STATE OF NEW JERSEY v. ELLEN HEINE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2804-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELLEN HEINE,

Defendant-Appellant.

________________________________________________________________

December 7, 2009

Submitted November 30, 2009 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-03-08.

Ellen Heine, appellant pro se.

Piro, Zinna, Cifelli, Paris & Genitempo, P.C., attorneys for respondent (Raymond B. Reddin, on the brief).

PER CURIAM

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.

I.

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 the Garfield Municipal Court for disposition.

On appeal, defendant raises the following claims:

I. TO DENY A BUILDING'S, NON-RESIDENT OWNER "ON STREET PARKING" BETWEEN 3: 00 A.M. AND 6:00 A.M. DISCRIMINATES AGAINST THE NON-RESIDENT OWNER. THIS DISCRIMINATION DENIES THE NON-RESIDENT OWNERS THE USE OF THEIR PROPERTY.

II. USING THE "ENTIRE CONTROVERSY DOCTRINE," SUMMONS 6 774 AND 6004 ARE PART OF THE SAME CONTROVERSY.

III. QUASI-CRIMINAL PROCEEDINGS MUST FOLLOW THE RULES OF CRIMINAL PROCEEDINGS. N.J. COURT RULES R. 3:3-1. THE FIFTH AMENDMENT STATES THAT A DEFENDANT SHALL NOT BE SUBJECTED TO DOUBLE JEOPARDY.

IV. GARFIELD ORDINANCE 341-31 HAS DEFECTS. IT IS UNCONSTITUTIONALLY VAGUE.

II.

As is evident from her points on appeal, defendant does not base her claims on the sufficiency of the evidence that led to her convictions. Instead, her arguments on appeal are legal in nature. Consequently, we review them de novo. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We turn first to Point I, in which defendant argues that Garfield's overnight parking ordinance establishes two classes of residents, those who hold a driver's license and auto registration bearing a Garfield address and those who do not. She maintains that this differing treatment is "capricious and discriminates against a whole group of residents," some of whom "do not even have off-street parking." As to them, "[t]he lack of ability to park on the street represents a loss of use of property and could be compared to a 'taking without justification' which is a violation of 5th and 14th Amendment rights."

Municipalities are authorized to "prohibit or restrict general parking." N.J.S.A. 39:4-8(c)(1). Municipal ordinances are presumed to be both valid and reasonable, and the burden is upon the party challenging the ordinance to demonstrate its invalidity. First Peoples Bank of N.J. v. Twp. of Medford, 126 N.J. 413, 418 (1991). Unless an ordinance impinges upon a fundamental constitutional right, such as the right to privacy, the right to have and rear children, the right to marry, or the right to the free exercise of religion, a municipal ordinance will be evaluated under the "rational basis" standard. Sente v. Mayor of Clifton, 66 N.J. 204, 218, 221 (1974). Here, where no fundamental constitutional right is implicated, the Garfield parking ordinance will be evaluated under a "rational basis" test. We will uphold the ordinance "as long as the means [chosen] are reasonably related to a legitimate objective." Id. at 218. Legitimate objectives, in turn, involve "the safeguarding of the public health, safety and morals." Id. at 219.

Similarly, an analysis under the equal protection clause involves different tiers of review. Greenberg v. Kimmelman, 99 N.J. 552, 564 (1985). Where a fundamental right or suspect classification is involved, a legislative enactment will be reviewed under the strict scrutiny standard, which requires the State to establish "that a compelling state interest supports the classification and that no less restrictive alternative is available." Ibid. Classifications found to be suspect are those that discriminate on the basis of race, religion, or alienage. State v. Senno, 79 N.J. 216, 225 (1979). No such claims are asserted here. Thus, as with the fundamental constitutional right question, defendant's claims under the equal protection clause must be analyzed under the "rational basis" test.

The State maintains the overnight parking ordinance withstands constitutional attack. In particular, the State asserts that the preference in favor of those who actually reside within City limits was enacted "to facilitate parking situations for [Garfield] residents due to a critical parking shortage." The State maintains that if non-resident owners of property were to be granted overnight parking permits on an equal footing with those who actually live in the City, actual residents would be denied sufficient parking spaces. The State further maintains that if City officials were required to issue overnight parking permits on a case-by-case basis without regard to residency, based only upon a showing good cause, the City would become mired in costly and time-consuming disputes and appeals.

We agree with Judge Lipton's conclusion that such justifications are sufficient to survive rational basis review under both the due process and equal protection clauses. Providing sufficient parking for residents is a legitimate objective because residents continuously require quick and safe access to their vehicles from their homes. Presumably, those persons who own property within the City, but do not actually reside there, will have parking available to them where they actually live. Thus, the system designed by the City, which establishes a preference for property owners who actually live in Garfield, serves a legitimate governmental interest.

Under a "rational basis" standard of review, we find nothing offensive in a scheme that provides overnight parking privileges to persons who actually live in the municipality, who send their children to school there, and who enhance the social fabric of the community, as opposed to those whose property ownership in the City promotes only a financial interest as a landlord, and who have access to parking privileges elsewhere. Thus, the award of overnight parking privileges to those who actually live in Garfield preserves the limited parking spaces for the citizens who need it most, and only denies such privilege to those having a more limited need for such parking. Those objectives are reasonable, defendant's contentions to the contrary notwithstanding. Thus, the reasonableness of the ordinance, when combined with the presumption of validity to which it is entitled, First Peoples Bank, supra, 126 N.J. at 418, causes us to reject the claims defendant advances in Point I. We conclude that the overnight parking ordinance satisfies all constitutional requirements.

III.

We turn next to Point II, in which defendant asserts that the issuance of the oversized vehicle summons on April 23, 2008 -- after the April 2, 2008 trial in the municipal court on the illegal dwelling unit charge had already concluded -- violates the entire controversy doctrine and requires the dismissal of the overweight vehicle charge. The entire controversy doctrine requires a litigant to present "all aspects of a controversy in one legal proceeding." Manaker Corp. Stockholders Protective Comm. v. First Jersey Nat'l Bank, 163 N.J. Super. 463, 496 (App. Div. 1978), certif. denied, 79 N.J. 488 (1979). Defendant has presented no authority demonstrating that criminal or quasi-criminal matters are subject to the constraints of the entire controversy doctrine, and we are aware of no such authority. We thus decline to consider defendant's entire controversy doctrine claims, and instead analyze the issue under the double jeopardy principles defendant advances in Point III.

IV.

In Point III, defendant maintains that a prosecution for maintaining an overweight vehicle, following her acquittal on the charge of maintaining an illegal dwelling unit, violates the double jeopardy clause. The double jeopardy clause protects against three types of abuses: "a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." State v. Widmaier, 157 N.J. 475, 489-90 (1999).

To determine if a defendant is unconstitutionally faced with multiple punishments for the "same offense," we examine the two legislative enactments to determine whether each one requires proof of an additional fact the other does not. State v. Eckert, ____ N.J. Super. ____, _____ (App. Div. 2009) (slip op. at 11-13). We will also analyze whether the two enactments seek to further the same, or different, legislative objectives. Id. at 16-18. So viewed, we are satisfied that a prosecution for violations of both the overweight vehicle ordinance and the illegal dwelling unit ordinance serve entirely different societal goals and require vastly different proofs. The former ordinance is designed to prevent vehicles of excessive size from blocking vehicular traffic on public roadways; the latter is designed to promote enforcement of electrical, plumbing, fire, and construction codes for the safety of residents. Under those circumstances, there is no double jeopardy violation. We thus reject the claim defendant advances in Point III.

V.

The claim defendant presents in Point IV, that the oversized vehicle ordinance is unconstitutionally vague, lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).