On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-03-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2009
Before Judges Lisa and Baxter.
Defendant Ellen Heine appeals from her conviction in the Law Division, following a trial de novo, for a violation of a section of the City of Garfield Municipal Code, which prohibits overnight parking without a permit. She likewise appeals from the Law Division's determination that principles of double jeopardy did not entitle her to the dismissal of a second summons, which had been issued for failing to remove an oversized vehicle from the premises. We reject defendant's double jeopardy contentions respecting the oversized vehicle charge, as well as her claim that the parking permit ordinance is unconstitutional because it impermissibly discriminates against non-resident property owners. We affirm.
Defendant is the owner of a property on Van Bussum Avenue in Garfield, which she leases to a tenant. The tenant owned a mobile trailer that was parked adjacent to the house. The trailer was stationary and propped up on cinder blocks, even though it was equipped with tires and a license plate. The tenant permitted a friend to live in the trailer. The certificate of occupancy issued for the dwelling did not include permission to maintain a trailer on the premises. Defendant asserted she was unaware of its presence.
Because local officials suspected that the trailer was being used as a residence, the Garfield Housing Inspector, Sal Mercadante, questioned the tenant, who acknowledged that his friend had been living in the trailer for a few weeks and that the trailer contained a bed, lamps, a stove, a microwave, an air conditioning unit and an extension cord running from the trailer to the house. Consequently, Mercadante issued a summons and complaint to defendant, as owner of the property, for maintaining an unlawful dwelling unit in violation of the Municipal Code.
Approximately five weeks later, on February 19, 2008, defendant was charged with parking her Toyota automobile overnight on the street outside the Van Bussum Avenue property without having obtained a parking permit, in violation of ordinance 2218 of the Municipal Code. Ordinance 2218 prohibits on-street parking between 3:00 a.m. and 6:00 a.m. without a permit. Defendant testified that although she had requested an overnight parking permit, she had been rebuffed because the ordinance limits the issuance of overnight parking stickers to persons who actually reside within City limits and are able to demonstrate ownership of a vehicle that is registered to a Garfield address.
On April 2, 2008, at the conclusion of the trial in the Garfield Municipal Court, the municipal court judge found defendant guilty on both charges. In particular, after considering Mercadante's testimony, the judge determined that the trailer was being used as a dwelling unit without the required certificate of occupancy. The municipal court judge imposed a fine of $1,250, in addition to court costs. On the charge of parking a vehicle overnight without an overnight parking permit, the judge found defendant guilty and imposed a fine of $30 and court costs of $33.
On April 23, 2008, defendant was issued a third summons, pursuant to ordinance number 1882, for failure to remove an oversized vehicle, namely the trailer. Because she had already been found guilty on April 2, 2008 of maintaining an illegal dwelling, which involved the trailer, defendant filed a motion to dismiss the oversized vehicle charge on the grounds that the trailer could not simultaneously be deemed a residence and a vehicle. She also asserted that charging her with two violations arising out of the identical conduct violated the constitutional protection against double jeopardy. The municipal court judge rejected defendant's double jeopardy claim, reasoning that because different facts supported each alleged violation, there could be no double jeopardy violation.
On appeal to the Law Division, Judge Lipton found defendant not guilty on the illegal dwelling charge after determining that the trailer could not be considered a building and a motor vehicle at the same time. She therefore dismissed the illegal dwelling charge.
In ruling on the overnight parking violation, the judge observed that the parking ordinance in question "was enacted to facilitate parking situations for its residents due to the critical parking shortage and if non-resident owners of property within the City were also permitted to obtain parking permits, the actual residents would be left without adequate parking." For that reason, Judge Lipton rejected defendant's argument that the statute, by favoring residents over non-residents, violated equal protection guarantees in the state and federal constitutions. The judge held that the parking ordinance: is "reasonably related to public health and safety"; was "uniformly enforced" with "no purposeful discrimination by the municipality;" and "no suspect classifications [had] been implicated by the enforcement of the ordinance." Having found the overnight parking ordinance constitutional, and because defendant had admitted she parked her vehicle overnight without a parking permit, Judge Lipton found defendant guilty of the overnight parking offense.
Last, as to the charge of maintaining an oversized vehicle, Judge Lipton rejected defendant's claim of a double jeopardy violation, and remanded that charge back to ...