POWDER MILL HEIGHTS L.L.C. v. TOWNSHIP OF PARSIPPANY-TROY HILLS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02038-13T1

POWDER MILL HEIGHTS, L.L.C.,

Plaintiff,

v.

TOWNSHIP OF PARSIPPANY-TROY HILLS,

Defendant.

__________________________________

BALDWIN MANOR, L.P.,

Plaintiff-Appellant,

v.

TOWNSHIP OF PARSIPPANY-TROY HILLS,

Defendant-Respondent.

__________________________________

November 26, 2014

Submitted November 12, 2014 Decided

Before Judges Reisner, Koblitz and Haas.

On appealfrom SuperiorCourt ofNew Jersey,Law Division,Morris County,Docket No. L-0439-10.

Howard D. Spialter, attorney for appellant.

Inglesino, Wyciskala & Taylor, L.L.C., attorneys for respondent (Denis F. Driscoll, Owen T. Weaver and Grace Chun, of counsel and on the brief).

PER CURIAM

Plaintiff, Baldwin Manor, L.P.1, a 240-unit garden apartment complex, rebuffed defendant, the Township of Parsippany-Troy Hills's, offer to go on-site, into the private roads of the complex, to collect refuse from garbage cans. Plaintiff filed a complaint seeking dumpster garbage pickup and reimbursement of past garbage and recyclable collection costs, pursuant to N.J.S.A. 40:66-1.3, from 2009 forward. The statute requires a municipality to either provide services to a multifamily apartment complex (MFAC) in the same manner as provided to residents who live along public roads, or to reimburse the complex for its costs. Plaintiff appeals from a June 24, 2013 order granting summary judgment to defendant, a November 7, 2013 order denying reconsideration and an August 26, 2013 order2 denying plaintiff's informal request for the judge to recuse himself. We affirm all three orders substantially for the reasons articulated by the motion judge in his comprehensive opinions.

In the early 1990's, plaintiff was one of a group of MFACs that sued seeking to require defendant to provide on-site solid waste collection from dumpsters. In Property Owners and Managers Ass'n v. Mayor and Town Council of Parsippany-Troy Hills, 264 N.J. Super. 538, 540 (App. Div.), certif. denied, 134 N.J. 561 (1993), we found that the existing statute giving "municipalities discretionary power to limit solid waste collection service to curbside collection along public streets[]" was constitutional. In 1995, plaintiff voluntarily ceased using defendant's garbage collection services and hired an independent dumpster contractor.

On June 23, 2009, our Supreme Court decided Berk Cohen Associates at Rustic Vill., LLC v. Borough of Clayton, 199 N.J. 432 (2009). There, an MFAC brought suit against a borough for reimbursement of its solid waste disposal costs pursuant to N.J.S.A. 40:66-1.3(a). The trial court found that curbside collection as experienced by that plaintiff was "unhealthful, unsanitary, utterly inefficient, unsightly and unreasonable." Id. at 436. The borough was ordered to reimburse plaintiff. In agreement with the trial court, our Supreme Court determined that "a municipal garbage-collection scheme that requires all residents to abide by the same curbside requirements facially adheres to the guarantees of equal protection[,]" but "its application to a particular . . . situation nevertheless cannot be so arbitrary or unreasonable as to violate standards of due process of law." Id. at 445 (citation and internal quotation marks omitted). The Court stated, "[O]n this record, the municipal scheme did not protect the public from the dangers of accumulating refuse . . . ." Id. at 448.

After the Berk Cohen decision, plaintiff sought reimbursement from defendant for its dumpster costs. Plaintiff recalled that twenty years ago it purchased hundreds of garbage cans when it used the township curbside pickup along a public road adjacent to the complex, and "myriad" problems ensued. These problems included: "terrible" appearance; tenant noncompliance with their assigned garbage cans; rodents attracted to the open cans or garbage left on the ground; the municipal hauler rejecting garbage that had recyclables when tenants did not adhere to the recycling rules; and large items left on the ground that would not fit in cans. Plaintiff further reported that it had had problems with loose garbage, including that it clogged drains and froze to the ground. Transporting the cans curbside created traffic problems and was "impossible" when plowing created snow banks.

Defendant responded, offering plaintiff on-site collection of both garbage and recycling from cans. Defendant wrote, "We understand that [plaintiff] objected in the past to curbside pickup from garbage cans on the basis of safety and sanitary concerns. To alleviate these concerns, [defendant] is willing to enter upon the interior roadway . . . for the purpose of collecting garbage, refuse and recycling cans from appropriate locations within the complex."

In Count I of its complaint, plaintiff claimed that defendant refused to provide similar waste removal services, without additional costs, as offered to single family residences along the public roads. It claimed reverting to garbage cans is "unhealthful, unsanitary, utterly inefficient, unsightly and unreasonable" and is not "the functional equivalent" of removal services provided to other property owners who have "minimal" cans at each property. Plaintiff claimed that "[d]efendant's failure to provide reasonable solid waste and recyclable collection services . . . is arbitrary, capricious, unreasonable and contrary to law." Plaintiff sought a judgment ordering defendant to utilize dumpsters to collect refuse. Plaintiff also sought reimbursement of waste disposal costs incurred retroactively to the date of the Berk Cohen decision.3 The same relief was sought in all three counts.

In Count II of its complaint, plaintiff alleged that defendant's offer of on-site collection from cans "is arbitrary, capricious and unreasonable and violates standards of due process of law, statutory law and case law in this state." The complaint alleged that defendant's offer lacked "any rational relationship to the legislative object of protecting public health from the dangers of accumulating waste and improper disposal thereof."

During discovery, plaintiff learned that defendant provided on-site pickup services using cans for six MFACs. In Count III of its amended complaint, plaintiff stated that when defendant came on site to other MFACs, it collected "plastic bags in addition to and/or in lieu of individual-sized refuse garbage cans, and retrieving such waste from depot storage areas, [was] in violation of [defendant's] ordinance . . . ." Plaintiff alleged that such a collection process denied it due process because the procedure was "unreasonable." Plaintiff also alleged that this process denied equal protection to the "de facto class" of MFACs in which solid waste pickup on private roads was required.

On November 23, 2010, in response to plaintiff's interrogatory question about services provided to other MFACs, defendant wrote that, in order to avoid the dangers of curbside pickup

For certain apartment complexes located on very busy roads, the Township sends garbage trucks into the complex to pick up the garbage and recycling instead of picking up garbage cans from the curb.

Steven Levinson, a defense expert, prepared a report entitled, "Sanitary and Logistical Analysis for the Inclusion of Baldwin Manor and Powder Mill Heights into Parsippany-Troy Hills' Solid Waste/Recycling Program." During his subsequent deposition, Levinson was asked to clarify a statement from the document in which he wrote: "It is the writer's opinion that Baldwin Manor can be incorporated into the township program in a safe, sanitary and reasonably convenient manner." Levinson testified that "reasonably convenient" meant that the
use of thirty-five-gallon containers at plaintiff's locale
"would be no more or less convenient than it is for all other residents . . . ."

Plaintiff's subsequent notice of motion for summary judgment stated that it sought summary judgment "(1) as to the entirety of Baldwin's claims or (2) a partial summary judgment as to liability of [defendant.]"4

Defendant cross-moved for summary judgment. The accompanying certification from defendant's Director of Public Works, R. Gregory Schneider, stated that defendant provided on-site collection services, working cooperatively with MFAC management, when curbside collection "has the potential to create a public safety or traffic hazard." At that time, five MFACs5 used defendant's on-site collection services. Schneider's certification stated: "The 'on-site' garbage services are 'in the same manner' as the 'curbside' collection services the only difference being the location from which the garbage containers are placed for collection by the Township." Schneider personally toured plaintiff's property. In his opinion, defendant could successfully implement garbage collection from within plaintiff's complex by on-site garbage can service.

In June 2013, the motion judge denied plaintiff's motion for summary judgment and granted defendant's cross-motion in a fifteen-page written opinion. The judge found that plaintiff did not "meet the burden necessary to maintain the cause of action against defendant for reimbursement pursuant to N.J.S.A. 4:66-1.3(a), the [c]ourt having determined that defendant offered plaintiff a reasonable accommodation and plaintiff chose not to avail itself of that option." The judge found that the remaining issue was whether defendant could provide safe and sanitary collection services to plaintiff. Because plaintiff chose not to avail itself of defendant's offer, the judge found that this issue was not yet ripe.

On August 22, 2013, after the judge granted summary judgment to defendant, plaintiff's counsel learned during a telephone conversation with the judge's law clerk that the clerk would be employed by defendant's law firm at the conclusion of his clerkship. A few days later, plaintiff asked the judge to recuse himself and vacate the summary judgment orders. The judge declined to recuse himself, noting that his law clerk "immediately ceased working on this matter when he accepted an offer of employment from the [l]aw [f]irm. Moreover, [the law clerk] received and accepted his offer before [plaintiff] filed its application for summary judgment, and did not contribute in any way to the [c]ourt's ruling in that application." The judge also denied plaintiff's motion for reconsideration, deciding in a seven-page opinion that plaintiff did not meet the high standard necessary for reconsideration.

Our review of a summary judgment ruling is de novo. We apply the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). "Summary judgment must be granted if 'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)). A reviewing court must decide whether "'the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007) (citation omitted), certif. denied, 195 N.J. 419 (2008). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Nicholas, supra, 213 N.J. at 478.

N.J.S.A. 40:66-1.3(a) provides, in pertinent part

[W]hen 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 . . . . 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 motion judge distinguished plaintiff's case from the facts in Berk Cohen. There, the defendant offered the garden apartment complex the same curbside trash pickup in cans at public roads that it provided to other municipal residents. Berk Cohen, supra, 199 N.J. at 437. The plaintiff availed itself of the borough services, removed dumpsters it had been using and instructed its maintenance staff to transport the trash from on-site corrals to the curb. Ibid. After approximately two weeks, the plaintiff ceased using the borough services and resumed its private dumpster service. This was done "at least in part because the police chief ordered them to remove the refuse that they had lugged out onto [the street] or face arrest," and because the plaintiff found the borough's service "'inconvenient,' 'unsanitary,' and 'unsightly.'" Id. at 438. At trial, the plaintiff provided photographs and unrefuted testimony that the trash from five hundred residents was unsightly and that garbage bags had been broken into by animals, trash was strewn about, and it was "'a mess'". Id. at 438.

There, the plaintiff's choices were between hauling the trash of five hundred residents to the curb of a public road weekly or forgoing the borough's services. The Court stated

It may be that there are ways to achieve safe and sanitary curbside garbage pickup for densely populated multifamily dwellings. However, we are constrained by the record before us and, on this record, the municipal scheme did not protect the public from the dangers of accumulating refuse and, hence, transcend[ed] the bounds of reason.

[Id. at 448 (citation and internal quotation marks omitted).]

The motion judge stated that, unlike the situation in Berk Cohen, defendant has offered to provide plaintiff with on-site services, which plaintiff chose not to accept. The judge concluded that the on-site collection option appeared to be a reasonable accommodation that avoided safety and traffic problems, and that, without trying this new option under current conditions, plaintiff failed to support its contention that on-site pickup would be "unreasonable." The judge then dismissed this claim without prejudice as being not yet ripe.

To determine if a case is ripe for judicial review, the court must evaluate: "1) the fitness of the issues for judicial [decision], and 2) the hardship to the parties if judicial review is withheld at this time." [36] K. Hovnanian Co. of N. Cent. Jersey, Inc. v. N.J. Dep't of Envtl. Prot., 379 N.J. Super. 1, 9 (App. Div.), certif. denied, 185 N.J. 390 (2005). Ripeness is a justiciability doctrine designed to avoid premature adjudication of abstract disagreements. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681, 691 (1967). If the on-site collection of refuse from garbage cans proves untenable, plaintiff may file a new complaint.

The motion judge appropriately considered the issue of ripeness sua sponte. "[C]onsiderations of ripeness are sufficiently important that [the court is] required to raise the issue sua sponte even if the parties do not." Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535 (3d Cir. 1988).

Plaintiff alleges on appeal that the proffered service was fiscally imprudent and the on-site offer impermissibly vague. We deem these arguments, as well as the others raised by plaintiff and not addressed by us, to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We rely also on the opinions of the motion judge, and make the following comments with regard to plaintiff's recusal application, sought after the motion judge granted summary judgment to defendant.

In Comparato v. Schait, 180 N.J. 90, 92 (2004), the plaintiff sought to disqualify a trial judge because the defendant's counsel had recently been the judge's law clerk at a time when motions in the case were heard. In reaching its conclusion affirming the denial of recusal, and requiring only that the former law clerk screen herself from further involvement, our Supreme Court noted that the relevant inquiry was "whether the law clerk was involved in the case beyond performing ministerial functions or merely researching general legal principles for the judge." Id. at 98-99. Here, the motion judge's letter confirms that his law clerk did not contribute to his ruling. We see no reason for the judge to have vacated his summary judgment decision and recused himself under these circumstances.

Affirmed.

1 On July 13, 2010, defendant's motion to consolidate the Powder Mill Heights and Baldwin Manor matters was granted. The Powder Mill Heights action was amicably resolved and a stipulation of dismissal filed on September 23, 2013.

2 Plaintiff wrote the judge a letter seeking his recusal and the judge responded with a letter denying relief. We granted plaintiff's motion to deem the responding letter to be an order for the purposes of appeal.

3 The complaint also sought damages, attorney's fees and costs.

4 On appeal, plaintiff argues inaccurately that it only sought partial summary judgment and that contested factual issues existed. "[T]he filing of a cross-motion for summary judgment generally limits the ability of the losing party to argue that an issue raises questions of fact, because the act of filing the cross-motion represents to the court the ripeness of the party's right to prevail as a matter of law." Spring Creek v. Shinnihon U.S.A., 399 N.J. Super. 158, 177 (App. Div.), certif. denied, 196 N.J. 85 (2008).

5 Subsequent to the amended complaint, one MFAC discontinued using defendant's waste collection services.