On appeal from the Superior Court, Law Division, Essex County.
Antell, O'Brien and Scalera. The opinion of the court was delivered by O'Brien, J.A.D.
Defendant appeals from a determination of the Law Division finding an ordinance concerning garbage, rubbish and refuse collection unconstitutional. We affirm.
In late 1988, the business administrator for the City of Orange Township (City) began to review the cost of garbage removal because of an anticipated fiscal crisis as a result of a reduction in state aid. On his recommendation, Ordinance # 5-89 was adopted on April 4, 1989 as an amendment to Chapter 107 of the Code of the City, entitled "Garbage, Rubbish and Refuse." The title to the ordinance recited that it was to amend the code to clarify responsibility for collections. The ordinance provides that the City will collect and remove household waste matter as defined in the ordinance "to the residents or occupants of any residential source in the City." Residential source is defined as "households and other dwelling units not defined as a commercial source in paragraph (c) of this section." Paragraph (c) defines commercial source as including "any residential premises that contain five dwelling units or more."
Plaintiffs, owners of 716 dwelling units which are a mix of high-rise, low-rise and garden-apartment dwellings, containing five dwelling units or more, from most of which solid waste had been collected by the City before the adoption of the ordinance, filed a complaint in lieu of prerogative writs to challenge the ordinance. Process began by order to show cause entered on April 20, 1989, which included temporary restraints upon the implementation of the ordinance. On the return day of the order to show cause, the trial judge reserved decision on the question of the ordinance's constitutionality and decided to take testimony regarding the intent and purpose of the ordinance.
The temporary restraints were continued pending final disposition of the matter.
Testimony was taken on June 7 and 8, 1989, at the conclusion of which the trial judge found the ordinance to be unconstitutional. The city filed a notice of appeal on July 11, 1989. We treated that notice as a motion for leave to appeal nunc pro tunc, which we granted on September 28, 1989.
In finding the ordinance unconstitutional, the trial judge relied upon our decision in Boulevard Apts., Inc. v. Mayor & Coun. of Lodi, 110 N.J. Super. 406, 265 A.2d 838 (App.Div.1970), and said:
We agree. There is no dispute that the decision to provide garbage removal and disposal service is discretionary with the municipality. Pleasure Bay Apts. v. City of Long Branch, 66 N.J. 79, 90, 328 A.2d 593 (1974). Fiscal costs and administrative constraints alone may furnish a legitimate basis for a municipal decision. Id. at 96, 328 A.2d 593. Municipalities holding properly delegated powers may legislate according to "reasonable classification of the objects of the legislation or the persons whom it affects." Guill v. Mayor & Council of City of Hoboken, 21 N.J. 574, 582, 122 A.2d 881 (1956). However, the classification cannot be arbitrary or illusory, but must bear some just and reasonable connection with the primary object of the legislation. Id. at 583, 122 A.2d 881.
Legislation limiting the collection of garbage to certain classifications is not forbidden. Boulevard Apts., Inc. v. Mayor & Coun. of Lodi, supra, 110 N.J. Super. at 411, 265 A.2d 838. However, there can be no invidious discrimination in the establishment of such classifications. "There is a denial of equal protection of the laws unless the service is available to all
persons in like circumstances on the same terms and conditions. Persons situated alike shall ...