A recent trial court decision in Ocean County held that all roadways within a qualified private community – such as a homeowners association or condominium association – which provide access to units and function as roadways are eligible for reimbursement under the Municipal Services Act.  This includes third tier roadways which municipalities have previously classified as “driveways”.  

The Municipal Services Act ("MSA”), also known as The Kelly Bill, requires a New Jersey municipality to reimburse a qualified private community for the removal of snow, ice and other obstructions from roads, street lighting and removal of solid waste that the community does on its public roads.  If a municipality does not want to pay reimbursements, the MSA permits the municipality to provide these services in the same way it does on its own roads.  The MSA was intended to relieve private community residents of the burden of paying double for municipal services: once in their taxes and then again as part of the community association assessments. 

In this case, a gated community association in Lakewood ("Association") had about 16 miles of paved roads, all of which were private and divided into three tiers.  The municipality reimbursed for the first and second tiers but not for the third tier roads which it labeled as "driveways" and ineligible for reimbursement under the MSA.  The third tier roads were unnamed roads, about 28 to 30 feet wide, that accessed most units in the development.  The Association asserted that these third tier roads looked like roads, functioned like roads, and should be reimbursed like roads under the MSA. 

The court agreed with the Association and held that the third tier roads were entitled to reimbursement under the MSA.  In making this determination, the court stated that the MSA requires that the terms "roads" and "streets" be given their normal meanings. The roads entitled to reimbursement under the MSA are those which provide basic means of ingress and egress to units.  The Association’s third tier roads functionally serve as roads and allow access to units; thus, common sense demands that they are roads and not driveways. 

If you would like more information about the Municipal Services Act or would like to discuss how your community association can increase its reimbursements under the Municipal Services Act based on this decision, please contact us.