State of New Jersey v. Michael J. Ward, IV ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3537-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL J. WARD, IV,
Defendant-Appellant.
_______________________
Argued May 21, 2024 – Decided July 11, 2024
Before Judges Gooden Brown and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Municipal Appeal No. 22-
0018.
Steven E. Angstreich argued the cause for appellant
(Weir Greenblatt Pierce LLP, attorneys; Steven E.
Angstreich, on the briefs).
Richard A. Gantner argued the cause for respondent
(Cleary Giacobbe Alfieri Jacobs LLC, attorneys;
Richard A. Gantner, on the brief).
PER CURIAM
Defendant Michael J. Ward, IV appeals from the June 9, 2023, Law
Division order finding him guilty of violating a municipal sidewalk ordinance,
Ordinance 176-12G, following a de novo trial. The June 9 order imposed fines
and fees and ordered defendant to repair the sidewalk in front of his residential
property located in the Borough of Beach Haven (Borough). We affirm.
The following facts are undisputed.1 The front of defendant's property
line borders a twelve-foot-wide grassy area, followed by a sidewalk, and then
the street curb, all owned by the Borough. The sidewalk has been in a state of
disrepair for a significant period of time. On September 30, 2020, a Borough
Code Enforcement Officer issued a summons and complaint, alleging that
defendant violated Ordinance 176-12G on June 18, 2020, by failing to repair the
sidewalk abutting his property.
At the time, the ordinance read in pertinent part as follows:
G. Notice to Abutting Owners to Repair. Whenever the
pavement or surface of any public sidewalk or portion
thereof upon or along a public street in the Borough
shall be found to be broken, disintegrated, uneven or
otherwise defective to such an extent that it would be
likely to cause a pedestrian to trip or fall in passing
along the same, and such condition shall be complained
of to, or discovered by the Code Enforcement Officer
of the Borough, he/she shall make, or cause to be made,
an inspection of the sidewalk or portion thereof, and
1
The parties stipulated to the facts.
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shall report the condition thereof by him/her so found,
to the Borough Manager with his/her recommendations
for the correction or elimination of such condition. If
such condition shall be found to constitute a hazard to
pedestrians' use of the sidewalk or portion thereof, and
may be eliminated by repair or reconstruction, the Code
Enforcement Officer may cause written notice to be
given to the owner of all real estate abutting upon the
sidewalk or portion thereof, so found to be dangerous
or hazardous and to require reconstruction or repair,
requiring such owner to reconstruct or repair the
sidewalk or portion thereof, within [thirty] days after
the service of such notice, in the manner, to the extent
and in accordance with the specifications to be set forth
in the notice. Such notice shall also contain a
description of the property abutting upon such sidewalk
or portion thereof so required to be reconstructed or
repaired, which description shall be sufficient to
identify such property.
H. Failure to Obey Notice. . . .
....
Failure to reconstruct or repair the sidewalk, or
pay the amount assessed will be deemed a violation of
this section and, upon conviction thereof, shall be
punished as provided by Section I-16.
[(Emphasis omitted).]
Defendant successfully challenged the complaint in municipal court. The
complaint was dismissed after a June 7, 2021, trial because the ordinance did
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not expressly define the term "abut," which the municipal court judge found
"vague."2
Subsequently, the Borough amended the ordinance to include an express
definition of "abut." Under the amended ordinance, which became effective on
August 29, 2021, "abut" is defined as follows:
For purposes of enforcement of this subsection, "abut"
and/or "abutting," and all derivatives therefrom shall
also apply and extend to any right-of-way, easement, or
municipal real property not otherwise or exclusively
owned by the homeowner, that runs along the frontage,
side, or rear of the homeowner's property, upon which
a sidewalk has been laid, which falls between the
homeowner's property line and the nearest curb line (or
street line where no curb is present), and where no
interceding, separately and privately owned property
lies between the homeowner's property line and the
sidewalk.
[(Emphasis omitted).]
Thereafter, the Borough issued a new summons and complaint, alleging
that defendant's failure to repair the sidewalk on November 1, 2021, violated the
amended ordinance. This time, the municipal court judge found defendant
guilty, rejecting his contention that the complaint violated principles of double
jeopardy.
2
Although the record does not include the June 7, 2021, transcript, the parties
stipulated that this was the reason for the dismissal.
A-3537-22
4
Defendant appealed his conviction to the Superior Court. Following a
trial de novo on the record, see R. 3:23-8, on June 9, 2023, the Law Division
judge issued an order finding defendant guilty. In a supporting written decision,
the judge rejected defendant's argument that his property did not "abut[]" the
sidewalk because of the twelve-foot-grassy area that separated the sidewalk
from defendant's property and that belonged to the Borough. The judge also
rejected defendant's double jeopardy challenge, and rejected defendant's claim
that the ordinance did not apply to residential property owners . The judge
imposed fines and fees and denied defendant's application to stay his obligation
to repair the sidewalk pending appeal given "the continued safety risk to people
utilizing the sidewalk while it [was] in disrepair."
In this ensuing appeal, defendant raises the following points for our
consideration:
[POINT I]
THE TRIAL COURT ERRED IN FINDING THAT
[DEFENDANT] WAS OBLIGATED TO REPAIR
THE MUNICIPAL SIDEWALK[.]
[A.] The Trial Court Erred in Finding that
the Ordinance Applies to Residential
Property Owners[.]
[B.] The Trial Court Erred in Finding that
the Properties Abut.
A-3537-22
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[POINT II]
THE TRIAL COURT ERRED IN FINDING DOUBLE
JEOPARDY WAS NOT APPLICABLE.
Our scope of review is limited. A trial court reviews a municipal court
appeal de novo on the record, and makes independent "findings of fact and
conclusions of law but defers to the municipal court's credibility findings." State v.
Robertson, 228 N.J. 138, 147 (2017). Our review "focuses on whether there is
'sufficient credible evidence . . . in the record' to support the trial court's findings."
Id. at 148 (omission in original) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Accordingly, our review "is limited to 'the action of the Law Division and not that
of the municipal court,'" State v. Hannah, 448 N.J. Super. 78, 94 (App. Div. 2016)
(quoting State v. Palma, 219 N.J. 584, 591-92 (2014)), and "[u]nlike the Law
Division, . . . we do not independently assess the evidence," State v. Monaco, 444
N.J. Super. 539, 549 (App. Div. 2016) (citation omitted) (citing State v. Locurto,
157 N.J. 463, 471 (1999)). "However, where issues on appeal turn on purely legal
determinations, our review is plenary," Monaco, 444 N.J. Super. at 549 (citing State
v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011)), and "[a] trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference," Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995).
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Applying these principles, we affirm substantially for the reasons stated
in the Law Division judge's well-reasoned opinion. On appeal, defendant
reprises the arguments rejected by the judge, first arguing that under the case
law, "only commercial property owners can be made responsible for the cost of
municipal sidewalk repair." As a result, defendant contends that the
"[Borough's] ordinance is only applicable to commercial property owners," not
residential property owners like him. We disagree.
As the judge noted in his opinion, municipalities are authorized by statute
to enact ordinances requiring landowners to repair sidewalks. Specifically,
N.J.S.A. 40:65-14 provides in pertinent part:
Any municipality may prescribe by general
ordinance in what case curbs and sidewalks shall be
constructed, repaired, altered, relaid or maintained at
the expense of the abutting landowners; wherever in
any municipality it shall hereafter become the duty of
any owner of abutting lands under said ordinance or
ordinances of the municipality to construct, repair, alter
or relay any curb or sidewalk, or section thereof, the
authorities of such municipality having charge of street
affairs may, by resolution, cause a notice in writing to
be served upon the owners or occupant of said lands,
requiring the necessary specified work to said curb or
sidewalk to be done by the said owner or occupant
within a period of not less than [thirty] days from the
date of service of such notice . . . .
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Defendant acknowledges that the statute does not distinguish between
commercial and residential landowners, but cites Stewart v. 104 Wallace Street,
Inc., 87 N.J. 146 (1981), and Luchejko v. City of Hoboken, 207 N.J. 191 (2011),
for the proposition that only commercial property owners can be required to bear
the cost of sidewalk repair. In Stewart, our Supreme Court imposed tort liability
upon abutting commercial landowners "for a pedestrian's injuries caused by a
dilapidated sidewalk." 87 N.J. at 149. However, the Stewart Court did not
extend sidewalk liability to residential property owners, explaining:
While we acknowledge that whether the ownership of
the property abutting the sidewalk is commercial or
residential matters little to the injured pedestrian, see
Davis v. Pecorino, [69 N.J. 1, 12 (1975)] (Clifford, J.,
dissenting), we believe that the case for imposing a duty
to maintain sidewalks is particularly compelling with
respect to abutting commercial property owners.
[87 N.J. at 159 (footnote omitted).]
In Luchejko, the Court addressed whether a condominium complex was
"liable in tort" for injury sustained by a pedestrian who slipped and fell on a
sheet of black ice on its abutting public sidewalk. 207 N.J. at 195-96.
Acknowledging "[a]n unbroken series of decisions" that "maintained a
distinction between commercial and residential property owners for the purpose
of imposing a duty to maintain sidewalks," the Court concluded that the
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condominium complex was "residential" and therefore not subject to sidewalk
liability for the injury. Id. at 195.
The Court reaffirmed its settled jurisprudence that:
Residential homeowners can safely rely on the fact that
they will not be liable unless they create or exacerbate
a dangerous sidewalk condition; commercial owners,
defined in reference to their use of the property and its
capacity to generate income, know that clearing their
abutting sidewalks is a cost of doing business and that
failure to do so can lead to liability.
[Id. at 210.]
Although the municipality had a specific ordinance requiring private
persons to remove snow and ice from sidewalks abutting their property, the
Luchejko Court stressed the well-settled principal that municipal ordinances do
not create tort duty, as a matter of law. Id. at 201. In that regard, the Court
explicitly reaffirmed the longstanding precedent that, despite the imposition of
a municipal duty to repair, a private citizen's breach of an ordinance does not
create tort liability:
First, it has long been the law in this state that
breach of an ordinance directing private persons to care
for public property
shall be remediable only at the instance of
the municipal government . . . and that
there shall be no right of action to an
individual citizen especially injured in
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consequence of such breach. The most
conspicuous cases of this sort are those that
deny liability to private suit for violation of
the duty imposed by ordinance upon
abutting property-owners to maintain
sidewalk pavements or to remove ice and
snow from the walks.
[Id. at 200 (omission in original) (emphasis omitted)
(quoting Fielders v. N. Jersey St. Ry. Co., 68 N.J.L.
343, 352 (E. & A. 1902)).]
Here, we agree with the judge that defendant's reliance on Stewart and
Luchejko is "misplaced." As the judge explained, the issue was not whether
defendant was "liable for a tort that may occur on the sidewalk in question," but
whether the Borough could "impose upon [defendant] the obligation to repair
the sidewalk," which the judge concluded it could pursuant to its authority under
N.J.S.A. 40:65-14. The judge also rejected defendant's contention that the
Borough was subjecting defendant to tort liability if he "undertook the
responsibility to repair the sidewalk," noting "[t]his very point was addressed in
[Luchejko]." Thus, the judge concluded the Borough "had the requisite
authority to enact Ordinance 176-12G, imposing the obligation to repair the
dilapidated sidewalk upon [defendant]," and "[t]he holdings in Stewart and
Luchejko simply [did] not apply."
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Defendant also asserts that although N.J.S.A. 40:65-14 permits
municipalities to regulate abutting landowners, "the enabling statute does not
define the terms 'abut' or 'abutting.'" Defendant urges this court to interpret the
term so that "property boundaries must touch each other for them to abut,
consistent with case law and their dictionary definitions." Based on such a
definition, defendant posits he is not an abutting landowner because there is a
twelve-foot-wide grassy area owned by the Borough that separates the sidewalk
from his property line. The Borough counters, as it did in the Law Division,
that the cases relied on by defendant are distinguishable, and supports its
position with a certification by the Borough Engineer stating that "[e]very street
in the Borough has approximately a [ten- to twelve-]foot-wide right-of-way that
encompasses the curb, landscape utility strip and sidewalk area."
We agree with the judge that defendant's argument is unavailing. As the
judge explained:
A plain reading of the [Borough's] definition reveals
three necessary elements to impose the sidewalk repair
obligation upon a property owner. First, that the right-
of-way, easement, or municipal real property at issue
runs along the frontage of the homeowner's property.
Second, that a sidewalk has been laid between the
homeowner's property line and the nearest curb line.
Lastly, there is not any interceding, separately and
privately owned property between the homeowner's
property line and the sidewalk. In this case, each of the
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elements are met. The municipal real property runs
along the front of [defendant's] property, a sidewalk has
been laid between [defendant's] property line and the
curb line and there is not any interceding privately
owned property between [defendant's] property line
and the sidewalk in question.
[(Emphasis omitted).]
Next, the judge distinguished the cases defendant relied upon as follows:
Specifically, in [Orgo Farms & Greenhouses, Inc. v.
Township of Colts Neck, 204 N.J. Super. 585, 568 (Law
Div. 1985),] in deciding a builder’s remedy lawsuit, the
trial court used the term "abut" in a general sense to
describe the tract of land in question shared a common
boundary with Freehold Township. In [Con Realty Co.
v. Ellenstein, 125 N.J.L. 196, 198 (1940),] the . . .
Supreme Court denied a landowner['s] writ [of]
certiorari because his parcel of property did not "abut"
a portion of street to be vacated for a housing project.
Again, the term "abut" was used to describe whether the
two parcels of land in question shared a common
boundary. [Ibid.] Lastly, in [High Horizons
Development Co. v. New Jersey Department of
Transportation, 231 N.J. Super. 399, 405 (App. Div.
1989),] in handling an appeal from a denial of a road
opening permit, the Appellate Division used the term
"abutting" to describe landowners who may have a right
of access to state highways. [Ibid.] In each of the cited
cases, the term "abut" or "abutting" was used to
describe the physical relationship between two tracts or
property that shared (or did not share) a common
boundary. In the case sub judice, [the Borough's]
enacted definition of "abut" or "abutting" is used to
determine whether the municipal real property runs
along the frontage of property owner's property,
meaning they share a common border.
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[(Emphasis omitted).]
Applying defendant's definition of "abut," whereby the sidewalk must
touch defendant's property line, would lead to absurd results. Under defendant's
definition, every property owner would be absolved of the Borough's sidewalk
repair obligations. Because the Borough is authorized by statute to require
abutting landowners to repair sidewalks, and can generally enact or amend
ordinances to best meet the needs of the community, like the judge, we reject
defendant's misplaced contention. See N.J.S.A. 40:48-2 (providing that
municipalities enjoy broad discretion to enact ordinances to preserve the "health,
safety and welfare" of its residents); Cona v. Twp. of Wash., 456 N.J. Super.
197, 215 (App. Div. 2018) ("Municipal ordinances are normally liberally
construed in favor of the municipality and are presumed valid, with the burden
of proving otherwise placed upon the party seeking to overturn the ordinance."
(quoting State v. Golin, 363 N.J. Super. 474, 481-82 (App. Div. 2003))).
Finally, defendant argues that double jeopardy bars the Borough from
prosecuting him "for the same violation of the same [o]rdinance twice."
The double jeopardy clauses of the United States and New Jersey
Constitutions provide that no person shall be tried twice for the same criminal
offense. U.S. Const. amend. V; N.J. Const. art. I, ¶ 11. Our Supreme Court "has
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consistently interpreted the State Constitution's double[ ]jeopardy protection as
coextensive with the guarantee of the federal Constitution." State v. Miles, 229
N.J. 83, 92 (2017). To be sure, double jeopardy protections apply equally to
municipal ordinance violations. See State v. Barnes, 84 N.J. 362, 369-70 (1980);
State v. Carlson, 344 N.J. Super 521, 527 (App. Div. 2001).
The Double Jeopardy Clause contains three
protections for defendants. It protects against (1) "a
second prosecution for the same offense after
acquittal," (2) "a second prosecution for the same
offense after conviction," and (3) "multiple
punishments for the same offense." North Carolina v.
Pearce, 395 U.S. 711, 717 (1969). Common to all three
protections is the concept of "same offense."
Accordingly, a prime concern when reviewing a
double-jeopardy claim is "whether the second
prosecution is for the same offense involved in the
first." State v. Yoskowitz, 116 N.J. 679, 689 (1989)
(quoting [State v. De Luca, 108 N.J. 98, 102 (1987)]).
[Miles, 229 N.J. at 92-93.]
Here, the Borough's second complaint against defendant is not for the
same offense involved in the first complaint. The first complaint was issued on
September 30, 2020, and the second complaint was issued more than a year later,
on November 1, 2021. While both complaints alleged a failure to repair the
sidewalk, the violations encompassed different time periods, representing a
failure to act on two separate and distinct occasions. As the judge pointed out,
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"[f]or each day the sidewalk remains in disrepair, [defendant] could face an
additional sanction." The multiple sidewalk violations are akin to an ongoing
parking violation, where a traffic enforcement officer would not hesitate to issue
repeated parking tickets, undoubtedly a common occurrence, without triggering
double jeopardy protections.
To the extent any argument raised by defendant has not been explicitly
addressed in this opinion, it is because the argument lacks sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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