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Square Parking Systems Inc. v. Business Administrator

April 8, 1982


Young, J.s.c.


Civil Action

Square Parking Systems, Inc., an operator of commercial parking lots, and Irene Bochnak, a taxpayer, challenge by an action in lieu of prerogative writs an ordinance of the City of Jersey City which imposes a 15% tax on fees charged for parking, garaging or storing motor vehicles, with the exception of parking in garages or parking areas which are leased to residential tenants of multiple dwellings. By motion for partial summary judgment plaintiffs seek a determination that the ordinance is ultra vires and that it constitutes a deprivation of the constitutional right of equal protection of the law. The city counters with a motion for an order dismissing the verified complaint. At the argument on the motions the court denied plaintiffs' motion for a stay of enforcement of the ordinance. The Appellate Division denied plaintiffs' motion for leave to appeal and for a stay.

The two issues submitted by the dual motions are first, did the municipality in its grant of exemption to residential multiple dwellings exceed the grant of authority of the enabling statute; second, does the tax exemption to residential tenants of multiple dwelling units constitute a denial of equal protection in that it creates a class that bears no rational relation to the purpose of the enactment and thereby unfairly burdens the remaining members of the class.

Square Parking Systems, by affidavit of its assistant vice-president, Brett Harwood, and the individual taxpayer, Bochnak by her certification, both assert that they would be subject to the provisions of the challenged ordinance. It is undisputed that the plaintiffs have standing. There is recognized a broad right in taxpayers and citizens of a municipality to seek review of local legislative action without proof of unique financial detriment. Kozesnik v. Montgomery Tp., 24 N.J. 154 (1957).

Municipalities have no power except that delegated to them by the Legislature. Salomon v. Jersey City, 12 N.J. 379 (1953). The power to tax reposes in the State; municipalities have no inherent power to tax and can do so only pursuant to a delegation of the State's power. Robinson v. Cahill, 62 N.J. 473 (1973), cert. den. 414 U.S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973).

Any purported authority by which the City of Jersey City would enact a parking tax fee must derive from the statutory grant of the Legislature by the Local Tax Authorization Act of 1970, L. 1970 c. 326, codified as N.J.S.A. 40:48C-6, which reads as follows:

Any municipality is hereby authorized and empowered to enact an ordinance imposing in any such municipality a tax, not to exceed 15%, on fees for parking, garaging, or storing of motor vehicles, other than parking in a garage which is part of premises occupied solely as a private one-or-two family dwelling.

Plaintiffs argue that any municipal ordinance enacted pursuant to such authority must comply with two conditions of the enabling act, namely (1) the tax must not exceed 15% and (2) any exemption is limited to one- or two-family dwellings. In reply, the city contends that the legislative reference to one- or two-family dwellings must be read to mean a minimum.

In the construction of statutes, particularly enactments having reference to taxation and exemptions therefrom, the transcendant consideration is legislative intent. Public Service Elec. & Gas Co. v. Woodbridge Tp., 73 N.J. 474 (1977). Statutes which grant exemption from taxation are strictly construed and doubts as to eligibility for exemption are resolved against the claimant. In re Kuebler, 106 N.J. Super. 13 (App.Div.1969). Moreover, statutes must be read, as it is said, sensibly, with the purpose and reason which motivate the legislation controlling factors in contrast to a strict, literal construction. Suter v. San Angelo Foundry Mach. Co., 81 N.J. 150, 160 (1979). The expression of the Supreme Court on this subject of ascertaining legislative intent, in Loboda v. Clark Tp., 40 N.J. 424 (1963), is instructive:

. . . [W]ords alone do not control; rather it is the internal sense of the law which controls. The intention comes from a general view of the whole expression rather than from the ...

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