Gelman, J.J. & D.r.c. (temporarily assigned).
[119 NJSuper Page 214] In this action in lieu of prerogative writs plaintiffs challenge the validity of the practices of the Borough of Bergenfield with respect to garbage collection services provided by that municipality. They urge that the borough's regulations, such
as they may be, invidiously discriminate against them in a manner which offends the State and Federal Constitutions.
Bergenfield is a suburban community which, in common with many others in the metropolitan area, has experienced a rapid population growth since the end of World War II. The 1940 census fixed its population at 10,275; by 1970 the census figure had reached 29,000. Its population is housed primarily in one-family dwellings, but the borough also abounds in multi-family dwellings ranging from two-family houses to apartment complexes in excess of 600 dwelling units. There are more than 1,000 multi-family dwelling units located in multi-family buildings having in excess of six units. There is no evidence in the record to establish the total number of persons living in all multi-family dwelling units in the borough, but from the figures cited above it is clear that the number of persons who do so is a significant percentage of the borough's total population. In addition, the borough has within its borders over 400 commercial establishments and 22 industrial enterprises. See Census of Business Statistics ,, 1967; New Jersey Industrial Directory , 1970.
Prior to March 1, 1949 garbage collection was accomplished by private scavenger under contract with the borough. The public bidding specifications for the contract years 1945, 1946 and 1949 have been submitted to the court and each set of specifications is identical insofar as here relevant. The scope of the work required under each was described as follows:
The work herein provided for includes the furnishing of all labor, equipment, vehicles, tools, implements, materials, and transportation facilities necessary for the collection and removal of ashes, garbage, and other refuse, more particularly described herein, from all houses, apartment houses, stores, schools, churches, buildings, premises, or properties situated within the Borough of Bergenfield, Bergen County, New Jersey.
Collections were on a twice-weekly basis, and the contractor was
* * * required to empty all receptacles placed between the sidewalks and curb, or in some relative position when there are no sidewalks or curbs, and when emptied the contractor shall re-place them carefully in the same place.
The borough paid the costs of the collection service directly to the contractor from general revenues raised in the usual manner.
This system was abandoned on March 1, 1949 when a municipal garbage collection system was instituted using borough employees and equipment. The expenses of collection have been and are now included in the borough's general budget, and hence these expenses contribute to the overall tax rate borne ratably by all property owners in the borough. At the present time the borough has eight garbage trucks and 23 or 24 employees are engaged on a full-time basis in garbage collection activities.
Apparently no ordinance or resolution has ever been enacted setting forth rules, regulations or conditions under which the service is extended to borough residents and property owners. The building inspector, who also doubles as the executive assistant to the mayor and council, has been a borough employee since 1936 and testified as to the "practices" the borough has pursued with respect to garbage collection. These "practices," as set forth in a printed card and newsletter distributed to property owners, may be summarized as follows: the borough collects any property owner's garbage which is left at the curb in an enclosed container not exceeding 20 gallons capacity or 75 pounds in weight. Refuse is also collected, but again only if placed at the curb in containers or bundles weighing not more than 75 pounds. The town is divided into two service areas, the line of division being the railroad tracks which run north-south and bisect the town. Each side of the town has garbage and refuse collection service twice a week. The borough's employees do not enter upon any private property to collect either garbage or refuse. Except for the container weight and size limitations, the borough's collection procedures are substantially
the same as when the service was provided by private ...