STATE OF NEW JERSEY v. EDWARD COFFEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5216-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD COFFEY,

Defendant-Appellant.

___________________________________________________

April 28, 2011

Submitted March 1, 2011 - Decided

Before Judges Graves and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-019.

Edward Coffey, appellant pro se.

Menna, Supko & Nelson, LLC, attorneys for respondent (Christine G. Hanlon, on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Edward Coffey was convicted of five municipal ordinance violations, specifically, "Illegal Grading and Clearing," Middletown Township, N.J., Ordinance 16-609A (July 18, 2005); "Illegal Outdoor Storage of Materials," Middletown Township, N.J., Ordinance 16-518 (June 13, 1994); "No Site Plan for [A]ctivities," Middletown Township, N.J., Ordinance 16-401(C)(4) (June 13, 1994); "No Fence Permit," Middletown Township, N.J., Ordinance 16-616(A)(1) (Mar. 15, 2010); and "No Development Permit -- Addition of Dirt," Middletown Township, N.J., Ordinance 16-304(A)(1)(k) (June 13, 1994).1 Defendant was fined $3500 and assessed court costs.

Defendant raises the following points on appeal:

1. ILLEGAL GRADING AND CLEARING:

a) APPELLANT DID NOT GRADE PROPERTY AND CLEARED ONLY A FRACTION OF THE ALLOWABLE AMOUNT OF 3,000 SQUARE FEET;

b) PLAINTIFF'S REPRESENTATIVE RELIED ONLY UPON AERIAL PHOTOS;

c) PLAINTIFF'S REPRESENTATIVE HAD SPECIFICALLY REQUESTED APPELLANT TO CLEAR PROPERTY ADJACENT TO BUT NOT PART OF APPELLANT'S PROPERTY.

2. ILLEGAL OUTDOOR STORAGE OF MATERIALS:

a) TOWNSHIP ORIGINALLY ISSUED C OF O WITH FULL AWARENESS THAT DEFENDANT INTENDED TO STORE CONTAINERS ON PROPERTY; C OF O . . . EXPLICITLY STATES "CONSTRUCTION EQUIPMENT, TRUCKS & CONTAINERS."

b) AS PER DEFINITIONS FROM BUSINESS DICTIONARY . . . CONTAINERS ARE NOT "MATERIALS" AS SUCH, BUT SHOULD RATHER BE DEEMED "EQUIPMENT," AND ARE THEREBY NOT PROHIBITED;

3. NO SITE PLAN:

APPELLANT WAS NOT ORIGINALLY INFORMED THAT THERE WOULD BE A NECESSITY FOR A SITE PLAN;

4. NO FENCE PERMIT:

APPELLANT DID OBTAIN A PERMIT FOR THE [SIC] BUT WAS CITED ANYWAY. APPELLANT COMPLIED WITH TOWNSHIP'S REQUEST;

5. NO DEVELOPMENT PERMIT -- ADDITION OF DIRT:

"ADDITION" WAS IN FACT NOT SUCH BUT WAS MERELY TEMPORARY STORAGE OF SAME;

6. DEFICIENT REPRESENTATION BY LAWYER AT ORIGINAL APPEAL:

MY ATTORNEY DID NOT SUBPOENA TWO IMPORTANT WITNESSES WHO COULD HAVE TESTIFIED ON MY BEHALF.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

At the municipal court trial, James Glass, Middletown's Code Enforcement Officer, testified that defendant owned property located at 49 Route 36. Glass inspected the property in April 2007, notified defendant of various violations of the ordinances, and, when he and defendant could not "reach an agreement," issued four summonses to defendant.

Regarding the illegal grading summons, Glass testified that defendant had "pushed down . . . quite a few trees [and] [i]n the process . . . had moved quite a bit of dirt around." The amount exceeded the maximum "1,000 square feet" permitted under the ordinance. Glass identified photographs of the site showing the conditions.

Glass testified that "the crux of this case" was the summons for illegal outdoor storage. Glass explained that defendant stored "containers" outdoors and, pursuant to the township ordinance, was "not allowed to store . . . materials outside unless [he] g[o]t a site plan approval." Glass noted that he believed the containers were "materials" under the ordinance. He further testified that defendant was storing plywood and Belgian block outside.

As to the third summons, Glass testified that pursuant to the ordinance, "if you alter the natural condition of the land in any way, you have to have . . . approval from the zoning officer first." Defendant had not sought site plan approval. Lastly, Glass issued a summons because defendant had installed a new fence without obtaining a permit.

Glass further testified that he issued a fifth summons to defendant in July 2008 after having received a complaint that defendant "had brought in a very, very large amount of dirt onto the property." Pursuant to the ordinance, "[I]f you bring in over ten yards of fill you need a grading plan generally or at least a permit from the zoning officer." Glass inspected the premises, advised defendant that he was not permitted to "store" the dirt on the property, and, when defendant refused to remove it, issued defendant a summons.

Marianne Hanko, Middletown's zoning officer, testified that defendant had applied for a business certificate of occupancy (CO) for the property in February 2005. The CO was introduced into evidence. It revealed that defendant indicated he intended to use the property as an "office for [c]onstruction & [c]ontainer business." In response to a question, "List . . . materials to be used or stored on premises," defendant responded, "[c]onstruction [e]quipment, [t]rucks & [c]ontainers." Hanko testified that prior to issuing the CO, she handwrote on the form: "no outdoor storage of materials -- office permitted within existing tenant space." Hanko testified that in issuing the CO, she was "approving a business office," acknowledging the approval was "from [the] zoning perspective only."

After his motion to dismiss two of the summonses was denied, defendant testified that he had been operating "a construction business" from the property since he acquired it in 2005, and that "[c]ontainers were [his] business." Defendant used the containers to "haul[] solid waste . . . construction debris," and, on occasion, kept as many as 23 containers on the property. In September 2005, Middletown issued him a series of summonses. He entered into "a plea agreement," whereby he agreed to "g[e]t a site plan." Defendant claimed he submitted a site plan but was advised that he "had to go for a formal site plan." Defendant did not submit an application thereafter and claimed that if he had made a formal application, the township would have denied it.

Defendant admitted that he continued to store the containers on his property and described them in detail. He further acknowledged that he had moved some "brush" and "some dead trees" that had fallen on his property from adjacent property owned by the township. Defendant denied changing the "grade of th[e] property," but admitted that he "cleaned it and took the bulldozer and went over it to level it[.]" Defendant also acknowledged that he had "a mound of dirt" taken from a construction site on the property.

Defendant explained that he had "been in the Township for 20 years," and municipal officials were fully aware of his business. He claimed that when he obtained the CO, no one advised him of the need to submit any other plans.

Defendant also called his former attorney, Patrick Healy, as a witness. Healy testified that defendant had been issued summonses in 2005, had pled guilty to one of them -- "stor[ing] construction materials outside" -- and the others were dismissed. Healy explained that the township never told defendant that "he had to apply for . . . formal site plan approval," which would have cost defendant "a couple thousand bucks."

The municipal court judge reviewed the transcript from the prior proceedings involving the summonses issued in 2005. He rejected defendant's argument that "the statute of limitations ha[d] run" because "every day could be a continuing violation" of the ordinance. After thoroughly reviewing the evidence, the judge found defendant guilty of all five ordinance violations and imposed an aggregate fine of $3500.

On de novo appeal to the Law Division, defendant argued that the issuance of the CO in February 2005 was a complete defense to the two summonses regarding the site plan and development permit. The judge rejected the argument, noting that "[a]lthough the [CO] was evidence that [defendant] . . . was in compliance on February 28, 2005, the issuance of the [CO] did not allow defendant free reign over the property in the future. He was not free to engage in any desired use of the property." The judge further found that defendant "violated the provision of the [CO] by storing materials outside." He also concluded that defendant added soil to the property without obtaining a development permit.

Defendant also argued that since the initial summonses, issued in 2005 dealt with similar violations, he could not be prosecuted for the lack of a site plan or the illegal storage of materials because of the statute of limitations or, alternatively, the doctrine of double jeopardy. The judge concluded there was no violation of the one-year statute of limitations contained in N.J.S.A. 2A:14-10(d) because the more recent summonses were in the nature of citations for continuing violations of the ordinance. The judge further concluded that the prosecution was not barred by principles of double jeopardy for the same reason. He found defendant guilty of all five violations and imposed the same fine, $3500. This appeal followed.

In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2011). We do not "'weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)).

Having carefully reviewed the record, we are convinced that defendant's arguments on appeal are without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only the following.

Defendant contends that the evidence regarding any violation based upon his grading and clearing of the property was insufficient because he cleared approximately 600 square feet, less than what was permitted by the ordinance, and because Glass is not an expert and relied upon aerial photographs. However, Glass inspected the property and, moreover, defendant acknowledged clearing the property of some trees. Defendant's claims -- 1) that he was not adding, but only "storing," dirt on his property; 2) that he eventually obtained a fence permit; and 3) that he was not told initially that a site plan was needed -- were all either rejected by the judge or provide no legal defense to the violations.

As he did before the Law Division judge, defendant argues that the CO permitted the outdoor storage of containers because they are not "material," and that the township was aware he intended to store the containers when it issued the CO. However, the judge concluded that defendant admitted storing other materials outside, including plywood and Belgian block, in contravention of the CO, and, that he was advised by Hanko prior to the summonses being issued that the CO approved defendant's use of the property as office space, but did not approve the outdoor storage of any equipment, including the containers.

Lastly, defendant argues that his trial counsel provided ineffective assistance because he failed to call certain witnesses who defendant claims would have provided beneficial testimony. We note that no petition for post-conviction relief was filed pursuant to Rule 7:10-2, nor was the issue raised below. We therefore refuse to consider it. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available.").

Affirmed.

1 Since the initial trial, the township of Middletown has adopted an online codification system that re-numbered the ordinances. The headings and contents of the ordinances have remained unchanged. For convenience, we have elected to use the numbers in effect at the time of trial.