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NOT FOR PUBLICATION WITHOUT THE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