Argued: January 16, 2008 - Decided:

Before Judges Axelrad, Sapp-Peterson and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Camden County,
Docket No. L-6265-06.

Laurence J. Bravman argued the cause for appellant.

John B. Kearney argued the cause for respondents (Kearney & Schweitzer, P.C.,
attorneys; Mr. Kearney, on the brief).

PER CURIAM

Plaintiff Heathers Realty, LLC appeals from summary judgment dismissal of its
complaint against the Borough of Lindenwold and Lindenwold Borough Council
(Borough) seeking reimbursement of costs of solid waste and recyclable removal from
its apartment complex pursuant to N.J.S.A. 40:66-1.3. We affirm.

Plaintiff is the owner of a 276-unit garden apartment complex known as the Heathers
Apartments, located at 1990 Laurel Road in Lindenwold. Since owning the complex in
l999, plaintiff utilized a private waste hauler at its expense for the collection
and removal of solid waste and recyclables from onsite dumpsters.

On February 27, 2001, the Legislature enacted N.J.S.A. 40:66-1.3, requiring a

municipality that elects to provide solid waste services to its residents to
reimburse a multifamily dwelling for the actual cost of providing that service in
accordance with the statutory calculation defined in N.J.S.A. 40:66-1.5 or provide
the service "in the same manner as provided to the residents of the municipality
who live along public roads and streets." N.J.S.A. 40:66-1.3a. This reimbursement
or provision of services commenced for local budget year 2002 for municipalities
operating on a calendar year basis and local budget year 2003 for municipalities
operating on a State fiscal year basis, with reimbursement payments phased in over
a five-year period. N.J.S.A. 40:66-1.3d; N.J.S.A. 40:66-1.5.

The Borough provides free weekly curbside garbage and recyclable service to its
residents in mandated-sized receptacles. On December 11, 200l, Steven Breitman,
plaintiff's managing member, wrote to the mayor requesting the Borough begin trash
pickup at the complex or reimburse it for its trash removal costs or, if the
Borough had other plans for implementing the new law, requesting they schedule a
meeting. During the next several months plaintiff's representatives made additional
inquiries of the mayor and other Borough representatives but received no response.
On September 8, 2002, plaintiff sent a follow-up letter to the mayor. On September
l3, 2002, the Borough Solicitor responded that the Borough would pick up trash at
any residential property that complied with the Borough's trash ordinance, i.e., in
set-sized containers, with mandatory segregation of recycling, placed curbside at a
public road. Plaintiff promptly responded that it would need at least 276 trash
containers, and commented about the traffic and other problems that would result
from curbside pickup on Laurel Road.

On October 31, 2002, plaintiff sent a letter to Robert Lodovichi, Director of

Public Works, requesting a meeting regarding placement of the numerous trash and
recycling containers. Breitman sent a letter to the mayor on October l3, 2004,
acknowledging a discussion the prior day, and inquiring whether the Borough was
going to reimburse plaintiff for its trash collection costs or, if not, requesting
a trash/recyclable pickup schedule and delivery of recyclable containers. On
January 4, 2005, the Solicitor responded to plaintiff's counsel, informing him
plaintiff could make a written request to Lodovichi for the schedule and although
recyclable containers were usually picked up at the Department of Public Works, as
a courtesy the Borough would deliver 276 containers to plaintiff.

On September 5, 2006, plaintiff filed suit against the Borough for reimbursement of
the statutory percentage of its onsite dumpster solid waste removal costs since
January 1, 2002. On November 9, 2006, the Borough filed a motion for summary
judgment dismissing plaintiff's complaint, arguing the Borough's offer of curbside
pickup satisfied its statutory obligation. In response, plaintiff presented
Breitman's certification, referencing the correspondence between the parties, and
relating the following discussions with Borough representatives from September
2002: several phone conversations with the mayor about plaintiff's concerns with
curbside pickup and the mayor's concerns with onsite pickup and, pursuant to the
mayor's referral, several calls to Lodovichi regarding pick-up days and obtaining
containers. Breitman further certified plaintiff was ready to bring the
approximately 1452 receptacles to Laurel Road weekly but was waiting for an
acknowledgment by the Borough that "it was aware of the occurrence" and prepared to
have the cans picked up by its hauler, but the Borough "would never provide an
affirmative commitment." He further stated that the Borough never provided
plaintiff with the containers as promised in the Solicitor's January 2005 letter.

Plaintiff argued the matter was not ripe for summary judgment as there was no
discovery of the mayor, council or Lodovichi regarding the Borough's determination
of curbside pickup. Following oral argument, on December l5, 2006, Judge Colalillo
granted the Borough's motion, memorialized in an order of that date. The court
found the Borough satisfied its statutory obligation of offering plaintiff the
municipal service of weekly curbside pickup available to other residential
properties. The court further found the Borough did not breach a legal obligation
by failing to deliver the receptacles to plaintiff, as it was plaintiff's
responsibility to obtain the receptacles and comply with the weekly curbside pickup
if it did not want to incur the expense of onsite dumpster trash removal.

Plaintiff appeals, arguing: (1) the judge improperly granted summary judgment on a
scant and procedurally defective record, as there was no statement of undisputed
material facts and only a certification from counsel setting forth the Borough's
position but no brief; (2) the judge improperly granted summary judgment as no
discovery had occurred; (3) plaintiff relied upon its representative's contacts and
conversations with the mayor and Lodovichi and refrained from putting out the
approximately l452 receptacles along Laurel Road for collection, which caused it
detriment and should result in equitable estoppel against the Borough; and (4) the
judge erred as a matter of law in concluding the Borough satisfied its obligation
under N.J.S.A. 40:66-1.3 by offering curbside pickup.

We are satisfied the motion judge had a sufficient record upon which to grant
summary judgment as a matter of law, despite the absence of discovery. It is
immaterial what the positions of the Borough's officials and employees are with
respect to the Borough's decision to elect the second alternative of N.J.S.A.
40:66-1.3 and provide municipal waste collection services. Moreover, the record is
devoid of any allegation of falsehood or misrepresentation by these representatives
or of an affirmative act that would induce reliance, so further discovery would not
alter the outcome. "'[T]o establish equitable estoppel, plaintiffs must show that
defendant engaged in conduct, either intentionally or under circumstances that
induced reliance, and that plaintiffs acted or changed their position to their
detriment.'" Twp. of Middletown v. Simon, 193 N.J. 228, 250 (2008) (quoting Knorr
v. Smeal, 178 N.J. 169, 178 (2003)). Its essential principle is that "'one may, by
voluntary conduct, be precluded from taking a course of action that would work
injustice and wrong to one who with good reason and in good faith has relied upon
such conduct.'" Ibid. (citation omitted). The most plaintiff has demonstrated is
that Borough representatives sat back and waited for plaintiff to take further
action. As Judge Colalillo commented, if plaintiff wanted to save money, it was
plaintiff's responsibility to pick up the receptacles and put out its tenants'
trash curbside. If plaintiff was dissatisfied with the Borough's decision to
require curbside pickup, it could also have presented its views to the governing
body and commenced this suit earlier.

The judge also properly granted summary judgment as a matter of law, concluding the
Borough satisfied its statutory obligation in offering curbside pickup to
plaintiff. In Berk Cohen Associates v. Borough of Clayton, ___ N.J. Super. ___
(App. Div. 2008), issued on this date, we held that N.J.S.A. 40:66-1.3 does not
require a municipality that provides curbside pickup of solid waste to its
residents to provide onsite dumpster pickup at an apartment complex or otherwise
reimburse the cost of the service.

Affirmed.

"Multifamily dwelling" is defined as "any building or structure or complex of

buildings or structures in which five or more dwelling units are rented or leased
or offered for rental or lease for residential purposes except hotels, motels or
other guesthouses serving transient or seasonal guests . . . ." N.J.S.A. 40:66-1.2.

(continued)

(continued)

A-2757-06T5

September 8, 2008