On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Shebell, Skillman and D'Annunzio. The opinion of the court was delivered by Shebell, J.A.D. Skillman, J.A.D., Concurring.
The opinion of the court was delivered by
At issue is the constitutionality under the Federal and State Constitutions of an Act requiring municipalities to provide or pay for certain municipal services to condominiums and other "qualified private communities." The Law Division held that the Act was underinclusive, and hence violative of equal-protection guarantees, because it expressly excluded apartment complexes from the class of benefited forms of property ownership, without distinguishing between condominium owners who live in their units and those who rent their units to others. According to the trial court, condominium owners who rent their units to others are similarly situated to apartment owners, and, therefore, the Act was held to unconstitutionally exclude apartment owners without reasonable basis. We reverse and remand.
In February 1990, plaintiffs filed a complaint in the Law Division contesting the validity of that portion of L. 1989, c. 299 which excluded apartment complexes from the definition of those qualified private communities, which the Act required the municipalities to service. After various amendments, the complaint asserted eight theories of constitutional and statutory violations as bases for invalidating the Act:
Count one -- Fourteenth Amendment, equal protection;
Count two -- Fifth Amendment, deprivation of property without due process;
Count three -- equal protection, under the New Jersey Constitution;
Count four -- undue financial burden on municipalities;
Count five -- New Jersey Constitution's prohibition on "special laws";
Count six -- New Jersey Constitution's prohibition on preferential tax treatment;
Count seven -- New Jersey Constitution's prohibition on municipal gifts to private entities;
Count eight -- abrogation of municipalities' powers including those granted under the Municipal Land Use Law and violation of New Jersey Constitution's prohibition against private or special legislation.
The State answered denying these allegations and asserting that plaintiffs failed to state a claim. The court granted on May 14, 1990 the motion of the Community Associations Institute, New Jersey Chapter, Inc. (CAI) to appear as amicus curiae.
Plaintiffs moved for summary judgment as to all counts except five and eight, and the State moved for summary judgment as to all counts. The motions were argued on July 20, 1990. On November 5, 1990, the Law Division Judge issued a letter opinion invalidating the definitional portion of the Act as being underinclusive to the extent it excluded apartment complexes from the benefits extended by the Act.*fn2 Judgment was entered accordingly. The State appeals from the order of the Law Division.
On January 12, 1990, Governor Kean signed L. 1989, c. 299, later codified as N.J.S.A. 40:67-23.2 to -23.7. The Act, to be effective January 1, 1991, requires municipalities to provide within "qualified private communities" certain municipal services or, in the alternative, to pay for those services. N.J.S.A. 40:67-23.3. Those services include snow removal, street lighting, and the collection of leaves, recyclable materials, and garbage. If a municipality chooses to provide those services within a private community, it must do so "in the same fashion
as the municipality provides these services on public roads and streets." N.J.S.A. 40:67-23.3(a). The Act sets up a gradually increasing scale of reimbursement if the services are not provided, ranging from 20% in 1991 to 80% in 1994; in 1995 the municipality must either reimburse the "qualified ...