D.D. RESIDENTIAL, LP v. TOWNSHIP OF HAMILTON, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6016-04T26016-04T2

D.D. RESIDENTIAL, LP,

Plaintiff-Appellant,

v.

TOWNSHIP OF HAMILTON and

HAMILTON TOWNSHIP COMMITTEE,

Defendants-Respondents.

______________________________

 

Argued May 23, 2006 - Decided July 24, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Atlantic

County, L-2509-04.

Salvatore Perillo argued the cause for

appellant (Perskie Nehmad & Perillo,

attorneys; Mr. Perillo on the brief).

Norman L. Zlotnick argued the cause for

respondents (Mairone Biel Zlotnick and

Feinberg, attorneys; Mr. Zlotnick on the

brief).

PER CURIAM

This appeal concerns the proper method of quantifying the obligation of a municipality to reimburse costs incurred by a multi-unit residential complex in collecting solid waste when the municipality elects not to provide that service. Plaintiff appeals from the methodology adopted by the motion judge as the result of defendant's summary judgment motion. We affirm in part, and reverse and remand in part.

Plaintiff is the owner and operator of a 416-unit apartment complex located in Hamilton Township. Although the Township provides curbside solid waste collection to its residential non-multifamily homes once a week, it has determined not to provide collection services to multifamily complexes. Plaintiff, accordingly, provides collection services, although it does so three times each week.

When a municipality elects not to provide solid waste collection services to a multifamily residential complex, it is obligated to reimburse the complex "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[.]" N.J.S.A. 40:66-1.3a.

Plaintiff asserted that its "actual cost" was the cost incurred for the collection services it provided thrice weekly. Defendant asserted that plaintiff's "actual costs" were those it would incur if it provided the same level of services as would the municipality; that is, one-third of its costs for collecting three times each week. Said another way, defendant argued that plaintiff cannot obtain reimbursement for services in excess of that which defendant supplied to its other residents.

The issue was presented on cross-motions for summary judgment. The motion judge interpreted the statute as did defendant and limited plaintiff's reimbursement to the lesser of (a) its costs for collection one day per week and (b) defendant's costs for the same one day per week collection. Although the costs incurred by plaintiff consist of "hauling" costs and the costs incurred in the payment of fees to a landfill operator for taking the solid waste, the parties did not focus on whether different treatment should be afforded the two component costs. Accordingly, the memorializing order of January 24, 2005, did not differentiate between the component costs.

After that order was entered, plaintiff sought a clarification of whether the hauling costs and disposal costs should be treated differently. The fees paid to the landfill owner for accepting the collected solid waste are commonly called "tipping fees." The parties agree that, for reasons not fully explored, the tipping fees incurred by plaintiff were substantially higher, on a per unit basis, than those incurred by defendant for the solid waste it did collect. The motion judge declined to give different treatment to the components and determined that the reimbursement due plaintiff was limited to the tipping fees incurred by defendant, per unit, multiplied by the 416 units operated by plaintiff. She, therefore, denied plaintiff's motion for reimbursement of its actual payment for tipping fees in excess of that amount. Accordingly, she entered a June 8, 2005, order providing: "[P]laintiff's entitlement to reimbursement for solid waste collection [including tipping fees] at Hamilton Greene is limited to the plaintiff's cost [including tipping fees] for one day's collection, or the Township's cost [including tipping fees] for one day's collection . . . . for 416 units, whichever is less."

Plaintiff appeals, asserting that it is entitled to its actual costs unlimited by the frequency of its collection, but that even if it is limited to the costs incurred for collection once per week, it is entitled to the actual tipping fees it pays.

Because these issues were resolved on cross motions for summary judgment, we apply the same standard to resolve the issue as that employed by the motion judge, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998), without affording any special deference to the judge's interpretation of the law. Manalapan Realty L.P v. Twp. Committee, 140 N.J. 366, 378 (1995). Nevertheless, we are in substantial agreement with the judge's resolution of the first component of the dispute, limiting plaintiff's reimbursement to its collection costs, exclusive of tipping fees, to the costs it would have incurred had it provided the service only one day per week.

The judge recognized that this was, at bottom, a question of statutory construction. Ascertaining the legislative intent is the paramount goal when interpreting a statute and generally the best indicator of that intent is the statutory language. DiProspero v. Penn, 183 N.J. 477, 492 (2005). Nevertheless, when "all is said and done, the matter of statutory construction . . . . will not justly turn on literalisms, technisms, or the so-called formal rules of interpretations; it will justly turn on the breath of the objectives of the legislation and the common sense of the situation." LaFage v. Jani, 166 N.J. 412, 431 (2001) (alteration in original)(quoting Jersey City Chap. Prop. Owner's Protective Ass'n v. City Counsel, 55 N.J. 86, 100 (1969)). For that reason, "statutes are to be read sensibly rather than literally and the controlling legislative intent is to be presumed as 'consonant to reason and good discretion.'" Schierstead v. Brigantine, 29 N.J. 220, 230 (1959) (citations omitted).

Given these, principles, we turn to the statutory scheme. N.J.S.A. 40:66-1.4a requires reimbursement when the municipality elects not to "provide solid waste collection services to a multifamily dwelling[.]" In that case, "when solid waste collection services are provided to the residents of the municipality," plaintiff must be reimbursed the "actual cost . . . . of providing that service[.]" N.J.S.A. 40:66-1.3a. The term "that service" can only be read to refer to the "solid waste collection services . . . provided to the residents of the municipality" by the municipality described in N.J.S.A. 40:66-1.4a. The effect is to limit reimbursement to the costs of providing the same service offered to other residents of the municipality.

That interpretation is confirmed by N.J.S.A. 40:66-1.4b, which requires the multifamily complex to use the reimbursement money "to pay for the solid waste collection service that the municipality chooses not to provide." The municipality here has chosen not to provide once-weekly solid waste collection and the reimbursement is for the cost of the once-weekly service that the municipality has chosen not to provide.

These sections limit the services for which the complex may expect reimbursement to the services that would have been provided by the municipality. Plaintiff cannot expect reimbursement for services it would not have received from the municipality.

Given these principles, we agree with the judge, who explained that she could find

"nothing in the legislation at issue in the instant case, either explicit language or common sense interpretation of the statute and the reimbursement provided for by the statute, to suggest that the legislature intended residents of multifamily dwellings to receive a greater level of solid waste collection than other residents in the municipality."

. . .

[T]he reimbursement sought by [plaintiff] would result in the [defendant] paying for significantly greater solid waste collection services than [defendant] provides directly to its other residents, three times per week for [plaintiff] versus one time per week for the other township residents. It is clear that the legislature was sensitive to avoiding such a situation when it defined total cost of services.

We affirm the order limiting collection costs substantially for the reason given by the judge in her January 21, 2005, oral opinion.

We cannot concur, however, in the judge's treatment of the tipping fees. All parties agree that the costs incurred by both the township in servicing its unit residents and plaintiff in servicing its tenants are composed of collection, or hauling, costs and tipping fees. The parties also agree that the tipping fees are a function of the quantity of solid waste collected and are, therefore, unrelated to the frequency of collection or the identity of the collector. For reasons not explained by this record, the per unit tipping fees incurred by plaintiff are approximately twice those incurred by defendant. Nevertheless, and without exploring the reason for the difference in cost, the judge concluded that "there is no justification to build into the reimbursement equation 100 percent of the tipping fees plus one-third of the hauling cost when calculating the amount of reimbursement to be paid by defendant[] to plaintiff." We disagree.

Plaintiff is entitled to reimbursement of the lesser of the actual cost of collecting, and disposing of, the solid waste generated by its residents and the cost that would have been incurred by the municipality collecting, and disposing of, the same waste. Since the tipping fees relate to the amount of solid waste deposited, the tipping fee component of the cost of solid waste collection at plaintiff's facility would not vary with either the entity collecting and disposing of the solid waste or the frequency of that collection. If defendant chose to provide collection services to plaintiff's residents, therefore, it should expect to pay the same tipping fees that plaintiff in fact pays. Absent other considerations, the statute requires reimbursement of the cost incurred by plaintiff, which in this case is the same cost that defendant would have incurred.

At the argument before the motion judge, defendant provided possible explanations for the substantial disparity in tipping fees. These explanations included (a) the possible improper use of plaintiff's dumpsters by non-residents; (b) the possible failure of plaintiff to enforce the Township's recycling rules, allowing recycling to be included impermissibly in the waste for which tipping fees were paid; and (c) the possible inclusion in the "tipped" material of solid waste collected from other facilities by the trucks servicing both those facilities and plaintiff's residents.

The judge did not make the determination as to whether plaintiff's tipping fees were the same as those that would be incurred if the municipality did the collection. We believe that the plain reading of the statute requires a determination of the tipping fees that the municipality would pay if it did the collection (so that there would be, for example, no inclusion of waste generated elsewhere or inappropriate recycling).

If, on remand, the judge finds the tipping fees are exaggerated at plaintiff's establishment, the tipping fees must be limited to those that would have been incurred by the municipality. Clearly, there need be no mathematical precision in making this determination. If, for some reason, however, the tipping fees are legitimately incurred, the statute requires the municipality to reimburse plaintiff for the expenses that plaintiff pays and which, the municipality, had it chosen to provide the solid waste collection, would have been required to pay.

Accordingly, we affirm the judge's decision that the plaintiff is entitled to reimbursement of one-third of its hauling costs. We reverse her limitation of tipping fees and remand for further proceedings to determine the tipping fees that would have been legitimately incurred by defendant municipality and would, therefore, be reimbursable to plaintiff.

Affirmed in part; reversed in part and remanded.

 

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A-6016-04T2

July 24, 2006