CITY OF BAYONNE v. LANDICO REALTY, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0942-07T30942-07T3

CITY OF BAYONNE,

Plaintiff-Respondent,

v.

LANDICO REALTY, INC., COPTIC

IRREVOCABLE TRUST, and ZAKLAMA

IRREVOCABLE TRUST,

Defendants-Appellants.

_______________________________

 

Submitted September 29, 2008 Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 17-07.

Ronald Kurzeja, attorney for appellants.

John F. Coffey, II, Law Director, City of Bayonne, attorney for respondent (Susan Ferraro, Assistant City Attorney, on the brief).

PER CURIAM

This is an appeal from a trial de novo conducted in the Law Division pursuant to Rule 3:23, as a result of which defendants, Landico Realty, Inc. (Landico), Coptic Irrevocable Trust (Coptic), and Zaklama Irrevocable Trust (Zaklama), were convicted of violating City of Bayonne (City or Bayonne) municipal ordinances. For the reasons that follow, we affirm the convictions as to Zaklama and Coptic. We reverse as to Landico.

Esmat Zaklama (Esmat) is the trustee of both trusts and the president of Landico. Zaklama is the named defendant on summons number 0901-SC-017414, dated March 17, 2005, which charges that the premises at 973-75 Broadway are in violation of Bayonne, N.J., Rev. Gen. Ordinances 17-1.1(a), failure to maintain property free of trash and debris. Summons number 0901-SC-018788, issued February 6, 2006, against Landico as to 738-740 Broadway, charges a violation of Bayonne, N.J., Rev. Gen. Ordinances 17-15.9, failure to install glass in boarded-up windows. A third summons, number 0901-SC-021702, issued to Coptic on December 5, 2006, alleges failure to obtain a certificate of continued occupancy after the transfer of ownership contrary to Bayonne, N.J., Rev. Gen. Ordinances 35-4.7(c).

After many highly acrimonious days of preliminary hearings and trial, defendants were convicted on February 15, 2007, in the Bayonne Municipal Court of all three violations. The de novo appeal to the Law Division was decided on August 22, 2007, at which time defendants were again found guilty.

Esmat has had a number of summonses issued against him and/or his trusts for violation of city ordinances, as a result of which either he was acquitted or the charges were dismissed. Summons 0901-SC-017414 resulted in a fine of $1000 and court costs and assessments of $33. On 0901-SC-021702, a fine of $1250 and $39 in court costs and assessments were imposed. On 0901-SC-018788, a fine of $1000 and $33 in court costs and assessments were also imposed.

Our task on appeal is to determine whether the conclusions reached in the Law Division trial de novo are based on sufficient credible evidence. State v. Johnson, 42 N.J. 146, 162 (1964). In the process, substantial deference must be extended to credibility determinations of the trial court. State v. Barone, 147 N.J. 599, 615 (1997). We need not give particular deference, however, to the trial court's interpretation of the law. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). For ease of reference, each summons will be considered separately.

0901-SC-017414 (trash and debris)

The following facts were developed during the trial as to the trash and debris summons. On February 24, 2005, Deputy Fire Chief Timothy Coughlin issued a notice of violation to Zaklama and advised that all trash and debris had to be removed from 973- 75 Broadway by March 16, 2005. The relevant provisions of the Fire Code were provided to Esmat. A copy of the notice was forwarded to Simon Stergion, a health department inspector, who thereafter telephoned Esmat on March 3, 2005, about the problem. Stergion gave Esmat a March 10, 2005 deadline for cleanup. Stergion called again on March 14, 2005, and Esmat assured Stergion that the problem had been corrected.

An inspection was accordingly scheduled for March 17, 2005, and Esmat agreed to meet Stergion at 973-75 Broadway. That same day, Esmat called back and canceled the appointment. He admitted the condition had not been corrected, and asked for more time, which Stergion refused. When Stergion went to the property he found that the debris and trash remained, and, as a result, he issued the summons. Stergion testified that he sent the summons by registered and regular mail to Esmat, whom he mistakenly believed was the owner of the property at 973 Broadway. Stergion made his decision about to whom to send the notice based on tax and water records. The municipal court judge corrected and amended the summons during the trial upon discovering that Zaklama, not Esmat, was the record owner. See R. 7:2-5.

Esmat testified that he never received a summons, and he denied having discussed the charge with anyone. He also denied having received a letter from the court regarding scheduling or having knowledge of a second letter addressed to the court from his attorney about this particular violation.

On behalf of Zaklama, it is contended that the trash and debris ordinance requires notification as set forth in Bayonne, N.J., Rev. Gen. Ordinances 17-1.3: "[T]he Director [of Health] shall notify the owner, tenant, or person in possession of the lands complained of, in writing, either personally or by registered mail, to remove [the condition] within (10) days after receipt of the notice." The trial judge found that Deputy Chief Coughlin did in fact issue a detailed, specific written notice of violation to Esmat, and that it was sufficient to put Zaklama on notice. The notice advised Esmat of the date by which the conditions had to be abated, as well as the provisions of the City Fire Code with which he could be charged.

Esmat was certainly aware of the conduct that was in violation of the ordinance as Stergion repeatedly spoke to him about it. Esmat obviously was aware of the condition if he went so far as to assure Stergion that the condition was corrected. Only when advised that an additional inspection was necessary to corroborate the clean-up he claimed he had accomplished, did Esmat ask for more time.

We agree with the trial judge's conclusion that Zaklama had "more than sufficient notice." Esmat had actual notice of the offending conditions and of the fact that he would be charged if they were not corrected, and he was given adequate time to correct them. See Gamba v. Twp. of Brick, 395 N.J. Super. 143, 154 (App. Div. 2007). Therefore, Esmat, as Zaklama's trustee, had actual notice of the offending conditions. That notice satisfies the notice requirement of 17-1.3 as to Zaklama. The conviction as to 0901-SC-017414 is affirmed.

0901-SC-021702 (certificate of continued occupancy)

On October 12, 2006, Esmat testified under oath at a City Construction Board of Appeals meeting that title to 973-975 Broadway had been transferred from Zaklama to Coptic. John Zagola, an official with the City Zoning Office, happened to witness Esmat's testimony on television, as Construction Board of Appeals meetings are televised via cable. Upon thereafter making a search of the Building Department files, Zagola did not find a certificate of continued occupancy, or even a certificate of occupancy, for the premises at 973-75 Broadway. Zagola confirmed that the building had been occupied from January 3, 2006, to December 5, 2006. Accordingly, on December 5, 2006, Zagola issued complaint number 0901-SC-021102, which was substantively the same as the current summons that replaced it, 0901-SC-021702. The charged offense was a violation of Bayonne, N.J., Rev. Gen. Ordinances 35-4.7(c), which states in pertinent part:

No building, structure or premises may be used or occupied for any purpose following transfer of ownership prior to the issuance of a certificate of continued occupancy in accordance with provisions of the New Jersey Uniform Construction Code. Nothing in this section shall prevent the continued lawful use and occupancy of any lawfully existing building or structure.

It is argued on behalf of Coptic that Bayonne, N.J., Rev. Gen. Ordinances 35-4.7(c) is void as unconstitutionally vague and that, as a result, the complaint must be dismissed. The constitutional concept of vagueness has roots in both U.S. Const. amend. V and N.J. Const. art. I, 1. Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356, 368 (App. Div. 2005) (citing State v. Cameron, 100 N.J. 586, 591 (1985)). Impermissibly vague statutes are null and void as violative of procedural due process. Pazden, supra, 374 N.J. at 368-69 (citing State v. Hoffman, 149 N.J. 564, 581 (1997)). In determining whether a statute is unconstitutionally vague, the appropriate inquiry is whether those "'of common intelligence must necessarily guess at its meaning and differ as to its application.'" Twp. of Pennsauken v. Schad, 160 N.J. 156, 181-82 (1999) (quoting Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983)).

Courts must scrutinize statutes for vagueness in accordance with the "nature of the particular regulation being analyzed." Pazden, supra, 374 N.J. Super. at 369. Municipal ordinances are ordinarily "presumed to be reasonable." Nationwide Satellite Co. v. Zoning Bd. of Adjustment, 243 N.J. Super. 18, 38 (App. Div. 1990) (quoting State v. Malcolm Konner Chevrolet, 226 N.J. Super. 692, 696 (Law Div. 1988).

Coptic asserts that the ordinance is unconstitutionally vague on three separate grounds. First, it contends that the ordinance's silence as to whether the transferor or the transferee is responsible for obtaining the certificate of continued occupancy is a fatal flaw. Secondly, it argues that the ordinance must fall because no time frame is specified in which an owner must obtain the certificate. Thirdly, it claims that the circumstances under which the requirement is triggered are unclear and therefore, it is unenforceable. To the contrary, we consider the plain meaning of the ordinance to be clear. See Schad, supra, 160 N.J. at 170.

The designation of the party responsible for obtaining the certificate of continued occupancy is a question left to negotiation between transferor and transferee. In any event, the language of the ordinance implies that if the question is not otherwise resolved by the parties, the responsibility falls upon the transferee. It is the transferee whose continued use or occupancy is clearly prohibited absent a prior issuance of a certificate of continued occupancy. The time frame for obtaining the certificate of occupancy is before the premises are occupied after a title transfer.

Coptic contends that the use of the phrase "continued lawful use and occupancy" in the ordinance suggests that conveyances that do not result in a change in the use and occupancy of a building are excluded from the ordinance's application. That is simply not a fair reading. The focus of the ordinance is to prevent any use or occupation of any building, continuous or otherwise, subsequent to a transfer without the procurement of a certificate of continued occupancy. The ordinance is neither vague on its face nor as applied to defendants.

Defendants also argue that 35-4.7(c) cannot result in a penalty because the language of the ordinance itself does not establish one. N.J.S.A. 40:49-5, however, authorizes municipalities to assess penalties for violation of local ordinances. Under that authority, the designation of the range of penalties found in Bayonne, N.J., Rev. Gen. Ordinances 1-5, the general penalty provision for the entire Bayonne Municipal Code, is permissible. Section 1-5.1 sets the maximum penalty and section 1-5.2 sets the minimum penalty for any ordinance violation. These general provisions, consistent with N.J.S.A. 40:49-5, make the penalties imposed in this case lawful.

Defendants also contend that Zagola's trial testimony in its entirety should have been excluded as hearsay. After Coptic's initial objection, which was sustained, Zagola went on to testify as to his independent search of the Building Department's records, and as to his conclusion after the fruitless search that no certificate of continued occupancy was issued. The testimony was not hearsay and was not objected to during trial. See N.J.R.E. 803(c)(7). After consideration of Coptic's arguments on appeal and our review of the record, we find no error in the conviction and affirm.

0901-SC-018788 (failure to reglaze windows)

On June 14, 2005, Gary Chmielewski, a management specialist for the city's Quality of Life Office, sent a violation notice to Landico, through regular mail, demanding that it reglaze boarded-up windows at 738-740 Broadway. In December 2005, Chmielewski learned that Landico had not repaired the windows. Eugene Gallagher of the Health Department contacted Esmat directly about the problem. Subsequently, Gallagher received a letter from an "A. Aldrmly" claiming that the City had previously ordered that the windows be boarded up. This individual allegedly worked as an office manager for Landico at 2734 Kennedy Boulevard.

The plywood remained on the windows despite notification and additional exchanges of written and verbal communications between the City and Landico about the problem. As a result, on February 6, 2006, Gallagher issued summons number 0901-SC-018788 to Landico for failure to reglaze the boarded-up windows. The notice sent to Landico by Chmielewski did not contain penal and remedial provisions as required under the applicable ordinance. At the municipal trial, the City stipulated that it had not notified Landico of the right to seek modification or withdrawal of the notice or order by petition of appeal to the City's Municipal Court or provided a statement as to remedies available to the City for continued noncompliance. Essentially, the prosecutor acknowledged that the City had not complied with Bayonne, N.J., Rev. Gen. Ordinances 17-17.3(e) or (f).

The relevant language of Bayonne, N.J., Rev. Gen. Ordinances 17-17.3 provides:

A notice or order pursuant to this Code shall:

. . .

e. Include an explanation of the owner's right to seek modification or withdrawal of the notice or order by petition of appeal to the Municipal Court of the City of Bayonne.

f. Include a statement of the penal and remedial provisions available to the City for noncompliance.

This detailed notice is required only for commercial properties, such as the property at 738-740 Broadway. Notice must be served upon the owner or manager of the premises. Bayonne, N.J., Rev. Gen. Ordinances 17-17.2. Nothing in the record establishes that Esmat or Landico had actual knowledge of the right to seek modification or withdrawal of the notice or order or that they were aware of the penal and remedial provisions. Municipal court proceedings, such as the ones appealed from here, are "essentially criminal in nature." Schad, supra, 160 N.J. at 171. Rules of strict construction must therefore be followed, and the ordinance must be interpreted narrowly. Ibid. Given the State's failure to bear its burden of showing that Esmat or Landico had notice as required by ordinance, we are constrained to reverse the conviction.

Affirmed in part; reversed in part.

 

Rule 7:2, which addresses service of process in the municipal courts, is silent as to the manner of service on a trust. For purposes of this appeal, we will assume that service upon Esmat, the trustee, suffices as service upon the trust, Zaklama. Cf. R. 4:4-4(a)(5) and (a)(6); see also Pressler, Current N.J. Court Rules, comments on R. 4:4-4 (2009).

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A-0942-07T3

December 22, 2008