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Condominium owners have no constitutional right to free trash pickup — even in cities and towns where all other homeowners do get free waste removal — because the governmental cost savings that result from excluding multiple-unit buildings are enough to justify such ordinances, a federal appeals court has ruled. Deciding two appeals in a single opinion handed down Wednesday, the 3rd U.S. Circuit Court of Appeals reversed a pair of opinions by U.S. District Judge Berle M. Schiller that struck down trash ordinances in Philadelphia and Norristown, Pa. The unanimous three-judge panel found that Schiller, of the Eastern District of Pennsylvania, decided both cases prior to a 3rd Circuit opinion handed down late last year that endorsed economic considerations as a rationale for justifying such laws. In July 2002, in Philadelphian Owners Association v. City of Philadelphia, Schiller declared unconstitutional a city ordinance that excludes buildings with more than six dwelling units from the city trash collection services. He ordered the city to start picking up trash from condominiums and to pay refunds to owners for footing the bill themselves. Later, in Freedley Court Apartment Associates v. Borough of Norristown, Schiller found that Norristown’s ordinance, too, was unconstitutional because it arbitrarily discriminates against condominiums and cooperatives containing five or more dwelling units. In both cases, Schiller found that economic reasons were not sufficient to satisfy the “rational basis” test. The rulings by Schiller created a split in the district because they conflicted with a decision by U.S. District Judge Harvey Bartle III in Ramsgate Court Townhome Association v. West Chester Borough that upheld a similar ordinance in the Borough of West Chester, Pa. The key difference between Bartle’s case and the two Schiller cases was that West Chester’s ordinance focused on the volume of trash while Philadelphia’s and Norristown’s ordinances focused on the number of units in a building. But the 3rd Circuit has now found that the differences were not significant and that the key issue was the rationale offered by both Philadelphia and Norristown in defending the ordinances. Late last year, the 3rd Circuit upheld Bartle’s decision in the West Chester case, saying he had correctly focused on the economic realities of providing free trash pickup. Bartle found that the West Chester ordinance focused on “quantity of waste and nothing else.” As a result, Bartle concluded, “the differences in the way property owners are treated under the ordinance are clearly based on economic considerations. Providing free trash collection costs money.” The 3rd Circuit agreed, saying, “Although the district court did not ignore the importance of trash removal to a community’s health and safety, it noted that the borough is forced to divide its finite budget among various expenditures. By limiting this service, the borough is able to spend its tax dollars elsewhere.” In upholding Bartle, the 3rd Circuit noted that other federal appellate courts had upheld “similar legislative objectives where a municipality has provided a higher level of waste collection services to one group of taxpayers than to another.” In Beauclerc Lakes Condominium Association v. City of Jacksonville, the 11th Circuit found that the Legislature could assume that a multi-unit condominium association had greater bargaining power with private waste removal services than did individual homeowners. The 7th Circuit reached a similar holding in 1974 in Goldstein v. City of Chicago. Joining those courts, the 3rd Circuit found that “because of the presumption of constitutionality and the legitimate economic rationale for the ordinance, the [West Chester] ordinance survives equal protection scrutiny.” Now the 3rd Circuit has ruled that its decision in the West Chester case controls the outcome in both the Philadelphia and Norristown cases. “Because we conclude that both appeals are governed by the reasoning and the conclusion in Ramsgate we reverse the judgments in each case and remand with a direction to enter judgments in favor of each municipality,” Senior 3rd Circuit Judge Ruggero J. Aldisert wrote in Philadelphian Owners Association in an opinion joined by Judges Jane R. Roth and Julio M. Fuentes. In his closing paragraph, Aldisert found that Schiller had erred by faulting the lawyers for Philadelphia for not introducing evidence to support the city’s economic rationale for the ordinance. “A classification need not be supported by evidence or empirical data, and is not subject to courtroom fact finding,” Aldisert wrote. When an ordinance is challenged, Aldisert said, “the government has no obligation to produce evidence to sustain the rationality of a statutory classification, and the court may not compel the state to verify its logical assumptions with statistical evidence.” As a result, Aldisert said, “the government’s failure to provide legislative facts explaining the statutory classification on the record has no significance in rational-basis analysis.” Ironically, despite the 3rd Circuit’s decision, condominium owners may still win a court ruling that provides free trash pickup. Before Schiller’s decision, Philadelphia City Council unanimously adopted an ordinance that calls for trash pickups at condominiums. When Mayor John Street refused to enforce the law, the City Council filed suit in the Philadelphia Court of Common Pleas, seeking a writ of mandamus ordering the mayor to enforce the new law. The court has not yet ruled on the suit. The plaintiffs in all three of the federal lawsuits were represented by attorneys Gary A. Krimstock of Philadelphia’s Fineman & Bach and Robert D. Greenbaum of Philadelphia’s Robert D. Greenbaum & Associates. The city of Philadelphia was represented by Chief Deputy City Solicitor Michael F. Eichert, Assistant City Solicitors James P. Cousounis and Craig R. Gottlieb, and attorneys Arlin M. Adams and Nancy Winkelman of Philadelphia-based Schnader Harrison Segal & Lewis.

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