Before Judges D'Annunzio, Fall and Bilder.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 5, 1999 -
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Burlington County.
Defendant, Floyd A. Beierle, appeals from his conviction for speeding in a designated school zone. This appeal raises issues of first impression concerning interpretation and enforcement of signs posting a reduced speed limit in a school zone "when children are present."
Defendant was operating his motor vehicle in Chesterfield Township on Route 528, a county highway, in an easterly direction at or near the Chesterfield Elementary School on Wednesday, May 14, 1997, between the hours of 7:00 p.m. and 8:00 p.m. The posted speed limit for Route 528 is 50 miles per hour; however, a speed limit sign posted adjacent to the school stated: "School Zone - Speed Limit 35 - When Children Are Present." The term "school zone" is defined as,
that portion of a highway which is either contiguous to territory occupied by a school building or is where school crossings are established in the vicinity of a school, upon which are maintained appropriate "school signs" in accordance with specifications adopted by the director *fn1 and in accordance with law. [N.J.S.A. 39:1-1.]
While passing the school, defendant was admittedly traveling at the rate of 50 miles per hour in a "school zone." While it was after school hours, there were approximately fifteen to twenty children playing on baseball fields located on the school grounds and clearly visible from Route 528. Defendant was found guilty of traveling in excess of the posted 35 mile per hour limit on the basis that "children were present" within the school zone. *fn2
The statutory authority for the regulation of speed in a school zone is contained in the following pertinent portion of N.J.S.A. 39:4- 98:
[I]t shall be prima facie lawful for the driver of a vehicle to drive it at a speed not exceeding the following:
a. Twenty-five miles per hour, when passing through a school zone during recess, when the presence of children is clearly visible from the roadway, or while children are going to or leaving school, during opening or closing hours. [N.J.S.A. 39:4-98(a).]
This statute also permits the Commissioner of Transportation, as to state highways, and municipal or county authorities, with reference to highways under their jurisdiction, to "designate a reasonable and safe speed limit" whenever "it shall be determined . . . that any speed hereinbefore set forth is greater or less than is reasonable or safe under the conditions . . ." N.J.S.A. 39:4-98(c). In accordance with this provision, the school zone speed limit on this county highway had been established at 35 miles per hour by resolution of the Burlington County Board of Chosen Freeholders.
N.J.S.A. 39:4-98 also prescribes the requirements for signs posting the applicable speed limit, as follows:
Appropriate signs giving notice of the speed limits authorized under the provisions of subsection a. and paragraph (2) of subsection b. of this section shall be erected by the commissioner or the municipal or ...