STATE OF NEW JERSEY v. THADDEUS JEDZINIAK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3111-07T43111-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THADDEUS JEDZINIAK and

DOROTHY JEDZINIAK,

Defendants-Appellants.

____________________________________

 

Argued December 9, 2008 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Municipal Appeal

No. 33-07.

Kenneth A. Porro argued the cause for

appellants (Wells, Jaworski & Liebman,

attorneys; Mr. Porro and Celestino A.

Labombarda, on the brief).

Diane Marie Acciavatti argued the cause

for respondent (Mautone & Horan, attorneys;

Anthony R. Mautone, of counsel and on

the brief).

PER CURIAM

Defendants appeal from a judgment of conviction entered by the trial court following a trial de novo at which defendants were found guilty of violating a municipal ordinance prohibiting the removal of sand from beach dunes. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendants own oceanfront property in Ship Bottom and were charged with removing sand from the dune which stood between their house and the beach. The municipality presented two witnesses in support of the charge--Frank Little, the borough engineer, and Alex McIndoe, the code enforcement officer. Defendants did not present any witnesses. The testimony established the following.

In 1993, Ship Bottom's code enforcement officer charged defendants with the disorderly persons offenses of obstruction, in violation of N.J.S.A. 2C:29-1(a) and maintaining a nuisance, in violation of N.J.S.A. 2C:33-12. The conduct alleged was removing sand from a beachfront dune. That matter was resolved when Mr. Jedziniak pled guilty to violation of a municipal ordinance and agreed to restore the dune to the grading that was approved by the Ship Bottom Planning Board in 1983. As a result, the grading was to extend to the toe of the dune, twenty feet east of the rear of the house. This required the placement of forty tons of sand on defendants' property, approximately twenty-five feet west of an existing retaining wall and fifteen to twenty feet east of that retaining wall. The work was completed to the satisfaction of the borough.

There were no further proceedings until January 4, 2007, when the Ship Bottom code enforcement officer issued a summons charging defendants with violating Ship Bottom ordinance 16.72.010.7, which provides:

No person shall remove, cart away or redistribute sand, or cause the removal, carting away or redistribution of sand, by any mechanical or other means from the strand, beach, dune line or beach dune area of the borough.

In 2006, Ship Bottom was contemplating constructing a new municipal building, and it arranged for aerial photographs to be taken to assist it in determining whether there was municipal property that could be sold to provide financing for the project. When the borough engineer reviewed these photographs, he noted that the dune on defendants' property had been altered from its remediated condition. The retaining wall was exposed and there was a large level area extending from the rear of defendants' house which was clearly being used as a patio. Testimony estimated this level area to extend approximately forty-five to fifty feet from the rear of the house. The engineer alerted the borough.

After further investigation, the municipality contacted the Department of Environmental Protection; the Department, however, declined jurisdiction, with the result that the municipality issued the summons in question.

Testimony at the municipal court proceeding established that the height of the dune following the 1994 remediation was to be eighteen feet. By the time of the hearing, however, it had increased to approximately twenty-six feet. There was also testimony that no other dune in the borough had increased in height in such a manner.

Finally, the code enforcement officer testified that he issued the summons in question because he had been instructed by his superior to do so. He did not personally observe defendants removing any sand and was unable to determine from the street or the beach whether any sand had been removed. He did not know of any other summonses that had been issued for violating this ordinance.

Defendants sought to establish through questioning that the summons was issued in retaliation for their efforts in opposing a beach replenishment project that had been proposed to Long Beach Island. They also sought to establish that the change in the dune could have resulted from the natural force of storms and wind over the years since the earlier remediation.

Both the municipal court judge and the Law Division judge found defendants guilty of violating the ordinance. Defendants were ordered to restore the dune and were fined. This appeal followed. On appeal, defendants raise the following arguments:

POINT I The Trial Court Erred in not Limiting the Court's Review & Findings to the Four Corners of the Municipal, January 4, 2007 Summons in Question.

POINT II The Municipal Court and Later Superior Court Review Court Erred in Applying the Wrong Standard of Review Related to the Sand Removal Ordinance in Question as Applied Against the Constitutional Property Rights Found by Judge Grasso, P.J.Ch. in the Collateral Case of DEP v. Ginaldi, et al.

POINT III The Trial Court Erred in not Finding that the Single Family Home in Question was not Subject to Respondent's Demanded Site Plan Improvements on Private Property Some Twenty-Two (22) Years After its Certificate of Occupancy was Issued.

POINT IV The Trial Court Erred in its Sentencing by Directing its Sentencing to the Borough Engineer to Act as Judge & Jury in Remediating this Dune Dispute.

Our function in reviewing the decision of a Law Division judge following a trial de novo is to determine whether there is sufficient credible evidence in the record to support the decision of the Law Division judge. State v. Johnson, 42 N.J. 146, 162 (1964). The Supreme Court agreed with the statement of this court that the appellate function "does not weigh the evidence anew but merely determines whether the evidence supports the judgment of conviction." Id. at 157, 162.

The essence of defendants' first argument is that they could not be found guilty absent proof that at 2:30 p.m. on January 4, 2007, they personally removed sand from this dune. Defendants rely on the dissenting opinion of Justice Jackson in Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S. Ct. 1, 92 L. Ed. 10 (1947), to support their position. This case, however, is inapplicable to the instant matter. Merrill concerned the Federal Crop Insurance Corporation ("FCIC"), which the federal government created to insure wheat producers against losses caused by drought. Id. at 382, 68 S. Ct. at 2, 92 L. Ed. at 13-14. In 1945, Mr. Merrill went to the FCIC seeking coverage for his crop, most of which was grown from reseeding the prior season's acreage. Id. at 382, 68 S. Ct. at 2, 92 L. Ed. at 14. An FCIC regulation provided, however, that reseeded crops were ineligible for coverage. Ibid. Unaware of this regulation, an employee of the FCIC granted Mr. Merrill coverage of his reseeded crops, and when Mr. Merrill filed a claim for losses he sustained, the FCIC refused payment citing the regulation. Ibid. The Supreme Court ruled in favor of the FCIC, but Justice Jackson dissented, arguing that the Government should "turn square corners," and that it should have kept its word to Mr. Merrill. Id. at 388, 68 S. Ct. at 5, 92 L. Ed. at 17 (Jackson, J., dissenting).

We are satisfied that this observation by Justice Jackson clearly does not stand for the proposition that the State is limited to proving a violation in the constricted manner that defendants assert. Indeed, defendants have not cited, nor has our research revealed, any authority for this proposition.

We also reject defendants' contention that the borough was required to present a witness who had personally observed defendants removing sand from the dune. Proof of a violation may be made by either direct or circumstantial evidence. State v. Mills, 51 N.J. 277, 287, cert. denied, 393 U.S. 832, 89 S. Ct. 105, 21 L. Ed. 2d 104 (1968). "[I]n weighing circumstantial evidence to determine if guilt exists[, the test is the same] as in the case of direct or testimonial evidence, namely, whether it is sufficient to generate a belief of guilt beyond a reasonable doubt." Ibid.; State v. Samuels, 189 N.J. 236, 246 (2007).

In this case, both the municipal court judge and the Law Division judge, on de novo review, found the circumstantial evidence sufficient to prove defendants' guilt beyond a reasonable doubt. That conclusion is firmly supported by the record. The testimony of the borough engineer clearly explained that in 1993, there was a violation of the ordinance and that defendants remedied that violation under his supervision. In 1994, he inspected the property and found it to be in compliance. Then, in 2006, he saw a photograph of defendants' property that revealed that the dune had been altered back to its pre-remediation state. He described with specificity the differences between the defendants' property as it was in 1994 and as it existed in 2006. This description, along with photographic evidence and the fact that defendants have remained in sole custody of the property since 1994, yields only one reasonable inference: that defendants removed or directed someone to remove the sand from the dune in order to extend their patio from their house to the retaining wall.

We also reject defendants' argument that this proceeding in some manner interfered with the property rights guaranteed to them by the federal and state constitutions. Our courts have long recognized the crucial role of dunes in protecting a barrier island such as Long Beach Island. Spiegle v. Bor. of Beach Haven, 116 N.J. Super. 148, 154 (App. Div. 1971). A municipality may enact ordinances to protect the dunes within its borders; a challenge to such an ordinance must establish that it "unduly burdens [the] beneficial use of the land." Spiegle v. Bor. of Beach Haven, 46 N.J. 479, 491, cert. denied, 385 U.S. 831, 87 S. Ct. 63, 17 L. Ed. 2d 64 (1966). Plaintiff failed in that challenge.

Defendants also argue that a local government summons cannot be used to quiet title. The present action is not an action to quiet title. An action to quiet title is a "proceeding to establish the plaintiff's title to land by bringing into court an adverse claimant and there compelling him either to establish his claim or be forever after estopped from asserting it." Black's Law Dictionary 1124 (5th ed. 1979). The Borough of Ship Bottom brought no such action. Instead, this action was a quasi-criminal action trying defendants for an alleged violation of a borough ordinance.

Defendants misapprehend the nature of the proceedings, which addressed a violation of a municipal ordinance and were not intended to focus on defendants' site plan. Documents prepared in connection with defendants' application for site plan approval were merely incidental to the condition of the dune following the earlier remediation.

Finally, there was no error in having the borough engineer determine what needed to be done to restore this dune and providing that the work had to be approved by him.

 
Affirmed.

(continued)

(continued)

9

A-3111-07T4

February 11, 2009