On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1180-05.
The opinion of the court was delivered by: Axelrad, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Messano.
In this appeal we address whether N.J.S.A. 40:66-1.3 requires a municipality that provides its residents with curbside pickup of solid waste to provide onsite dumpster pickup at an apartment complex or otherwise reimburse the cost of the service. Following a hearing, the trial court directed reimbursement, concluding the curbside collection on the public street adjacent to the apartment complex was a "lesser service" and "not the functional equivalent of the safe and secure trash removal enjoyed by other residents of the community." We hold that the municipality's offer to the apartment complex of curbside pickup satisfied its statutory obligation to provide the solid waste service "in the same manner as provided to the residents of the municipality who live along public roads and streets" and reverse.
Plaintiff Berk Cohen Associates at Rustic Village, LLC is the owner of a seven building, 164-unit garden apartment complex housing approximately 500 residents, located in Clayton. The complex accesses onto a public roadway, Delsea Drive, by a 380-foot entrance road. Plaintiff also owns the vacant property adjacent to Delsea Drive contiguous to the Rustic Village complex. The apartment buildings range in location from about 500 to l000 feet from Delsea Drive. Plaintiff had provided onsite dumpsters and recycling receptacles for its tenants to dispose of waste, and had paid for twice weekly removal by a private hauler.
On February 27, 2001, the Legislature enacted N.J.S.A. 40:66-1.3, requiring a municipality that elects to provide its residents with solid waste services 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. 40:66-1.3 provides, in pertinent part:
a. Except as otherwise provided in subsection b. of this section, when solid waste collection services are provided to the residents of a municipality, the governing body of that municipality shall reimburse a multifamily dwelling for the actual cost to the multifamily dwelling of providing that service, but not more than the amount that the municipality would have expended on the solid waste collection services if provided by the municipality directly to the multifamily dwelling, calculated as if the dwelling units were located along public roads and streets and the service provided curbside. Alternatively, when solid waste collection services are provided to the residents of a municipality, the governing body of the municipality shall provide the solid waste collection services in the same manner as provided to the residents of the municipality who live along public roads and streets.
b. (1) Nothing in P.L. 2001, c. 25 (C. 40:66-1.2 et al.) shall require a municipality to operate any municipally owned or leased vehicles or other equipment, or to provide any of the services enumerated in subsection a. of this section, upon, along or in relation to any road or street in a multifamily dwelling complex which either (a) is not accepted for dedication to public use or (b) does not meet all municipal standards and specifications for such dedication, except for width.
e. No municipality shall be liable for the provision of any solid waste collection services or for the payment of any reimbursement amounts with regard to solid waste collection services to any multifamily dwelling except as specifically provided pursuant to P.L. 2001, c. 25 (C. 40:66-1.2 et al.).
[L. 2001, c. 25, § 2, eff. Feb. 27, 2001.]
The aforementioned reimbursement or provision of services commenced for local budget year 2002 for municipalities operating on a calendar year 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 of Clayton (Borough) provides free weekly curbside garbage and trash collection service to its residents pursuant to Chapter 60 of the Clayton Code. By letter of October 8, 2002, plaintiff sought reimbursement from the Borough for the first phase percentage of its trash collection expenses for the year, noting it would continue to forward quarterly invoices. By letter of February 13, 2003, in accordance with N.J.S.A. 40:66-1.3, the Borough offered to collect plaintiff's apartment residents' trash and recyclables once a week by curbside pickup along Delsea Drive, the public roadway adjacent to the complex. The Borough instructed plaintiff to comply with all provisions of Chapter 60, including properly containerizing the trash for pickup. Plaintiff responded by letter of March 10, 2003, referencing its reimbursement claim and informing the Borough that its "offer of curbside pickup along Delsea Drive [was] impractical and unhealthy" but it would authorize curbside pickup in the complex as an alternative to the Borough's statutory reimbursement obligation for 2003.
Conversations and letters ensued during the latter part of 2003, and by letter of December 26, 2003, the Borough reiterated that it would not reimburse plaintiff for private container services and would pick up the tenants' trash on Thursdays and recycling on Fridays that were placed for collection in the appropriate containers along the curb line of Delsea Drive. On March 25, 2004, the governing body passed Resolution 77-2004 authorizing collection of plaintiff's residents' trash in accordance with the statutes, regulations, and Borough Code.*fn2
On April 1, 2005, plaintiff apparently replaced its onsite dumpsters with onsite corrals and directed its tenants to place their trash bags in containers located in the corrals. On or about April 6 and April 13, 2005, plaintiff's maintenance staff placed its tenants' trash curbside on Delsea Drive. Plaintiff determined the arrangement was inconvenient and unsanitary, discontinued the curbside collection, and resumed utilization of its twice weekly onsite dumpster trash removal. The Borough refused to pick up the trash inside the complex or reimburse plaintiff for its dumpster waste disposal costs.
On July 6, 2005 plaintiff filed a complaint in lieu of prerogative writs against the Borough. Plaintiff sought judgment for the statutory percentage of reimbursement costs of waste disposal totaling $17,323.09 from 2002 through 2004, with accruing costs (First Count). In its Second Count, plaintiff asserted the following allegations:
5. The ordinance as and adopted by the Township of Clayton, was made intentionally labor intensive requiring employees and tenants to sort and place the waste from the apartment complex, into garbage units, and to place the waste receptacles on Delsea Drive. Said municipal ordinance is an unreasonable restriction, constitutes an abuse of the police power, and a form of invidious discrimination wherein by ordinance the defendant attempted to negate the statutory scheme envisioned by R.S. :66-1.
10. Based upon an internal study conducted by plaintiff, it was determined that the costs of curbside pickup, by Waste Management of Vineland, New Jersey the trash collection service utilized by the Township of Clayton, and the charges made by Waste Management of Camden County, the private collection service utilized by the plaintiff, were not only the equivalent, but in fact, the ...