Opinion
Civil Action No. 01-CV-2142
August 2, 2002
Robert D. Greenbaum, Robert D. Greenbaum Associates, Gary A. Krimstock, Fineman Bach, P.C., Philadelphia, Pa, for Plaintiffs.
PAUL C. VANGROSSI, JOHN P. GONZALES, MARSHALL, DENNEHEY, WARNER, COLEMAN GOGGIN, NORRISTOWN, PA, DAVID J. MAC MAIN, MONTGOMERY, MCCRACKEN, WALKER RHOADS, DOUGLAS FRANKENTHALER, MONTGOMERY MCCRACKEN WALKER RHOADS, LLP, PHILADELPHIA, PA, for Defendant.
MEMORANDUM AND ORDER
Plaintiffs commenced this action against the Borough of Norristown (the "Borough"), challenging the legality of a Borough ordinance that excludes residential buildings with more than four units from the Borough's trash collection services. I certified a class in this matter, and the members of the class have been properly notified of the pendency of this action. Plaintiffs and the Borough have filed cross-motions for summary judgment. For the reasons set forth below, I find that the Borough's ordinance is unconstitutional as applied to condominiums and cooperatives.
BACKGROUND Plaintiffs and the Class
There are a number of Plaintiffs named as class representatives in this case: Freedley Court Apartments Associates, Norris Hills Apartments, Norriswood Associates, Town Country Apartment Associates, University City Housing, Norristown Associates, and Sherman Reid. Plaintiffs own apartment buildings and complexes located in the Borough that do not receive municipal trash collection services. The class, certified pursuant to Federal Rule of Civil Procedure 23(b)(3), was defined as follows: "All condominium associations, other entities and owners of buildings that each contain more than four (4) Dwelling Units (as that term is used by the Borough of Norristown Solid Waste Ordinance), for which the Borough does not provide waste removal services."
The Borough's Waste Removal Regulations
It is undisputed that the Borough does not collect garbage generated by dwellings that have more than four residential units. Moreover, as the Borough Solicitor, Mr. Paul Vangrossi, testified during a deposition, the Borough has excluded buildings with more than four units from trash collection since the 1960s. (Vangrossi Dep. at 9-11.) According to Mr. Vangrossi, the Borough's initial decision to exclude such buildings from trash collection reflected "a distinction between small residential apartment houses and big apartment houses. . . ." (Vangrossi Dep. at 11, 16.) By excluding the larger buildings, the Borough was attempting to be "cost-effective." (Vangrossi Dep. at 24).
In the 1960s the Borough conducted a feasibility study regarding the cost of implementing municipal trash collection; this study was undertaken in response to problems associated with Borough residents burning their trash. (Def.'s Mot. for Summ. J. Ex. C.) This study, however, was directed at the overall costs of collecting trash and provides no explanation for the Borough's decision to treat buildings with more than four residential units differently.
In the late 1980s or early 1990s, the Borough implemented a fee-based trash collection system. (Def.'s Mot. for Summ. J. Ex. H.) Under this system, the Borough imposed a fee on property owners to whom the Borough provided garbage collection services. In 1999, after experiencing administrative difficulties related to collecting this fee, the Borough eliminated the fee and amended its waste removal ordinance accordingly. (Vangrossi Dep. at 16, 18, 21-24; Def.'s Mot. to Dismiss Ex. B.) As amended in 1999, the Borough's waste removal ordinance provides, in pertinent part, as follows:
a. The [Borough] shall collect all refuse acceptable for collection, as provided in the regulations, from all single family dwellings and all multi-family or apartment dwellings not exceeding four family units.
b. The following types of establishments shall not be rendered refuse collection service by the [Borough]:
(1) multi-family or apartment dwellings having more than four family units;
(2) business places;
(3) institutions and industrial establishments.
Borough of Norristown Solid Waste Ordinance § 274-13.
Anthony Biondi, the Borough's Municipal Administrator, also gave deposition testimony. Mr. Biondi testified that the Borough has not attempted to determine whether households in a building with more than five units would generate more trash per housing unit than someone living in a building with four units or less. (Biondi Dep. at 23.) Like Mr. Vangrossi, Mr. Biondi testified that the Borough's exclusion of buildings with more than five residential units from municipal trash collection is an effort to reduce the Borough's costs. (Biondi Dep. at 25-27.)
II. STANDARD OF REVIEW
Summary judgment must be granted if the record, when viewed in a light most favorable to the non-moving party, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). That is, the court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
DISCUSSION A. Properly Defining the Class
Pursuant to Local Rule 40.1(b)(3), this matter was designated as related to Philadelphian Owners Association v. City of Philadelphia, Civ. A. No. 00-3181 (E.D.Pa.). In a Memorandum and Order dated July 24, 2002, I found that the City of Philadelphia's waste removal ordinance, which excluded buildings with more than six units from municipal trash collection, was unconstitutional as applied to condominiums and cooperatives. Moreover, for purposes of assessing the constitutional validity of the Borough's ordinance, there is no difference between the instant case and Philadelphian Owners. Thus, for a more detailed legal analysis, I refer the reader to the Memorandum in Philadelphian Owners. By Order dated September 27, 2002, I dismissed Plaintiffs' claim that the Borough's waste removal ordinance violates the Uniformity Clause of the Pennsylvania Constitution, Pa. Const. Art. 8, § 1.
The class certified in this matter includes owners of apartment buildings, condominiums, and cooperatives. However, I find that the class, as previously defined, is overly broad. Specifically, building owners who lease or rent apartments should not be included in the class. Under the Borough's refuse collection regulations, commercial enterprises generally do not receive the Borough's waste removal services. See Borough of Norristown Solid Waste Ordinance § 274-13(b)(3). In this regard, the owners of apartment buildings are no different than the owners of other commercial buildings who must negotiate contracts for waste removal services. See E T Realty v. Strickland, 830 F.2d 1107, 1109 (11th Cir. 1987) ("different treatment of dissimilarly situated persons does not violate the equal protection clause"). As such, the owners of apartment buildings are not entitled to relief and are excluded from the class. Accordingly, the class in this matter is properly defined as follows: "All condominium associations and similar entities (excluding owners of apartment buildings) and cooperatives for which the Borough of Norristown does not provide waste removal services pursuant to § 274-13 of the Borough of Norristown Solid Waste Ordinance."
Rational Basis Review
Plaintiffs contend that the Borough's waste removal ordinance violates their right to equal protection of the laws, entitling them to relief under 42 U.S.C. § 1983. The Equal Protection Clause of the Fourteenth Amendment provides: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend XIV, § 1. As the Supreme Court has stated, the Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). "Unless a classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest." Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Because Plaintiffs do not contend that the Borough's waste removal ordinance implicates a fundamental right or involves a suspect class, I apply the less rigorous rational basis standard of review. See Leheny v. City of Pittsburgh, 183 F.3d 220, 226 (3d Cir. 1999).
"When faced with a challenge to a governmental classification under the rational basis test, a court should ask, first, whether at least one of the purposes of the classification involves a legitimate public interest and, second, whether the classification is rationally related to achievement of that purpose." Hancock Indus. v. Schaeffer, 811 F.2d 225, 237 (3d Cir. 1986) (citation omitted). Under the rational basis test, even when similarly situated persons are treated differently, state action is presumed constitutional. See McGowan v. Maryland, 366 U.S. 420, 425-26 (1961). Rational basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). "That being said, rational basis review is not a rubber stamp of all legislative action, as discrimination that can only be viewed as arbitrary and irrational will violate the Equal Protection Clause." Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000).
As its overriding contention in support of upholding the waste removal ordinance, the Borough argues that the ordinance is not arbitrarily discriminatory, and therefore constitutional, because it will save the Borough money. This argument ignores the fact that almost any discriminatory measure denying individuals some benefit will reduce certain costs. Consequently, "a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources." Plyer v. Doe, 457 U.S. 202, 227-28 (1982). Simply, the Borough's cost-savings argument, without more, could be used to justify an array of arbitrary and discriminatory classifications. Particularly when one considers that the Borough's cost-savings rationale could readily be extended to, for example, a decision to selectively provide police or fire services, the inadequacy of the Borough's reasoning becomes clear. Put differently, there is no indication that the Borough's waste removal ordinance is the reflection of reasoned legislative decisionmaking and not a scintilla of evidence that the Borough's waste removal ordinance has a rational basis.
The Borough's selection of four units as the numerical cut-off for waste collection may relate to a provision in the Borough's zoning code that sets four as the limit to the number of units in a house converted to apartments. (Biondi Dep. at 15.) However, this zoning restriction has no bearing on the Borough's trash collection services, and, as such, it lends no support to the Borough's arguments.
Lastly, the authorities relied on by the Borough fail to support its position. In particular, Ramsgate Court Townhome Association v. West Chester Borough, Civ. A. No. 01-1864 (E.D.Pa. June 22, 2001), is inapposite. Ramsgate involved a challenge to an ordinance limiting free collection of trash from residential properties to those residences generating less than six thirty-gallon containers per week. Whereas the ordinance in Ramsgate allows for free trash collection up to a certain volume, the Borough's ordinance denies collection services to certain types of dwellings without respect to the volume of trash generated. See id. at 2-3. More importantly, there is a rational relationship between efficient sanitation and limiting the provision of trash collection based on the volume of trash generated. The Borough's ordinance, in contrast, arbitrarily discriminates against those persons residing in condominiums and cooperatives.
The Borough also relies on Goldstein v. City of Chicago, 504 F.2d 989 (7th Cir. 1974). Because Goldstein involved a challenge to an ordinance differentiating residents on the basis of, inter alia, volume of trash produced, this case as well fails to show the rationality of the Borough's waste removal practices. Additionally, the Borough cites Beauclerc Lakes Condominium Association v. City of Jacksonville, 115 F.3d 934 (11th Cir. 1997). Because the waste removal practices at issue in Beauclerc Lakes were not clearly defined, this case is unpersuasive and, in any event, not controlling authority. See id. at 935.
For all of these reasons, the Borough's waste removal ordinance is unconstitutional as applied to condominiums and cooperatives.
Appropriate Remedies
Regarding the equitable powers of district courts, the Supreme Court has announced that "once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971); see also Temple Univ. v. White, 941 F.2d 201, 214-15 (3d Cir. 1991) (elements considered in decreeing permanent injunction consist of showing of success on the merits, inadequacy of legal remedies, irreparable harm, and balancing of competing claims of injury and public interest). Here, the members of the class are suffering a continuing constitutional violation, requiring appropriate injunctive relief. In addition, an award of compensatory damages is warranted. See Owen v. Independence, 445 U.S. 622, 638, 657 (1980) (compensatory damages are available remedy under 42 U.S.C. § 1983). Because the Borough's waste removal ordinance has forced members of the class to incur considerable costs in securing private waste removal, they are entitled to be compensated for those expenses if they can show proof of actual injury. See Jolivet v. Deland, 966 F.2d 573, 576 (10th Cir. 1992).
CONCLUSION
For the foregoing reasons, the class has succeeded on their claim that the Borough's waste removal ordinance violates the Equal Protection Clause of the Fourteenth Amendment. An appropriate Order follows.
ORDER
AND NOW, this day of August, 2002, upon consideration of the parties' cross-motions for summary judgment and all the responses thereto, and for the foregoing reasons, it is hereby ORDERED that:
Plaintiffs' Motion for Summary Judgment (Document No. 20) is GRANTED IN PART AND DENIED IN PART. Defendant's Motion for Summary Judgment (Document No. 21) is GRANTED IN PART AND DENIED IN PART.
Summary Judgment is GRANTED in favor of the Class (as defined in Section III.A of the foregoing Memorandum) and against the Borough of Norristown on its claim (Complaint, Count One) that the Borough of Norristown's waste removal ordinance denies Class members the equal protection of the laws; Summary Judgment is GRANTED in favor of the Borough in all other respects.
The Borough of Norristown shall establish a plan for the collection of waste from the Class. Such plan shall be in place and implemented by September 12, 2002.
By August 14, 2002, counsel for Plaintiffs and the Class shall submit a proposed Notice and Claim Form for members of the Class, requiring those class members entitled to compensatory damages to submit proof of direct costs associated with the collection of waste. The Borough of Norristown shall have fourteen days to file any objections thereto. Counsel for the Class shall submit a proposed schedule for the issuance, return, and processing of the Notices and Claims Forms. The Borough of Norristown shall have fourteen days to file any objections thereto.
By September18, 2002, counsel for the Class shall file their petition for attorneys' fees and costs. The Borough of Norristown shall have fourteen days to file any objections thereto.
Plaintiffs' Motion In Limine (Document No. 28) is DENIED as moot.