Monaghan, J.d.c., Temporarily Assigned.
[131 NJSuper Page 463] There are two actions involved here which have been consolidated. One was instituted by plaintiff Thomas Bradley to compel the Borough of Edgewater to enforce the provisions of N.J.S.A. 39:4-136, which will be discussed hereinafter. As a result of action taken by the council in passing an ordinance regulating parking, this complaint actually becomes moot.
The second suit is brought by homeowners, husband and wife, in which they basically seek to set aside an ordinance of the Borough of Edgewater, viz. Ordinance No. 548-73, which prohibits all parking on Leary Lane, where plaintiffs own a home.
The Kirylaks moved into Edgewater on September 15, 1962. Leary Lane is a dead-end street that runs for approxiately 220 feet and has a paved surface approximately 16 feet wide. There is only one point of ingress-egress from River Road. On August 15, 1973 the Kirylaks moved out of Edgewater although they retained ownership of that home and rented it. During their 11 years of residence on Leary Lane, the Kirylaks and all other homeowners were allowed to park legally on the north side of the street. The ordinance in question was passed in November 1973. The lot at 5 Leary Lane is residential, with a 40-foot frontage. There is no driveway or garage. This lot is approximately 4 1/2 feet above street level.
While residing in Edgewater the Kirylaks and others had often complained to borough officials about parking problems on their street. Frequently the driveways and paths leading to these homes had been obstructed by parked cars. With the passage of time the problem worsened. A threefamily home was built on Leary Lane in 1972 as a result of a court order overruling the determination of the board of adjustment. Finally, in November 1973, as a result of a petition by most of the property owners on Leary Lane, the Edgewater council passed the no-parking ordinance. All of the property lots on Leary Lane, except for the Kirylaks, have off-street parking facilities.
On-street parking is available on certain sections of River Road, which is located at the beginning of Leary Lane, although all parties admit that this street is a busy and dangerous roadway. The problems posed by parking on Leary Lane are not confined to obstructing driveways. Although there have been no serious incidents, concern has been expressed by fire and police officials about the accessibility of
Leary Lane to emergency vehicles if cars are parked on one side.
The ordinance in question was first proposed at the Edgewater council meeting of October 2, 1973. The entire ordinance was not read, but simply the title. Subsequently the borough clerk sent a copy of the proposed ordinance to the Department of Transportation in Trenton for its approval. This department suggested that the proposed ordinance be changed to provide for lower violation penalties. The clerk made this change without a resolution or formal amendment by the council. The revised ordinance was then properly published naming November 8, 1973 as the date for a public hearing. On that day the Kirylaks appeared and entered their objection to the proposed ordinance. Thereafter the ordinance was given a final reading and adopted by the council. The Kirylaks' tenants have been given parking tickets for parking their cars in violation of the ordinance in question. Pending the final disposition of this matter, the court has stayed the daily ticketing of cars found parked on the north side of Leary Lane.
The first issue concerns the validity of the adoption of the challenged ordinance. The crux of the problem is that the ordinance finally adopted is not the same as the ordinance originally introduced because of the change in the penalty clause by the clerk. The court feels that although a technical violation of N.J.S.A. 40:49-2 exists, there has been substantial compliance with the statute. Thus, the ordinance is valid. The purpose of this statute is to publicize proposed legislation and provide an opportunity to object. The Kirylaks had this opportunity here, for the ordinance published in the newspaper was the same as the one finally adopted. See McQuillin, Municipal Corporations, § 16.10, at 145, and Campbell v. Teaneck, 101 N.J.L. 461 (Sup. Ct. 1925). Cf. Stirling v. Plainfield, 136 N.J.L. 38 (E. & A. 1947), and Masnick v. Mayor, etc., Cedar Grove Tp., 99 N.J. Super. 436 (Law Div. 1968).
Plaintiffs also contend that the ordinance in question is not a valid regulation of parking, as permitted by N.J.S.A. 39:4-197, but instead is a prohibition of all parking. It is urged that this is a valid distinction. The court feels to the contrary. N.J.S.A. 39:4-136 prohibits parking when there is less than 15 feet of clear passage from the side of a parked vehicle. To allow parking on Leary Lane would violate this statute.
Plaintiffs further allege that the ordinance is invalid because it is unreasonable and places an undue burden on their property. It is not unreasonable because, as previously mentioned, the state statute prohibits parking where there is less than a clearance of 15 feet. Here, unquestionably, there is considerably less than this distance if parking is permitted on either side of the street. Moreover, this is not the only street in Edgewater where parking is prohibited on both ...