(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).
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).
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