Dial, Inc., a New Jersey Nonprofit Corporation v. City Of

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2106-13T2
DIAL, INC., a New Jersey
Nonprofit Corporation,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
January 14, 2016
v.
APPELLATE DIVISION
CITY OF PASSAIC and
STATE OF NEW JERSEY,
Defendants-Respondents.
_________________________________
Argued November 2, 2015 - Decided January 14, 2016
Before Judges Sabatino, Accurso, and
O'Connor.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County, Docket
No. L-2394-12.
Edward A. Kopelson argued the cause for
appellant.
Christopher K. Harriott argued the cause for
respondent City of Passaic (Florio Kenny
Raval, L.L.P., attorneys; Mr. Harriott and
Edward J. Florio, of counsel and on the
brief).
Christopher A. Edwards, Deputy Attorney
General, argued the cause for respondent
State of New Jersey (John J. Hoffman, Acting
Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of
counsel; Valentina M. DiPippo, Deputy
Attorney General, on the brief).
Mary A. Ciccone argued the cause for amicus
curiae Disability Rights New Jersey
(Disability Rights New Jersey, attorneys;
Curtis D. Edmonds, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This case brought by a disability rights organization
involves the designation of handicapped parking spaces on
residential streets. Invoking various federal and state
anti-discrimination laws, plaintiff challenges the validity of a
portion of a state statute, N.J.S.A. 39:4-197.7. The provision
authorizes municipalities to charge a permit fee to disabled
persons who request a personally-assigned, exclusive parking
space on the street in front of their residences.
On the same legal grounds, plaintiff challenges an
ordinance adopted pursuant to N.J.S.A. 39:4-197.7 by the City of
Passaic. The ordinance imposes an annual fee of $50 for a
disabled person to obtain, upon request, a personally-assigned
handicapped parking spot in front of his or her residence. The
City has conceded, however, that a separate provision within its
ordinance that had imposed a fee for obtaining "generic" (i.e.,
not personally-assigned) handicapped parking spaces on
residential streets was invalid.
Plaintiff contends that fees imposed for
personally-assigned parking spaces represent an illegal
2 A-2106-13T2
surcharge that discriminates against the disabled. Plaintiff
argues that such fees wrongfully penalize disabled persons for
seeking assured and convenient physical access to their
residences from parking spots on public streets. Plaintiff
contends that disabled persons cannot be lawfully charged for
trying to avoid the risk that a generic handicapped parking
space located in front of their dwellings might be taken at
times by another disabled user.
The trial court rejected plaintiff's facial challenge to
the fees charged pursuant to the statute and the Passaic
ordinance for personally-assigned handicapped parking spaces.
The court concluded that those fee provisions are not
discriminatory and do not conflict with federal or state laws
protecting the interests of disabled persons.
For the reasons that follow, we affirm the trial court's
sound determination, subject to a few caveats noted at the end
of this opinion.
I.
The pertinent background is substantially undisputed. In
1977, the Legislature enacted a statute within Title 39,
N.J.S.A. 39:4-197.6 to -197.7, authorizing New Jersey
municipalities to adopt ordinances that attempt to address the
parking needs of handicapped persons on public streets in front
3 A-2106-13T2
of their residences. See L. 1977, c. 309. As indicated in its
legislative history, the statute "permit[s] municipalities, by
ordinance, to establish restricted parking zones in residential
areas for use by handicapped persons[.]" Ibid. The law was
passed because "[o]ften, existing parking ordinances present a
hardship to persons who are handicapped and cannot find parking
near their homes and this [statute] is intended to eliminate
that hardship." Ibid. Notably, the Legislature specifically
identified as a significant feature of the statute its language
that enables municipalities to "charge a fee for the issuance of
such [handicapped] permits." Ibid.
The two parts of the statute, sections 197.6 and 197.7,
have not been revised or been the subject of any published case
law to date. They read as follows:
Any municipality may, by ordinance, establish
a restricted parking zone in front of a
residence occupied by a handicapped person
if a windshield placard or wheelchair symbol
license plates have been issued for a
vehicle owned by the handicapped person, or
by another occupant of the residence who is
a member of the immediate family of the
handicapped person, by the Division of Motor
Vehicles pursuant to the provisions of
P.L.1949, c.280 ([N.J.S.A.] 39:4-204 et
seq.), provided such parking is not
otherwise prohibited and the permitting
thereof would not interfere with the normal
flow of traffic.
[N.J.S.A. 39:4-197.6 (emphasis added).]
4 A-2106-13T2
The companion provision, N.J.S.A. 39:4-197.7, states that:
Any municipality enacting an ordinance
pursuant to section 1 of this act1 shall
provide for the issuance of permits which
identify a specific motor vehicle and the
location wherein it is to be parked. Such
permits shall only be issued to persons who
can prove ownership and operation of the
motor vehicle and residency at the location
specified thereon. The permit shall be 5 ½
inches by 8 ½ inches in size, shall bear an
appropriate certification of authenticity
and shall be displayed prominently within
the vehicle when it is parked so as to be
seen from the middle of the street. Only a
motor vehicle for which a valid permit has
been issued and which has such permit
properly displayed shall be permitted to be
parked in the restricted parking zone
indicated on such permit. A municipality
may, by ordinance, establish a fee for such
permits.
[N.J.S.A. 39:4-197.7 (emphasis added).]
The City of Passaic decided to enact an ordinance under the
authority conferred by the statute. According to the City's
attorney's representation at trial, prior to that ordinance's
adoption, Passaic residents who wanted a generic handicapped
parking spot on their block could submit an application to the
City and pay a fee of $20 in order to "have the spot." There
was apparently no process for handicapped residents in the City
to obtain a personally-assigned parking space. Nothing in the
1
The statute cross-references N.J.S.A. 39:4-197.6 as being
"section 1." N.J.S.A. 39:4-197.7.
5 A-2106-13T2
record indicates any complaints were filed challenging this
earlier policy.
In February 20122, the City adopted the ordinance now at
issue, Ordinance No. 1889-12, to amend certain portions of its
parking code. See Passaic, N.J. Code § 295-7.5(e)-(g). The
amendment provided that handicapped residents in the City could
request either: (1) "a designated space with a personal
restriction that shall be defined by their New Jersey license
plate being printed on the signs delineating their space" (a
"personalized space"), or (2) "a generic [space] that permits
any handicapped driver to park in that space" (a "generic
space"). Additionally, the amendment instituted an initial
permit fee of $50 for a generic space, with an annual $40
renewal fee, as well as an initial fee of $75 for a personalized
space, with an annual $50 renewal fee.
2
In its opinion, the trial court noted that the ordinance in
question was amended on November 22, 2011. While the City's
code website shows that the overall "Handicapped parking
restrictions" portion of the code, Passaic, N.J. Code § 295-7.5,
was amended on November 11, 2011, the website reflects that the
particular subsections at issue here, Passaic, N.J. Code §§
295-7.5 (e) and (f), were amended slightly later, on February
21, 2012. See, Passaic, N.J. Code § 295-7.5,
http://ecode360.com/15653334. Accordingly, we use the February
21, 2012 adoption date, although the actual date is not critical
to our legal analysis of the substantive issues.
6 A-2106-13T2
Overnight, on-street residential parking is widely allowed
within the City, except for certain specified areas. According
to its responses to requests for admissions in this litigation,
the City allows by ordinance "overnight on-street parking of
automobiles on all streets other than those blocks or portions
of blocks identified in [Passaic, N.J. Code] § 295-20."3 The
City has further acknowledged that "all of the handicap parking
spaces created in accordance with [Passaic, N.J. Code] § 295-
7.5[4] are located on blocks that also permit overnight parking
by persons who do not have a handicap space."
A.
Plaintiff, DIAL, Inc., an advocacy group for the disabled,
is a non-profit organization established pursuant to 29 U.S.C.A.
§ 796f-4, providing independent living services and advocacy of
disability rights. According to plaintiff, its members and
"service consumers" are persons with disabilities who reside in
Passaic and Essex counties. The City, which is within Passaic
County, is thus located within plaintiff's geographic area of
concern.
3
This cross-referenced provision contains a list of areas within
the City where overnight parking is not allowed.
4
This is the overall provision that details all of the code's
handicapped parking restrictions, the majority of which are not
contested in this litigation.
7 A-2106-13T2
Plaintiff became involved in this matter after several
persons with disabilities learned of the City's intention to
charge fees for "home-based handicap parking spaces[.]"
Plaintiff's executive director sent a letter to Passaic's mayor
in March 2012 complaining about the new policy. The letter
asserted that the portion of the ordinance charging fees for
either a generic or personalized type of handicapped space
violated the Americans with Disabilities Act (the "ADA"), 42
U.S.C.A. §§ 12101-12213, and other federal anti-discrimination
laws and regulations.
In responding through its counsel to plaintiff's letter,
the City asserted that it was expressly permitted to adopt the
ordinance, including its fee provisions, under N.J.S.A. 39:4-
197.6 and -197.7. The City disputed that the ordinance violated
the ADA or any other law.
After his client received the City's negative response,
plaintiff's attorney wrote a letter to the New Jersey Attorney
General, asking him to "invalidate" N.J.S.A. 39:4-197.7.5 The
5
We assume that plaintiff's counsel may have been contemplating
that the Attorney General issue an opinion letter declaring the
fee provision within the statute in violation of federal law, or
announce that the Attorney General would not support the
enforcement of the statutory provision when implemented by a
municipality. Although not mentioned in counsel's letter, it is
also conceivable that the issue could have been addressed in
some manner by the New Jersey Division on Civil Rights, which is
(continued)
8 A-2106-13T2
letter expressed specific concern about Passaic's recent
adoption of an ordinance under the statute imposing handicapped
parking permit fees. Counsel asserted that "[t]he cost of
access to a municipal program or service of street parking
cannot be charged solely to those persons protected by
disability discrimination laws." Counsel further asserted that
the permit fees authorized by N.J.S.A. 39:4-197.7 are prohibited
under and therefore preempted by federal law. The Attorney
General apparently did not act upon or respond to plaintiff's
demand.
Plaintiff consequently filed a complaint in lieu of
prerogative writs in the Law Division, naming the State of New
Jersey and the City as defendants. Plaintiff sought a
declaratory judgment stating that the fee provisions within
N.J.S.A. 39:4-197.7 and Passaic's parking ordinance are
preempted and invalidated by federal law, including the ADA, the
Rehabilitation Act (the "RA"), 29 U.S.C.A. §§ 701-796, and the
Fair Housing Amendments Act (the "FHAA"), 42 U.S.C.A. §§ 3601-
3631; the New Jersey Law Against Discrimination (the "NJLAD"),
N.J.S.A. 10:5-1 to -49, and the NJLAD's associated regulation,
(continued)
under the general oversight of the Attorney General as part of
the Department of Law and Public Safety. See N.J.S.A. 10:5-6 to
-8.
9 A-2106-13T2
N.J.A.C. 13:13-4.6; and the respective equal protection clauses
of the United States and New Jersey Constitutions.
The City initially denied that any aspects of its ordinance
violated anti-discrimination laws. However, at oral argument in
the trial court, the City ultimately conceded that the permit
fees it was charging under the ordinance for generic handicapped
parking spaces was improper. The City continued to stand by its
position that the permit fees it was charging for personalized
spaces were, by contrast, valid and non-discriminatory. The
State, meanwhile, maintained the validity of N.J.S.A. 39:4-
197.7, authorizing permits for personalized spaces.
Among other things, defendants argued that the City's fee
for personalized handicapped spaces on residential streets is
permissible to defray some of the costs of such a program,
because it is a "non-essential benefit" that is not mandated as
a disability accommodation under the anti-discrimination laws.
Defendants also raised a variety of procedural objections to the
lawsuit, including plaintiff's alleged lack of standing, the
untimeliness of the complaint under Rule 4:69-6, and improper
jurisdiction.
After considering oral argument on the trial date and the
parties' written submissions, Judge Garry S. Rothstadt issued a
final judgment on December 11, 2013. Consistent with the City's
10 A-2106-13T2
concession, the court invalidated the portion of the ordinance
"to the extent that it requires the payment of fees for
unrestricted, on-street handicap parking spaces." The court
rejected plaintiff's claims under the balance of the complaint,
including its challenge to the City's fees for personalized
spaces and to the fee authorization in the related enabling
statute, N.J.S.A. 39:4-197.7.
In his accompanying written opinion, Judge Rothstadt
declined to dismiss the complaint based on any of the procedural
grounds argued by defendants. As to the merits, the judge found
no conflict between the fees for personalized spaces, as
authorized by N.J.S.A. 39:4-197.7 and the City's ordinance, and
any federal or state anti-discrimination laws.6 In particular,
the judge found that no federal statutes or regulations
concerning reasonable accommodations for disabled persons
"specifically require personalized on-street parking, . . .
restricted to the handicapped resident's vehicle." Because the
disability laws do not mandate such a benefit, the judge
reasoned that the permit fees imposed pursuant to the Title 39
statute and the City's ordinance are not discriminatory and
hence are valid.
6
The judge implicitly rejected plaintiff's constitutional claims
asserting a denial of equal protection. Plaintiff does not
repeat those claims on appeal.
11 A-2106-13T2
B.
Plaintiff now appeals. It is joined by another advocacy
group, amicus curiae Disability Rights New Jersey, in arguing
that the trial court erred in upholding the challenged fee
provisions for personalized handicapped parking spaces.
Plaintiff maintains that the fees are a discriminatory
surcharge that singles out disabled persons who want to have a
reliable means of access to parking on the public streets in
front of their residences. Plaintiff concedes that
municipalities could lawfully charge for such personalized
spaces so long as such charges are imposed on all residents
requesting such a benefit and are not just targeted to disabled
residents. Plaintiff also concedes that not every city or
neighborhood must offer personalized parking spots on public
streets, but that any governmental program to provide such
spaces cannot impose a permit fee solely on the disabled.
By way of remedy, plaintiff asks the court to declare the
fee provisions within the statute and the City's ordinance
invalid. Plaintiff also seeks to require the City to make
refunds of the illegally-collected fees.
12 A-2106-13T2
II.
A.
Plaintiff bears a substantial burden in proving that the
fee provisions within N.J.S.A. 39:4-197.7 and the City's
ordinance are invalid. A statute enacted by the Legislature
bears a presumption of validity. Roman Check Cashing v. N.J.
Dep't of Banking & Ins., 169 N.J. 105, 110 (2001). So does a
municipal ordinance duly adopted pursuant to authority delegated
by statute. N.J. Shore Builders Ass'n v. Twp. of Jackson, 199
N.J. 38, 55 (2009). "The presumption is not an irrebutable one,
but it places a heavy burden on the party seeking to overturn
the ordinance." Ibid. (quoting Hutton Park Gardens v. Town
Council of W. Orange, 68 N.J. 543, 564 (1975)). In fact,
"support for the legislative judgment will be presumed and,
absent a sufficient showing to the contrary, it will be assumed
that the statute rested 'upon some rational basis within the
knowledge and experience of the Legislature.'" Ibid. (quoting
Burton v. Sills, 53 N.J. 86, 95 (1968)).
To the extent that plaintiff argues that the statute and
ordinance are preempted, plaintiff must show that they are
either expressly or impliedly negated by federal law. Giordano
v. Giordano, 389 N.J. Super. 391, 395 (App. Div. 2007) (citing
Jones v. Rath Parking Co., 430 U.S. 519, 525, 97 S. Ct. 1305,
13 A-2106-13T2
1309, 51 L. Ed. 2d 604, 613 (1973)). "Express preemption is
'determined from an examination of the explicit language used by
Congress.'" Ibid. (citing Gonzalez v. Ideal Tile Importing
Co., 189 N.J. 415, 419 (2005)). Implied preemption is based on
either (1) "field preemption," which exists "where the scheme of
federal regulation is so pervasive as to make reasonable the
inference that Congress left no room for the States to
supplement it," or (2) "conflict preemption," which pertains
"where compliance with both federal and state regulations is a
physical impossibility, or where state law stands as an obstacle
to the accomplishment and execution of the full purposes and
objectives of Congress." Ibid. (citing Gade v. Nat'l Solid
Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S. Ct. 2374, 2383, 120
L. Ed. 2d 73, 84 (1992)).
Insofar that plaintiff contends that the fee authorization
in N.J.S.A. 39:4-197.7 is nullified by a separate New Jersey
statute, the NJLAD, the court must endeavor to harmonize those
enactments before declaring one or the other unenforceable. See
N.E.R.I. Corp. v. N.J. Highway Auth., 147 N.J. 223, 248-49
(1996) (holding that a "fundamental tenet" of statutory
interpretation is that all efforts should be made to harmonize
laws discussing the same subject matter and that statutes should
be read in pari materia); Timber Glen Phase III, LLC v. Twp. of
14 A-2106-13T2
Hamilton, 441 N.J. Super. 514, 522 (App. Div. 2015) (holding
that two seemingly conflicting statutory provisions should be
read in pari materia).
The trial court concluded that, except for the concededly
invalid fee the City had been charging for generic handicapped
parking spaces, plaintiff failed to meet its burden to
demonstrate the invalidity of the statute and ordinance as to
the fees charged for personalized spaces. We review that legal
determination de novo. State v. Brown, 216 N.J. 508, 545
(2014); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378
(1995).
B.
We begin our substantive analysis with a brief overview of
the applicable federal laws protecting the interests of
handicapped persons. "The ADA and the [RA] . . . prohibit all
discrimination based on disability by public entities."7 Reg'l
Econ. Cmty. Action Program, Inc. v. City of Middletown Planning
Bd., 294 F.3d 35, 45 (2d Cir.), cert. denied, 537 U.S. 813, 123
S. Ct. 74, 154 L. Ed. 2d 16 (2002). In addition, the RA
proscribes disability discrimination by recipients of federal
funding. See 29 U.S.C.A. § 794. In like manner, the FHAA makes
7
Plaintiff argues this claim under the ADA and the RA
interchangeably.
15 A-2106-13T2
it unlawful to discriminate against disabled persons, including
"a refusal to make reasonable accommodations in rules, policies,
practices, or services when such accommodations may be necessary
to afford such person equal opportunity to use and enjoy a
dwelling[.]" 42 U.S.C.A. § 3604(f)(3)(B).
"The remedies, procedures, and rights" available under the
RA are likewise available under the ADA. 42 U.S.C.A. § 12133.
Accordingly, "[t]he ADA and the [RA] generally are interpreted
in pari materia." Frame v. City of Arlington, 657 F.3d 215, 223
(5th Cir. 2011), cert. denied, ___ U.S. ___, 132 S. Ct. 1561,
182 L. Ed. 2d 168 (2012). "Congress enacted the ADA to
eliminate discrimination against handicapped individuals by
extending the non-discrimination principles required at
institutions receiving federal funds by the [RA] . . . to a much
wider array of institutions and businesses, including services
provided by states and municipalities." Easley ex rel. Easley
v. Snider, 36 F.3d 297, 300-01 (3d Cir. 1994) (emphasis added).
Likewise, the FHAA standard for "reasonable accommodation"
is virtually identical to that within the RA. Shapiro v. Cadman
Towers, Inc., 51 F.3d 328, 334 (2d Cir. 1995); City of Edmonds
v. Wash. State Bldg. Code Council, 18 F.3d 802, 806 (9th Cir.
1994) (noting that the concept of "[r]easonable accommodation
[under the FHAA] is borrowed from case law interpreting the
16 A-2106-13T2
[RA]."), aff'd sub nom., City of Edmonds v. Oxford House, 514
U.S. 725, 115 S. Ct. 1776, 131 L. Ed. 2d 801 (1995).
Plaintiff and the amicus contend that the permit fee
charged by the City to disabled persons who want personalized
handicapped spaces in front of their residences is a "surcharge"
prohibited by the ADA and other federal law. They emphasize
that the ADA has been construed to signify that "surcharges
against disabled people constitute facial discrimination[.]"
Dare v. California, 191 F.3d 1167, 1171 (9th Cir. 1999), cert.
denied, 531 U.S. 1190, 121 S. Ct. 1187, 149 L. Ed. 2d 103
(2001); see also Anderson v. Macy's, Inc., 943 F. Supp. 2d 531,
545 (W.D. Pa. 2013). The ADA's associated regulations
specifically prohibit public entities from placing
a surcharge on a particular individual with
a disability or any group of individuals
with disabilities to cover the costs of
measures, such as provisions of auxiliary
aids or program accessibility, that are
required to provide that individual or group
with the nondiscriminatory treatment
required by the Act.
[28 C.F.R. § 35.130(f)(emphasis added).]
In order to evaluate whether a fee charged by a public
entity constitutes such an improper surcharge under the ADA,
courts perform "a two-part inquiry." Dare, supra, 191 F.3d at
1171. First, "as a threshold matter, [courts] consider whether
the measure for which [a public entity] levies [a] fee is
17 A-2106-13T2
'required to provide that individual or group nondiscriminatory
treatment' as mandated by the ADA." Ibid. (emphasis added)
(quoting 28 C.F.R. § 35.130(f)). If a public entity "charges
for a measure not required under the ADA, the inquiry ends[,]"
as 28 C.F.R. § 35.130(f) "only forbids surcharges for 'required'
measures." Ibid. (emphasis added).
Second, courts in these contexts "evaluate whether the fee
for the measure is a surcharge; in other words, [courts]
consider whether [the fee] constitutes a charge that nondisabled
people would not incur." Ibid. (emphasis added). "If
nondisabled people pay the same fee for an equivalent service,
the charge to disabled people would not constitute a surcharge
on a 'required' measure." Ibid. Consequently, "for example, a
state can charge a fee for disabled license plates so long as it
charges the same fee for nondisabled license plates." Ibid.
As the amicus brief on appeal correctly points out, "it is
clear from the [City's] ordinance that the [fee for personalized
parking spaces] would only be imposed on individuals with
disabilities and [their] family members," given the fact that
they are the only individuals allowed to apply for such spaces.8
8
See Passaic, N.J. Code § 295-7.5(a) (noting that "[a]ny
resident of the City of Passaic possessing a valid New Jersey
driver's license who has qualified for a handicapped parking
permit from the State of New Jersey may apply to the City of
(continued)
18 A-2106-13T2
This satisfies the second prong of the Dare test for a
prohibited surcharge. Thus, only the first prong of the test is
at issue.
The trial court found that nothing in the ADA or other
federal laws require the issuance of personalized spaces to
disabled persons on public streets in front of their residences.
We agree with that observation.
To be sure, under the ADA, special parking arrangements
such as generic handicapped parking spaces are sometimes
considered "required" for purposes of the first prong of the
surcharge analysis. Dare, supra, 191 F.3d at 1172. Likewise,
portable handicapped parking placards are at times considered to
be required as well. Ibid.
For example, the Ninth Circuit Court of Appeals ruled in
Dare that the ADA was violated when California charged residents
a $6 fee for portable handicapped placards. Ibid. The court
found that the placards were required because: (1) the ADA
"requires . . . handicapped parking spaces[,]" as they "allow
(continued)
Passaic for a handicapped parking space located near their
residence") (emphasis added); Passaic, N.J. Code § 295-7.5(b)
(noting that "[c]onsideration will be given to nondriving
applicants for restricted curbside spaces providing that it is
shown that there is a hardship in dropping off the handicapped
applicant at their residence and subsequently parking the
vehicle at another location" and "[t]he nondisabled driver . . .
reside[s] in the same household as the disabled person").
19 A-2106-13T2
disabled people equal access to public buildings in which [the
state] provides services, programs, and activities"; and (2) the
state "police[d] handicapped parking spaces, [thus] disabled
people need[ed] placards or license plates to use them." Ibid.
The Ninth Circuit reasoned in Dare that California's
"provision of license plates alone would not be sufficient to
give [disabled] individuals nondiscriminatory access to public
places." Id. at 1173. That is so because "many disabled people
may not own cars or have someone who drives them[,]" and "even
those who do [drive] may sometimes have to use other vehicles as
passengers or as drivers[,]" and "[t]hey may rent cars or wish
to drive with another person." Ibid. Hence, "requir[ing]
disabled people to use only a designated car for which they have
a license plate restricts them far more in accessing public
places than people who lack their disabilities." Ibid.
Other courts likewise have found similar fees charged for
handicapped parking placards violate the ADA. See, e.g.,
Klinger v. Dir., Dep't of Revenue, Mo., 433 F.3d 1078, 1081 (8th
Cir. 2006) (holding that placards were required by the ADA and
thus could not be a valid basis for imposing surcharges because
the State of Missouri had "elected to use parking placards to
ensure that disabled people have access to government
programs"); Duprey v. Conn. Dep't of Motor Vehicles, 28 F. Supp.
20 A-2106-13T2
2d 702, 705, 708 (D. Conn. 1998) (holding that placards were
required under the ADA because they acted as "a condition to
gaining access to designated parking spaces which are required
. . . under the ADA"); Thrope v. Ohio, 19 F. Supp. 2d 816, 825
(S.D. Ohio 1998) (holding that the placards were required under
the ADA because: (1) disabled residents who did not own cars
could not obtain the no-cost license plate option and (2) the
license plates did "not provide the same freedom of mobility
provided by a placard and required by the ADA").
Conversely, courts applying the Dare test for improper
surcharges have ruled that other kinds of accommodations for
disabled people are not required under the ADA. See, e.g.,
Meagley v. City of Little Rock, 639 F.3d 384, 390-91 (8th Cir.
2011); Disabled in Action of Pa. v. Nat'l Passenger R.R. Corp.,
418 F. Supp. 2d 652, 658 (E.D. Pa. 2005). For example, in
Meagley, the Eighth Circuit held that a public zoo was not
required to provide motor scooters to disabled people because it
found that "the zoo's scooter rental program went 'above and
beyond' its general obligation under the ADA to make its
services, programs, and activities accessible to disabled
patrons[,]" so charging a rental fee for such scooters did not
constitute an unlawful surcharge. Meagley, supra, 639 F.3d at
390. The Court of Appeals found that "the zoo's scooter rental
21 A-2106-13T2
service . . . was merely a convenience for all zoo visitors" and
"[m]oreover, disabled patrons were permitted to bring their own
scooters or other mobility devices to the zoo to use without
charge." Id. at 390-91.
Likewise, a federal district court in Pennsylvania found no
illegal surcharge was being imposed where Amtrak charged
wheelchair-bound customers a $200 per-ticket fee when their
travel required extra space for their wheelchairs beyond what
was expressly required9 by the ADA. Disabled in Action of Pa.,
supra, 418 F. Supp. 2d at 658. The court found that because the
ADA did not require this accommodation, charging a fee for it
did not amount to an unlawful surcharge. Ibid.
C.
Plaintiff and the amicus cite to no authority that
specifically "requires" governmental agencies to provide
disabled persons with personalized spaces in front of their
residences as a form of reasonable accommodation. In fact, as
defendants note, the Public Access Section of the United States
Department of Justice (the "DOJ") issued an opinion letter on
9
Part B of Title II of the ADA required the train to have a
number of spaces to secure wheelchairs "equal to not less than
the total number of single-level rail passenger coaches" on the
train. 42 U.S.C.A. § 12162(a)(3)(A)(ii)(I)-(II). The
plaintiffs demanded twelve such wheelchair spaces, but the ADA
formula only required the train to have six. Disabled in Action
of Pa., supra, 418 F. Supp. 2d at 655-56.
22 A-2106-13T2
November 3, 1992 concluding that a city's practice of charging
fees for reserved parking spaces for handicapped persons that
are not "generally available to the public" is not
discriminatory or in violation of federal law. The DOJ opinion
letter evaluated a city's adoption of an ordinance "allowing
certain individuals, including persons with disabilities, to
purchase curbside parking rights on a monthly basis" for a fee
of $25.
The DOJ reasoned that the ordinance at issue was not
invalid under federal anti-discrimination laws because: (1) the
service was not generally available to the public (as the city
only allowed curbside parking up to two hours a day without
penalty and this ordinance allowed individuals to acquire access
for up to eight hours a day); and (2) the fee was not
discriminatory (as the fee was less than the cost "a
non[]disabled person would ordinarily have to pay for monthly
parking in the downtown area"). The DOJ letter did note that,
by contrast, "[u]nder certain circumstances, a city's parking
policy might be discriminatory." By way of a counter-example,
the letter noted that an illegal surcharge might exist where,
hypothetically, a "monthly parking fee in the city's parking
garages [was] higher for persons with disabilities than for
23 A-2106-13T2
persons without disabilities or if these garages did not provide
adequate parking spaces for persons with disabilities[.]"
Although the DOJ's opinion letter is not totally
dispositive of the federal law issues posed here, we accord it
considerable weight. The letter was issued pursuant to the
DOJ's authority to furnish technical assistance to individuals
and entities concerning their obligations under the ADA. See 42
U.S.C.A. § 12206. To the extent the letter interprets DOJ
regulations, such as those administered under the ADA, it is
"entitled to substantial deference." Rodriguez v. Barrita,
Inc., 10 F. Supp. 3d 1062, 1081 n.15 (N.D. Cal. 2014) (citing
Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1028 (9th Cir.
2008), cert. denied, 555 U.S. 1208, 129 S. Ct. 1349, 173 L. Ed.
2d 648 (2009)).
Applying similar reasoning here, the fee charged under the
City's ordinance for personalized handicapped spaces does not
constitute an unlawful surcharge under the ADA or any related
federal provisions. Such personalized parking spaces have not
been declared to be a "required" measure under federal law. As
the City correctly notes in its brief, "[n]either the ADA itself
nor any of its regulations or technical materials contain any
[explicit] requirements for the provision of [personalized] on-
street parking by a municipality." None of the cases cited in
24 A-2106-13T2
plaintiff's brief or that of the amicus have imposed such a
requirement on states or municipalities.
A requirement for free personalized spaces in front of a
disabled person's residence, if it existed at all, would impose
a much greater burden on the government than already-existing
parking-related requirements. For example, as was previously
discussed, it is generally accepted that removable handicapped
parking placards are required under the ADA, even when public
entities also provide handicapped license plates to disabled
motorists at no charge. This is because such placards provide
more flexibility to handicapped citizens who might not own a
car, receive rides from someone else, and so on.
Requiring public entities to go further and provide
handicapped individuals with personalized parking spaces on
their residential streets is markedly different from merely
requiring the provision of cost-free, portable parking placards.
Unlike portable placards, such personalized spaces do not
function as a prerequisite for participation in federally-
mandated access programs, such as ADA requirements for a
specified number or percentage of handicap-accessible parking
spaces at various public and private institutions.
Plaintiff and the amicus have not demonstrated on the
present record that generic handicapped parking spaces, which
25 A-2106-13T2
the City now provides free of charge and upon request, are
insufficient under federal law to meet the needs of handicapped
residents on their streets. The challengers have not supplied
any factual evidence that generic spaces have been insufficient
to accommodate handicapped Passaic residents. This is not a
situation comparable to Fortyune v. City of Lomita, 823 F. Supp.
2d 1036 (C.D. Cal. 2011) aff'd, 766 F.3d 1098 (9th Cir. 2014),
cert. denied, ___ U.S. ___, 135 S. Ct. 2888, 192 L. Ed. 2d 294
(2015), in which a plaintiff's ADA claims against a defendant
city survived a motion to dismiss where the city had apparently
failed to provide any generic handicap-accessible public parking
in its on-street diagonal stalls.
Plaintiff assumes that the City's generic spaces are
inadequate by implication because the City has elected to adopt
an ordinance that allows disabled residents who live on
qualifying streets to obtain personalized spaces for an annual
fee. Yet the City's voluntary decision to offer such an
optional benefit is not the equivalent of an admission or
concession that the benefit is required as a reasonable
accommodation under federal law.10 Nor does the Legislature's
10
See, e.g., Corder v. Lucent Techs., 162 F.3d 924, 928 (7th
Cir. 1998) (finding that an employer who "went the extra mile"
in providing accommodations that exceeded ADA requirements was
not liable for denying the plaintiff her preferred alternative
(continued)
26 A-2106-13T2
passage of N.J.S.A. 39:4-197.7 in 1977 authorizing New Jersey
towns and cities to offer such personalized spaces represent an
admission by the State that this exclusive benefit is required
under the anti-discrimination laws.
In sum, in making the personalized-space option available,
the City is going "'above and beyond' its general obligation
under the ADA[,]" and thus the fee charged for personalized
spaces does not constitute an unlawful surcharge. Meagley,
supra, 639 F.3d at 390. The circumstances are akin to the
situation deemed non-discriminatory in the DOJ's opinion letter,
as the City is offering disabled residents who want personalized
parking spaces in front of their residences a service that is
not generally available to the public. Only handicapped
individuals or family members in their households are eligible
to apply for the service. No equivalent program allows
(continued)
accommodations); Vande Zande v. Wisconsin Dep't of Admin., 44
F.3d 538, 545 (7th Cir. 1995) ("[I]f the employer . . . bends
over backwards to accommodate a disabled worker [by] go[ing]
further than the law requires . . . , it must not be punished
for its generosity by being deemed to have conceded the
reasonableness of so far-reaching an accommodation."); Brookins
v. Indianapolis Power & Light Co., 90 F. Supp. 2d 993, 1007
(S.D. Ind. 2000) (declining to obligate an employer who provides
accommodations "above and beyond" those necessary under the ADA
to continue those services indefinitely, noting that it would
"effectively punish[]" the employer for exceeding the ADA's
"reasonable accommodation" requirements).
27 A-2106-13T2
non-handicapped individuals to obtain personalized spaces in
front of their own houses. Hence, charging a fee for this
optional benefit does not run afoul of the ADA or federal law.
D.
We reach the same conclusion under the NJLAD and the
associated New Jersey regulations, including N.J.A.C. 13:13-4.6
(providing that it is unlawful under the NJLAD for a place of
accommodation "to impose a surcharge on a particular person with
a disability . . . to cover the costs of measures, such as the
provision of auxiliary aids, barrier removal, alternatives to
barrier removal, and reasonable modifications in policies,
practices, or procedures, that may be required by law")
(emphasis added).
No New Jersey statute or regulation requires municipalities
to furnish personalized spaces to disabled persons in front of
their residences. Although we agree that the City and the State
are subject to the NJLAD's anti-discrimination laws covering
"public accommodations," N.J.S.A. 10:5-12(f)(1), the NJLAD has
not been construed to require such an exclusive parking benefit
on public streets for disabled residents. N.J.A.C. 13:13-4.6 is
not triggered because the personalized spaces are not "required
by law."
28 A-2106-13T2
In adjudicating disability discrimination claims under the
NJLAD, our courts have regularly looked to cognate principles
under the ADA and related federal law for guidance. See, e.g.,
Lasky v. Moorestown Twp., 425 N.J. Super. 530, 538 (App. Div.),
certif. denied, 212 N.J. 198 (2012). As we have already shown,
those cognate federal provisions do not mandate such an
accommodation.
Moreover, plaintiff and the amicus have provided no
persuasive justification for construing the statutory authority
for fee-based personalized parking spaces in N.J.S.A. 39:4-197.7
in a manner that conflicts with the NJLAD. Instead, we construe
the two statutes in pari materia, and discern no true conflict
between them.11
E.
That all said, we do not ignore or minimize the legitimate
concerns that disabled residents have in assuring that they will
have a parking space conveniently available in front of their
residences when they need it. As the Legislature recognized in
11
Although we are not bound by his position, we note that the
Attorney General, who is the legal adviser to most state
agencies and whose Division on Civil Rights enforces the NJLAD,
maintains that the permit fee provision in the Title 39 statute
and the City's ordinance do not discriminate against disabled
persons in violation of the NJLAD or its regulations. See
Quarto v. Adams, 395 N.J. Super. 502, 513 (App. Div. 2007)
(acknowledging the non-binding degree of deference accorded to
the Attorney General's interpretation of New Jersey laws).
29 A-2106-13T2
adopting N.J.S.A. 39:4-197.6 and -197.7, the limited
availability of parking on some public streets can pose a
hardship to persons who are handicapped and who cannot at times
find parking near their homes. We are also mindful that the
vehicles of visitors or other persons with valid handicapped
placards sometimes will occupy the generic parking spaces
located in front of another disabled person's home. But the
lack of a guaranteed parking space on one's street is also
unfortunately a fact of life for residents who are not disabled.
Indeed, some people who might not qualify for a handicapped
parking permit (such as pregnant women, the elderly, or persons
with a badly sprained ankle) can have considerable physical
difficulty in getting from a distant street parking space to and
from their front doors.
Here, the City has made an earnest effort to address this
problem for its disabled residents by issuing personalized spots
to them, upon request, for a reasonable annual fee. The law, at
least as it presently stands, does not require that such spaces
be provided as of right and at public expense. Of course,
nothing in this opinion prevents the Legislature or a
municipality's governing body from enacting provisions that
would require permits for such personalized spaces to be
provided free of charge.
30 A-2106-13T2
For these many reasons, we affirm the trial court's
rejection of plaintiff's facial challenge to the statute and to
the City's ordinance. In doing so, we mention two important
caveats. First, we do not foreclose a future "as-applied"
challenge based on competent evidence demonstrating that a
municipality's provision of free generic handicapped parking
spaces does not, in actual practice, reasonably accommodate the
parking access needs of its disabled residents. Second, we do
not foreclose a future challenge to a permit fee imposed for a
personalized handicapped parking space that, unlike the modest
$50 annual fee charged here by Passaic, is manifestly
exorbitant.
Affirmed.
31 A-2106-13T2