Solid Waste Collection Service
Equal Treatment for
By Lewis Goldshore
League Environmental Counsel
The N.J. Supreme Court has recently agreed to consider the question of whether the real estate owner or the local government should be responsible for solid waste collection costs. This issue takes on an added dimension during the current difficult economic times. Berk Cohen Associates v. Boro. of
Clayton, 402 N.J. Super. 409 (App. Div.), certif. granted 197 N.J. 15 (2008).
Berk Cohen (landlord) owned a typical garden apartment complex consisting of 164 units in seven buildings located in the Borough of Clayton (borough). In accordance with the standard practice for this type of development, solid waste and recyclables generated by the tenants were collected from onsite dumpsters and containers provided by the complex owner. The cost for this service was initially paid for by the landlord. But similar to other operating expenses, these costs would ordinarily be passed along and be reflected in the rent. This practice contrasted with the services provided to other borough residents residing along public roads and streets who received free curbside collection.
In 2001, following the WHS Realty Co. v. Town of Morristown ruling, the legislature addressed this apparent disparity in the provision of local governmental services. 323 N.J. Super. 553 (App. Div.), certif. denied, 162 N.J. 489 (1999) (invalidated solid waste collection ordinance that discriminated against certain multifamily dwellings on equal protection grounds). The statute did not require municipalities to provide solid waste collection services to their residents. But where provided, the municipality could not discriminate against the owners of multifamily dwellings.
In general, the statute provided the municipality with two options -phased reimbursement or the direct provision of the services. According to N.J.S.A. 40:66-1.3:
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.
The 2001 law’s equality of treatment requirement was subject to a further condition or carve-out:
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.
To the extent that the landlord expected financial relief in the form of reimbursement pursuant to the 2001 enactment, it would be disappointed by the response it received. The borough was not going to make this easy for the apartment complex owner and insisted that it could rely on the -1.3.a. alternative approach. By ordinance, it required that the solid waste generated at the complex be properly containerized, brought to curb of an adjacent public street and set limits on the time that the receptacles could remain at the curb.
Faced with these requirements, the landlord did not give up. It attempted to comply on two weekly collection days but found that curbside collection for an apartment complex with some 500 residents and distance from the public street was both inconvenient and resulted in unsanitary conditions. The landlord resumed its use of dumpsters; the borough refused to reimburse the landlord or to provide collection within the complex.
The landlord’s prerogative writ lawsuit claimed entitlement to reimbursement; that the municipality should be required to collect the solid waste from the onsite dumpsters; and that the borough’s additional requirements were designed to undermine the services in the same manner standard in the 2001 statute.
At trial, the landlord presented testimony that the dumpster system was the industry standard for garden apartment solid waste collection, that curbside collection was inconvenient for both residents and staff and was unsanitary. The borough countered that its curbside smaller container requirement was an acceptable method of trash collection and that it complied with the 2001 statute.
The trial court ruled in the landlord’s favor and ordered the borough to provide reimbursement. It reasoned that requiring curbside collection in this situation was not consistent with the public health, safety and welfare, was inconsistent with the statute and offended equal protection.
The Appellate Division saw things differently. The borough argued that it offered the Landlord weekly curbside pickup which was identical to what it provided to residents along public streets and roads. As such, it met the statutory same manner test. Moreover, the solid waste laws did not require municipalities to enter private property to remove solid waste from dumpsters or other solid waste containers. The borough claimed that the landlord’s objections should be rejected since the municipality offered to provide all of its residents’ curbside collection on the same terms and conditions. The proper test was whether the borough had a rational basis for its action, not what was most convenient for the landlord. Since the landlord had refused the borough’s service alternative it was not entitled to reimbursement.
The appeals court found nothing in the statute to require a municipality that provided curbside pickup to residents along public streets to provide dumpster collection at apartment complexes, or in the alternative to provide reimbursement.
As to the constitutional (equal protection) issue, the Appellate Division concluded that the trial court erroneously focused on factors that do not result in unlawful discrimination by weighing the merits of dumpsters over curbside pickup rather than comparing the services offered to the landlord with those provided to all other borough residents. The trial court was in error in concluding that the curbside collection offered to the Landlord was a lesser service, and that it was inconsistent with the statute’s same manner standard.
The Court will be presented with the need to determine precisely what the Legislature meant in the 2001 enactment. Did it mean that the garden apartment owners, or ultimately those who reside in such units, were entitled to equal treatment in respect of solid waste collection services? Did the Legislature intend for -1.3.b. carve-out to negate the underlying equal treatment objective? It would have been a much easier task had the legislation been written more clearly and expressly addressed a dispute that could have been expected to arise as the statute was implemented.
Lewis Goldshore is a partner at Goldshore, Cash & Kalac of Lawrenceville. He is a co-author of “New Jersey Environmental Law” (ICLE 2003).
This article was originally published in New Jersey Municipalities magazine. Vol. 86, No. 5, May 2009