth miles from the point identified by defendant a s the " center point " of Gloucester Township. In 2019, plaintiff applied for a towing license for the year 2020

. On January 16, 2020, plaintiff received a letter , dated December 30, 2019 , from Gloucester Township Police Chief David Harkins . The letter ad vised plaintiff its application was denied "due to the storage facility being located outside of a [five

- ]mile radius of the center point of Gloucester Township , " pursuant to Section 79

- 2 of the
ordinance adopted by defendant regarding to wing services

. A ccording to Section 79

- 2 , the purpose of the ordinance is 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 abandoned, illegally parked or disabled vehicles within [Gloucester Township]. [A] towing list of licensed towing operators

. . . will be called upon a rotating basis by the Police Department.4 A

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N.J.S.A. 40:48

- 2.49 authorizes municipalities to "regulate, by ordinance, the removal of motor vehicles from private or public property by operators engaged in such business," provided the ordinance sets forth "non

discriminatory and non

- exclusionary regulations." Prior to April 27, 2015, the o rdinance required towing operators seeking
licens ure to maintain a storage facility within Gloucester Township. On September 5, 2013, Riehl ' s Towing and Maintenance, Inc. (Riehl), which maintains a storage facility at 2301 Pennsylvania Avenue in the neighboring municipality of Deptford Township , filed a complaint against defendant, alleging the o rdinance violated its due process rights by excluding towing operators located outside Gloucester Township from qualifying for licenses.
D efendant and Riehl eventually agreed to a settle ment. Pursuant to the settlement, o n April 27, 2015, defendant amended its towing o rdinance to its current form. Section 79

- 7, titled "Application and License Fee ," now requires applicants to maintain a "[s]torage facility within a [five

- ]mile radius of the center[] point of Gloucester Township . . . ." The o rdinance defines "storage facility" as a "storage lot or storage area . . . within a [five

- ]mile radius of the center point of Gloucester Township

. " The ordinance further defines "center5 A

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point of Gloucester Township" as "defined pursuant to the map, as prepared by the Township Engineer and attached to this ordinance." 2 On February 17, 2020, p laintiff filed its complaint in this matter. On February 20, 2020, plaintiff served defendant with the filed complai nt, along with an initial set of interrogatories and a notice to produce. On September 10, 2020, defendant filed the motion under review, without responding to any of plaintiff's discovery requests. In support of its summary judgment motion, d efendant pro vided two certifications. The first certification , from Lieutenant Timothy Kohlmyer of the Gloucester Township Police Department, stated that the five

- mile radius requirement is "for the convenience of residents retrieving vehicles that have been towed" a nd that five of the nine licensed towing operators for 2020 have "storage facilities outside of Gloucester Township." The second certification, from defendant's attorney Vincent P. Sarubbi, stated that defendant amended its towing o rdinance as part of the Riehl settlement to avoid discriminating against

2 It is unclear if the map attached to one of defendant's supporting certifications is the map attached to defendant's ordinance. No map was attached to the copy of the ordinance submitted to the motion court. Defendant did not submit a certification from the To wnship Engineer who was responsible for preparing the map nor was this person even identified by defendant

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applicants located outside of Gloucester Township. Sarubbi attached a copy of the Riehl complaint and a map depict ing Gloucester Township, the center point, the five

- mile radius, and plaintiff's location. Sarubbi's certification did not include any settlement documents from the R iehl litigation. Plaintiff opposed the motion, submitting the certification of Kenneth Rainer, a manager for plaintiff's business

. According to Rainer, w hen he previously worked for a licensed towing operator located within Gloucester Township, "the majority of the service calls requiring tows" were "from a point within [Gloucester Township] that [plaintiff] can respond to

. . . sooner than any
of the exis ting [licensed] towers ." In addition, p laintiff urged the court to appreciate that defendant's motion was "extremely premature." On October 30, 2020, after hearing oral argument, the motion judge issued an oral opinion granting summary judgment to defendant

. The judge found no genuine issue of material fact, stating there was "an . . . undisputed reasonable reason why [the o rdinance] was put into place for the convenience of the residents of the Township of Gloucester. And there's no evidence at a ll that that is improperly administered or discriminatorily administered." The judge also rejected plaintiff's challenge to defendant's $1,000 application fee for a towing license, stating that the amount "seems reasonable to the [c]ourt."7 A

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This appeal f

ollowed, with plaintiff raising the following arguments : POINT I
THE MOTION FOR SUMMARY JUDGMENT WAS PREMATURE AND THE STATEMENT OF MATERIAL FACTS WAS NOT SUPPORTED BY COMPETENT EVIDENCE FROM WITNESSES WITH PERSONAL KNOWLEDGE

- PLAINTIFF SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO ENGAGE IN DISCOVERY TO PROVE THE ELEME NTS OF ITS CAUSES OF ACTION WHERE, AS HERE, THE FACTS ARE PECULIARLY WITHIN THE TOWNSHIP'S KNOWLEDGE, AND PLAINTIFF'S UNANSWERED DISCOVERY DEMANDS HAD LONG BEEN SERVED UPON THE DEFENDANT TOWNSHIP.
POINT II
CHARGING NEW APPLICANTS ALMOST SEVEN TIMES THE AMOUNT CHARGED FOR RENEWAL APPLICANTS IS DISCRIMINATORY AND EXCLUSIONARY.
II. We begin our analysis by acknowledging the legal principles governing this appeal. Our review of the trial court's grant of summary judgment is de novo, applying the same st andard as the trial court. N.J. Div. of Tax'n v. Selective Ins. Co. of Am. , 399 N.J. Super. 315, 322 (App. Div. 2008). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show8 A

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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). "An issue of fact is genuine only if, considering the burden of per suasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non

- moving party, would require submission of the issue to the trier of fact." Ibid. ; see also Brill v. Guardian Life
Ins . Co. of Am. , 142 N.J. 520, 523 (1995). The party opposing summary judgment "'must do more than simply show that there is some metaphysical doubt as to the material facts[,]'" Triffin v. Am. Int'l Grp

. , Inc. , 372 N.J. Super. 517, 523

- 24 (App. Div. 2004) (quoting Big Apple BMW, Inc. v. BMW of N. Am., Inc. , 974 F.2d 1358, 1363 (3rd Cir. 1992), as "[c]ompetent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.com, Inc. , 404 N.J. Super. 415, 426 (App. Div. 2009) (quoting M erchs. Express Money Order Co. v. Sun Nat'l Bank , 374 N.J. Super. 556, 563 (App. Div. 2005)) )

. Moreover, municipal ordinances are presumed to be valid and reasonable, and "[t]he burden of proof to establish that they are arbitrary and unreasonable rests on the party seeking to overturn them." Quick Chek Food Stores v. Twp. of Springfield , 83 N.J. 438, 447 (1980) (citation omitted). "Legislative bodies9 A

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are presumed to act on the basis of adequate factual support and, absent a sufficient showing to the contrary, it will be assumed that their enactments rest upon some rational basis within their knowledge and experience." Hutton Park Gardens v. Town Council of Town of W. Orange , 6 8 N.J. 543, 564

- 65 (1975) (citations omitted). "The underlying policy and wisdom of ordinances are the responsibility of the governing body, and if any state of facts may reasonably be conceived to justify the ordinance, it will not be set aside." Quick Chek , 83 N.J. at 447 (internal citations omitted). "Generally, summary judgment is inappropriate prior to the completion of discovery." Wellington v. Est. of Wellington , 359 N.J. Super. 484, 496 (App. Div. 2003). "When 'critical facts are peculiarly with in the moving party's knowledge,' it is especially inappropriate to grant summary judgment when discovery is incomplete." Velantzas v. Colgate

- Palmolive Co. , 109 N.J. 189, 193 (1988) (quoting Martin v. Educ. Testing Serv., Inc. , 179 N.J. Super. 317, 326 ( Ch. Div. 1981)).
P laintiff contends defendant failed to establish the absence of a genuine issue of material fact because its certifications were not based on personal knowledge. This argument has merit.10 A

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"A certification will support the grant of summa ry judgment only if the material facts alleged therein are based, as required by Rule 1:6

- 6, on 'personal knowledge.'" Wells Fargo Bank, N.A. v. Ford , 418 N.J. Super. 592, 599 (App. Div. 2011). Additionally, "[a]ffidavits by attorneys of facts not based on their personal knowledge but related to them by and within the primary knowledge of their clients constitute objectionable hearsay." Pressler and Verniero, Current N.J. Court Rules , comment on R. 1:6

- 6 (20 22 ). In support of its summary judgment motion, defendant relied on two certifications: 1) Sarubbi's certifi cation regarding the defendant's settlement of the Riehl's litigation and 2) Lieutenant Kohlmyer's certification stating that the five

- mile radius requirement is "for the convenience of residents retrieving vehicles." N either certification satisfies R. 1:6

- 6. Sarubbi's certification states his personal knowledge about the settlement arises from being "one of the attorneys responsible for the handling of this matter on be half of defendant." However, Sarubbi does not certify to his involvement in the Riehl settlement. No other evidence about the Riehl settlement is provided. Similarly, Lieutenant Kohlmyer's certification states his personal knowledge arises from his empl oyment "as a Lieutenant in the Gloucester Township Police Department." Lieutenant Kohlmyer does not11 A

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certify to his involvement in the research for or creation of the o rdinance to support this claim. Notwithstanding the deficiencies in defend an t's suppo rting certifications,
t he motion judge concluded, "it's quite clear why [the o rdinance was] developed . . . they picked a five

- mile radius for the convenience of their residents." Based on the limited record, h owever, t he judge 's conclusion was unsupporte d by evidence of any analysis undertaken by defendant to achieve its stated objective. The record contains no credible evidence regarding the basis for decid ing on the five

- mile radius requirement for storage facilities , other than
the location of Riehl's within such a radius. Accordingly, we find defendant presented insufficient proofs to warrant summary judgment

. Plaintiff also contends complete discovery is necessary for information about the passage of the o rdinance and creation of the center point, such as "what study or data [Lieutenant Kohlmyer] relied upon to support his opinion that the 'convenience of the residents' in retrieving their vehicles after b eing towed was the purpose served by the amendment to the [ o rdinance]." Plaintiff highlights defendant's failure to produce traffic and response time data, an engineering report or an affidavit from the engineer who determined Gloucester Township's12 A

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center point, and the true location of the center point. Plaintiff's arguments have merit. Depositions of Sarubbi, L ieutenant Kohlmyer, the Township Engineer, and the Chief of Police will allow plaintiff to determine if there exists evidence of discriminatory intent improperly favoring towing operators within Gloucester Township. Plaintiff will also have the opportunity to learn how the Township Engineer developed the center point and five

- mile radius, what research went into its creation regarding resident co nvenience, and the role of the Riehl settlement. Plaintiff contend s that full discovery will reveal whether defendant strategically crafted the five

- mile radius to permit Riehl to qualify for licensure while limiting the number of towing operators who could qualify to protect towing operators within Gloucester Township. We recognize that a ny choice of a specif ic geographical limitation will exclude some towing operators who might plausibly be admitted and include others who might plausibly be excluded. Defendant's choice should not be disturbed unless it is unreasonable. Quick Chek , 83 N.J. at 447. However, full discovery may very well support plaintiff 's contentions and reveal arbitrary, exclusionary, or discriminatory decision

- making

. At the very least, such13 A

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discovery could yield a genuine factual dispute. See Wellington , 359 N.J. Super. at 496. We disce rn no basis for denying p laintiff full discovery. Lastly, p laintiff contends defendant's $1,000 application fee for new applicants, in comparison with the $150 application fee for renewal applicants, is also discriminatory and exclusionary. Plaintiff arg ues "such a dramatic gap cannot be justified simply by claiming it is less work to investigate and verify a renewal application" and the difference in costs is "designed to keep out competition." Plaintiff argues the fee must be equally applied and "reaso nabl y proportionate. " Furthermore, plaintiff asserts discovery "would reveal the time spent on these investigations for license

- holders and whether the disproportionate fee structure was arbitrary and capricious." We conclude that this issue also warrant s full discovery.
Vacat ed and remanded. We do not retain jurisdiction.