WHS REALTY CO. V. THE TOWN OF MORRISTOWN

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

WHS REALTY COMPANY v. THE TOWN OF MORRISTOWN, ET. AL. (A-16-96)

 
Argued September 24, l996 -- Decided November 20, 1996

PER CURIAM

In this appeal, the Court addresses the constitutionality of a Morristown municipal ordinance that excludes from municipal trash collection apartment complexes with four or more rental units, except such complexes in which a majority of the units are separately owned in fee or as condominiums.

WHS Realty ( WHS ), an owner of an apartment complex, brought an action against Morristown, challenging as unconstitutional the municipality's garbage collection ordinance. The Superior Court, Law Division, granted partial summary judgment to WHS, holding that the ordinance violated the equal protection clause, there being no rational basis for the Township to make a distinction between those who live in single-family units, condominiums, and apartment complexes having less than four units, and those who live in an apartment complex having four or more units. The Superior Court, Appellate Division, granted the municipality's application for leave to appeal .

On appeal, a majority of the Appellate Division held that the ordinance violated state and federal equal protection clauses and that no plenary hearing was necessary for further findings of fact.

In a dissenting opinion, Judge Petrella disagreed with the majority conclusion, expressing the opinion that the order granting partial summary judgment should be reversed and the matter remanded for trial because there was a material issue of fact as to whether there existed a rational basis for the classification made in the ordinance.
 
The municipality appealed to the Supreme Court as of right.

HELD: The judgment of the Appellate Division is reversed substantially for the reasons expressed in the reported dissenting opinion below. Whether Morristown's municipal trash collection ordinance is constitutional can only be determined after a plenary hearing to determine whether the ordinance's classification is rationally related to the legitimate state interest of promoting home ownership or to any other state interest the municipality may assert.

JUSTICES HANDLER, O'HERN, and STEIN dissent substantially for the reasons expressed by the majority opinion of the Appellate Division.

CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI and COLEMAN join in this opinion. JUSTICES HANDLER, O'HERN and STEIN filed a separate dissenting opinion.

SUPREME COURT OF NEW JERSEY
A- 16 September Term 1996

WHS REALTY COMPANY, a New Jersey General Partnership,

Plaintiff-Respondent,

v.

THE TOWN OF MORRISTOWN; MAYOR AND TOWN COUNCIL OF THE TOWN OF MORRISTOWN; TOWN OF MORRISTOWN HEALTH DEPARTMENT AND TOWN OF MORRISTOWN PUBLIC WORKS DEPARTMENT,

Defendants-Appellants.

Argued September 24, 1996 -- Decided November 20, 1996

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 283 N.J. Super. 139 (1995).

Herbert A. Vogel argued the cause for appellants (Vogel, Chait, Schwartz & Collins, attorneys; Mr. Vogel and David H. Soloway, on the brief).

Gary D. Gordon argued the cause for respondent (Feinstein, Raiss & Kelin, attorneys).

Charles X. Gormally submitted a brief on behalf of amici curiae New Jersey Apartment Association, Blair House Associates, L.P. and South Hamilton Associates (Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, attorneys; Mr. Gormally and Regina A. McGuire, on the brief).

PER CURIAM
This is an appeal by the owner of a garden apartment complex containing 140 rental units. The owner challenges the

constitutionality of the Morristown garbage collection ordinance. The ordinance excludes from municipal garbage collection apartment complexes with four or more rental units, except such complexes in which a majority of the units are separately owned in fee or as condominiums. The Law Division found the ordinance is unconstitutional. The Appellate Division affirmed, with Judge Petrella dissenting.
We reverse the judgment of the Appellate Division substantially for the reasons expressed in the reported dissenting opinion of Judge Petrella, 283 N.J. Super. at 155-69. The case is remanded to the Law Division to conduct an evidentiary hearing and determine whether Morristown's garbage collection ordinance is rationally related to any legitimate State interest.
Reversed and remanded.

CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI and COLEMAN join in this opinion. JUSTICES HANDLER, O'HERN and STEIN filed a separate dissenting opinion.

SUPREME COURT OF NEW JERSEY
A- 16 September Term 1996

WHS REALTY COMPANY, a New Jersey General Partnership,

Plaintiff-Respondent,

v.

THE TOWN OF MORRISTOWN; MAYOR AND TOWN COUNCIL OF THE TOWN OF MORRISTOWN; TOWN OF MORRISTOWN HEALTH DEPARTMENT AND TOWN OF MORRISTOWN PUBLIC WORKS DEPARTMENT,

Defendants-Appellants.

HANDLER, O'HERN, and STEIN, JJ., dissenting

We would affirm the judgment of the Appellate Division substantially for the reasons expressed in that court's majority opinion, 283 N.J. Super. 139, 142-55 (1995).

SUPREME COURT OF NEW JERSEY
 

NO. A-16

SEPTEMBER TERM 1996
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO

WHS REALTY COMPANY, a New Jersey
General Partnership,

Plaintiff-Respondent,

v.

THE TOWN OF MORRISTOWN; MAYOR AND
TOWN COUNCIL OF THE TOWN OF
MORRISTOWN; TOWN OF MORRISTOWN
HEALTH DEPARTMENT AND TOWN OF
MORRISTOWN PUBLIC WORKS DEPARTMENT,

Defendants-Appellants.

DECIDED

November 20, 1996
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
DISSENTING OPINION BY Justices Handler, O'Hern and Stein CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST
REVERSE AFFIRM CHIEF JUSTICE PORITZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X TOTALS
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