STATE OF NEW JERSEY v. RATTAN NATH
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1178-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RATTAN NATH,
Defendant-Appellant.
_______________________________
Submitted January 30, 2018 – Decided April 26, 2018
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Municipal Appeal
No. 2016-029.
Rattan Nath, appellant pro se.
Trenk, DiPasquale, Della Fera & Sodono, PC,
attorneys for respondent (Richard D. Trenk,
of counsel; Robert S. Roglieri, on the brief).
PER CURIAM
Defendant Rattan Nath appeals an October 5, 2016 Law Division
order finding him guilty in a trial de novo. Defendant was found
guilty of violating provisions of the Municipal Code of West
Orange, N.J. (Code) pertaining to the maintenance of his property.
The order imposed two $1,250 fines for the violations.
I.
We first set forth the ordinances defendant was found to have
violated. Code § 14-8.1, entitled "Maintenance of Exterior of
Premises," states:
a. Hazards and Unsanitary Conditions. The
exterior of the premises and all structures
thereon shall be kept free of all nuisances,
and any hazards to the safety of occupants,
pedestrians and other persons utilizing the
premises, and free of unsanitary conditions;
and any of the foregoing shall be promptly
removed and abated by the owner or operator.
It shall be the duty of the owner or operator
to keep the premises free of hazards which
include but are not limited to the following:
1. Refuse, garbage and rubbish as
defined in subsection 14-2.1 contained
herein.[1]
2. Natural Growth. Dead and dying
trees and limbs or other natural growth which,
by reason of rotting or deteriorating
conditions or storm damage, constitute a
hazard to persons in the vicinity thereof.
Trees shall be kept pruned and trimmed to
prevent such conditions. All weeds shall be
1
Code § 14-2.1 defines "Refuse" as "all putrescible and
nonputrescible solid wastes," "Garbage" as "putrescible animal and
vegetable waste," and "Rubbish" as "nonputrescible solid wastes
consisting of both combustible and noncombustible wastes, such as
paper, wrappings, cigarettes, cardboard, tin cans, yard clippings,
leaves, wood, glass, bedding, crockery and similar materials."
Ibid. (emphasis added).
2 A-1178-16T1
removed from the vicinity of any public
sidewalk or roadway.
[Ibid. (emphasis added).]
Code § 14-8.2, entitled "Appearance of Exterior of Premises
and Structures," states:
a. Residential and Nonresidential. The
exterior of the premises, the exterior of
dwelling structures and the condition of
accessory structures shall be maintained so
that the appearance of the premises and all
buildings thereon shall reflect a level of
maintenance in keeping with the residential
standards of the neighborhood or such higher
standards as may be adopted as part of a plan
of urban renewal by the Township, and it shall
be the duty of the owner or operator to
maintain the premises in the manner set forth
herein, including, but not limited to the
following:
. . . .
2. Landscaping. Premises shall be kept
landscaped and lawns, hedges and bushes shall
be kept trimmed where exposed to public view,
and shall be maintained so as not to obstruct
public access to sidewalks and roadways. All
trees shall be kept trimmed so that they do
not encroach onto the sidewalk or roadway from
the ground to a height of seven (7) feet.
Hedges and bushes shall be maintained so that
they do not encroach onto the sidewalk. Lawns
shall be trimmed and maintained and shall not
exceed a height of eight (8) inches from the
ground. All lawns, trees, hedges and bushes
in violation of any and all provisions of this
Ordinance shall be removed, trimmed, or cut
to conform to the requirements set forth
herein.
3 A-1178-16T1
[Ibid. (emphasis added).]2
On November 20, 2015, West Orange Township code enforcement
officer William Ordonez, visited defendant's property and observed
"the hedges were overgrown, [and] the bushes, . . . lawn, [and]
grass [were] high." Ordonez issued a Notice of Violation, which
stated defendant should "landscape [the] entire property by
November 30, 2015," and cited Code §14-8.2(a)(2)'s requirements
that trees must not encroach onto the sidewalk below seven feet,
and that lawns must not be more than eight-inches tall.
Starting December 1, 2015, Ordonez repeatedly returned to the
property and took photographs of the conditions. On January 8,
2016, defendant received a citation for an ongoing violation for
"failure to landscape property." Code § 14-8.2(a)(2). Defendant
also received a citation for an ongoing violation for "failure to
maintain exterior of property" regarding "refuse, garbage,
rubbish, [and] material growth." Code § 14-8.1(a)(1) and § 14-
8.1(a)(2).
At the June 22, 2016 trial in the Municipal Court, Ordonez
testified that between December 1 and January 8, he observed the
following, which was also depicted in his photographs. The grass
2
Township Code Sections 14-8.1 and 14-8.2 (Apr. 11, 2018),
http://www.westorange.org/AgendaCenter/ViewFile/Item/70?fileID=2
82.
4 A-1178-16T1
and weeds were taller than the eight-inch limit, reaching as high
as eighteen inches. There were piles of leaves extending from
about eleven feet inside the property to beyond the curb,
obstructing the sidewalk. Defendant had wire-mesh fencing strung
between two trees that created "a dam" trapping mounds of leaves.
Near the neighbor's driveway, there was a very large pile of wood,
including cut limbs, branches, and stumps, at least two feet high.
There was a twenty-inch-high mound of wood chips near the street.
There were tree branches below the seven-foot limit on both the
north and south sides of the property, hanging over and obstructing
the ability to walk on the sidewalks. There was a tree that was
uprooted and leaning less than forty-five degrees above the ground.
There were loose cinderblocks piled against a retaining wall.
Lying around the property were a crate, a brick paver, several
plastic containers, and plastic wrapping.
Ordonez testified that he continued to photograph the
property from January 8 until April 11, 2016. The conditions
persisted: the tall grass and weeds; the wire mesh trapping the
leaves; the piles of leaves, branches, wood chips, and tree stumps;
the leaning tree; the brick paver, the plastic wrapping, and other
rubbish. Ordonez visited the property and found it was still in
violation of the ordinances on the date of trial, six months after
defendant received the citations. The Municipal Court also heard
5 A-1178-16T1
testimony from defendant, his children, and his neighbor. The
court found that defendant violated both ordinances. Prior to the
sentencing hearing, defendant appealed to the Law Division.
On September 30, 2016, the Law Division heard argument and
rendered an oral opinion affirming the Municipal Court's ruling
as to both ordinances. The Law Division found "ample evidence
that the defendant, indeed, violated the Township ordinances."
The court found "defendant has not denied that the property was
in the condition as testified to by the inspector and depicted by
the photographs." The court found defendant did some remedial
work but failed to abate the violations, and there "really seems
to be a defiance by the defendant on abatement." The court then
required defendant to pay a $1,250 fine for each violation, plus
$30 in court costs.
On appeal, defendant presents the following arguments:
POINT I. THE LAW DIVISION COMMITTED HARMFUL
ERROR BY IGNORING THE DENIAL OF DUE PROCESS.
1. Failure to Prove Each Element.
2. Shielding Hypocrisy.
3. Undermining Constitutional
Protections.
4. Allowing Prosecutor to
Testify.
5. Defendant Testimony Disrupted.
6 A-1178-16T1
6. Irrebuttable Presumption of no
Racism.
7. Speculative Factual Findings.
8. Ignoring Legislative and
Federal Policy.
POINT II. THE LAW DIVISION COMMITTED HARMFUL
ERROR BY IGNORING THAT THE UNDERLYING
ORDINANCES ARE VOID FOR VAGUENESS.
POINT III. THE LAW DIVISION COMMITTED
HARMFUL ERROR BY NOT REJECTING SYSTEMATIC
MALFEASANCE BY STATE ACTORS AS AN IMPROPER
PURPOSE FOR STATE'S RACIST ENFORCEMENT OF
THESE ORDINANCES.
We have reviewed defendant's arguments in POINT I's subpoints
2, 3, 4, 5, 7, and 8, and find they lack sufficient merit to
warrant discussion. R. 2:11-3(e)(2). We address his other points.
II.
We first address whether the State proved each element of the
violations. We must hew to our "deferential standard" of review.
State v. Stas,
212 N.J. 37, 48 (2012). The findings of trial
courts in non-jury cases "must be upheld, provided they '"could
reasonably have been reached on sufficient credible evidence
present in the record."' Deference is warranted because the
'"findings of the trial judge . . . are substantially influenced
by his opportunity to hear and see the witnesses and to have the
'feel' of the case, which a reviewing court cannot enjoy."'" State
v. Reece,
222 N.J. 154, 166 (2015) (citations omitted).
7 A-1178-16T1
The need for "'deference is more compelling where'" the
Municipal Court and Law Division "'have entered concurrent
judgments on purely factual issues. Under the two-court rule,
appellate courts ordinarily should not undertake to alter
concurrent findings of facts and credibility determinations made
by two lower courts absent a very obvious and exceptional showing
of error.'" Ibid. (citation omitted). "Therefore, appellate
review of the factual and credibility findings of the municipal
court and the Law Division 'is exceedingly narrow.'" Ibid.
(citation omitted).
Here, both the Municipal Court and the Law Division credited
Ordonez's testimony, and the Law Division "adopt[ed]" the
Municipal Court's findings of fact. The State supported Ordonez's
testimony with seventy-nine photographs depicting the violations.
The facts constituting the violations were essentially uncontested
by defendant and his witnesses. Accordingly, we uphold the
findings of fact.
We also agree with the Law Division that the evidence showed
defendant violated the ordinances. The Law Division's greatest
concern was "the tree leaning in a 45 degree angle which was
pictured to be in the same position from January 7th, 2016 to
April 11, 2016." The court found the roots were out of the ground,
the tree was not stable, and it "definitely constitute[d] a
8 A-1178-16T1
hazardous condition" for both the occupants and pedestrians in
violation of Code § 14-8.1(a)(2). We agree.
The court properly found the weeds higher than eight inches,
and the tree branches hanging over the sidewalk at a height less
than seven feet, were both violations of Code § 14-8.2(a)(2). We
need not address the court's finding that the large pile of leaves
behind the wire mesh also violated that subsection.
Finally, the court found the piles of leaves on the sidewalks,
the plastic wrapping, plastic containers, and crates on the lawn,
and the cinderblocks were all refuse, garbage, or rubbish in
violation of Code § 14-8.1(a)(1). "Refuse, garbage and rubbish"
is defined in Code § 14-2.1 to include "wrappings, . . . yard
clippings, leaves, wood, . . . and similar materials." The piles
of leaves on the sidewalk were sufficient to show a violation, as
they were "rubbish," and they also posed "hazards to the safety
of . . . pedestrians." Code § 14-8.1(a) & (a)(1). We need not
address whether the cinderblocks, paver, crate, or plastic
containers were "rubbish," or whether they and the wrapping had
to be "hazards" in order to violate this subsection. See Code §
14-2.1, -8.1(a).3
3
The State has not argued they were "unsanitary" or "nuisances"
as defined in the Code. See ibid. The State did not charge
defendant under Code § 14-8.2(a)(1) regarding commercial or
industrial material.
9 A-1178-16T1
III.
Defendant contends the ordinances were void for vagueness.
"A law is void if it is so vague that '"persons 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 (1999) (citations omitted). "To withstand a void-for-
vagueness challenge, a penal ordinance must define the offense
'with sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.'" State v. Clarksburg
Inn,
375 N.J. Super. 624, 633 (App. Div. 2005) (quoting State v.
Golin,
363 N.J. Super. 474, 482-83 (App. Div. 2003)).
That said, "[a] municipal ordinance under review [for
vagueness] enjoys a presumption of validity and reasonableness."
Id. at 632. "Municipal ordinances are liberally construed in
favor of the municipality and are presumed valid." Ibid.
"However, because municipal court proceedings to prosecute
violations of ordinances are essentially criminal in nature, penal
ordinances must be strictly construed." Ibid. (quoting Golin,
363 N.J. Super. at 482).
"In determining whether an ordinance is vague, 'a common
sense approach is appropriate in construing the enactment'" in
terms of the persons who may be subjected to it and in context
10 A-1178-16T1
with its intended purpose. Heyert v. Taddese,
431 N.J. Super.
388, 424 (App. Div. 2013) (citations omitted). "The language of
the ordinance 'should be given its ordinary meaning absent specific
intent to the contrary.'" Ibid. Where, as here, the provision
itself defines its terms, courts look to that definition. See
Schad,
160 N.J. at 168, 182; State v. Stafford,
365 N.J. Super.
6, 14-15 (App. Div. 2003). "When terms are defined, however, a
vagueness argument generally fails." Chez Sez VIII, Inc. v.
Poritz,
297 N.J. Super. 331, 352 (App. Div. 1997).
We reject defendant's claim that the specific aspects of the
ordinances under which we have sustained his convictions are void
for vagueness. Code § 14-8.1(a)(1) specifically incorporates the
definition of "rubbish" in Code, which makes clear "rubbish"
includes "yard clippings, leaves, [and] wood." Code § 14-8.1(a)(2)
is clear in requiring that "[d]ead or dying trees" must be kept
pruned to prevent hazard, as plainly posed by the leaning tree.
Code § 14-8.2(a)(2) is precise in requiring that "trees shall be
kept trimmed so they do not encroach onto the sidewalk . . . to a
height of seven (7) feet," and that "[l]awns shall be trimmed" to
not "exceed a height of eight (8) inches from the ground."
"'A statute may be challenged as being either facially vague
or vague "as-applied."'" State v. Lenihan,
219 N.J. 251, 267
(2014) (citations omitted). "'[I]f a statute is not vague as
11 A-1178-16T1
applied to a particular party, it may be enforced even though it
might be too vague as applied to others.'" Ibid. (citation
omitted). Because the ordinances were not vague as applied to the
conduct supporting defendant's convictions, we need not consider
whether the ordinances might be vague in other applications.
Defendant relies upon Golin to argue the ordinances are void
for vagueness. However, Golin voided an ordinance that prohibited
"[a]ny matter, thing, condition or act" that "may become an
annoyance."
363 N.J. Super at 480, 483-84. We ruled the ordinance
was overbroad because it did not allow the enforcing officer "'to
point to objective facts that would lead a reasonable person to
realize that his or her conduct was a violation of the ordinance.'"
Id. at 483 (citation omitted). Here, unlike the subjective and
undefined criteria in Golin, the ordinances set forth objective
facts which defendant could realize he was violating, such as the
definition of rubbish, dead or dying trees, and tree branch height
requirements.
Assessing whether there was a hazard required a qualitative
assessment, but that does not render an ordinance vague. See
Clarksburg Inn,
375 N.J. Super. at 634-39 (finding "clearly
audible" was not vague). Like statutes, ordinances "need not be
meticulous in specificity, but should be afforded 'flexibility and
reasonable breadth,' given the nature of the problem and wide
12 A-1178-16T1
range of human conduct." Poritz,
297 N.J. Super. at 352 (citation
omitted). Therefore, in our de novo review, we find the ordinances
were not void for vagueness. Clarksburg Inn,
375 N.J. Super. at
631. In any event, the leaning tree, like the piles of leaves on
the sidewalk, met the definition of a "hazard" as "a source of
danger[.]" Merriam-Webster's Collegiate Dictionary, 572 (11th ed.
2014).
Defendant argues "zoning provisions were void for vagueness
because [the] State had diametrically opposite interpretations in
2011 and 2016 for them." Defendant adds no details. He may be
referring to his conviction for failing to trim his lawn in 2011,
in violation of Code § 14-8.2(a)(2) (2000), which we previously
upheld. State v. Nath, No. A-4659-11 (App. Div. Apr. 29, 2013),
certif. denied,
216 N.J. 365 (2013), cert. denied,
134 S. Ct. 2736
(2014). In 2011, that section required "lawns, hedges and bushes
shall be kept trimmed and from becoming overgrown and unsightly
where exposed to public view and where the same constitute a
b[l]ighting factor depreciating adjoining property and impairing
the good residential character of the neighborhood." Ibid. (slip
op. at *2 (quoting Code § 14-8.2(a)(2) (2000)). However, in 2012,
the ordinance was amended to its current form. Code § 14-8.2(a)(2)
(citing West Orange, N.J. Ord. No. 2352-12). The State properly
applied the new language to defendant's 2016 violations.
13 A-1178-16T1
Further, defendant argues that because the ordinances are
vague, the rule of lenity applies. However, "the rule of lenity
is applied only if a statute is ambiguous, and that ambiguity is
not resolved by a review of 'all sources of legislative intent.'"
State v. Regis,
208 N.J. 439, 452 (2011) (citation omitted). Here,
the rule of lenity does not apply because the ordinances are not
ambiguous as applied to the conduct on which we have sustained
defendant's convictions.
IV.
Defendant also argues the Law Division ignored the denial of
due process because the State did not prove other "required
elements," namely "intent and the presences of a legitimate State
interest in interfering with private property."
However, the ordinances do not make defendant's intent an
element. Rather, the ordinances provide the property owner "shall"
keep the premises free of hazards and "shall" maintain the
premises, including that dead or dying trees "shall be kept
pruned," and tree branches and lawns "shall be trimmed." Code §§
14-8.1(a), -8.2(a).
Moreover, "criminal intent is not necessary to support a
finding of guilt in regulatory or public welfare criminal
statutes." State, Dep't of Law & Pub. Safety, Div. of Gaming
Enf't v. Boardwalk Regency Corp.,
227 N.J. Super. 549, 556 n.2
14 A-1178-16T1
(App. Div. 1988). Strict liability is "an unexceptionable and
appropriate legislative option where employed to implement a
regulatory scheme designed to deal with a serious social problem."
United Prop. Owners Ass'n of Belmar v. Borough of Belmar,
343 N.J.
Super. 1, 27 (App. Div. 2001) (quoting State v. Kiejdan,
181 N.J.
Super. 254, 258 (App. Div. 1981)).
A legitimate State interest is also not an element of the
offense that must be proven at trial. In any event, it is a
legitimate State interest to require a property owner "to keep the
premises free" of "hazards to the safety of occupants, pedestrians
and other persons utilizing the premises," such as the leaning
tree and piles of leaves on the sidewalk. Code § 14-8.1(a)(1),
(2). It is also a legitimate State interest to require owners to
keep sidewalks free of low branches. Code § 14-8.2(a)(2).
There is also a legitimate State interest in requiring grass
and weeds to be no higher than eight inches. Ibid. The purpose
of the housing Chapter in the Code is "to protect the public
health, safety, morals and welfare by establishing minimum
standards governing the maintenance, appearance, [and] condition"
of residential premises. Code § 14-1.3. In addition, the Township
found that "lack of maintenance" and deterioration of the
"appearance of exterior of [such] premises" also have the "effect
of creating blighting conditions and initiating slums," which
15 A-1178-16T1
"will necessitate in time the expenditure of large amounts of
public funds to correct and eliminate the same." Code 14-1.2.
"[P]reservation of aesthetics and property values is a legitimate
end for a municipal zoning ordinance." State v. Miller,
83 N.J.
402, 415 (1980). Thus, the ordinances address serious social
problems, namely safety and blight. Therefore, there is no due
process violation.
V.
Defendant also claims that other properties, including those
owned by the State, violate these ordinances and that the
ordinances are enforced only against South Asians.
"Two elements must be established to succeed on a claim of
unconstitutional enforcement of an ordinance — 'a discriminatory
effect and a motivating discriminatory purpose.'" United Prop.
Owners Ass'n,
343 N.J. Super. at 25 (quoting Schad,
160 N.J. at
183). "'"To prevail on a claim of selective prosecution, [the]
defendant must provide 'clear evidence' to overcome the
presumption that the prosecutor has not acted unconstitutionally,
given the general deference to which prosecutorial decisions are
entitled."'" State v. Heine,
424 N.J. Super. 48, 66 (App. Div.
2012) (citations omitted).
In the Municipal Court, defendant claimed discriminatory
enforcement against South Asians. He proffered his neighbor, also
16 A-1178-16T1
a South Asian, to testify he had been prosecuted, but that would
not show a pattern of ethnic discrimination. Defendant asserted
other properties in the neighborhood looked like theirs but the
owners were not prosecuted. The court allowed defendant to present
photographs of nearby properties, but they had no sidewalks being
encroached or violations comparable to those we have upheld. The
court properly found defendant's "anecdotal references to
enforcement regarding certain properties falls far short of
establishing a pattern of discrimination" against South Asians.
See United Prop. Owners Ass'n,
343 N.J. Super. at 26.
In the Law Division, defendant again argued South Asians were
being targeted. He contended there were low hanging branches
outside the courthouse, but offered no evidence they obstructed
sidewalks. He also asserted that enforcement limited his ability
to worship as a Hindu by engaging in organic landscaping. The
court noted there was no evidence how the conditions on his
property were relevant to his religious beliefs, and properly
rejected his claim of selective enforcement. See State v. Cameron,
100 N.J. 586, 616 (1985) (finding the defendant made "no showing
that the Ordinance in fact infringes upon the . . . right to free
exercise of religion").
Lastly, we have considered the numerous other arguments
presented in defendant's submissions and conclude that they "are
17 A-1178-16T1
without sufficient merit to warrant discussions." R. 2:11-
3(e)(2). We "decline to consider arguments raised for the first
time in [defendant's] reply brief." Bacon v. N.J. State Dep't of
Educ.,
443 N.J. Super. 24, 38 (App. Div. 2015).
Affirmed.
18 A-1178-16T1
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