Opinion
DOCKET NO. A-2104-13T3
03-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JIHBIN HWANG, Defendant-Appellant.
Cynthia M. Hwang argued the cause for appellant (New Jersey Chinese Community Center Legal Services, attorneys; Ms. Hwang, on the brief). John E. Kawczynski, Township of Piscataway Municipal Prosecutor, argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 51-2013. Cynthia M. Hwang argued the cause for appellant (New Jersey Chinese Community Center Legal Services, attorneys; Ms. Hwang, on the brief). John E. Kawczynski, Township of Piscataway Municipal Prosecutor, argued the cause for respondent. PER CURIAM
Defendant Jihbin Hwang appeals from his de novo conviction for violating a provision of a zoning ordinance of the Township of Piscataway's (the "Township"). We affirm.
I.
Defendant is the owner of a residence on East Lincoln Avenue in the Township (the "house" or "property"). On March 12, 2013, defendant was charged with "running a boarding house in a residential zone," in violation of Section 21-601 of the Township's Zoning Ordinance. Piscataway, N.J., Code § 21-601 ("Section 21-601"). This section of the zoning ordinance provides in pertinent part that, no building or land shall be "used or intended to be used for any purpose other than those included among the uses listed as permitted uses in each zone by the ordinance[.]" Ibid.
Three other summonses were issued to defendant, charging him with operating an illegal boarding house, violating regulations pertaining to rubbish and garbage, and violating requirements for weeds and grass. The State later dismissed these summonses.
It is undisputed that the property is located in the Township's R-15 zone, where only single-family residences are permitted. Section 21-3 of the Township's zoning ordinance defines the term "family" to mean "one, or more persons occupying a dwelling unit, who prove by clear and convincing evidence that the dwelling unit is occupied as a single non-profit housekeeping unit." Piscataway, N.J., Code § 21-3.
The matter was tried in the municipal court on September 26, 2013. C.Y. testified that he resided at the property from August 28, 2012 to March 15, 2013, when the summonses were issued alleging that the occupants were using the house illegally. C.Y. said that he resided in the home with five other persons. C.Y. and four other occupants were students at Rutgers University. The other occupant was not a student.
We refer to the witness by his initials, to protect his privacy.
--------
C.Y. explained that he had seen an advertisement posted "in the classmates website" by a person named "Jimmy Hwang." C.Y. and his classmate entered into a lease with "Jimmy Hwang" for the house for a one-year term, with a monthly rent of $2200. C.Y. identified defendant as the "Jimmy Hwang" who leased the property to him.
C.Y. and his classmate posted advertisements on Rutgers websites indicating that they were looking for roommates. The other occupants responded to the advertisements and they moved into the house. They contributed to the monthly rent, which was paid to defendant. C.Y. stated that each occupant had a single room. They shared the bathrooms and kitchen.
On cross-examination, C.Y. testified that the house had six single rooms, three bathrooms, a kitchen, and a living room. The occupants shared the cleaning. On re-direct, C.Y. said that defendant visited the house "maybe three times." C.Y. stated that defendant saw that more than two persons were living in the house.
Charles Walker ("Walker"), who has responsibility for code enforcement and property maintenance in the Township, testified that the house is in the Township's R-15 zone, where the only permitted uses are single-family residences. Walker indicated that there had previously been litigation between defendant and the Township concerning his use of the property. The parties had resolved the earlier litigation with a stipulation of settlement.
The stipulation stated that defendant pled guilty to using the property for use other than permitted by the Township's zoning ordinance, and defendant agreed not to lease any portion of the property to students at any college or university. The municipal court judge admitted the stipulation into evidence, but indicated he was doing so solely to establish that defendant had notice that the residence should not be used as a boarding house.
On cross-examination, Walker conceded that the ordinance does not prohibit college students from living in the house. He stated that the house could be rented to a single-family unit, consisting of persons who were not related. He said college students "would have to exist as a single-family unit" and they do not "have to be related by blood."
Defendant testified that he was coerced into signing the stipulation of settlement of the earlier litigation. He said he sold the house to a person named Ray Hwang in 2006, and presented a deed to support that assertion, but he acknowledged that he did not raise the issue of ownership when he signed the stipulation of settlement in 2010 or offer that defense when charged with the violations at issue in this case. Defendant said that he did not recall signing the lease with C.Y. and his classmate. He denied having any connection with the property.
The municipal court judge placed his decision on the record. The municipal court judge found that C.Y.'s testimony was "most credible" and it established that defendant had used the property as a boarding house. He noted that there were six persons living in the house, and they each had their own bedroom. He found that the occupants of the house were not living there as a single-family unit.
The municipal court judge further found that defendant's claim that he was coerced into signing the 2010 stipulation resolving the earlier litigation was not credible. He noted that defendant had been represented by counsel in that litigation, and "[defendant] knew exactly what he was signing." The municipal court judge said defendant's claim that he did not sign the lease also was incredible. He noted that the signature on the lease looked like the signature on the stipulation. It also matched the signature on the deed with which defendant "supposedly transferred [the property] to a Ray Hwang."
The municipal court judge therefore found defendant guilty beyond a reasonable doubt of running a boarding house in a residential zone. He stated that this was a "clear violation" of the Section 21-601 and imposed a fine of $2000, plus court costs.
Defendant appealed to the Law Division, and the trial judge considered the matter on December 23, 2013. After hearing oral argument by the attorneys for the parties, the trial judge placed his decision on the record. The trial judge noted that in the municipal court, C.Y. had testified that six persons had been residing in the house. They each had a single room. The house also had three bathrooms and a kitchen.
The trial judge observed that there was no evidence that the residents shared meals together, cooked for each other or generally shared household chores. There was no evidence indicating that the occupants maintained a common checking account to pay for food and other household expenses. The judge concluded that the occupants of the house were not living there as a single-family unit.
The judge also pointed out that defendant knew from the prior settlement that he could not use the property in this manner. The judge stated that the transcript of the municipal court trial revealed that defendant's testimony was incredible, as found by the municipal court judge. The judge concluded that defendant violated the Township's ordinance, and imposed a fine of $2000. The judge memorialized his decision in an order dated December 23, 2013. This appeal followed.
On appeal, defendant raises the following arguments:
[POINT I]
The Piscataway Township ordinance does not prohibit renting a single family house to college students.
[POINT II]
The Piscataway Township ordinance does not prohibit renting a single family house to unrelated persons.
[POINT III]
[The Law Division judge] wrongfully held that Defendant bears the burden of proof[.]
[POINT IV]
[The] State Failed to Prove Defendant Committed a Crime Beyond a Reasonable Doubt[.]
We are convinced from our review of the record that defendant's arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). However, we add the following.
"When a defendant appeals a decision made by a municipal court to the Law Division, the court is required to conduct a de novo review of the record, giving "due regard to the municipal judge's opportunity to view the witnesses and assess credibility." State v. Golin, 363 N.J. Super. 474, 481 (App Div. 2003) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). On appeal from the Law Division's decision, we must determine whether the Law Division judge's findings "'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting Johnson, supra, 4 2 N.J. at 162) However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)."
Here, the trial judge determined that defendant violated Section 21-601 because the house was not being used as a single-family dwelling, which is the only use permitted in the zone where the property is situated. There is sufficient credible evidence in the record to support that finding. As noted, C.Y. testified that he and another student had rented the house from defendant, and occupied it with four other persons who are not related by blood. C.Y.'s testimony made clear that the residents of the house were not living there as a single-family unit.
Defendant argues that his conviction must be reversed because Section 21-601 does not prohibit the lease of a single-family house to unrelated college students. That may be so, but the zoning ordinance indicates that single-family dwellings are the only permitted uses in the R-15 zone, where the property is located. As we have explained, the evidence established that the house was not being used by a single-family unit.
The decision in Borough of Glassboro v. Vallorosi, 117 N.J. 421 (1990), does not require a different conclusion. In that case, the Borough's ordinance restricted the use and occupancy of dwellings in certain residential districts to "families." Id. at 423. The ordinance defined a "family" as "'one or more persons occupying a dwelling unit as a single non-profit housekeeping unit, who are living together as a stable and permanent living unit, being a traditional family unit or the functional [equivalent] thereof.'" Ibid. (quoting Glassboro, N.J., Code § 107-3 (1986)). The purpose of the restriction was to confine students to living quarters at the college in the municipality, or other zoning districts where apartments or townhouses are permitted. Ibid.
The Court noted that ten students occupied a house in a residential district. Id. at 424. They each had a separate, renewable lease. Ibid. The house had one kitchen, which the students shared. Ibid. The students ate their meals together, "cooked for each other, and generally shared household chores, grocery shopping, and yard work." Ibid. The students also had a common checking account which they used to pay for food and other household expenses. Ibid.
The Borough commenced a lawsuit to enjoin the students from using and occupying the house because they did not constitute a "family" as defined in the ordinance. Id. at 424-25. The trial court ruled that the relationship among the students was the functional equivalent of a family. Id. at 425-26 (citation omitted). We affirmed the trial court's judgment. Id. at 426 (citation omitted).
The Supreme Court affirmed our decision. Id. at 433. The Court observed that its prior cases "preclude municipalities from adopting zoning regulations that unreasonably distinguish between residential occupancy by unrelated persons in comparison with occupancy by individuals related by blood, marriage, or adoption." Id. at 431. The Court noted that the Borough's ordinance defined "family" in accordance with these principles. Ibid.
The Court stated that the Glassboro ordinance "impose[d] no explicit distinction between related and unrelated people." Ibid. Rather, it provided a "functional description of a single housekeeping unit[.]" Ibid. The Court held that the evidence established that the students were occupying the house "under conditions that correspond substantially to the ordinance's requirement of a 'stable and permanent living unit.'" Id. at 432.
In this case, the Township's zoning ordinance essentially defines the term "family" to mean one or more persons who occupy a dwelling as a single non-profit housekeeping unit. The ordinance does not expressly bar occupancy by students or unrelated persons in a single-family zone. We are convinced that the trial court correctly found that the Township had established beyond a reasonable doubt that defendant's house was being used by one or more persons, and they were not using it as a "single non-profit housekeeping unit."
Defendant further argues that the Law Division judge erred by imposing upon him the burden of proving that the house was not being used as a single-family dwelling. We note that, in his decision, the Law Division judge observed that under the definition of "family" in the Township's zoning ordinance, the occupants have the burden of establishing by clear and convincing evidence that they are using the property as a "single non-profit housekeeping unit." The trial judge referred to this as an affirmative defense, and pointed out that defendant had not presented any evidence in support of such a defense.
We do not view the trial judge's statement as imposing the burden upon defendant to prove that the property was being used as a single-family dwelling. As the State recognizes, it has the burden of proving all of the elements of the charged violation. The trial judge found that the State had presented sufficient evidence to establish that the property was located in a zone where only single-family residences are permitted, two or more persons were occupying the house, and it was not being used as a "single non-profit housekeeping unit."
Although defendant could have presented evidence showing that the house was being occupied by the functional equivalent of a "family," he was not obligated to do so. Defendant was found guilty based on the State's evidence, not because he failed to carry his burden of proof on what the judge called an affirmative defense.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION