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Boulevard Apartments Inc. v. Mayor and Council of Borough of Lodi

Decided: June 8, 1970.

BOULEVARD APARTMENTS, INC., PLAINTIFF-APPELLANT,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF LODI, ETC., ET AL., DEFENDANTS-RESPONDENTS



Conford, Collester and Kolovsky. The opinion of the court was delivered by Collester, J.A.D.

Collester

This is an appeal by Boulevard Apartments, Inc. from a judgment of the Law Division upholding the validity of a resolution adopted by the Borough of Lodi which excluded garden-type apartment houses from receiving municipal garbage collection service.

Appellant is the owner of a garden-type apartment house complex consisting of six two-story buildings containing a total of 108 family units. Each building consists of a grouping of four-family units separated by fire walls and sharing a common roof. Prior to January 1, 1969 the garbage from these apartments was collected by a contractor hired by the borough to collect garbage placed in receptacles at the street curb from residential buildings and other specified places, excluding light and heavy industry, warehouses and supermarkets. On December 9, 1968 the Lodi municipal council adopted a resolution which established new classifications of properties which were to be excluded from receiving municipal garbage collection service after January 1, 1969. The resolution contained the following specifications upon which bids for a five-year garbage collection contract were to be based:

Two collections weekly from all residential dwellings, places of business, churches, club houses, lodge rooms, public buildings, public and parochial schools, gasoline stations and all public housing operated by the Housing Authority of the Borough of Lodi (not including garment manufacturing shops, light or heavy industry, warehouses, supermarkets, garden type apartment houses and high rise apartment houses).

On December 23, 1968 the borough awarded a five-year contract to Vito Stamato based on his bid of $940,000.

Boulevard Apartments, Inc. brought an action in lieu of prerogative writs to invalidate that part of the resolution which excluded garden-type apartment houses from receiving garbage collection service, contending that it was unreasonable, capricious and discriminatory. (Grand View Manor, Inc., the owner of a garden-type apartment house containing 24 family units, also joined in the action as a party plaintiff but is not a party to this appeal.)

At the trial it was established that there are 38 garden-type apartment houses listed in the borough containing from 1400 to 1470 family units which, with the exception of appellant and Grand View Manor, Inc., have garbage collected by privately hired contractors. (Stamato, called as a witness by defendants, testified that the quantity of garbage generated at the apartment complexes other than those of plaintiff and Grand View Manor, Inc. was so great that storage pending twice-a-week collections created health problems. As a result, the owners of those apartments arrange for private container services, with daily collections of garbage.) Stamato testified that if the borough was required to collect garbage from all garden-type apartments the additional annual cost to the municipality would be $75,000 to $80,000. There also was evidence that there were numerous other multiple-family dwellings in the borough, ranging from two-family to eight-family houses, all of which have garbage collected by the municipal collection service. A substantial amount of the testimony was devoted to a comparison of the per-acre population density of garden-type

apartment houses and that of ordinary residential dwellings, and the difference in quantity of garbage produced.

The court held that the resolution excluding garden-type apartment houses from receiving municipal garbage collection service was valid and the exclusion was not unreasonable or discriminatory. In arriving at this decision the court concluded that garden-type apartment houses were not in the same category or classification as other types of residential dwellings because they were commercial ventures and the quantity of garbage produced from a garden-type apartment house per family unit was three times that of a private dwelling. This appeal followed.

The principal contention urged by appellant for a reversal is that the classifications set up by the resolution are so clearly arbitrary, unreasonable and discriminatory as to render them invalid. It argues that there is no rational basis for differentiating between garden-type apartment houses and other residential dwellings when determining what properties are to be furnished curbside garbage collection.

The removal and disposal of garbage and other refuse matter is recognized as a proper subject for the exercise of the power of a municipality to adopt legislation designed to promote the public health, comfort and safety. N.J.S.A. 40:66-1 provides that a municipality may provide for the collection, removal and disposal of garbage and may establish and operate a system therefor. It may contract with a person to collect the garbage (N.J.S.A. 40:66-4) and provide that the cost of doing the work be paid from its general funds or may fix rates to be charged by the municipality for such service (N.J.S.A. 40:66-5). Municipalities have wide latitude in determining the manner of control of garbage and their pertinent ordinances and ...


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