Judges Havey, Skillman and P.g. Levy.
The opinion of the court was delivered by: Havey, P.j.a.d.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Morris County.
This appeal presents a challenge to Morristown's garbage collection ordinance which provides free collection service to all residential dwellings of three or less units as well as condominium developments where no more than 50% of the units are owned by one person or entity. Excluded from the ordinance are all multi-family dwellings of four or more units. Therefore, plaintiff's garden apartment complex, consisting of 140 units, does not receive collection service.
Plaintiff filed a complaint in the Law Division claiming that the ordinance violates its right to due process and equal protection of the laws guaranteed by the United States and New Jersey Constitutions. It demands the same garbage collection service provided to all other residents, and also makes a claim under 42 U.S.C.A. §§ 1983 and 1988 for compensatory damages, attorneys' fees, interest and costs of suit.
The trial court granted partial summary judgment to plaintiff, concluding that there was no rational basis for the Town to have excluded apartment complexes from the coverage of the ordinance. By leave granted, a divided panel of the Appellate Division affirmed. 283 N.J. Super. 139 (App. Div. 1995). The Dissent concluded that summary judgment should not have been granted because a plenary hearing was necessary to determine whether the Town's ordinance was rationally related to a legitimate state interest. Specifically, the Dissent was of the view that a remand was necessary "for the development of a record on whether the ordinance's classification is rationally related to the legitimate state interest of promoting home ownership or to any other state interest defendants may assert." 283 N.J. Super. at 169.
By a four to three vote, the Supreme Court reversed, essentially for the reasons expressed by the Dissent in the Appellate Division, and remanded to the trial court "to conduct an evidentiary hearing and determine whether Morristown's garbage collection ordinance is rationally related to any legitimate State interest." 146 N.J. at 628.
After a four-day hearing, the trial court reaffirmed its prior determination that the ordinance was unconstitutional, finding it was not rationally related to the fostering of home ownership or any other legitimate state interest. The court ordered the Town to collect garbage and recyclable materials from plaintiff's apartment complex subject to the same terms and conditions as it collects from condominium complexes. It denied plaintiff's demand for damages under § 1983 and counsel fees under § 1988.
The Town defendants now appeal from the judgment invalidating the ordinance. Plaintiff cross-appeals from the denial of its claim for damages and counsel fees. We affirm the judgment invalidating the ordinance, but we reverse the dismissal of plaintiff's claim for damages and counsel fees, and remand for further proceedings.
If a legislative classification "'neither burdens a fundamental right nor targets a suspect class,'" we must uphold the constitutionality of legislation "'so long as it bears a rational relation to some legitimate end.'" Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 2297, 138 L.Ed.2d 834, 841 (1997) (quoting Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855, 865 (1996)); see also 515 Assocs. v. Newark, 132 N.J. 180, 197 (1993). Under the federal rational basis test, a classification made by legislation is presumed to be valid and will be sustained if it is "rationally related to a legitimate state interest." Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985); Drew Assocs. of N.J. v. Travisano, 122 N.J. 249, 264 (1991). Essentially the same type of analysis has been adopted respecting evaluation of equal protection claims under Article I, paragraph 1 of the New Jersey Constitution. Property Owners & Managers Ass'n v. Parsippany-Troy Hills, 264 N.J. Super. 523, 544 (App. Div.), certif. denied, 134 N.J. 561 (1993).
A municipal ordinance is accorded the same presumption of constitutionality as all legislation. Strauss v. Holmdel, 312 N.J. Super. 610, 619 (Law Div. 1997) (citing Pleasure Bay Apartments v. Long Branch, 66 N.J. 79, 93-94 (1974)). The challenger of the ordinance must "refute all possible rational bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment." League of Municipalities v. State, 257 N.J. Super. 509, 518 (App. Div. 1992), certif. dismissed, 133 N.J. 423 (1993).
The parties agree that, since the Town's ordinance does not implicate a suspect class or fundamental right, the rational basis test applies. Therefore, plaintiff has the burden of demonstrating that classification by the ordinance lacks a rational basis. A municipality's exercise of its police power in classifying by ordinance, must be sustained if it can be justified on any reasonably conceivable state of facts. Taxpayers Ass'n of Weymouth Township, Inc. v. Weymouth Township, 80 N.J. 6, 40 (1976). However, a governmental agency "'may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.'" Doe v. Poritz, 142 N.J. 1, 92 (1995) (quoting Cleburne, supra, 473 U.S. at 446-47, 105 S. Ct. at 3258, 87 L. Ed.2d at 324). "Furthermore, some objectives . . . are not legitimate state interests." Ibid.
A municipality is not mandated to provide for municipal garbage removal. Pleasure Bay, supra, 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). Also, when a municipality chooses to provide the service, it may, pursuant to its police power, impose reasonable restrictions by ordinance. Pleasure Bay, supra, 66 N.J. at 85. In Pleasure Bay, for example, the Court upheld municipal regulations limiting municipal service to curbside collection. Id. at 95; see also Property Owners, supra, 264 N.J. Super. at 543 (holding that an ordinance limiting service to curbside collection "passes constitutional muster because it does not exclude any class of residents from receiving municipal solid waste collection").
However, once the service is provided by a municipality, "there can be no invidious discrimination" in limiting the service to certain classifications. Boulevard Apartments, Inc. v. Mayor of Lodi, 110 N.J. Super. 406, 411 (App. Div.), certif. denied, 57 N.J. 124 (1970). There is a violation of equal protection of the laws "unless the service is available to all persons in like circumstances upon the same terms and conditions. Persons situated alike shall be treated alike." Ibid. (citing Reid Dev. Corp. v. Parsipanny-Troy Hills Township, 10 N.J. 229, 233 (1952)).
For example, in Boulevard, supra, we invalidated an ordinance which provided garbage collection service to single-family residents and multi-family dwellings ranging from two to eight family units, but excluded garden apartments. 110 N.J. Super. at 411. We found no reasonable justification for the municipality's classification, first because the garbage produced by a one-family unit in an apartment house and a one-family dwelling house is "substantially the same," id. at 412, and second because the cost of collection from family units in an apartment house where accumulated garbage is concentrated in one spot "is unquestionably less than the cost of collection from an equal number of family units residing in separate private dwellings." Ibid. In 399 Lincoln Assocs. v. Orange Township, 244 N.J. Super. 238 (App. Div. 1990), we adopted the reasoning of Boulevard in striking down an ordinance providing for garbage collection service to residential dwellings, but excluding services to "residential premises that contain five dwelling units or more," id. at 240, concluding that under the ordinance "[p]ersons situated alike are not treated alike . . . ." Id. at 245.
Applying the Boulevard and 339 Lincoln Assocs. analysis here, the proofs adduced during the plenary hearing made clear that there is nothing about the mechanics or costs of solid waste collection that justifies differentiating between apartment complexes and other residents within the community. As the trial court observed during an early stage of the proceedings, "people are people," and the type and quality of solid waste generated by all types of residential dwellings is the same. In fact, the evidence demonstrated that because there are fewer residents living in individual apartment units than single-family or condominium units, apartment units generate less solid waste. Moreover, the Town's Director of Public Works conceded that it would be more cost-effective to pick up solid waste from four dumpsters serving 140 apartment units than picking up solid waste from 140 separate single-family residential units at curbside. He also acknowledged that the mechanics for collection from dumpsters is the same for apartment units and condominiums.
There is also no rational basis for differentiating between apartment units and other residential dwellings on the basis that apartment owners may realize a profit from their investment. Boulevard, supra, 110 N.J. Super. at 411. We observed in Boulevard:
"The resolution in question makes no distinction between the 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." [Ibid.]
Here, the trial court accepted the reports of both parties' planners indicating that only 58% of the one, two and three-unit family dwellings which are provided garbage collection service are owner-occupied. Conversely, 42% of the units receiving the service are occupied by renters. The trial court found significant the more telling fact that only 27% and 11.7% of two and three-family structures respectively, are owner-occupied. The implication is that these nonoccupying owners are no less motivated by profit than owners of apartment complexes, and thus should not be treated differently. As we observed in 339 Lincoln Assocs., supra, 244 N.J. Super. 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 ...