September 8, 2008
HEATHERS REALTY, LLC, PLAINTIFF-APPELLANT,
BOROUGH OF LINDENWOLD AND LINDENWOLD BOROUGH COUNCIL, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6265-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 16, 2008
Before Judges Axelrad, Sapp-Peterson and Messano.
Plaintiff Heathers Realty, LLC appeals from summary judgment dismissal of its complaint against the Borough of Lindenwold and Lindenwold Borough Council (Borough) seeking reimbursement of costs of solid waste and recyclable removal from its apartment complex pursuant to N.J.S.A. 40:66-1.3. We affirm.
Plaintiff is the owner of a 276-unit garden apartment complex known as the Heathers Apartments, located at 1990 Laurel Road in Lindenwold. Since owning the complex in l999, plaintiff utilized a private waste hauler at its expense for the collection and removal of solid waste and recyclables from onsite dumpsters.
On February 27, 2001, the Legislature enacted N.J.S.A. 40:66-1.3, requiring a municipality that elects to provide solid waste services to its residents to reimburse a multifamily dwelling*fn1 for the actual cost of providing that service in accordance with the statutory calculation defined in N.J.S.A. 40:66-1.5 or provide the service "in the same manner as provided to the residents of the municipality who live along public roads and streets." N.J.S.A. 40:66-1.3a. This reimbursement or provision of services commenced for local budget year 2002 for municipalities operating on a calendar year basis and local budget year 2003 for municipalities operating on a State fiscal year basis, with reimbursement payments phased in over a five-year period. N.J.S.A. 40:66-1.3d; N.J.S.A. 40:66-1.5.
The Borough provides free weekly curbside garbage and recyclable service to its residents in mandated-sized receptacles. On December 11, 200l, Steven Breitman, plaintiff's managing member, wrote to the mayor requesting the Borough begin trash pickup at the complex or reimburse it for its trash removal costs or, if the Borough had other plans for implementing the new law, requesting they schedule a meeting. During the next several months plaintiff's representatives made additional inquiries of the mayor and other Borough representatives but received no response. On September 8, 2002, plaintiff sent a follow-up letter to the mayor. On September l3, 2002, the Borough Solicitor responded that the Borough would pick up trash at any residential property that complied with the Borough's trash ordinance, i.e., in set-sized containers, with mandatory segregation of recycling, placed curbside at a public road. Plaintiff promptly responded that it would need at least 276 trash containers, and commented about the traffic and other problems that would result from curbside pickup on Laurel Road.
On October 31, 2002, plaintiff sent a letter to Robert Lodovichi, Director of Public Works, requesting a meeting regarding placement of the numerous trash and recycling containers. Breitman sent a letter to the mayor on October l3, 2004, acknowledging a discussion the prior day, and inquiring whether the Borough was going to reimburse plaintiff for its trash collection costs or, if not, requesting a trash/recyclable pickup schedule and delivery of recyclable containers. On January 4, 2005, the Solicitor responded to plaintiff's counsel, informing him plaintiff could make a written request to Lodovichi for the schedule and although recyclable containers were usually picked up at the Department of Public Works, as a courtesy the Borough would deliver 276 containers to plaintiff.
On September 5, 2006, plaintiff filed suit against the Borough for reimbursement of the statutory percentage of its onsite dumpster solid waste removal costs since January 1, 2002. On November 9, 2006, the Borough filed a motion for summary judgment dismissing plaintiff's complaint, arguing the Borough's offer of curbside pickup satisfied its statutory obligation. In response, plaintiff presented Breitman's certification, referencing the correspondence between the parties, and relating the following discussions with Borough representatives from September 2002: several phone conversations with the mayor about plaintiff's concerns with curbside pickup and the mayor's concerns with onsite pickup and, pursuant to the mayor's referral, several calls to Lodovichi regarding pick-up days and obtaining containers. Breitman further certified plaintiff was ready to bring the approximately 1452 receptacles to Laurel Road weekly but was waiting for an acknowledgment by the Borough that "it was aware of the occurrence" and prepared to have the cans picked up by its hauler, but the Borough "would never provide an affirmative commitment." He further stated that the Borough never provided plaintiff with the containers as promised in the Solicitor's January 2005 letter.
Plaintiff argued the matter was not ripe for summary judgment as there was no discovery of the mayor, council or Lodovichi regarding the Borough's determination of curbside pickup. Following oral argument, on December l5, 2006, Judge Colalillo granted the Borough's motion, memorialized in an order of that date. The court found the Borough satisfied its statutory obligation of offering plaintiff the municipal service of weekly curbside pickup available to other residential properties. The court further found the Borough did not breach a legal obligation by failing to deliver the receptacles to plaintiff, as it was plaintiff's responsibility to obtain the receptacles and comply with the weekly curbside pickup if it did not want to incur the expense of onsite dumpster trash removal.
Plaintiff appeals, arguing: (1) the judge improperly granted summary judgment on a scant and procedurally defective record, as there was no statement of undisputed material facts and only a certification from counsel setting forth the Borough's position but no brief; (2) the judge improperly granted summary judgment as no discovery had occurred; (3) plaintiff relied upon its representative's contacts and conversations with the mayor and Lodovichi and refrained from putting out the approximately l452 receptacles along Laurel Road for collection, which caused it detriment and should result in equitable estoppel against the Borough; and (4) the judge erred as a matter of law in concluding the Borough satisfied its obligation under N.J.S.A. 40:66-1.3 by offering curbside pickup.
We are satisfied the motion judge had a sufficient record upon which to grant summary judgment as a matter of law, despite the absence of discovery. It is immaterial what the positions of the Borough's officials and employees are with respect to the Borough's decision to elect the second alternative of N.J.S.A. 40:66-1.3 and provide municipal waste collection services. Moreover, the record is devoid of any allegation of falsehood or misrepresentation by these representatives or of an affirmative act that would induce reliance, so further discovery would not alter the outcome. "'[T]o establish equitable estoppel, plaintiffs must show that defendant engaged in conduct, either intentionally or under circumstances that induced reliance, and that plaintiffs acted or changed their position to their detriment.'" Twp. of Middletown v. Simon, 193 N.J. 228, 250 (2008) (quoting Knorr v. Smeal, 178 N.J. 169, 178 (2003)). Its essential principle is that "'one may, by voluntary conduct, be precluded from taking a course of action that would work injustice and wrong to one who with good reason and in good faith has relied upon such conduct.'" Ibid. (citation omitted). The most plaintiff has demonstrated is that Borough representatives sat back and waited for plaintiff to take further action. As Judge Colalillo commented, if plaintiff wanted to save money, it was plaintiff's responsibility to pick up the receptacles and put out its tenants' trash curbside. If plaintiff was dissatisfied with the Borough's decision to require curbside pickup, it could also have presented its views to the governing body and commenced this suit earlier.
The judge also properly granted summary judgment as a matter of law, concluding the Borough satisfied its statutory obligation in offering curbside pickup to plaintiff. In Berk Cohen Associates v. Borough of Clayton, ___ N.J. Super. ___ (App. Div. 2008), issued on this date, we held that N.J.S.A. 40:66-1.3 does not require a municipality that provides curbside pickup of solid waste to its residents to provide onsite dumpster pickup at an apartment complex or otherwise reimburse the cost of the service.