Q I am a member of the governing body in our municipality, and we are in the midst of revising our ordinance regulating parades. Our current ordinance has a nominal permit fee, which is in line with the minimal cost to the community of most parades here. However, once in a while a group with extremely controversial views will apply for a permit, and we will have to increase our normal security measures to keep things peaceful. This will incur extra costs for police overtime, outside security people, etc. Can we pass any of this extra cost on to the applicant as an increased security fee.
A Municipalities are expressly given the power by statute to pass ordinances that regulate parades. (N.J.S.A. 40:67-1 (I)). However, such ordinances must be carefully and narrowly drawn to further a valid municipal interest, and must not discriminate or impinge on the constitutional rights of free expression and free assembly. Perhaps most important, they must be "content neutral" by their terms and in their application. This means that an individual or group cannot be regulated different ly because of the message that they are trying to convey, even if the purpose of the regulation is to ensure peace and good order and protect the residents of the municipality from injury. The United States Supreme Court struck down an ordinance as unconstitutional in 1992 because it allowed the county administrator to vary the fees for assembly and parade permits based upon the estimated cost of maintaining public order. (Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 1992). The court held that the law lacked narrowly drawn, reasonable, and definite standards to determine the amount of the fee, and that it unconstitutionally required the administrator to examine the content of the message to estimate the public cost. A New Jersey Court similarly struck down a municipal ordinance which allowed the police to use the controversial nature of views to be expressed in a parade as a criterion to decide whether to issue a permit (Faculty Ad Hoc October 15th Vietnam Moratorium Committee v. Borough of Glassboro, 111 N.J. Super. 258, Ch. Div. 1970).
In light of this legal authority, while a reasonable, nondiscriminatory parade permit fee can certainly be charged, the determination of the amount of the fee must be content neutral, and any variation in the fee must be supported by clearly defined, narrowly drawn standards for its determination. In other words, while the fee might vary according to how long the parade will last or the number of participants, it cannot vary on the basis of the subject matter of the parade or the views to be expressed by its participants. Furthermore, a municipality cannot pass on the cost of governmental functions, like police protection, to the applicants. The safest course for any municipality is to establish a standard, reasonable fee that will help defray the costs of all parades.
Q I have been operating an employment counseling business out of the first floor of my residence for many years. When I first started the business, the district in which my house is located was zoned for mixed use. When it was later rezoned residential only, I was allowed to continue my business as a prior nonconforming use. I am now planning to add to the residential space of my house by having an addition constructed. Since I am expanding only the conforming use of my home, am I correct in thinking I do not need a use variance?
A A recent New Jersey Appellate Division case holds that, in fact, you do need to apply for a use variance. In Conselice v. Seaside Park, Docket No. A-3058-01T2, decided March 18, 2003, the court found that the owner of a nonconforming mixed use in a residential zone consisting of a first floor real estate office and a residence above could not expand the residence without a use variance. The opinion analyzed the situation as the expansion of the entire mixed use, not just the expansion of the conforming use. The two uses could not be viewed separately for these purposes, especially since parking needs, pedestrian traffic and other factors might be influenced by the change. The opinion also pointed out that nonconforming uses are disfavored in the law, and strict regulation and gradual elimination of such uses are encouraged.
This column is for informational purposes only, and is not intended as legal advice.