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Berk Cohen Associates at Rustic Village, LLC v. Borough of Clayton

402 N.J. Super. 409, 954 A.2d 537 (App. Div. 2008)

MUNICIPALITIES; MULTIPLE DWELLINGS — A municipality that only offers solid waste services to single family homes if trash is placed at the curbside of a public road or street is not obligated to offer anything more to the owners of apartment complexes even if those owners desire curbside pickup within their complexes or wish to use bulk waste containers.

The owner of an apartment complex provided onsite dumpsters and recycling receptacles for its tenants, and paid for twice weekly removal by a private hauler. A New Jersey law requires municipalities that provide their residents with solid waste services to reimburse a multifamily dwelling owner for the actual cost of providing that same service or to provide the service in the same manner as it provides to other residents who live along its public roads or streets. The municipality in which this complex was located offered to collect the complex’s trash and recyclables once a week utilizing curbside pickup on the public roadway adjacent to the complex, a service that it offered to its single property owners. The complex asserted that such pickup was impractical and unhealthy, and requested curbside pickup within the complex. The municipality refused to engage in such pickup and similarly refused to reimburse the complex for private hauling. The complex attempted public road curbside pickup for a short while but discontinued the arrangement based on a belief that it was unsanitary and inconvenient.

The owner of the complex sued the municipality alleging that the municipality was required to provide onsite dumpster pickup at the apartment complex or to reimburse the owner for the cost of such service performed by a private contractor. The lower court directed the municipality to reimburse the owner. The municipality appealed.

The Appellate Division reversed the lower court’s ruling, finding that the municipality had satisfied its statutory obligation by offering to provide solid waste service to the complex in the same manner as it provided the service to single unit properties along public roads and streets. It noted that the law states that if a municipality chooses to provide municipal service for garbage removal or other waste removal, it has the discretion, in accordance with its police powers in guarding the public health, to impose reasonable requirement governing the collection and removal of the solid waste. The Court did not find the municipality’s offer of curbside pickup of trash cans or other small containers unreasonable. Therefore, it held that the municipality was not required to provide onsite dumpster pickup at the complex or to reimburse the owner for the cost of onsite dumpster pickup service.

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