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Property Owners and Managers Association v. Mayor and Town Council of Parsippany-Troy Hills

Decided: May 19, 1993.

PROPERTY OWNERS AND MANAGERS ASSOCIATION; CHARLES KUSHNER T/A PARK LANE VILLAGE, A NEW JERSEY PARTNERSHIP; PARTRIDGE RUN APARTMENTS, INC.; LEON AND EDITH SLUPSKY; JOSEPH KUSHNER, ET ALS., T/A DARTMOUTH VILLAGE APARTMENTS, A NEW JERSEY PARTNERSHIP; COLONIAL HEIGHTS APARTMENTS, A NEW JERSEY PARTNERSHIP; DEERA MANAGEMENT GROUP, L.P.; TROY HILLS VILLAGE, A NEW JERSEY PARTNERSHIP; MUTUAL REAL ESTATE INVESTORS TRUST T/A INTERGROUP CORP.; AND PARTROY ASSOCIATES, A NEW JERSEY PARTNERSHIP, PLAINTIFFS-APPELLANTS, CROSS-RESPONDENTS,
v.
MAYOR AND TOWN COUNCIL OF PARSIPPANY-TROY HILLS AND TOWNSHIP OF PARSIPPANY-TROY HILLS, DEFENDANT-RESPONDENTS, CROSS-APPELLANTS, AND ATTORNEY GENERAL OF NEW JERSEY, INTERVENOR



On appeal from Superior Court of New Jersey, Law Division, Morris County.

J.h. Coleman, Shebell and Arnold M. Stein. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

L. 1991, c. 213, § 1, effective July 23, 1991, codified as N.J.S.A. 40:66-1b, gives municipalities discretionary power to limit solid waste collection service to curbside collection along public streets. This legislation further permits municipalities to reimburse property owners who elect not to receive municipal collection service. In this appeal, plaintiffs seek a determination that N.J.S.A. 40:66-1b is unconstitutional. The Law Division held the statute is constitutional. We agree and affirm.

I

Plaintiffs are a group of owners of garden apartment buildings and an association formed by them who sought to compel defendant Township of Parsippany-Troy Hills (Township) to provide solid waste collection from within the garden apartment complexes at municipal expense. Plaintiffs sought solid waste collection services at each apartment complex curbsides or from dumpsters located within the complexes. There are a total of twenty-seven garden apartment complexes within the Township comprising approximately 7,000 residential units.

From the time of the construction of the garden apartment complexes involved here in the mid-1960s, garbage collection service has been provided privately at the owners' (and hence tenants') expense. All the complexes in question use the dumpster system whereby residents place their garbage into a dumpster for disposal. The dumpsters are mostly located on the

outside periphery of each complex, and generally access to the complex is off of a heavily trafficked municipal road.

The volume of the solid waste generated by the complexes is reflected in the number of dumpsters required. Colonial Heights, located off of Parsippany Road, has eleven rear loader dumpsters plus a shed for recyclables. Meadowbrook Gardens, located off of Route 46, has eight rear loader dumpsters for garbage and two for recyclables. Baldwin Manor, located off of Baldwin Road, has nine rear loader dumpsters for garbage and three for recyclables. Dartmouth Village, also located off of Baldwin Road, has six rear loader dumpsters for garbage plus a shed for recyclables. Intervale Gardens, located off of Route 46, has eight rear loader dumpsters for garbage. Vali Gardens, located off of Vali Road, has nine rear loader dumpsters for garbage. Troy Hills Village, also located off of Vali Road, has twenty-four front loader dumpsters for garbage. Partridge Run, located off of New Road, has twelve front loader dumpsters for garbage.

None of the apartment complexes contains streets which are municipally owned. The Township provides no services on these private streets except for fire, police and ambulance. None of the roadways within the complexes was built to municipal specification. Only a few streets comply with the thirty-foot width requirement; some are only twelve feet wide. Speed bumps are fairly common on these roads. The short radius at the intersections of the driveways in some of the complexes causes problems relating to sight distances and turning.

Prior to 1988, the Township did not provide municipal garbage collection to any of its residents. Solid waste collection was provided through garbage districts, wherein residents paid directly for the collection. However, in January 1988 this private plan was abolished, and the Township began providing solid waste collection service directly through a contract with a private scavenger. This change required a garbage collection component to be added to the municipal property tax rate to cover the cost. Soon thereafter, plaintiffs began seeking on-site collection of garbage

by the Township. The Township considered alternative ways of negotiating a settlement with plaintiffs by offering to provide some type of curbside service, but these efforts failed.

Township residents are required to separate recyclables from other trash and to place the garbage in suitable containers for curbside collections along public streets. Guidelines were promulgated in September 1991 by the Township, effective January 1, 1992, detailing its latest plan for the collection of residential solid waste. Under these guidelines, each apartment complex was directed where to place thirty-two gallon containers of garbage. Each container must be equipped with wheels. No more than two containers are allowed for each apartment unit, and each container must have an attached lid. The containers will be picked up twice a week, and recyclables will be collected once a week from the curbside of the designated public streets. During oral argument, we were advised that six of the complexes involved as plaintiffs are complying with the Township's requirements and are receiving collection service from individual containers placed at the curbside of designated public streets.

At the Conclusion of a three-day bench trial, the trial Judge rendered an oral decision on July 22, 1991 and a written order was signed on August 31, 1991 requiring the Township to provide onsite collection of garbage to plaintiffs. The Judge left it to the discretion of the Township to provide the most practical method of collection between: (1) dumpsters; (2) containers placed at curbside along internal private roadways within the complexes, or (3) containers placed at curbside along the public streets abutting plaintiffs' properties where the streets within a particular complex are too unsafe for large garbage trucks to traverse.

One day after the Judge rendered his oral decision, N.J.S.A. 40:66-1b became effective which reaffirmed a municipality's right to limit garbage pickup to collection from curbside of public streets. The Judge allowed plaintiffs to file a supplemental complaint ...


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