STATE OF NEW JERSEY v. ELLIOTT KOPLITZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0339-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELLIOTT KOPLITZ,

Defendant-Appellant.

_______________________________

December 1, 2011

 

Argued September 19, 2011 - Decided

 

Before Judges Sabatino and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-035.

 

Gary E. Fox argued the cause for appellant (Fox & Melofchik, L.L.C., attorneys; Mr. Fox, on the brief).

 

Martin J. Arbus argued the cause for respondent.

PER CURIAM

Defendant Elliott Koplitz appeals the Law Division's affirmance of a judgment of conviction entered against him in the Ocean Township municipal court, finding him guilty of using two adjacent buildings in the township as de facto rooming houses in violation of local ordinances. In particular, defendant was found guilty of 304 daily violations of the Township's land development ordinance1 restricting buildings to "one-family dwelling[s,]" and 304 daily violations of the Township's housing ordinance2 disallowing tenancies without a certificate of occupancy ("C.O."). The court imposed $91,200 in fines, computed on a basis of 304 days multiplied by $300 per day.

The case was tried on stipulated facts in the municipal court. The record shows that defendant's management company entered into leases in March 2008 with International Worker's Assistance Placement Co., ("IWAPCO"), with the intent of allowing IWAPCO's employees to occupy the premises on a short-term basis. Although the leases listed an agent of IWAPCO as the ostensible tenant, the actual residents were employees of the Ocean Plaza Restaurant and Hotel in Long Branch. Fifty percent of the residents changed during a six-month period. The residents were brought back and forth to work in a company van. The units had separate locks and peepholes, and as the municipal judge found, they were clearly not family-style quarters permitted in the residential zone.

Defendant applied for a certificate of occupancy for each of the buildings in April 2008. After an inspection that month, township officials informed him that the properties appeared to comprise a boarding or rooming house. Consequently, no C.O. was issued. A follow-up letter was sent to defendant by the township's zoning officer in June 2008, explaining that he needed to obtain a variance to use the properties as something other than a single-family dwelling. Defendant ignored these warnings and continued to lease the premises. He did not apply for or obtain a variance. Eventually, summonses were issued in April 2009, covering the period from July 2008 through April 2009, spanning 304 days of violations.

Following a trial on the evidence submitted, the municipal judge found defendant guilty of the charged offense on April 21, 2010. The judge imposed a daily fine of $300 for each day of violation. The $300 fine consisted of a $150 fine for the land development ordinance violation, and another $150 fine for the housing ordinance violation. In calibrating the fine, which could have been significantly higher, and which was imposed without jailing defendant, the municipal judge essentially set the aggregate fine as equal to the full rental income payable to defendant under the leases. The municipal judge reasoned that the fine should not be a "cost of doing business" for an illegal operator.

On de novo review in the Law Division, Judge Anthony J. Mellaci, Jr., upheld the convictions and fines in all respects in an oral decision dated August 6, 2010.

In his present appeal, defendant argues that: (1) the summonses and the ensuing prosecution were flawed because the township did not inspect the premises within five days of his request for a C.O. and provide him with ten days to correct the violations, as the local ordinances require; (2) the portion of the land development summonses covering the period from July 1, 2008 through February 26, 2009 were invalid because he did not receive a violation notice until February 6, 2009, thereby only exposing him to forty-nine days of fines ($7350 using a $150 daily rate for the land development ordinance violations); (3) the equitable doctrine of laches should prevent the summonses issued in April and May of 2009 to relate back to defendant's conduct in 2008; (4) the prosecution did not prove beyond a reasonable doubt that the premises were not used as single-family residences; (5) the township's single-family land use restrictions are arbitrary and unconstitutional; and (6) the daily fines based on the so-called "double summonses" should have merged.

We have fully considered each of these points, and find none of them to have merit. We therefore affirm the Law Division's order dated August 6, 2010 upholding defendant's conviction and corresponding fines, substantially for the reasons set forth by Judge Mellaci in his oral ruling, as well as the detailed findings of the Municipal Judge, Joel N. Kreizman. Given the lack of merit in defendant's arguments, we need not comment further, see R. 2:11-3(e)(1)(E), except to make the following short observations.

First, we perceive no defect in the summonses that were issued. Defendant received more than ample fair notice that his intended use of the premises was illegal, particularly through the June 2, 2008 letter from the township's zoning officer unambiguously advising that the use was non-conforming and that a C.O. would not be issued. The fact that the property was inspected in April 2008, approximately two weeks after defendant first requested a C.O., is of no moment, as defendant was not charged with any violations for April 2008. Instead, the period of violations for which he was prosecuted did not commence until July 2008. We are also satisfied that the letter sent to defendant on February 6, 2009, entitled "Zoning Denial," merely reiterated the township's previously-articulated position about the illegality of the use.

Second, we reject defendant's claim that the doctrine of laches should bar his prosecution for any violations preceding February 26, 2009, twenty days after the issuance of the February 6, 2009 letter. Laches can only apply where a party unreasonably delays in asserting its rights, and the opposing party relies in good faith in believing that the right has been abandoned. See Dorchester Manor v. Borough of New Milford, 287 N.J. Super. 163, 171-72 (Law Div. 1994), aff'd, 287 N.J. Super. 114 (App. Div. 1996). The key factors to be considered in deciding whether to apply laches are the length of the delay, the reasons for the delay, and the "changing conditions of either or both parties during the delay." Lavin v. Bd. of Educ. of Hackensack, 90 N.J. 145, 152 (1982). "The core equitable concern in applying laches is whether [the opposing] party has been [unfairly] harmed by the delay." Knorr v. Smeal, 178 N.J. 169, 180-81 (2003); Lavin, supra, 90 N.J. at 152-53.

These principles of laches do not help defendant in this case. He was clearly advised by the township in June 2008 that his intended use of the premises was illegal, and he nevertheless ignored that fair warning. Defendant had no reasonable basis to presume that the township would change its position and allow that illegality to persist. If anything, the township was extremely indulgent in giving defendant considerable time to either apply for a variance or alter his business plans. Defendant did neither. In fact, he misleadingly failed to disclose the property's true tenants on his C.O. application. We agree with the township that defendant's own hands were unclean, and that he thereby cannot expect the court to reward his wrongful conduct with an equitable remedy. See Borough of Princeton v. Bd. of Chosen Freeholders of Cnty. of Mercer, 169 N.J. 135, 158 (2001) (discussing "that '[a] suitor in equity must come into court with clean hands and he must keep them clean after his entry and throughout the proceedings'" (quoting A. Hollander & Son, Inc. v. Imperial Fur Blending Corp., 2 N.J. 235, 246 (1949))).

Third, the proofs were more than adequate to establish defendant's ordinance violations beyond a reasonable doubt. The lease arrangement with IWAPCO, a commercial entity, as well as the peepholes, door locks, and other structural characteristics of the premises readily establish that the occupants of the properties did not live in a "family-style" arrangement contemplated by the ordinances. As the trial judge reasonably concluded from the proofs, "[t]he dwelling was being operated as a rooming house[,] pure and simple[.]" There was nothing about defendant's arrangement with IWAPCO and its employees that was akin to a "permanent functioning family unit." Open Door Alcoholism Program, Inc. v. Bd. of Adjustment of New Brunswick, 200 N.J. Super. 191, 197 (App. Div. 1985). Nor was the living arrangement "fairly stable, rather than transient." Berger v. State, 71 N.J. 206, 217 (1976).

We further reject defendant's assertion that the "family" requirement contained within the ordinance is arbitrary or unconstitutional. Cf. Berger, supra, 71 N.J. at 223-24; Dunphy v. Gregor, 261 N.J. Super. 110, 119 (App. Div. 1992), aff'd, 136 N.J. 99 (1994); Open Door Alcoholism, supra, 200 N.J. Super. at 197.

Fourth, defendant's claim that the municipal court was an improper forum is unavailing. We do not read State v. Weir, 183 N.J. Super. 237, 243 (App. Div. 1982), which expresses a preference for civil enforcement of local code provisions over criminal prosecution in certain instances, to strip the municipal court of its adjudicative power in this case.

Finally, we are unpersuaded that the daily violations should have merged into a single offense. Defendant's violation of the housing ordinance for occupying the premises without a C.O. is sufficiently different in kind from his violation of the land use ordinance for allowing a non-conforming use on the premises. Because the two offenses are fundamentally separate and distinct, no merger was required. See generally State v. Davis, 68 N.J. 69, 81 (1975) (adopting a more flexible approach to merger than more rigid traditional approaches that looked only to whether the offenses involved the "same transaction" and the "same evidence"). Defendant's reliance upon State v. Stafford, 365 N.J. Super. 6, 14 (App. Div. 2003), a case in which this court required the merger of offenses of two nearly-identical municipal ordinances regarding the feeding of migratory waterfowl is inopposite. Here, the housing ordinance requiring a C.O. is not synonymous with the land use ordinance that classifies which uses were permitted. If defendant in fact had received a use variance for the activity on the premises, the condition of the property would not necessarily have warranted the issuance of a C.O. In sum, no merger was required.3

We detect no merit in any other points or sub-points raised by defendant. R. 2:11-3(e)(1)(E).

Affirmed.

1 Township of Ocean Land Development Ordinance 21-27.1a.

2 Township of Ocean Housing Ordinance 7-2.2.

3 We further note that the daily combined penalty was calculated based on the sensible rationale expressed by the municipal judge. If, for the sake of discussion, we had remanded the case to require the trial court to merge the two daily offenses, the court simply could have recalibrated the daily fines (which were below the maximum allowable) and reached the same aggregate figure.