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Pleasure Bay Apartments v. City of Long Branch

Decided: November 6, 1974.

PLEASURE BAY APARTMENTS, A NEW JERSEY PARTNERSHIP, PLAINTIFF-APPELLANT,
v.
CITY OF LONG BRANCH, GEORGE B. HOFFMAN, COUNCIL PRESIDENT, CITY OF LONG BRANCH, AND DEPARTMENT OF SANITATION, CITY OF LONG BRANCH, DEFENDANTS-RESPONDENTS. VISTA GARDENS, INC. AND VISTA ASSOCIATES, INC., PLAINTIFFS-RESPONDENTS, V. MAYOR AND COUNCIL OF THE BOROUGH OF LODI, DEFENDANT-APPELLANT



For affirmance in Pleasure Bay Apartments v. Long Branch -- Chief Justice Hughes, Justices Jacobs, Hall, Sullivan, Pashman and Clifford and Judge Kolovsky. For reversal -- None. For reversal in Vista Gardens v. Lodi -- Chief Justice Hughes, Justices Jacobs, Hall, Sullivan, Pashman and Clifford and Judge Kolovsky. For affirmance -- None. The opinion of the Court was delivered by Kolovsky, P.J.A.D., Temporarily Assigned.

Kolovsky

[66 NJ Page 81] The garbage collection service afforded at municipal expense to properties in each of the defendant municipalities -- by Long Branch using its own equipment and employees and by Lodi by contract with a private scavenger -- is limited to collection from the curbside of streets adjacent to the premises to be served. Further, each municipality requires, among other things, that the garbage to be so collected be in receptacles, cans or barrels whose weight, when full, does not exceed 70 or 75 pounds.

Plaintiffs Vista Gardens, Inc. and Vista Associates, Inc. (Vista) own adjacent garden apartment complexes in Lodi containing a total of 174 dwelling units. The garden apartment complex in Long Branch owned by plaintiff Pleasure Bay Apartments (Pleasure Bay) contains 240 family units.

Provision has been made in each complex for the deposit by its tenants of garbage and other refuse into "dumpsters" -- large rectangular metal bins or containers, maintained at several locations in the parking areas of the garden apartment complexes. Three dumpsters, whose size is not disclosed by the record, service the Vista complex. Seven dumpsters, six with a capacity of six cubic yards and one with a capacity of eight cubic yards, service the Pleasure Bay complex.

In the past plaintiffs have provided for disposition of the garbage collected in the dumpsters at their own expense; in the case of Vista, $3132 per year, in the case of Pleasure Bay, $11,280 per year. Trucks of private garbage collectors hired by plaintiffs entered the garden apartment complexes and, by means of pneumatic loaders attached to the trucks, raised and emptied the dumpsters into the trucks and carted away the garbage and refuse.

Each of the above actions in lieu of prerogative writs was instituted -- Pleasure Bay in the Law Division, Monmouth County, Vista in the Law Division, Bergen County -- to compel the municipal defendant to provide, without cost to plaintiff, for removal of garbage from the dumpsters. Each plaintiff also sought to recover as damages the moneys which it had expended in payments for those services to private contractors from and after the date the municipality had rejected a demand that it furnish such services.

Plaintiffs contended that the action of the municipality in denying them such services, while at the same time furnishing curbside collection services to properties which could effectively avail themselves thereof, was arbitrary and unreasonable and denied plaintiffs the equal protection of the laws.

The decisions reached by the trial courts in the two actions are in conflict. In Pleasure Bay v. Long Branch, the court, after a plenary trial, ruled that the municipal action was neither arbitrary nor unreasonable and did not deny plaintiff the equal protection of the laws. The Appellate Division, in an unreported opinion, affirmed "substantially for the reasons" given by the trial judge in his oral opinion. We granted plaintiff's petition for certification. 65 N.J. 282 (1974).

In Vista v. Lodi, the trial judge, after consideration of the affidavits submitted, his own inspection of the apartment house complex and the argument of counsel, entered a judgment in which he found that there is "no reasonable justification for the refusal of the defendant to go upon the premises of the plaintiff for the purpose of removing garbage stored in central locations in bins"; that such refusal is "arbitrary and discriminatory and violates the constitutional rights of the plaintiffs"; and that:

The requirement of the defendant that the plaintiffs place its garbage at curbside in small containers containing refuse produced by each apartment is an attempt to circumvent the edict of the Court in the Case of Boulevard Apartments, Inc. v. Mayor and Council of Lodi, 110 N.J. Super. 406, 265 A.2d 838 (App. Div. 1970); and in addition it is determined that such a method of disposing of garbage would create a health hazard; would be unsightly and destroy the aesthetics of the neighborhood; and would attract rodents.*fn1

The judgment dismissed plaintiffs' claim for damages stemming from Lodi's "refusal * * * to collect the plaintiffs' garbage in the past" but then concluded:

The Borough of Lodi is hereby ordered to commence to pick up garbage from the premises of the plaintiffs located within the containers located thereon, on the same schedule that other residential units in the Borough of Lodi are serviced.

The plaintiffs shall provide reasonable liability insurance so as to indemnify either the Borough of Lodi or its scavenger contractor with respect to any acts of negligence that it may commit while upon the premises of the plaintiff. Said policy shall be in the standard form of liability policy and shall not be required to exceed $1,000,000.00.

While Lodi's appeal from the judgment was pending unheard in the Appellate Division, we, on our own motion, certified the appeal for consideration with the Pleasure Bay appeal.

We conclude, for the reasons hereinafter expressed, that the judgment of the Appellate Division in Pleasure Bay should be affirmed and that the judgment of the Law Division in Vista should be reversed.

Although, as hereinafter noted, a municipality has the discretionary power to provide a municipal service for the collection and disposal of garbage, it has long been recognized, without dissent, that "it is the duty, primarily, of a person on whose premises are garbage and refuse material, to see to it, by proper diligence, that no nuisance arises therefrom which endangers the public health * * *. He may [be] required, at his own expense, to make, from time to time, such disposition of obnoxious substances originating on premises occupied by him as [is] necessary in order to guard the public health." California Reduction Company v. Sanitary Reduction Works, 199 U.S. 306, 321-322, 26 S. Ct. 100, 104, 50 L. Ed. 204, 211 (1905); see also People ex rel. Webster v. City of Chicago, 272 Ill. 451, 112 N.E. 280, 283 (Sup. Ct. 1916); Silver v. City of Los Angeles, 217 Cal. App. 2d 134, 31 Cal. Rptr. 545, 549 (Ct. App. 1963).

However, since "the collection and disposal of garbage are so intimately associated with the public health [it is also recognized] that stringent control thereof is indispensable." Marangi Bros. v. Bd. of Com'rs of Ridgewood, 33 N.J. Super. 294, 300 (App. Div. 1954). To that end, in the exercise of the police power, the State itself or municipalities which have been granted that power may enact or adopt necessary and reasonable statutes, ordinances or other regulations governing the collection, removal and disposal of garbage and other refuse. Marangi Bros., supra; Township of Dover v. Witt, 7 N.J. Super. 259 (App. Div. 1950); Atlantic City v. Abbott, 73 N.J.L. 281, 282-283 (Sup. Ct. 1906); 7 McQuillin, Municipal Corporations, ยง 24.242 (3 ed. 1968); Annotation, "Garbage-Regulations," 15 A.L.R. 287 (1921), supplemented 72 A.L.R. 520 (1931) and 135 A.L.R. 1305 (1941).

Historically, and prior to 1970, this State left such regulation primarily to its municipalities and local boards of health under the "ample power," Township of Dover v. Witt, supra, granted by N.J.S.A. 40:48-2, N.J.S.A. 26:3-31; N.J.S.A. 40:66-1 et seq. and N.J.S.A. 40:52-1 (c). Direct state control was limited essentially to: (1) regulations adopted under the former Tenement House Act and the present "Hotel and Multiple Dwelling Law," N.J.S.A. 55:13A-1 et seq., requiring among other things that owners provide -- "except where an alternative method providing equivalent health and safety methods is utilized such as incineration or compaction" -- sufficient receptacles for the deposit of the tenants' garbage and waste, to be "located so as to be accessible to the collecting agency," N.J.A.C. 5:10-19.4; and (2) health regulations set out in the State Sanitary Code. Enforcement of the latter regulations was delegated to local boards of health who were also given power to adopt regulations "more restrictive than the provisions of the State Sanitary Code." N.J.S.A. 26:1A-9. Cf. Bd. of Health of Weehawken Tp. v. N.Y. Central R. Co., 4 N.J. 293, 299 (1950).

In 1970, the Legislature provided for more direct controls by the State itself by enacting two statutes, the "Solid Waste Management Act (1970)," N.J.S.A. 13:1E-1 to 15 and the "Solid Waste Utility Control Act of 1970," N.J.S.A. 48:13A-1 to 13.

Each of the acts contain substantially identical findings and declarations by the Legislature -- we ...


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