Opinion
DOCKET NO. A-4659-11T1
04-29-2013
STATE OF NEW JERSEY, Plaintiff-Respondent v. RATTAN NATH, Defendant-Appellant.
Law Offices of Zwerling & Deshpande, LLC, attorneys for appellant (Shay S. Deshpande, on the brief). Trenk, DiPasquale, Della Fera & Sodono, P.C., attorneys for respondent Township of West Orange (Richard D. Trenk, of counsel; Aziz O. Nekoukar and Ross J. Switkes, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2011-083.
Law Offices of Zwerling & Deshpande, LLC, attorneys for appellant (Shay S. Deshpande, on the brief).
Trenk, DiPasquale, Della Fera & Sodono, P.C., attorneys for respondent Township of West Orange (Richard D. Trenk, of counsel; Aziz O. Nekoukar and Ross J. Switkes, on the brief). PER CURIAM
Defendant Rattan Nath, a homeowner in West Orange, appeals a modified $100 fine that was imposed following the Law Division's determination that he violated West Orange, N.J., Code § 14-8.2(a), an ordinance provision that establishes certain landscaping requirements for exterior premises in the municipality. On appeal, defendant challenges the validity of the ordinance and also contests the sufficiency of the evidence presented in support of the violation. Among other things, he contends that the ordinance is unconstitutionally vague and that the State failed to prove multiple elements of the ordinance necessary to sustain the findings.
Although defendant's wife evidently is a co-owner of the premises, she was not named in the municipal summons.
In pertinent part, at the time of trial the ordinance provided:
The West Orange Code, available on the township's website, contains what appears to be an amended version of West Orange, N.J., Code § 14-8.2(a)(2). Because the parties do not dispute which version of the Code was in effect at the time the summons was issued, we do not address the revised current language.
§ 14-8.2 Appearance of Exterior of Premises and Structures.
a. Residential and Nonresidential. The exterior of the premises, the exterior of dwelling structures and the condition of accessory structures shall be maintained so that the appearance of the premises and all buildings thereon shall reflect a level of maintenance in keeping with the residential
standards of the neighborhood or such higher standards as may be adopted as part of a plan of urban renewal by the Township and such that the appearance of the premises and structures shall not constitute a blighting factor for adjoining property owners nor an element leading to the progressive deterioration of the neighborhood with the accompanying diminution of property values including the following:
. . . .
2. Landscaping. Premises shall be kept landscaped and lawns, hedges and bushes shall be kept trimmed and from becoming overgrown and unsightly where exposed to public view and where the same constitute a b[l]ighting factor depreciating adjoining property and impairing the good residential character of the neighborhood.
[Emphasis added.]
On September 1, 2011, Michael Grandusky, a West Orange property maintenance inspector, visited defendant's property and observed that, as he phrased it, "[t]he grass was overgrown, and there w[ere] various piles of branches and vines and stuff along the bare spots of the property[.]" Grandusky testified that on that same day he left a Notice of Violation at the house and also mailed a copy to defendant.
Grandusky returned to the property on September 16, 2011. On that day, he took several photographs depicting the conditions of defendant's yard. The inspector met with defendant that day to "discuss[] the violations with him, and to try to get him to clean the property up." During the discussion, defendant stated that the debris was purposefully left in piles to dry so that it could then be turned into mulch. Grandusky informed defendant that such a course of action was fine, however, the piles of debris needed to be kept somewhere that was not visible from the street in order to comply with West Orange's Code. With respect to the tall grass, Grandusky informed defendant that he needed to mow the grass along the slope of his property, as other neighbors do. Grandusky testified that he then gave defendant a reasonable time period to do the work which, according to Grandusky, was "basically 30 days."
On October 11, 2011, Grandusky returned and took additional photographs of the property. That same day, he issued a summons to defendant, charging him with a violation of West Orange, N.J., Code § 14-8.2(a)(2) for "failure to maintain exterior of the property." Grandusky apparently also made three later visits to the property on October 28, November 21, and December 14, 2011, at which time he took additional photographs. On those additional visits, Grandusky observed that the property had remained unkempt. He acknowledged that defendant had made certain improvements to the premises, but testified that new debris had appeared.
The matter was tried in the municipal court on December 21, 2011. The State presented the testimony of Grandusky and also submitted into evidence fourteen pages of photographs taken by Grandusky. Defendant, who appeared pro se at that proceeding, testified himself, and he also presented the testimony of his wife.
After considering the parties' proofs, the municipal court issued an oral decision. As a preliminary matter, the court found that West Orange has the right to regulate the way in which a property owner within the municipality maintains his or her property. Given that authority, the court concluded that the specific ordinance was sufficiently particularized to "set[] forth the position of the Township regarding violations." The court further determined that the evidence proved beyond a reasonable doubt that defendant had violated the ordinance. In particular, the court referenced each page of photographs and determined that they offered sufficient proof to find defendant guilty. The court did take into account, and even commended defendant for, certain measures that he had undertaken (such as mulching) to minimize environmental impacts, but nonetheless concluded that the property had been left in a condition violative of the ordinance.
As a penalty for violating the ordinance, the municipal court fined defendant $1,500, plus other mandatory court costs. The court reserved the right to revisit the fine, subject to a review of defendant's prospective abatement of the conditions on the premises, which at the time constituted an ongoing violation.
Defendant sought de novo review in the Law Division. After hearing oral argument, the Law Division judge, Hon. Ramona A. Santiago, J.S.C., sustained defendant's violation of the ordinance on narrower grounds than the municipal court. Judge Santiago also substantially reduced the fine imposed.
In her March 12, 2012 detailed written opinion, Judge Santiago rejected defendant's claim that the ordinance was unconstitutionally vague. However, Judge Santiago did find that several of the conditions depicted in the photographs, which the municipal court found as constituting a violation under West Orange, N.J., Code § 14-8.2(a)(2), actually "fall outside the scope" of that provision. Specifically, Judge Santiago found that the presence of debris on the exterior of the property and the conditions between the sidewalk and the street curb were both governed by other sections of the Code, not charged in this case.
In this regard, Judge Santiago found that debris on the exterior of the property is covered under West Orange, N.J., Code § 14-8.1(a), and that the conditions between the sidewalk and street curb are governed by West Orange, N.J., Code § 20-7.1.
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Judge Santiago concluded that the State's photographs had proven beyond a reasonable doubt that defendant had failed to keep portions of his lawn trimmed. The judge was also satisfied, based on the photographs and Grandusky's testimony, that the conditions were visible from the roadway.
The judge rejected defendant's argument that the ordinance requires the State to prove additional factors beyond showing that the lawn was overgrown. Defendant had argued that the State must establish the residential standard of the neighborhood, and that the condition of defendant's lawn actually caused neighboring properties to depreciate in value. The judge did not interpret the ordinance to impose either of those requirements. Rather, Judge Santiago interpreted the ordinance to reflect a valid legislative determination that failure to maintain a property in accordance with the codified standard for landscaping — including trimmed lawns, hedges, and bushes — constitutes a factor creating blight, and commensurate depreciating property values.
At the ensuing April 13, 2012 sentencing hearing in the Law Division, Judge Santiago acknowledged that the only evidence supporting a violation of West Orange, N.J., Code § 14-8.2(a)(2) was defendant's unkempt grass, because the other photographs depicted conditions that implicate other sections within the Code. As a result, the judge reduced defendant's fine to $100, plus mandatory court costs.
On appeal, defendant presents the following arguments for our consideration in his brief and reply brief:
POINT I
THE LAW DIVISION COMMITTED HARMFUL ERROR BY IGNORING THIS COURT'S, NEW JERSEY['S] AND [U.S.] SUPREME COURT'S GUIDANCE AND FEDERAL CONSTITUTIONAL GUARANTEES IN MAKING AN ORDINANCE THAT AS APPLIED WAS VOID FOR VAGUENESS EVEN MORE VAGUE
POINT II
THE LAW DIVISION COMMITTED HARMFUL ERROR BY CONDUCTING AN INCOMPLETE REVIEW THAT OVERLOOKED SYSTEMATIC DISCOVERY VIOLATIONS AND CONSISTENTLY ACCEPTED [THE] STATE'S ASSERTIONS UNCRITICALLY WHILE EXCLUDING DEFENDANT['S]
POINT III
THE LAW DIVISION COMMITTED HARMFUL ERROR BY FAILING TO ADDRESS DUE PROCESS VIOLATIONS AND RELYING ON [THE] STATE'S CONTESTED OR INCONSISTENT WITH DOCUMENTARY RECORD TESTIMONY
POINT IV
THE LAW DIVISION COMMITTED HARMFUL ERROR BY INSTEAD OF REINING IN [THE] STATE, IT FAILED TO DECLARE PARAGRAPH 14-8.2(a)(2), AS APPLIED, VOID FOR VAGUENESS
REPLY POINT I
THE APPLICABLE STANDARD OF REVIEW WARRANTS DEFENDANT'S ACQUIT[T]AL
REPLY POINT II
DEFENDANTS [SIC] WERE IMPROPERLY FOUND GUILTY
REPLY POINT III
AS APPLIED THE APPLICABLE ORDINANCE IS VOID FOR VAGUENESS
The Underlying Ordinance has to be found Indefinite as to standards for trimmingREPLY POINT IV
Defendants [sic] Had No Notice
The Underlying Ordinance lulls one into thinking that the stated purposes are the true purposes
[THE] STATE IS UNDERMINING CONSTITUTIONAL PRINCIPLES
REPLY POINT V
NO PORTION OF DEFENDANT['S] APPENDIX AND BRIEF MUST BE STRICKEN
Having fully considered these arguments, we sustain the Law Division's disposition, substantially for the sound reasons expressed in Judge Santiago's extensive written opinion of March 12, 2012. We add only the following comments.
The governing body of West Orange has explicitly stated that the purpose of the Housing Chapter in the Code is "to protect the public health, safety, morals and welfare by establishing minimum standards" for housing property. West Orange, N.J., Code § 14-1.3. The subsection under which defendant was found culpable, West Orange, N.J., Code § 14-8.2(a)(2), is at least rationally related to those purposes. See DeFalco Instant Towing, Inc. v. Borough of New Providence, 380 N.J. Super. 152, 156 (App. Div. 2005) (noting that "absent a sufficient showing to the contrary, it will be assumed that [an] enactment[] rest[s] upon some rational basis within [the legislative body's] knowledge and experience"). For example, untrimmed and overgrown lawns, hedges, and bushes can pose a safety hazard by creating an environment conducive to wild animals, such as snakes and vermin. Such conditions can also obstruct sightlines. Additionally, the requirement is reasonably related to promotion of the general welfare because well-maintained lots can help preserve surrounding property values.
The Code also states that it is designed "to protect the public . . . welfare by establishing minimum standards governing the . . . appearance . . . of residential . . . premises." West Orange, N.J., Code § 14-1.3 (emphasis added). This statement reflects that the ordinance is also aimed at pursuing the permissible objective of aesthetics. As our State Supreme Court has held, the "consideration of aesthetics may be a legitimate pursuit of the police power of a state[.]" State v. Miller, 83 N.J. 402, 409 (1980). The United States Supreme Court has similarly recognized that "[t]he concept of the public welfare is broad and inclusive. . . . It is within the power of the legislature to determine that the community should be beautiful as well as healthy [and] spacious as well as clean[.]" Berman v. Parker, 348 U.S. 26, 33, 75 S. Ct. 98, 102, 99 L. Ed. 27, 38 (1954), quoted in Miller, supra, 83 N.J. at 409-10.
To be sure, there is a perhaps unavoidable degree of imprecision in expressing and implementing these valid local objectives through property maintenance ordinances. However, we agree with the Law Division that the West Orange provision applied to defendant in this case is not so subjective or ambiguous as to be unconstitutionally vague.
"The vagueness doctrine is premised on the notion 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. Stafford, 365 N.J. Super. 6, 15 (App. Div. 2003) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222, 227 (1972)). "A law is void if it is so vague that persons 'of common intelligence must necessarily guess at its meaning and differ as to its application.'" Twp. of Pennsauken v. Schad, 160 N.J. 156, 171 (1999) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926)). The language of an enacted ordinance must offer "reasonable specificity toward the conduct to be prohibited." State v. Golin, 363 N.J. Super. 474, 483 (App. Div. 2003) (internal quotation marks omitted).
"In determining vagueness, a common sense approach is appropriate in construing the enactment in terms of the persons who may be subject to it and in context with its intended purpose." Stafford, supra, 365 N.J. Super. at 15 (internal quotation marks omitted). The wording in ordinances "must be clear and unambiguous so that persons of ordinary intellect need not guess at its meaning." Schad, supra, 160 N.J. at 171 (internal quotation marks omitted).
That said, "[a] municipal ordinance under review by a court enjoys a presumption of validity and reasonableness." State v Clarksburg Inn, 375 N.J. Super. 624, 632 (App. Div. 2005). "Municipal ordinances are liberally construed in favor of the municipality and are presumed valid." Ibid. However, "because municipal court proceedings to prosecute violations of ordinances are essentially criminal in nature, penal ordinances must be strictly construed." Golin, supra, 363 N.J. Super. at 482 (citing Schad, supra, 160 N.J. at 171). "Statutes need not be meticulous in specificity, but should be afforded flexibility and reasonable breadth, given the nature of the problem and the wide range of human conduct." Chez Sez VIII, Inc. v. Poritz, 297 N.J. Super. 331, 351 (App. Div.) (citations omitted) (internal quotation marks omitted), certif. denied, 149 N.J. 409, cert. denied, 522 U.S. 932, 118 S. Ct. 337, 139 L. Ed. 2d 262 (1997). "[I]n determining whether local legislation is impermissibly vague, [courts] are not confined to its literal terms. The meaning of . . . a general standard may be implied from 'the entire act in the light of its surroundings and objectives.'" Dome Realty, Inc. v. Paterson, 83 N.J. 212, 238 (1980) (quoting Ward v. Scott, 11 N.J. 117, 123 (1952)).
We agree with the Law Division that these concepts of vagueness do not render unenforceable the specific aspects of the West Orange ordinance as to which defendant ultimately was found liable. Judge Santiago acknowledged that, standing alone, the terms "overgrown," "unsightly," and "blighting" used within the general portion of the ordinance are not explicitly defined. However, she fairly determined that the ordinance puts residents on reasonable notice because the ordinance includes "additional descriptive terms . . . particularly the word 'trimmed.'" As we noted in Chez Sez VIII, supra, 297 N.J. Super. at 351, ordinances "need not be meticulous in specificity" to withstand a void-for-vagueness challenge. The judge also reasoned that the ordinance's language prevents arbitrary or discriminatory enforcement by inspectors, because it "clearly identifies that the presence of untrimmed grass creating unsightly overgrowth on a resident's property would warrant a citation[.]" Unlike Golin, supra, 363 N.J. Super. at 480, 484, which nullified an ordinance that sweepingly prohibited "[a]ny matter, thing, condition or act" that "may become an annoyance," the West Orange ordinance more explicitly requires lawns to be "kept trimmed and from becoming overgrown and unsightly[.]"
We also concur with Judge Santiago that the proofs in this case sufficed to demonstrate defendant's violation of the ordinance. The scope of appellate review of de novo trials is limited to whether there is sufficient credible evidence present in the record to uphold the findings. State v. Johnson, 42 N.J. 146, 162 (1964); see also Clarksburg Inn, supra, 375 N.J. Super. at 639. Appellate courts generally should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). Moreover, "[d]eference to factual findings and credibility determinations is 'more compelling' where 'two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.'" State v. Stas, 212 N.J. 37, 49 (2012) (quoting Locurto, supra, 157 N.J. at 474).
Applying, as we must, our limited scope of review to a lower court's fact-finding, there is sufficient credible evidence in the record to support the finding of a violation. In particular, the photographs in the record, copies of which we have also examined from the appendices, amply show the untrimmed condition of the overgrown lawn.
We have considered the balance of the many other arguments presented in defendant's submissions and conclude that they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). The finding of the violation and the $100 modified fine imposed in this case are well supported and do not represent a manifest injustice R. 2:10-2.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION