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State v. Bastian

Decided: December 17, 1962.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HENRY BASTIAN, DEFENDANT-APPELLANT



W. F. Wood, J.c.c.

Wood

This case comes before the court on appeal from a conviction in the Municipal Court of the Borough of Kenilworth of the offense of speeding. Specifically, defendant was convicted of operating a motor vehicle in a southerly direction on North Michigan Avenue at a speed in excess of 25 miles an hour in a "residence district" in violation of N.J.S.A. 39:4-98(b). Defendant concedes that he was traveling 40 miles an hour; but he maintains that the area involved does not constitute a residence area and that the speed limit was therefore 50 miles an hour.

The only issue is whether North Michigan Avenue is a residence district as defined in N.J.S.A. 39:1-1. In order to resolve that issue it is necessary to be familiar with the area.

The appeal was heard on the basis of a transcript of proceedings in the Municipal Court. At my request the defendant's

attorney and the prosecutor submitted diagrams or maps of the area, which maps were not included with the original transcript. The map provided by the prosecutor was prepared by the borough engineer. Defendant's map is a photocopy of the borough tax map. There are no material differences between the two maps, except that each one contains details omitted from the other. The information set forth below was obtained from these maps and from an inspection of the area made by me personally.

North Michigan Avenue (hereinafter called the Avenue) runs in a generally northerly to southerly direction; but, in the area in question, the Avenue curves substantially toward the east as it extends southward. It is intersected on the westerly side, but not crossed, by Oak Street, which runs in an easterly to westerly direction. Approximately 97 feet west of this intersection, Oak Street itself is intersected on the southerly side by North 22nd Street, which also runs in a northerly to southerly direction. The latter street, however, does not curve toward the east like the Avenue; and, hence, these two roadways become farther and farther apart as they extend southward.

In the area of the alleged violation the easterly side of the Avenue is vacant land; but there are dwelling houses along the westerly side, beginning at a point 275.82 feet north of the Oak Street intersection and extending to a point 305.20 feet south of that intersection. The intersection itself is 90.13 feet wide. The area north of the houses, on both sides of the Avenue, is vacant land; and it is conceded that that area is a 50-mile zone.

There are five houses north of Oak Street. Four of these houses have their front entrances facing the Avenue and are known as 422, 418, 414, and 410 North Michigan Avenue. They set back approximately 25 feet from the westerly line of the Avenue and their front lines are approximately parallel thereto. The fifth house, which is located on the northwesterly corner of Oak Street and the Avenue and which is known as 520 Oak Street, has its front entrance on the latter street

and its easterly side facing the Avenue. Although the maps indicate that the latter side is not exactly in line with the front line of the four houses just discussed, the difference is hardly noticeable upon visual inspection of the area. There are no entrances on the easterly side of the fifth house and no walkways or driveways leading from that house to the Avenue.

South of Oak Street there are three houses with front entrances facing the Avenue, which houses are known as 314, 308 and 304 North Michigan Avenue. These houses also are set back approximately 25 feet from the Avenue and are approximately parallel thereto. Finally, there are two houses with front entrances facing the easterly side of North 22nd Street, one of these houses being located on the property at the southeasterly corner of Oak Street and North 22nd Street and the other being located on the property adjacent to that corner property. These two houses are known respectively as 321 and 317 North 22nd Street. These houses have rear entrances facing the Avenue; but there are no walkways or driveways leading from the houses to the Avenue. On the contrary, along the property line of the Avenue is an unbroken row of low hedge bushes, which indicate that no one is expected to enter upon the Avenue from those houses. These houses are parallel with North 22nd Street and, hence, are not parallel with the Avenue. It follows that their rear lines are at varying distances from the Avenue. The nearest point (the northeast corner of No. 321) is approximately 50 feet from the Avenue and the farthest point (the southeast corner of No. 317) is approximately 100 feet therefrom. There are approximately 12 tall trees in the space between these houses and the Avenue. No such trees exist between any of the other ...


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