Postal workers continue to get ticketed for a ‘violation’ that a lawyer contends doesn’t exist on the books.

The sun is high, and the RBC students who drive themselves to school are away, meaning long stretches of Hudson Avenue have no cars parked at the curb.

But the doldrums of summer haven’t stopped what a local attorney contends is the unlawful issuance of tickets to Postal Service workers who park their cars on the residential street.

Bill McCarter, of the firm McCarter & Higgins on Drs. Parker Boulevard, has filed suit in state Superior Court in Freehold asking a judge to order Red Bank to stop issuing tickets for a violation he says doesn’t exist in borough ordinances.

The ordinance that’s cited on the tickets “has nothing to do with parking on residential streets,” McCarter wrote in a complaint submitted to the court this week. “Despite the posted signs, there is no ordinance in the Borough of Red Bank restricting parking on any residential street to residents only.”

The lawsuit is the latest element of McCarter’s assault on an ordinance amendment adopted by the borough council earlier this year at the behest of what McCarter says in the suit was a few residents who “complained to the governing body that non-residents were parking in front of their homes, which for reasons unknown offended them.”

McCarter says the amendment was unconstitutionally tailored to benefit one group of citizens over all others. Or, to be more accurate, he says it would do that, if it actually reflected the council’s intent. McCarter contends that all it does is allow residents to obtain stickers for their cars, without prohibiting anyone else from doing anything.

“It doesn’t say anything about people not having a permit not being allowed to park on” streets with so-called resident-only parking, McCarter tells redbankgreen. Nor does any other ordinance, he claims.

Back in May, Red Bank Judge William Himelman dismissed a ticket issued to McCarter’s client, Tai Troung, a postal worker. At the time, it was unclear why Himelman ruled as he did — he gave no immediate explanation. But after McCarter interpreted the dismissal as a possible ruling on the constitutionality of the ordinance establishing permit parking, the borough sought a clarification. Himelman responded with a letter saying he’d shot down the ticket because it cited the wrong ordinance.

The ordinance cited on Truong’s ticket, 8-2.6, pertains to paid parking permits. Hudson Avenue residents can obtain permits for free.

McCarter says there is no other ordinance on the books that would make it illegal for someone to park on a street where the borough allows residents to obtain parking permits.

(McCarter also contends the borough isn’t even following its own laws, issuing permits on request to Hudson residents without requiring any proof that they have no parking available on their own property, as the ordinance requires. The homes on Hudson, he says in the lawsuit, “almost universally have on-site parking space[s],” and thus wouldn’t qualify for permits.)

Given that McCarter won Truong’s case at municipal court, why is he suing? Because Truong, he says, received an identical ticket just six days after the first one was dismissed. McCarter says the borough court would not dismiss the second summons over the phone, so he had to make another trip to the weekly cattle call known as municipal court to get the summons dismissed.

Truong, McCarter says in the lawsuit, has been wronged by the two “unfounded” summonses and faces the prospect of more unless Red Bank is ordered by the Superior Court to stop issuing them.

McCarter also contends that on June 26, at least three other postal workers had their cars ticketed solely for violations of 8-2.6.

More broadly, the lawsuit is McCarter’s effort to overturn the resident parking concept on constitutional grounds. He contends there is no state statute allowing towns to enact resident-only parking laws, and even if there were, he writes,

…the right to use the public highways is a right available to all the public, and not just the persons who resident adjacent to such highways. Accordingly, any such ordinance would be a violation of the public trust doctrine under the Constitution of the State of New Jersey.

Red Bank Borough Attorney Tom Hall tells redbankgreen he has not had a chance to closely study the Truong lawsuit, and declined to comment on its particular assertions.

On the general issue, though, he tells redbankgreen that while the U.S. Supreme Court has upheld the right of municipalities to create resident-only parking zones, “no New Jersey court has ever specifically ruled on the issue” of whether they’re allowed under the state constitution.

Here’s the ordinance that started this dispute: Download hudson_permits.pdf

Here’s Himelman’s letter explaining his dismissal of the first Truong ticket: Download HimelmanOpinion.pdf

Here’s the complaint McCarter filed against the borough this week: Download complaint_truong_red_bank.pdf

And here’s the text of 8-2.6 as we found it at General e-code, a municipal law database:

(A 2006 amendment created a 30-day permit available for $100.)

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