New Jersey Superior Court, Appellate Division - Unpublished Opinions Decisions

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WELLS FARGO BANK, N.A. v. CHRISTINE BUCKLEY
Date: April 18, 2018
Docket Number: a1346-16
GLASSBORO GUARDIANS v. BOROUGH OF GLASSBORO GLASSBORO GUARDIANS
Date: April 18, 2018
Docket Number: a1670-16 PER CURIAM In these appeals, we consider whether the trial judge erred in finding a 2004 ordinance, which required all rental properties within the municipality to "provide a minimum of one off-street parking space for every one authorized occupant 18 years of age or more," to be arbitrary and capricious. Because we agree the record fails to disclose a rational reason for the ordinance, we affirm. Glassboro Guardians, a non-profit corporation comprised of individuals who own rental properties within the municipality, challenged Ordinance No. 379-5(I), adopted on July 27, 2004, which declares in subsection (1): Every rental facility shall provide a minimum of one off-street parking space for every one authorized occupant 18 years of age or more, as approved by the Housing Officer pursuant to the following requirements. For owner- occupied rental facilities, such requirements shall be in addition to those spaces required for residential use other than the rental facility portion of the premises. Said parking spaces shall be a minimum of 10 feet by 20 2 A-1670-16T3 feet. Parking areas must be maintained and configured so as not to create a safety hazard to the tenants using the areas or to any drivers or pedestrians on the public right- of-way, and in such a manner that does not cause inconvenience to the occupants. We previously vacated a summary judgment entered in Guardians' favor and remanded for further consideration as to whether there was a rational basis for the ordinance's adoption. Glassboro Guardians v. Borough of Glassboro, No. A-4001-12 (App. Div. Nov. 5, 2014). On remand, Guardians claimed the ordinance: (1) was arbitrary, capricious, and unreasonable; (2) was improperly enacted under the municipality's police power; (3) violated the equal protection clause of the New Jersey Constitution as well as the New Jersey Civil Rights Act, N.J.S.A. 10:6-2; and (4) was void due to the alleged involvement of a councilman with a conflict of interest. The trial judge ruled, based on factual findings made at the conclusion of a three-day trial, that, among other things, "[t]here has been adduced no reason which was articulated contemporaneous with the governmental action" and, consequently, the ordinance was arbitrary, capricious, and unreasonable. In appealing, the municipality argues:1 I. THE TRIAL COURT ERRED IN DECLARING THE ORDINANCE VOID AND UNENFORCEABLE ON THE BASIS 1 We have renumbered the municipality's arguments. 3 A-1670-16T3 THAT IT WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE. II. [GUARDIANS] DID NOT MEET ITS HEAVY BURDEN OF DEMONSTRATING THE ABSENCE OF ANY RATIONAL BASIS FOR THE ORDINANCE. III. [THE MUNICIPALITY] ESTABLISHED THE CONTEMPORANEOUS RATIONAL BASIS FOR THE ORDINANCE THROUGH THE TESTIMONY OF ITS COUNCIL MEMBERS AND HOUSING INSPECTION OFFICIALS. IV. THE TRIAL COURT ERRED IN CONCLUDING THAT THE ORDINANCE IS INHERENTLY UNREASONABLE BECAUSE IT REQUIRES A PARKING SPACE FOR EVERY TENANT AND DOES NOT PROVIDE A MEANINGFUL METHOD TO OBTAIN RELIEF FROM THE REQUIREMENT. In a separate appeal, Guardians questions the trial judge's failure to find the ordinance invalid on the other challenged grounds. Guardians contends: I. THE [TRIAL COURT] ERRED IN CONCLUDING THAT IT WAS APPROPRIATE FOR THESE PARKING REGULATIONS FOR PRIVATE PROPERTY IN THE RENTAL HOUSING ORDINANCE TO BE PLACED IN A GENERAL POLICE POWER ORDINANCE AND NOT IN A ZONING ORDINANCE. II. THE [TRIAL COURT] ERRED IN CONCLUDING THAT THE RENTAL PARKING ORDINANCE DID NOT VIOLATE THE NEW JERSEY EQUAL PROTECTION CLAUSE AND THE NEW JERSEY CIVIL RIGHTS ACT. III. THE [TRIAL COURT] ERRED IN CONCLUDING THAT THE RENTAL HOUSING ORDINANCE SHOULD NOT BE INVALIDATED BECAUSE OF THE ACTIONS OF COUNCILMAN D'ALESSANDRO. 4 A-1670-16T3 Because we affirm the trial judge's determination that the ordinance is arbitrary, capricious, and unreasonable, we need not reach the alternative grounds suggested by Guardians. Our standard of review counsels that we not interfere with a trial judge's fact findings when supported by adequate, substantial and credible evidence, unless the findings would work an injustice. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We grant such deference to judge- made findings because the trial judge has the opportunity to hear and see all the witnesses and to review all evidence in the first instance, thus allowing for a better "feel" of the case than we can gain from a static record. Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132-33 (1997). For this reason, credibility determinations are entitled to particular deference. Ibid. We also start with the premise that municipal ordinances are presumed valid; consequently, a challenger has a heavy burden in seeking to overturn them. Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 447 (1980); see also Berk Cohen Assocs. at Rustic Village, LLC v. Borough of Clayton, 199 N.J. 432, 445- 47 (2009). To overturn an ordinance, a challenger must clearly show the ordinance is arbitrary, capricious or unreasonable, Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998), because "the underlying policy and wisdom" of an 5 A-1670-16T3 ordinance is assumed to reside with the governing body, not the courts, which are strangers to the controversy, Quick Chek, 83 N.J. at 447. For these reasons, an ordinance will not be set aside if any set of reasonable facts justifies the ordinance. Ibid. In considering a challenge, a court must examine "the relationship between the means and ends of the ordinance." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 290 (2001). Although a court will not inquire into a municipality's motives when the ordinance is valid on its face, a court will weigh evidence about the legislative purpose "when the reasonableness of the enactment is not apparent on its face." Riggs v. Long Beach Township, 109 N.J. 601, 613 (1988). Reviewing the ordinance facially, the trial judge observed the lack of any "introductory language" or "statement of reasons" justifying or even just explaining why it was enacted. Because of the lack of such an explanation, the trial judge examined its legislative history but found that work session and council meeting minutes also offered "no statement of reasons, elucidation of issues raised or problems sought to be solved . . . virtually no discussion of substance of the parking ordinance, no public comment by council members and no comment from the public." The record does show the discussion of the ordinance in one instance: a May 6 A-1670-16T3 6, 2004 council meeting where a councilperson drew a distinction between how the ordinance would affect "college rental" and "family rental" parking, stating that a college rental needs one space per tenant while a family rental could obtain a "parking decal" to park on the street.2 As additional evidence that the ordinance was enacted without a reasonable basis, Guardians presented the testimony of two representatives – rental property owners in Glassboro – and an expert. The trial judge accepted as credible the representatives' testimony which suggested the ordinance was enacted to control college student renters. The trial also judge found credible testimony that in various conversations the witnesses had with municipal officials no parking problem was ever mentioned as a reason for the ordinance's enactment. The judge relied on testimony regarding conversations the witnesses had with council members and administrators where a parking problem was never identified or discussed as a reason for the ordinance's enactment. In addition, the trial judge found credible references to: the municipality's claimed intent to control "animal houses"; a "stack of police reports" relating to college renters; residents' complaints about 2 Even though there was a dispute about the identity of the speaker of these comments, no one disputes the comments were made by a member of the municipal council. 7 A-1670-16T3 college renters; and the "inadequate 'strictness' of the state rental code" as reasons for the enactment of the parking ordinance as the means for gaining control of college student renters. The judge found this testimony credible because it was corroborated, "albeit reluctantly," by the municipality's witnesses. The municipality relied on the testimony of an expert and numerous town officials. The expert testified there was a "parking problem" in the municipality based upon his personal observations. And the expert extrapolated the reasons for the ordinance, citing an increased enrollment at Rowan University, an increased number of vehicles in town, and alleged safety concerns and tenant convenience.3 The judge rejected this testimony because it was uncorroborated by any reference in the record. The judge also found testimony by council members serving when the ordinance was enacted to be unhelpful to the municipality's position because those council members claimed "no recollection of why [the ordinance] was passed or what problem they were trying to solve [and] . . . recalled no public outcry or even a whimper that prompted their action."4 The trial judge noted there was only a 3 The expert testified that the population has fluctuated around 19,000 residents over since 2000. 4 One council member testified the ordinance was to ensure the "environment was not overflowing with cars and that cars would not 8 A-1670-16T3 "general denial" that the ordinance was enacted to "constrict college rentals." The municipality also argued the reasons for enacting the current ordinance are set out in its preceding 1972 ordinance,5 but that ordinance only states that it was enacted "after much study" without explanation as to what that study involved or what it revealed. Finding an absence of a purpose for the ordinance – and, if there was a purpose, it was more than likely to combat concerns about college renters – the judge concluded the ordinance was arbitrary, capricious and unreasonable. We agree, concluding that the jduge's findings were supported by credible, adequate, and substantial evidence in the record. The municipality additionally challenges the fact that the trial judge applied a standard that required a contemporaneous reason be given for municipal action. This argument misapprehends the trial judge's holding. The judge, in concluding the ordinance's adoption was arbitrary, capricious, and unreasonable, found the record lacked any reason or purpose "articulated contemporaneous be parking on the streets" but does not recall any member of the public coming to council meetings to complain about parking issues in the town. 5 Similar to the current ordinance, the 1972 ordinance required every residential unit have one parking spaces for every three occupants seventeen years or older. 9 A-1670-16T3 with the governmental action." But the judge did not create a standard imposing such a requirement; rather, the judge found the lack of any contemporaneous reasoning as evidence that discredited the municipality's witnesses assertion that there was a reason and as giving rise to an inference that the ordinance lacked a rational basis and was merely a means to unlawfully limit college renters in the municipality. As the judge determined, the "explanations" offered by the municipality were "not grounded in any facts of record and in fact, are at odds with the inability of any witness to recall or relate the actual basis for the government action." The trial judge also explained that the legal arguments and expert testimony presented by the municipality would not be "the least bit objectionable if there had been some antecedent reference to those concerns" but the record lacked "any reasons for the enactment . . . at the time it was enacted." In essence, the trial judge rejected the testimony of the municipality's witnesses and expert as not credible because there was nothing in the record prior to trial corroborating the fact that there was an alleged parking problem in the municipality and concluded that such reasoning was invented for this litigation. These are determinations based on the evidence presented and are deserving of our deference. 10 A-1670-16T3 It is also enlightening that the municipality previously tried to limit college renters by requiring rentals in certain areas to be occupied by "traditional family units" or a functional equivalent. The Supreme Court ruled that college students satisfying stability and permanency requirements satisfied the "single housekeeping unit" standard. Glassboro v. Vallorosi, 117 N.J. 421, 431-32 (1990). In that ordinance, the municipality included a statement of purpose which explained its desire to control "groups of individuals whose living arrangements, although temporarily in the same dwelling unit, are transient in nature and do not possess the elements of stability and permanency which have long been associated with single family occupancy" and that "[Rowan University] maintains substantial dormitory and apartment facilities for students . . . [meaning] ample housing exists within the Borough for college students . . . ." Id. at 423-24.6 Thus, where the municipality may have said too much last time, it certainly said too little this time. In any event, we defer to the 6 In dicta, the Court observed that "[t]raffic congestion can appropriately be remedied by reasonable, evenhanded limitations upon the number of cars which may be maintained at a given residence." Vallorosi, 117 N.J. at 433 (quoting State v. Baker, 81 N.J. 99, 111 (1979)). As the trial judge recognized, if some credible evidence was presented to explain that the municipality enacted the ordinance for the purpose of combatting traffic congestion, or parking issues, it would be upheld so long as it was implemented in an evenhanded manner. 11 A-1670-16T3 trial judge's determination that there is insufficient persuasive evidence in the record to support the ordinance's enactment. Affirmed. 12 A-1670-16T3
DIVIAION OF CHILD PROTECTION AND PERMANENCY v. S.T.
Date: April 18, 2018
Docket Number: a1961-15 PER CURIAM These two matters, which have been consolidated for the purpose of a single opinion, involve appeals by S.T. (Susan)1 of Family Part orders finding that she abused or neglected her then two-year daughter C.T. (Claudia); and that her parental rights to Claudia, then five-years-old, is terminated.2 Our review of the trial judges' decisions are limited. We defer to the expertise of Family Part judges, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we are bound to their factual findings when supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. 1 We use acronyms and pseudonyms to protect the identities of the parties involved. 2 The order also terminated the parental rights of the father D.M., which is not the subject of this appeal. 2 A-1961-15T3 v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In A-1961-15, we consider the judge's oral decision that Susan's drug addiction placed Claudia in an extreme risk of harm, which constituted abuse or neglect in accordance with N.J.S.A. 9:6-8.21(c)(4). The judge noted that she did not attend the second day of the two-day trial because she "advised that she would not need a ride to court as, due to the fact that she didn't want to waste her day in court and planned, instead, to go to the mall with her friend or to go to Shop-Rite." Susan did not testify nor refute the Division's testimony. The judge pointed to the Division's credible testimony detailing Susan's extensive history of substance abuse; causing her to spend almost fifty dollars a day on heroin as opposed to purchasing food, clothing, doctors' visits, etc. for Claudia. The judge reasoned: [Susan] admitted to the Division workers on multiple occasions that she's a heroin addict . . . . A drug addict presents a danger to their child. A drug addict who uses on average five bags of heroin a day while in a primary caretaker role for their child is a danger to that child. He concluded that Susan "continued to put her desire to go out, use drugs, and have a social life generally over the needs of the 3 A-1961-15T3 child[] . . . [along with] her heroin addiction put[ting] the two- year-old [Claudia] at substantial risk of harm." On appeal, Susan contends the judge's finding of abuse and neglect is not supported by sufficient evidence that Claudia was in substantial risk of harm within the meaning of Title 9. She argues "there was no demonstration of a connection between [her] use of heroin and any substantial risk of harm to [Claudia]. At most, [she] . . . was merely an observer . . . [and] not directly affected by [her] conduct." She further contends the judge violated principles of fundamental fairness when it failed to convert the case to a termination of parental rights under Title 30. We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We agree with Division and the Law Guardian that the judge's finding of abuse or neglect was based on credible substantial evidence and, for that reason, we must defer to those findings. In A-2713-16, Susan's drug addiction was also the centerpiece of the action. This time a different judge, applying the four- prong best interests of the child test, N.J.S.A. 30:4C-15.1(a)(1)- (4), issued a thirty-eight page written decision3 finding that the 3 Also including the termination of D.M.'s parental rights. 4 A-1961-15T3 Division proved by clear and convincing evidence that Susan's parental rights to Sarah should be terminated. In regards to prong one, continued endangerment of the child's safety and health, N.J.S.A. 30:4C-15.1(a)(1), the judge stated "the Division has unquestionably demonstrated that [Susan] placed [her daughter] at substantial risk of harm" as evinced by the Division's extensive involvement with Susan's addiction and her multiple relapses. For prong two, inability to eliminate the harm facing the child or provide a safe and stable home, N.J.S.A. 30:4C-15.1(a)(2), the judge credited the testimony of the Division's expert Dr. Frank Dyer over the testimony of Susan's two experts. Though she noted that "none of the three experts recommended reunification at this time and each acknowledged that [Susan] would need continued substance abuse treatment and significant mental health treatment." Summarizing Dr. Dyer's testimony, the judge remarked: Dr. Dyer concluded that while [Susan] is high average in intellectual functioning, her psychological profile is "extremely negative with respect to parenting capacity." He explained that [Susan] has an "extremely severe drug problem that so far proved refractory to multiple attempts at rehabilitation" and that her use of PCP is "particularly worrisome, as this substance has been known to precipitate psychotic episodes in its users." Dr. Dyer noted that [Susan] has little capacity to resist the urge to use drugs; has "extremely poor interpersonal 5 A-1961-15T3 relations[;]"[] is "prone to respond to minor frustrations and difficulties with irritation and anger[;]"[] and has a "low threshold for physical aggression.["] Dr. Dyer noted that "[t]he severity and chronicity of [Susan's] drug problem and emotional problems present enormous obstacles to treating her [and] [t]his would be true even if [Susan] had been cooperative with attempts to provide services for her; however, her history is one of poor compliance." He continued that "she remains much too disorganized, immature, emotionally unstable, socially alienated, and vulnerable to drug relapse to be entrusted with the care of any child." Moreover, "[h]er prognosis for acquiring adequate parenting capacity within the foreseeable future is extremely poor, given her history and the severity of her problems." Dr. Dyer found that [Susan] was not fit to care for Claudia and Claudia "would be [at] extremely high risk of medical neglect, as well as [at] risk of ordinary neglect, in light of [Susan's] emotional instability and unreliability." The judge thus reasoned that Susan was unable to adequately address the risk of harm she created that resulted in Claudia's removal, and is unlikely to do so in the near future. Addressing prong three, whether the Division made reasonable efforts to help Susan correct the problems that lead to her daughter's harm and if it considered alternatives to termination, N.J.S.A. 30:4C-15.1(a)(3), the judge determined that the evidence demonstrated the Division offered multiple services to assist Susan; it attempted to prevent the initial removal of Claudia with a protection plan; it advocated on Susan's behalf for several 6 A-1961-15T3 treatment programs; and it investigated and ruled out all possible alternative placements. And as to prong four, will termination of parental rights do more harm than good, N.J.S.A. 30:4C-15.1(a)(4), the judge agreed with Dyer's testimony that, "although Claudia did have a 'degree' of attachment to her mother, she considers her resource parents as her 'primary source of security, nurturance, and structure rather than her mother.'" She also accepted his opinion "that while the resource parents could mitigate any harm that resulted from termination of parental rights, Susan lacked the capacity to mitigate the loss Claudia would experience if contact with the resource parents was severed." In challenging the judge's decision, defendant contends the finding that the Division satisfied its burden under the best interests test was not supported by credible evidence. Specifically, she argues there was no proof that her past drug use harmed Claudia, or that she would harm Claudia in the future given that she established at the time of trial she was being treated. She also contends the Division did not prove that it offered her the appropriate services to remediate both her substance abuse and mental health issues. Susan further contends termination of her parental rights would damage her loving relationship with her daughter. Similar to our conclusion regarding abuse or neglect, 7 A-1961-15T3 we find insufficient merit in Susan's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Credible substantial evidence supported the termination of Susan's parental rights to Claudia and, for that reason, we must defer to the judge's findings. Affirmed. 8 A-1961-15T3
STATE OF NEW JERSEY v. JESSICA LEVINE
Date: April 18, 2018
Docket Number: a3011-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.J.A.
Date: April 18, 2018
Docket Number: a3348-16 PER CURIAM Defendants S.J.A. and P.B.G. are the parents of seven children who were born in 2005, 2006, 2008, 2011, 2012, 2013 and 2016. Judge Timothy W. Chell presided over a two-day guardianship trial, after which he found that the evidence warranted termination of both defendants' parental rights to all but the oldest child. Both defendants appeal, arguing the judge erred in finding clear and convincing evidence on any of the four prongs of the applicable statutory test, N.J.S.A. 30:4C-15.1; defendant P.B.G. also argues 2 A-3348-16T2 he "should not be penalized for the actions of S.J.A."1 We find insufficient merit in these arguments, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth by Judge Chell in his thorough and well-reasoned written decision. Affirmed. 1 All the children but two – the two youngest, L.J.A. and J.A. – support defendants' arguments. 3 A-3348-16T2
JACQUELINE NGUYEN v. JOEL SELTZER
Date: April 18, 2018
Docket Number: a3535-15
STATE OF NEW JERSEY v. DWAYNE E. DRICKETTS
Date: April 18, 2018
Docket Number: a3677-13
PARVIN REMOLINA v. SHUMAILA KASHIF
Date: April 18, 2018
Docket Number: a4275-16
U.S. BANK NATIONAL ASSOCIATION v. FRANCESCO J. ROSARIO
Date: April 18, 2018
Docket Number: a4289-16
STATE OF NEW JERSEY v. RICKKWAN A. COPPAGE
Date: April 18, 2018
Docket Number: a4356-16
C.A. v. ERIC BENTOLILA, M.D.
Date: April 18, 2018
Docket Number: a5215-14
STATE OF NEW JERSEY v. ANTHONY GLASS
Date: April 17, 2018
Docket Number: a0969-16
REGINA LONGMUIR v. KICKIN' IT, INC.
Date: April 17, 2018
Docket Number: a0980-16
IN THE MATTER OF OLUWASEGUN OLADIPO
Date: April 17, 2018
Docket Number: a1351-16
STATE OF NEW JERSEY v. JOSE A. CANTARERO
Date: April 17, 2018
Docket Number: a2788-16
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