Never mind aesthetics and convenience. Under New Jersey law, a municipality can fulfill its legal obligation to provide solid waste service to a deeply set-back apartment complex by offering curbside collection, if that's what the locality provides to residences directly fronting public streets, according to a ruling by a state appeals court.

Berk Cohen Associates (BCA) owns a 164-unit apartment complex with about 500 residents in Clayton, N.J. The complex has access to a public roadway, Delsea Drive, via a 380-foot entrance road. The buildings themselves are situated between 500 and 1,000 feet from Delsea Drive.

In 2001, the New Jersey legislature enacted a law requiring a municipality that provides residential solid waste collection either to reimburse a multifamily dwelling for providing such service or furnish the service to the apartment dwellers "in the same manner as provided to residents … who live along public … streets." Reimbursement is capped at the amount the municipality would have spent in providing curbside collection service to apartments if the units were located along public roads.

The borough of Clayton provides its residents with free weekly curbside trash and recyclables pick-up. In 2002, BCA and the borough began a series of conversations and an exchange of correspondence. BCA insisted on reimbursement for what it paid to provide private container service within the apartment complex. For its part, the borough refused any reimbursement and instead adopted an ordinance authorizing collection of BCA apartment trash and recyclables once a week along the curb line of Delsea Drive.

The situation remained unresolved for several years until BCA appeared to back down. It removed its onsite dumpsters and directed its tenants to place their trash into containers located within onsite corrals. From there, the apartment maintenance staff transported the containers to the curbside along Delsea Drive. After two tries, BCA found the new arrangement "inconvenient and unsanitary" and reinstated onsite dumpster service at its expense.

In 2005, BCA filed suit in Gloucester County Superior Court seeking reimbursement of its waste disposal costs, a ruling that the ordinance was unlawful and an order compelling the borough to collect garbage from onsite dumpsters within the complex.

After a hearing, which included testimony that a dumpster system represents state-of-the-art for waste removal from garden apartments, the trial judge ordered the borough to reimburse BCA for its trash removal costs. The judge found that the curbside collection scheme at the complex was not equivalent to the service enjoyed by other community residents. Indeed, he deemed the arrangement "unreasonable to the point of absurdity."

Reversing the lower court ruling, a three-judge appellate panel ruled that the borough did not discriminate against apartment dwellers when it "consider[ed] the advantages of onsite dumpsters for apartment complexes, as well as the unsightliness and risk of toppled containers and wind-blown trash along Delsea Drive, a pitfall of curbside collection faced by every other resident, and then [chose] whether to reimburse [BCA's] solid waste collection costs or to provide it curbside collection."

[Berk Cohen Associates at Rustic Village, LLC v. Borough of Clayton, No. A-4988-05T2 (N.J.Super.App.Div., Sept. 8, 2008)]

BARRY SHANOFF is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

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