|Legal Opinion: |
Text of Document: June 7, 1993
Your question is, can a municipality restrict parking on city streets in certain areas to customers of businesses in those areas? You faxed me correspondence between you and Dennis Huffer on the same question. Dennis concluded that such a restriction would be illegal and, from a practical standpoint, unenforceable.
In my opinion, Dennis hit the mark. I can only supplement what he said with a good annotation found in 70 ALR3d 1323, entitled, "Validity of Regulation Providing For Reserved Parking Spaces Or Parking Priority On Publicly Owned Property For Members of A Designated Group." As that annotation points out, the courts have upheld a number of parking schemes that favored a certain class or classes in off street public parking areas, but
If the regulation at issue establishes reserved parking spaces or parking priority on a public street or highway which is held in trust for the benefit of all the public, and not merely for the benefit of the citizens of the governmental unit enacting the regulation, the courts appear more inclined to hold the regulation invalid as a violation of the equal protection clause than they are when the regulation establishes parking preferences in an off street parking lot. This may be due not only to the expansion in the number of persons entitled to the use of the property that occurs when the property involved is a public street instead of a parking lot, but also in part to the precedents set by early cases in which the courts almost uniformly held that municipalities could not appropriate portions of public streets for use as marketplaces, and to the well-established principle that where a street is involved, the public interest must always be held paramount to all other interests.
The annotation cites no cases involving the specific question of whether customers can be treated as a favored class of motorists, but it includes cases involving on street parking restrictions that favor residents of a municipality over non residents, and abutting property owners over non abutting property owners. The heavy weight of authority is that such restrictions are illegal. The same rationale expressed in those cases probably applies to cases involving on street parking restrictions favoring customers (or businesses, if your question is viewed from that direction).
However, one case in the annotation appears nearly on point. In Roller v. Stoecklien, 143 N.E.2d 181 (1957), the chief of police of an Ohio city issued a departmental order prohibiting employees of the safety department from parking private cars in several parking spaces "by custom or policy, and not by law" reserved for businessmen whose businesses abutted the street. A police officer told to remove his car from one of the spaces essentially told his superior officer to drop dead, and was fired for insubordination. The Court of Common Pleas of Ohio reversed the termination on two grounds. The first ground was that the police chief didn't have the legislative power to designate parking areas. The second ground the Court noted only parenthetically, but it's the one that addresses your question:
[Neither the chief of police nor the legislative authority of the municipality has the power to designate public ways for the exclusive benefit of individual citizens or to arbitrarily exercise discrimination against individual citizens or groups of citizens, by prohibiting their use of such public ways.] [Emphasis is mine.]
Even if the city council instead of the police chief in that case had enacted the parking restriction favoring abutting business owners, it wouldn't have withstood challenge.
A parking restriction favoring residents also partially favored parking for businesses in County Board of Arlington County v. Richards, 231 S.W.2d 231 (1977). There parking permits were required for parking in a certain residential area. Permits were issued only to residents of the residential area, visitors of the residents, and persons who did business with the residents. The Supreme Court of Virginia struck down that restriction as a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
The Court reached that conclusion even though a reading of that case indicates the restriction was designed to ameliorate a genuine parking hardship upon the residents of the residential area in question. The residential area consisted of 101 residences and 192 on street parking spaces located across the street from "Crystal City," a complex of high rise office and commercial buildings where 20,000 people were employed. Most of the people who worked in Crystal City commuted to work. Needless to say, they filled the on street parking spaces in the residential area. Even so, said the Court,
The right to park in a public street is not a right incidental to ownership of abutting land but rather one which is incident to the use of the street for travel and which is shared by the property owners in common with all other members of the travelling public....Local governments have a legitimate interest in regulating the cause of the manifold problems which result from parking congestion. But the cause of such problems is the use of public streets by motorists in general, wherever they live and work. A regulation which treats the cause by favoring motorists who happen to reside along a public street at the expense of those who live elsewhere may relieve the problems, but solutions achieved at the price of individual discrimination are too dear.
A number of cases have upheld on street parking restrictions favoring commercial vehicles, public vehicles, and even public employees, and restrictions on parking time. However, the general long established rule that abutting property owners cannot be given favorable on street parking treatment probably bars municipalities from giving favorable on street parking treatment to the customers of businesses abutting, or located near, the streets.
Sidney D. Hemsley
Senior Law Consultant