A New Jersey appeals court recently addressed whether municipalities can charge fees for designated handicapped parking spaces on residential streets. In Dial Inc. v. City of Passaic, the Appellate Division of the New Jersey Superior Court upheld an ordinance that 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 Facts of the Case
In 2012, the City of Passaic (City) adopted a municipal ordinance pursuant to N.J.S.A. 39:4-197.7, which “permit[s] municipalities, by ordinance, to establish restricted parking zones in residential areas for use by handicapped persons[.]” The amendment to the City’s parking ordinance 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.
Dial, Inc., an advocacy group for the disabled, objected to the ordinance and ultimately filed suit. Dial alleged that the fee provisions within N.J.S.A. 39:4-197.7 and Passaic’s parking ordinance were preempted under several state and federal laws, including the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD). While the City later acknowledged that the permit fees it was charging under the ordinance for generic handicapped parking spaces were improper, it stood by the remainder of the ordinance. The City argued that fees 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. The trial court agreed that the ordinance’s fee provisions for personalized spaces are not discriminatory and do not violate any federal or state laws protecting the rights of disabled persons.
The Court’s Decision
The Appellate Division upheld the trial court’s decision. In so ruling, the appeals court rejected the argument that the fee charged under the City’s ordinance for personalized handicapped spaces constituted an unlawful surcharge under the ADA.
In determining whether a fee violates the ADA, courts are required to consider whether it constitutes a charge that nondisabled people would not incur. In applying this test, the Appellate Division looked to an opinion letter issued by the Public Access Section of the United States Department of Justice. It had concluded 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.
With regard to Passaic’s ordinance, the New Jersey appeals court noted, “such personalized parking spaces have not been declared to be a ‘required’ measure under federal law.” The opinion also highlighted that the option to obtain personalized spaces in front of their own houses was not available non-handicapped individuals.
According to the panel, “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.” Accordingly, the ordinance did not violate the ADA.
The Appellate Division similarly held that the ordinance’s fee provision did not run afoul of the NJLAD and other state laws, noting that “[n]o New Jersey statute or regulation requires municipalities to furnish personalized spaces to disabled persons in front of their residences.”
For more information about the case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.