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State v. Kraus

Decided: May 27, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID KRAUS, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Shebell and Arnold M. Stein. The opinion of the court was delivered by Arnold M. Stein, J.s.c. (temporarily assigned).

Stein

Defendant appeals from two convictions for parking violations. We reverse both convictions.

Defendant is a resident of the Borough of Allendale. He is a commuter by railroad. On October 2, 1985, he submitted an application to the Borough police department for a parking permit for his 1983 Pontiac sedan. In his application, defendant certified his residence in the Borough, paid the $1 application fee and received sticker number 455, which he placed on his automobile.

On or about January 14, 1986, defendant went to the Borough police station and requested a temporary parking sticker to place on a substitute vehicle while his vehicle was being repaired. He was advised that the Borough did not issue temporary stickers. Defendant then removed the sticker from his Pontiac, and placed it in the rear window of the substitute

vehicle, a 1980 Ford borrowed from his father-in-law, a New Milford resident.

On January 16 and 17, defendant parked his father-in-law's vehicle, with the sticker placed in the rear window, in the Borough parking lot. He left a note on the windshield calling attention to the "temporary" sticker in the rear window. His father-in-law received identical summonses for January 16 and 17. Both summonses charged the vehicle owner with "sticker parking" in violation of Allendale Ordinance No. 411. At defendant's request, he was substituted for his father-in-law as a defendant on both parking summonses.

Subsection C of Allendale Ordinance No. 411 governs parking in the railroad station lot. It provides in pertinent part:

C. Application for Parking in Areas

A. Parking in Area A is limited and restricted to vehicles owned and operated by bona fide residents of the Borough of Allendale. Parking Area A-1 is further limited and restricted to commuters and patrons of the Railroad. The residents shall make requests for each vehicle to be so parked at Police Headquarters in the Borough upon application made in writing on forms supplied by the Police Department and thereupon a form of identification shall be supplied to the applicant by the Police Department. The form of identification shall be affixed to the motor vehicle owned by the applicant to the rear window right side. The effective period of the form of identification shall be from April 1st to April 1st of the following year. The Police Department is authorized to issue or reissue within the effective period a duplicate form of identification to the applicant upon reasonable proof submitted by the applicant that the same has been lost or destroyed through no intentional act of the applicant. [Emphasis added.]

The municipal court judge found defendant guilty of violating Ordinance No. 411, holding that the sticker could only be used on the automobile for which it was issued. The judge imposed a $15 fine and $15 court costs for each violation. Defendant then appealed his conviction to the Superior Court, pursuant to R. 3:23-2. After a trial de novo on the record below (R. 3:23-8(a)), he was again found guilty. The fines were reduced to $5 and $5 court costs for each violation.

We reverse because Ordinance No. 411C is invalid insofar as it permits parking in the Borough's ...


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