Daily Development for Thursday, February 17, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu
CONSTITUTIONAL LAW; EQUAL PROTECTION; MUNICIPAL SERVICES;; MOBILE HOMES: A municipality’s refusal to provide garbage service to a mobile home park constitutes invidious discrimination.
Barker's Trailer Court, Inc. v. Borough of Lakehurst, 371 N.J. Super. 432, 853 A.2d 348 (Law Div. 2004)
Owner requested a municipality to provide garbage collection for its mobile home court. When the municipality refused, the owner sought a court order compelling such service, claiming that the municipality's refusal to provide garbage collection constituted invidious discrimination in violation of the equal protection clause.
Owner acknowledged that a municipality is not required to provide such garbage removal at all. It argued, however, that once a municipality has decided to provide service to those similarly situated, it must do so for all within the class. It claimed that there was no rational basis to distinguish the mobile homes from any other residence that received garbage removal.
The municipality justified its refusal to provide garbage removal based on the fact that it was collecting real estate taxes only for the land and property improvements at the mobile home park and not for the individual mobile homes.
The court noted first that, mobile home park owners pay real estate taxes on the land and improvements within the parks and then pass them through to the mobile home owners as part of the rental fee. A report by the Mobile Home Taxation Commission noted that mobile home park owners provide many services that a municipality typically supplies to other municipal residents, including ground water drainage, snow removal, and the maintenance of common areas. Therefore, homeowners in mobile home parks use a lower level of tax revenues than comparable homeowners otherwise situated.
In addition, the court noted that the municipality had the power to charge mobile home owners directly for trash service. Most of the findings of the report by the Mobile Home Taxation Commission noted were incorporated into the Manufactured Home Taxation Act. In particular, the Act authorized the establishment of a municipal fee to offset services the municipality provides to homeowners within a mobile home park that are not defrayed by the taxes emanating from the levy against the land and improvements of the park. Therefore, the Court stated that the municipality could include the additional cost of providing garbage collection in its calculation of the fee.
Therefore, due to the municipality's ability to offset the cost of collection through the municipal service fee, the Court held that there was no justification for the municipality's decision not to provide garbage service to the mobile home park, and the refusal to do so constituted an invidious discrimination.
Comment: The decision is not unprecedented, even on DIRT DD’s. In The Woodhawk Club Condominium Owners Assoc. v. City of Mayfield Heights, No.1:97-CV-1759 (8/26/98) (unreported decision) (the DIRT DD for 10/9/98) (on the DIRT website - http://www.umkc.edu/dirt) an Ohio Federal Court found that a city had no rational basis to refuse to provide same level of refuse service to condominium unit owners that it provides to other taxpaying residents of city.
Comment 2: These kinds of considerations don’t extend too far. Cities routinely require new subdivision developers to provide all kinds of public infrastructure such as roads and streetlights, etc., even when such improvements in the older parts of town have been paid for with bonded indebtedness which will be retired with property taxes imposed upon those new residents just like the old ones who were the beneficiaries of those improvements. Life is unfair, but sometimes it will cut you a break.
Readers are encouraged to respond to or criticize this posting.
Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data provided and opinions expressed by the DIRT editor the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.
Parties posting messages to DIRT are posting to a
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality
issues.
ABOUT DIRT:
DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 - 15 messages per work day.
Daily Developments are posted every work day. To
subscribe, send the message
subscribe Dirt [your name]
to
listserv@listserv.umkc.edu
To cancel your subscription, send the message
signoff DIRT to the address:
listserv@listserv.umkc.edu
for information on other commands, send the message
Help to the listserv address.
DIRT has an alternate, more extensive coverage that
includes not only
commercial and general real estate matters but also focuses
upon residential real estate matters. Because real estate brokers generally
find this service more valuable, it is named “BrokerDIRT.” But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list. If you
subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the residential discussions.
To subscribe to BrokerDIRT, send the message
subscribe BrokerDIRT [your name]
to
listserv@listserv.umkc.edu
To cancel your subscription to BrokerDIRT, send the
message
signoff BrokerDIRT to the address:
listserv@listserv.umkc.edu
DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law. Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.
DIRT has a WebPage at:
http://www.umkc.edu/dirt/
Members of the ABA Section on Real Property, Probate
and Trust Law or of the National Association of Realtors can
subscribe to a quarterly hardcopy report that includes all DIRT Daily
Developments, many other cases, and periodic reviews of real estate oriented
literature and state legislation by contacting Antonette Smith at (312) 988 5260
or asmith4@staff.abanet.org
*************************************
Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.
To change your e-mail address or remove your name from any future general distribution e-mails you can call us at 1-800-285-2221, or write to: American Bar Association, Service Center, 321 N Clark Street, Floor 16, Chicago, IL 60610
If you are an ABA member, log in to the ABA Web site at http://www.abanet.org/abanet/common/MyABA/home.cfm to edit your member profile. Otherwise, complete the form located at https://www.abanet.org/members/join/coa2.html
To review our privacy statement, go to http://www.abanet.org/privacy_statement.html.
If you have any problems, please contact the list owner at
dirt-dd-request@mail.abanet.org.