Opinion
DOCKET NO. A-3581-13T2
06-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HERBERT SHAW, Defendant-Appellant.
Mario M. Blanch, attorney for appellant. Chasan Leyner & Lamparello, attorneys for respondent (Cindy Nan Vogelman, of counsel and on the brief; Reka Bala, on the brief).
ANOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Currier. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 03-13. Mario M. Blanch, attorney for appellant. Chasan Leyner & Lamparello, attorneys for respondent (Cindy Nan Vogelman, of counsel and on the brief; Reka Bala, on the brief). PER CURIAM
Defendant Herbert Shaw (Shaw) appeals the Law Division's March 4, 2014 order, entered after a trial de novo on his appeal from the North Bergen Township Municipal Court, finding him guilty of violating N. Bergen Twp., N.J., Ordinance 2249-82 (May 20, 1982) (Ordinance). We affirm.
Defendant owns a home and adjacent lot in North Bergen. The property has been in his family for many years but had not been lived in for at least eight years before these proceedings began. It is undisputed that the lot is filled with discarded items. These items include several buses full of rags, shirts, ceiling fan motors, boxes and lamps. There are abandoned unregistered cars on the property full of similar items. There are oil drum containers, steel boards, metal cabinets, plastic containers and all manner of debris lying in high grass and weeds. Although there is a fence, the lot is readily visible to anyone walking on the street.
The Township of North Bergen (Township) issued a Notice of Abatement to defendant to clean up and remove all litter, garbage and debris from his property. After failing to take any action, defendant was issued a summons that he was in violation of the Ordinance.
The Ordinance prohibits certain conditions declared to be a public nuisance. A "public nuisance" is defined in Section 1(c):
as any condition . . . which is injurious to the health of the inhabitants of the Township . . . namely:
(1) Any matter, thing, condition or act which is or may become detrimental or a menace to the
health of the inhabitants of this municipality,
. . . .
(9) depositing, accumulating, or maintaining any matter or thing which serves as food for insects or rodents and to which they may have access or which serves or constitutes a breeding place or harborage for insects or rodents in or on any land, premises, building or other place.
[N. Bergen Twp., N.J., Ordinance 2249-82 (May 20, 1982).]
The case was tried on three dates in 2012. The Township's health inspectors testified as to the above described discarded collection of items in the lot. They described raccoons, skunks and cats roaming in the yard and living in the abandoned vehicles. They explained that the items in the yard could harbor both animals and homeless people and be a fire danger. They discussed that one of their objectives in requiring the clean-up of any property is to pre-empt an influx of rodents.
In his defense, Shaw stated that all of the items in the yard are of use to him; it is an area he uses for storage; and, since the property is zoned as a light industrial use, he is permitted to maintain the yard as it is.
On December 13, 2012, defendant was found guilty by the municipal court judge. He was given a month to clean up the property. Defendant did not comply with the judge's ruling, and on January 17, 2013, he was sentenced to pay a $10,000 fine. The judge directed the Township to clean up the property and charge the costs to defendant.
Defendant appealed to the Law Division. On March 4, 2014, in a written decision, Judge Adam E. Jacobs found that defendant was guilty de novo of violating the ordinance and re-imposed the municipal court sentence. This appeal followed.
We note that defendant is not appealing the sentence imposed in this matter.
Defendant presents the following arguments for our consideration:
POINT I
THE LOWER COURTS ERRED BY FINDING HERBERT SHAW GUILTY AS THERE IS NO EVIDENCE THAT HERBERT SHAW MAINTAINED A HARBORAGE FOR RODENTS AS DEFINED BY THE TWO PART TEST OF THE ORDINANCE
POINT II
THE STATE FAILED TO PROVE THE OTHER PORTIONS OF THE ORDINANCE BEYOND A REASONABLE DOUBT AND THUS THE MATTER SHOULD HAVE BEEN DISMISSED
POINT III
THE MUNICIPAL COURT AND SUPERIOR COURT ERRED WHEN THEY DID NOT TAKE INTO CONSIDERATION THE CERTIFICATE OF OCCUPANCY FROM 1959 TO SHOW THE PROPERTY WAS ZONED FOR LIGHT INDUSTRIAL USE
POINT IV
THE ITEMS ON THE PROPERTY CANNOT BE CLASSIFIED AS A NUISANCE AS THEY ARE ON THE PROPERTY LAWFULLY AS A RESULT OF THE LAWFUL USE OF THE PROPERTY
POINT V
THE ORDINANCE IS VOID FOR VAGUENESS AS APPLIED TO HERBERT SHAW BECAUSE THE TERM HARBORAGE IS VAGUE AND CONSTITUTES VIRTUALLY ANY STRUCTURE AND/OR OBJECT
Our careful review of the record in the light of the written arguments of the parties discloses these issues are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We add the following comments.
The scope of appellate review in this case is limited. Municipal court decisions are appealed first to the Law Division. R. 3:23-1; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). In the Law Division, review is de novo on the record, except for some situations governed by R. 3:23-8(a). The Law Division judge makes a new decision on his or her own, giving due regard to the municipal court judge's opportunity to judge the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). Because the Law Division judge is not in a position to assess the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472-74 (1999). Deference, however, does not mean adherence and the Law Division judge may reach a different result.
The standard for our review is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. Johnson, supra, 42 N.J. at 162. Like the Law Division, we are not in a good position to judge credibility and should not make new credibility findings. Locurto, supra, 157 N.J. at 470-71. It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Id. at 471.
Here, there is substantial credible evidence in the record to support the findings of the Law Division. The judge found that the testimony and photographs entered into evidence satisfied the Township's burden of proof beyond a reasonable doubt. He concluded that "the property's condition is such that it has become detrimental to the health of the inhabitants of North Bergen and is interfering with their comfort and general well-being."
Contrary to defendant's arguments, anyone viewing the photographs of this property would describe it as a junkyard. There are abandoned vehicles with broken windows, completely filled with discarded trash. There are oil drums, steel beams and metal cabinets. There was testimony as to raccoons, skunks and cats prowling the area. There is sufficient evidence to satisfy the finding that the lot provided a "harborage for insects or rodents." We find nothing vague as to that term in the ordinance.
The "vagueness doctrine" sets forth the principle that "the law must 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'" State v. Clarksburg Inn, 375 N.J. Super. 624, 633 (App. Div. 2005) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222, 227 (1972)). "To withstand a void-for-vagueness challenge, a penal ordinance must define the offense 'with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.'" State v. Golin, 363 N.J. Super., 474, 482-83 (App. Div. 2003) (quoting Kolender v. Lawson, 461 U.S. 352, 257, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903, 909 (1983)).
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Lastly, as to the argument that the municipal court wrongly excluded the Certificate of Occupancy from being admitted into evidence, we agree with Judge Jacobs' finding that the municipal court ruling was proper. The zoning of defendant's property was not relevant to the application of the ordinance in this situation. The zoning of the property did not exempt defendant from complying with the subject ordinance. Therefore the Certificate of Occupancy was properly ruled to be inadmissible.
The Law Division judgment is affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION