STATE OF NEW JERSEY v. PRABHA ATTAVANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2139-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PRABHA ATTAVANE,

Defendant-Appellant.

___________________________________________________

 

Submitted October 27, 2009 - Decided

Before Judges Grall and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 6-2008.

Law Offices of Susheela Verma, attorneys for appellant (David A. Curcio, on the brief).

Law Offices of James P. Nolan and Associates, LLC, attorneys for respondent (Eric L. Lange, on the brief).

PER CURIAM

Defendant Prabha Attavane appeals from the judgment of conviction that followed a de novo trial of her municipal appeal in the Law Division. Defendant was found guilty in municipal court of violating Woodbridge Township zoning ordinance 150-29B, and fined $500. In the Law Division, she was found guilty again, and the same sentence was imposed.

On appeal before us, defendant raises a multitude of issues, including a challenge to the constitutionality of portions of the ordinance, and a claim that those portions have been pre-empted by State law. She also contends that the State failed to prove her guilt beyond a reasonable doubt. Because we agree that the State's proofs were insufficient, we reverse the judgment of conviction, and remand the matter to the Law Division for entry of a judgment of acquittal. We decline the opportunity to address the other issues defendant raises on appeal.

The salient facts are as follows. Michael Logan, a Woodbridge housing inspector, testified that the municipality received an anonymous complaint regarding defendant's property located in Iselin. The complainant alleged that "different people [were] coming in and out" of the property, and suspected the property was being used as a boarding house. Without prior notice, Logan went to defendant's home between 9:30 and 11:30 a.m. to perform an inspection. He "rang the bell," spoke to defendant, explained why he was there, and asked defendant if he could inspect the property. She consented. Through open doors, Logan observed

three rooms on the first floor. One room had a bed and a bedroll. The second room had another bed and there was a third bed[room], which the owner stated . . . was hers. Then there was a room in the basement. And she did state that there was [sic] people staying with her.

Defendant, who was alone at the time, told Logan that the people staying with her "were friends" who were "helping her pay the bills since her father passed away." Logan took pictures of the inside of the property which were entered into evidence at the municipal court trial.

Logan explained to defendant that "it[] [was] not permitted . . . to have that many people staying with her[,]" because under such circumstances, the residents of the house could not be considered "a family unit." Logan also advised defendant that she could remedy the situation by asking some people to leave, and by having only "one other person . . . stay with her."

On the same date, August 30, 2007, Logan sent defendant a letter notifying her that she was in violation of zoning ordinance 150-29B, "Not Permitted Rooming/Boarding House R-6 Zone." The letter also advised defendant to contact the Woodbridge Bureau of Property Maintenance/Code Enforcement "immediately so that [she could] arrange a date by which these conditions w[ould] be remedied." Instead, in September, defendant's attorney contacted Logan and "said that she wanted a summons issued because the . . . people were not leaving." A summons was issued to defendant that day.

On October 12, 2007, Logan returned to the property with housing inspector Ed Roberts to see if defendant had remedied the alleged violation. Defendant invited them inside, and informed Logan that only one person was living with her on that date. Logan observed a woman who defendant identified as her cousin. Logan also observed "a gentleman at the door . . . [who] stated he was there to pick up some bags."

Logan observed that "[t]here was also a chain lock on a door . . . from the first floor, [in] the kitchen, which le[d] down to the basement." A lock permitted the door to be secured from the kitchen. Logan testified that during the second inspection, "it looked like there was compliance []." He explained:

People were leaving . . . . Someone [was] picking bags [up] from one of the empty rooms, which looked like it was kind of vacated, because . . . [of] the way the bed looked, [and] the way the room looked[,] . . . like it wasn't lived in. Bags were being packed and they were being moved out.

In spite of this, based upon his observations, the initial complaint, and what defendant had previously told him -- "that she had people living there with her that were friends and they were there helping her pay the mortgage[,]" -- Logan concluded that defendant was running a rooming/boarding house. Defendant did not testify. Defense counsel moved to dismiss the summons arguing that the State had failed to prove defendant guilty beyond a reasonable doubt. Specifically, she noted a failure to establish that defendant was taking any rent from the people who were allegedly living with her or that she was operating a rooming/boarding house as defined by the ordinance.

The municipal judge found inspectors Logan and Roberts to be credible and adopted their factual testimony. He further found that "defendant did in fact violate . . . [section] 150-29 and was using the [property] for people that were not part of a household or family or related." While acknowledging that much of the evidence was circumstantial, he concluded that based on the defendant's admission plus "the locks, [and] the nature of the sleeping rolls and the room," he found that "the State proved beyond a reasonable doubt that [the property] was used as a sleeping quarter/rooming house, boarding house in violation" of the ordinance.

Defendant appealed to the Law Division, and a hearing was held on November 13, 2008. While noting he was required to review the evidence de novo, the judge nonetheless stated, "The question is, factually, was there sufficient evidence below for [the municipal court judge] to find beyond a reasonable doubt that there was a violation." He then appropriately stated that his de novo review was limited to the municipal court record, and he was required to pay deference to the municipal court judge's credibility findings.

The judge specifically stated that "[w]hat[] [was] prohibited [by the ordinance] [wa]s a rooming house[,] . . . the landowner renting out certain portions, or rooms in the house to third parties. Whether they[] [were] friends or family, [did not] matter." Concluding "although, [there was] certainly not an over abundance of evidence[,]" the judge found the municipal court judge's "findings were sound." He continued,

Perhaps . . . if it was a jury trial, the state would have a hard time convincing 12 people beyond a reasonable doubt. But I don't think . . . the State's case would have been thrown out on a motion, for a judgment of acquittal. Because I do think there was sufficient evidence from which a reasonable fact-finder could conclude that the elements were proven beyond a reasonable doubt.

He found defendant guilty of violating the ordinance and ordered "the sentence shall forthwith go into effect . . . ." This appeal ensued.

Although not essential to our decision, we briefly address defendant's argument that the Law Division judge applied the improper standard of review on appeal. The Law Division reviews the decision of a municipal court de novo. R. 3:23-8(a). As a result, the judge is obliged to make independent findings of fact and conclusions of law, while according some deference to the municipal court's credibility findings. As we have stated, the trial court "does not affirm or reverse what occurred in the municipal court . . . [but] reviews the transcript and makes an independent determination of the sufficiency of the evidence presented, giving . . . deference to any credibility assessments that the municipal court judge . . . made." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004); see also Pressler, Current N.J. Court Rules, comment 1.2 on R. 3:23-8 (2010) (collecting cases). Our review requires us to determine whether there was sufficient, credible evidence in the record to support the Law Division's findings. State v. Locurto, 157 N.J. 463, 470-75 (1999).

We agree that the Law Division judge's recitation of the standard of review controlling his decision was somewhat confusing. To the extent he failed to independently assess the evidence and determine whether defendant's guilt was proven beyond a reasonable doubt, he erred. But the error is of no import to our decision.

That is so because our review only requires us "to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964).

When [a] reviewing court is satisfied that the findings and result meet this criterion, its task is complete . . . even though it has the feeling it might have reached a different conclusion were it the trial tribunal. That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect.

[Ibid.]

In rendering his verdict, the Law Division judge implicitly accepted the credibility determinations reached by the municipal court judge. We find no basis to disturb them. However, we are required to consider de novo whether the Law Division judge properly applied those established facts to the language of the ordinance and whether the State's proofs were sufficient to establish a violation. See State v. Franchetta, 394 N.J. Super. 200, 205 (App. Div. 2007). We conclude after careful review of the record that the evidence was insufficient to prove defendant's guilt beyond a reasonable doubt. Thus, we reverse defendant's conviction.

We begin by reviewing the ordinance in question. Defendant's property is located in a "R-6" zone. Permitted principal uses in that zone include "detached one-family dwelling[s]," and "home occupations/home office[s]." Woodbridge Zoning Ordinance 150-29B(1)(a) and (b). Section 150-4 of the ordinance, which sets forth a variety of definitions, defines a "single-family" dwelling as "[a] residential dwelling which provides unrestricted access throughout, with no multiple utilities, in which the occupants interact as a single-family unit. (NOTE: Single-family dwelling may provide more than one kitchen)." (emphasis added). "Dwelling unit" is defined as

A building . . . used for permanent living quarters for one or more persons living as a single housekeeping unit with cooking and bathroom facilities[,] but not including hotels or other buildings for transient quarters; synonymous with the term "family" when used to describe the number of dwelling units within a dwelling as in single-family.

[Ibid. (emphasis added).]

The same section defines "family" as "[a] single, nonprofit housekeeping unit, as distinguished from a group occupying a boarding- or rooming house, lodging house, club, fraternity or hotel or any other nonfamilial institutional uses." Ibid. (emphasis added).

A "rooming" or "boarding house" is not a permitted principal, accessory, or conditional use in the R-6 zone. Section 150-4 defines a "boarding- or rooming house" as "[a] building, or part thereof, other than a hotel or restaurant, wherein furnished or unfurnished rooms, with or without cooking facilities, are provided for compensation for two or more persons not related to the owner or proprietor."

Defendant specifically argues that the Law Division judge "err[ed] when he found that [defendant's] home d[id] not fall within the definition of a 'family . . . .'" She contends that the two facts relied on by the judge, i.e., defendant's acceptance "of money to help pay [the] mortgage" and "locks" on some of the doors, were insufficient to prove guilt beyond a reasonable doubt. We agree.

"[M]unicipalities are free to zone . . . to prohibit . . . any use which threatens to erode . . . or destroy the residential character of the area . . . ." Berger v. State, 71 N.J. 206, 223 (1976). Nevertheless, in striving to preserve the character of the neighborhood, "all restrictions must . . . satisfy . . . due process." Ibid. New Jersey courts "have consistently invalidated zoning ordinances intended 'to cure or prevent anti-social conduct in dwelling situations.'" Borough of Glassboro v. Vallorosi, 117 N.J. 421, 426 (1990) (quoting Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 253-54 (1971)).

"[Z]oning regulations which . . . limit residency based upon the number of unrelated individuals . . . in a single non-profit housekeeping unit cannot pass constitutional muster." State v. Baker, 81 N.J. 99, 113 (1979). Similarly,

[A]n ordinance limiting the term "family" to persons related by blood, marriage, or adoption cannot "satisfy the demands of due process" [because] [s]uch an ordinance "so narrowly delimits the persons who may occupy a single family dwelling as to prohibit numerous potential occupants who pose no threat to the style of family living sought to be preserved." Accordingly, [New Jersey has] expressed [a] clear preference for zoning provisions that equate[] the term "single family" with a "single housekeeping unit."

[Vallorosi, supra, 117 N.J. at 428 (quoting Berger, supra, 71 N.J. at 223-24) (emphasis added).]

Ultimately, the unifying principle that emerges permits municipal "zoning regulations to restrict uses in certain residential zones to single housekeeping units." Vallorosi, supra, 117 N.J. at 431. "[T]he standard for determining whether a use qualifies as a single housekeeping unit must be . . . capable of being met by either related or unrelated persons." Ibid. (citing Berger, supra, 71 N.J. at 225-27).

We emphasize that in reaching our decision, we find no constitutional infirmity with the ordinance's definitions of "one-family dwelling," "dwelling," or "family." They are consistent with the precedent we have cited approving similar definitions. However, in our opinion, the State failed, to introduce sufficient evidence that defendant was violating the terms of the ordinance.

"[M]unicipal court proceedings to prosecute violations of ordinances are essentially criminal in nature . . . ." Twp. of Pennsauken v. Schad, 160 N.J. 156, 171 (1999) (citing State v. Barnes, 168 N.J. Super. 311, 314 (App. Div. 1979), rev'd on other grounds, 84 N.J. 362 (1980)). The municipality is therefore required to prove all of the elements of the violation beyond a reasonable doubt. Trenton v. Calvary Apostolic Temple, Inc., 166 N.J. Super. 145, 146 (App. Div. 1979). "[D]oubt engendered by the closeness of the question should be resolved in defendant's favor." Id. at 147.

Defendant was charged with violating 150-29B of the ordinance. Although the summons indicated the inspectors' belief that she was operating a "rooming/boarding house," the gravamen of the actual violation was that the property was not functioning as a use permitted in a R-6 zone. Thus, it was incumbent for the State to prove beyond a reasonable doubt that defendant was not using the premises as a "single-family dwelling." To do so, the proof had to establish beyond a reasonable doubt that the dwelling's "occupants [did not] interact as a single-family unit," i.e., "[a] single, nonprofit housekeeping unit[.]" In our view, the evidence failed to do so.

Initially, it was unclear how many people were living in defendant's home when the inspections were made. On the first visit, defendant was alone, and Logan's description of how the bedrooms appeared added no further evidence of a violation. On the second visit, defendant introduced another woman on the premises as her cousin, though it is unclear whether she lived there or not. Additionally, a man was present who was removing items from the home. Once again, descriptions of how the house looked added nothing from which defendant's guilt could be inferred.

Additionally, the record is silent as to the relationship between defendant, and whoever was living in her home. There was no proof as to whether or not those persons were conducting "a family style of living." See Berger, supra, 71 N.J. at 217. There was no proof as to whether household responsibilities were apportioned or how daily activities were performed. See Vallorosi, supra, 117 N.J. at 432. In short, the mere fact that a reasonable inference could be drawn that defendant did not live alone is insufficient to prove beyond a reasonable doubt that she was violating the ordinance.

Moreover, we attach no significance, as did the Law Division judge, to defendant's admission that whoever was staying with her was "helping her pay the bills . . . ." This did not transform the use into a profit-making enterprise, thus disqualifying the arrangement under the ordinance's definition of "family" as a "single nonprofit housekeeping unit." In this regard, we need only note that in Villarosi, a group of unrelated college students who rented the premises from one of their parents, and, among other things, "paid expenses from a common fund[,]" nonetheless met that ordinance's definition of a family as "a single housekeeping unit . . . ." Ibid.

In short, we conclude the State failed to prove beyond a reasonable doubt that defendant violated the ordinance by operating the premises as a non-permitted use. We therefore reverse her conviction, and remand the matter to the Law Division for entry of a judgment of acquittal.

Reversed and remanded; we do not retain jurisdiction.

 

Roberts also testified at the municipal court trial. He corroborated Logan's testimony, and also acknowledged that he did not see anything out of the ordinary since "everybody was moving out."

We need not address, therefore, the ordinance's definition of "boarding- or rooming house."

(continued)

(continued)

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A-2139-08T4

December 15, 2009