Daily Development for Friday, January 14, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
Note 2 related reports here.
SERVITUDES; COVENANTS; USE RESTRICTIONS; PARKING: Although an association may not impose independent traffic controls on municipally controlled streets, even as applicable to its own residents, it may restrict residents’ parking activities on city streets.
Verna v. The Links at Valleybrook Neighborhood Association, Inc., 371 N.J. Super. 77, 852 A.2d 202 (App. Div. 2004); July 6, 2004. (Discussed further under the heading: “Associations; Powers of Association; Elections.”
A homeowner owned a townhouse in a planned unit development governed by a neighborhood association. The owner was a self-employed electrician, which required him to use a large commercial van. Most often he kept it parked in his driveway. The van's appearance troubled the association because the association's governing documents barred parking commercial vehicles without prior written consent of the board of directors of the association. The van had commercial license plates, a magnetic commercial sign on its side, and a roof rack holding several ladders and PVC tubing. After much acrimony, the homeowner agreed to stop parking his van in his driveway.
Occasionally, however, the owner parked the van in the street. A provision of the rules stated that commercial vans could not be parked on streets in the neighborhood without prior Board permission. Of course, the Board was not about to give permission here.
But the municipality had recently passed an ordinance turning roads within the development into public streets. The owner contended nevertheless that the association did not have the authority to prevent him from parking in the street once the streets had become public. The lower court held that although an association may not enforce its own traffic regulations, it does have the power to regulate parking, and upheld sanctions imposed on the homeowner for violations of the parking rule.
The Appellate Division affirmed, concluding that the ability to regulate parking is similar to a neighborhood scheme created by deed restrictions. Such a scheme, as a matter of contract, may impose greater limits on an owner's use of property than governmental restrictions. The court indicated that it found only one case upholding this authority - Maryland Estates Homes Assoc. v. Puckett, 936 S.W. 2d 218 (1996) with very little discussion. It also noted a New Jersey decision, State v. Panther Valley Prop. Owners Ass'n, 307 N.J.Super. 319, 704 A.2d 1010 (App.Div.1998), that had held that an association, having ceded authority to the municipality over its streets and roads, cannot thereafter regulate traffic on those roads, even when the drivers are community residents. But it concluded that this decision was not decisive in the instant case.
“There is a significant distinction between an association's power to regulate traffic and its power to regulate parking. N.J.S.A. 46:8B-15(f) states that, if authorized by master deed or bylaws, an "association may impose reasonable fines upon unit owners for failure to comply" with its existing regulations, but "an association may not impose fines for moving automobile violations." Since N.J.S.A. 46:8B-15(f) applies here, its express declaration that moving violations may not be regulated by an association demonstrates there is no prohibition against an association regulating the streets in some other manner. This comports with the general rule of statutory construction that "enumerated exceptions in a statute indicate a legislative intent that the statute be applied to all cases not specifically excepted."
In fact, in Panther Valley, the statute discussed above did not apply (as it would have here), but the court had concluded that other sound reasons existed for giving the municipality sole control over moving traffic, including concerns about uniform enforcement and potential interference with public law enforcement officials. The court, however, noted that the modern version of the New Jersey statute set forth above contains a specific exemption for parking fines, and
Comment 1: Note that this issue was discussed extensively on DIRT about a year ago and the court here runs on parallel tracks with the views expressed by many DIRTers, including the editor. The parties could have saved a lot of money letting us decide the issue.
Comment 2: Although the editor agrees with the decision, he is of the view that the principle that resident behavior on land other than association land can be governed by association rule should be applied very sparingly, as in most cases there is an insufficient nexus between the conduct in question and the overall interests and objectives of the association.
WORDS AND PHRASES; “COMMERCIAL VEHICLE;” A small van is a “commercial vehicle” within the meaning of an association rule controlling parking of such vehicles when the van has ladders strapped to the top, magnetic advertising signs on its sides, and a commercial license.
Verna v. The Links at Valleybrook Neighborhood Association, Inc., 371 N.J. Super. 77, 852 A.2d 202 (App. Div. 2004); July 6, 2004.
The court indicated that the presence of the commercial license plate likely was dispositive of itself. In addition, the court stated that the van's primary, if not exclusive, use and appearance suggested that it was related to plaintiff's business and, therefore, constituted a "commercial vehicle" within the common and ordinary meaning of those words.”
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