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WHS Realty Co. v. Town of Morristown

July 10, 1995


On appeal from the Superior Court, Law Division, Morris County.

Approved for Publication July 10, 1995

Before Judges Petrella, Havey and Brochin. The opinion of the court was delivered by Havey, J.A.D. Petrella, P.j.a.d., Dissenting

The opinion of the court was delivered by: Havey


By leave granted, defendants Township of Morristown, its Mayor and Town Council and its Health and Public Works Departments, appeal from a partial summary judgment declaring a portion of the Township's garbage collection ordinance unconstitutional. We affirm.

The Township's ordinance provides for the collection of garbage from single-family residences, apartment complexes having less than four units and any housing complex consisting of four or more dwelling units in which the majority of such units are separately owned in fee or as condominiums. Plaintiff's apartment complex, consisting of 140 units, does not fall within that classification and therefore does not receive garbage collection service.

In its complaint, plaintiff claims that the Township's ordinance violates due process and equal protection guaranteed by the New Jersey and United States Constitutions. It demands garbage collection service equal to service provided to all other residents within the Township and also makes a claim under 42 U.S.C.A. § 1983 for compensatory damages, attorneys' fees, interest and cost of suit.

In granting partial summary judgment to plaintiff, Judge Stanton reasoned that there was no rational basis for the Township to make a distinction between those who live in single-family units, condominiums, and apartment complexes having less than four units, and those who live in an apartment complex having four or more units. He concluded that the classification discriminated against apartment dwellers in a way that "is unacceptable under our Constitution," and found that once the Township elected to provide garbage collection service, paid for from the general revenue of the Township, exclusion of a class of apartment-unit dwellers from such a service constituted invidious discrimination. The Judge elaborated:

When we deal with suburban communities and the vast number of our citizens in this state live in suburban communities, we have the risk of having an invidious social economic class system of the worst kind.

And the reality is that the more affluent people in residential communities, suburban residential communities, live in single-family residences and . . . in condominium complexes. And the less advantaged economically live in rental apartments, and those less advantaged people have smaller political clout and lesser ability to assert their rights. They are at risk, and it is precisely those people who are not protected by legislation such as this.

The Judge was also of the view that apartment complex owners were being discriminated against for a different reason:

There is also another class of people who are at risk, and that is to say the owners of apartment complexes. Now they are not economically disadvantaged. On the contrary, I would assume that most of them are economically advantaged. But they -- they are targets for a kind of cheap populism that puts them at risk. And I think that the risk here of invidious treatment, either because someone doesn't like a relatively small class of property owners, or because someone doesn't care about a relatively small and unimportant class, but a larger class, of rental apartment dwellers, the risk that those people will be discriminated against is real and -- and schemes like this, I think, are -- are unfortunately an embodiment of that realty.

Equal protection analysis employs different tiers of review: strict scrutiny when legislation involves a fundamental right or suspect class; intermediate scrutiny when an act involves a semi-suspect class; and minimal rational-basis scrutiny in all other cases. Drew Assocs. of N.J., L.P. v. Travisano, 122 N.J. 249, 258, 584 A.2d 807 (1991); Property Owners & Managers Ass'n v. Town Council of Parsippany-Troy Hills, 264 N.J. Super. 523, 544, 624 A.2d 1372 (App. Div. 1993). Under the rational basis test, the legislation 'need be only rationally related to a legitimate state interest to satisfy federal equal protection requirements.'" Ibid. (quoting Brown v. City of Newark, 113 N.J. 565, 573, 552 A.2d 125 (1989)). The same type of analysis has been adopted essentially respecting an equal protection analysis under Article I, paragraph 1, of the New Jersey Constitution. Property Owners & Managers Ass'n, 264 N.J. Super. at 544.

Here, Judge Stanton properly applied the lowest standard of review, the rational-basis scrutiny, since the Township's ordinance does not implicate a suspect or semi-suspect class, or a fundamental right. See Pleasure Bay Apartments v. City of Long Branch, 66 N.J. 79, 91, 328 A.2d 593 (1974); New Jersey State League of Municipalities v. State, 257 N.J. Super. 509, 518, 608 A.2d 965 (App. Div. 1992), certif. dismissed, 133 N.J. 423, appeal dismissed, 133 N.J. 419 (1993).

Municipal ordinances, like all legislation, are entitled to a strong presumption of constitutionality. Pleasure Bay Apartments, 66 N.J. at 93-94. The challenger has the burden to refute all possible rational bases for the classification in the ordinance providing for different treatment, whether or not the enacting body has cited those bases as reasons for the enactment. New Jersey State League of Municipalities, 257 N.J. Super. at 518. Thus, legislation must be upheld if the court can conceive of any reason to justify the classification, even if the classification is fairly debatable. Id. at 518-19.

Neither statutory nor case law imposes a mandatory duty on a municipality to provide for municipal garbage removal. Pleasure Bay Apartments, 66 N.J. at 90. A municipality "may provide for the . . . collection or disposal of solid waste, and may establish and operate a system therefor . . . ." N.J.S.A. 40:66-1a (emphasis added).

In Pleasure Bay Apartments, our Supreme Court upheld municipal regulations limiting garbage collection service to curbside collection. 66 N.J. at 95. The Court rejected the claim by owners of garden apartment complexes that the municipality's refusal to remove garbage from "dumpsters" situate within the apartment complexes constituted invidious discrimination. Id. at 95-96. The Court observed that the statutory power under N.J.S.A. 40:66-1 was discretionary, not mandatory, and that:

No case has ever held that a municipality electing to furnish garbage removal services at municipal expense must provide means and facilities which are all inclusive and will insure collection of all garbage and refuse produced in the municipality. All cases which have dealt with the issue have ruled to the contrary.

[Pleasure Bay Apartments, 66 N.J. at 90.]

The distinguishing factor in Pleasure Bay Apartments is that the limitation imposed requiring curbside collection, although burdensome to garden apartment complexes, was "based on real and not feigned differences in the problems inherent in collection of garbage from locations within [the garden apartment complexes], as contrasted with collections from the curbside." Id. at 95. The problems cited by the Court include the substantial costs incident to on-site collection and the practical difficulties associated with entry upon private roads and private property. Id. at 96.

In Property Owners & Managers Ass'n, 264 N.J. Super. at 546, we upheld N.J.S.A. 40:66-1b, which provides that a municipality may limit service to curbside collection along public streets. *fn1 We held that the statute "passes constitutional muster because it does not exclude any class of residents from receiving municipal solid waste collection." 264 N.J. Super. at 543. Noting the plaintiffs' argument that the statute is facially discriminatory because it does not distinguish between a "public" and "private" street, we deferred to the Legislature's classification because it is "'better situated than courts to make policy decisions concerning public . . . safety . . . .'" Id. at 545 (quoting Brown, 113 N.J. at 571). We observed that the Legislature no doubt was concerned with "safety on the private streets and cost containment for solid waste collection" and thus "the factual distinction between private and public streets has a real and substantial relationship to a legitimate governmental objective on a statewide basis." Property Owners & Managers Ass'n, 264 N.J. Super. at 546-47.

Pleasure Bay Apartments and Property Owners & Managers Ass'n are not helpful to defendants since both cases involve the physical impediments and additional costs associated with on-site collection of garbage as opposed to the collection at curbside. Plaintiff does not seek on-site collection of the garbage.

More to the point are our opinions in Boulevard Apartments, Inc. v. Mayor of Lodi, 110 N.J. Super. 406, 265 A.2d 838 (App. Div.), certif. denied, 57 N.J. 124 (1970) and 399 Lincoln Assocs. v. City of Orange Tp., 244 N.J. Super. 238, 581 A.2d 1364 (App. Div. 1990). In Boulevard Apartments, Inc., the owner of a 108 apartment-unit complex challenged Lodi's ordinance which provided for garbage collection service to residential dwellings, businesses, public buildings and public housing complexes, but excluded garden apartment housing from its coverage. 110 N.J. Super. at 408-09. Numerous other multi-family dwellings, ranging from two- to eight-family units, received the garbage collection service. Id. at 409. A rationale for the classification excluding garden apartments was the additional $75,000 to $80,000 in annual cost necessary to provide service to the over 1,400 units contained in thirty-eight garden apartments in the borough. Ibid.

We invalidated the Lodi ordinance, concluding that while limiting the collection of garbage to certain classifications is not forbidden, "there can be no invidious discrimination in the establishment of such classifications." Id. at 411. There is a denial of equal protection "unless the service is available to all persons in like circumstances upon the same terms and conditions." Ibid. We found no reasonable justification for the borough to classify garden-type apartment houses differently from other residential dwellings, first because the garbage produced by a one-family unit in an apartment house and a one-family dwelling house is "substantially the same," and second because the cost of collection from family units in an apartment house where the accumulated garbage is concentrated in one spot to be picked up at the curb is "unquestionably less than the cost of collection from an equal number of family units residing in separate private dwellings." Id. at 412. We also rejected the notion that garden apartment houses may be treated differently on the basis that the owner of the complexes may realize a profit on his investment. Id. at 411. We reasoned:

The resolution in question makes no distinction between owner-occupied dwellings and those rented for income. The evidence reveals that there are numerous rented multi-family dwellings containing from two to eight family units which are not precluded from receiving municipal garbage collection service. Moreover, the resolution on its face provides for collection from public housing projects and various places of business.


We adopted the reasoning of Boulevard Apartments, Inc. in 399 Lincoln Assocs. in striking down an ordinance providing for garbage collection service to residential dwellings, but excluding service to "residential premises that contain five dwelling units or more." 244 N.J. Super. at 240. We reasoned that "the volume of garbage on a per-unit basis generated by a five-family home is the same as other multi-family dwellings." Id. at 242. Thus, the result of the ordinance "does not treat alike, persons situated alike." Id. at 245.

A commercial landlord who rents a one, two, three or four-family building receives free garbage collection and thus does not have to factor into his rent a cost for that service, whereas, a commercial landlord with five or more units must pay for this service and thereby factor that cost into the rents charged. Persons situated ...

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