State of New Jersey v. Victor Ottilio ( 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NOT FOR PUBLICATION WITHOUT THE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-0227-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VICTOR OTTILIO,
Defendant-Appellant.
_________________________
Argued June 3, 2024 – Decided October 23, 2024
Before Judges Gilson and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Municipal Appeal No.
23-01.
Geoffrey T. Bray argued the cause for appellant (Bray
& Bray, LLC, attorneys; Geoffrey T. Bray, on the
briefs).
Patrick F. Varga argued the cause for respondent
(Dasti, McGuckin, McNichols, Connors, Anthony &
Buckley, attorneys; Patrick F. Varga, on the brief).
The opinion of the court was delivered by
BISHOP-THOMPSON, J.A.D.
Defendant Victor Ottilio appeals from an order dismissing his complaint
challenging four convictions for violations of a municipal ordinance because he
installed pavers a shade tree and utility easement without obtaining the required
permits. Defendant alleged that the issuance of the violations by the Township
of Toms Rivers (Township) was barred by a one-year state of limitations and
the conviction should be overturned because he was not given notice allowing
him to cure the violations.
We have considered defendant's contentions in light of the record and
applicable law. We find no merit to defendant's arguments and affirm,
substantially for the reasons expressed by Judge Dina M. Vicari in her written
opinion dismissing defendant's complaint.
I.
Defendant owns a residential property in the Township. Defendant filed
an application with the Board of Adjustment (Board) to construct a residence
and later proposed improvements on the property. Specifically, defendant
sought a circular driveway with pavers within the shade tree and utility easement
that ran along his property line. Defendant was told the proposed driveway
expansion was permitted "as long as [defendant did not] exceed the maximum
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widths allowed" and looked "OK for engineering purposes." Defendant was
directed to contact a zoning official.
Defendant then sought a review from the zoning official of the proposed
driveway expansion with the installation of pavers within the property boundary
up to the property line within the shade tree and utility easement. Defendant
was told to file a zoning permit application. Believing the emails from township
officials authorized installation of the pavers, in May 2020, defendant installed
the pavers in the shade tree and utility easement at a cost of $10,000.
In mid-September 2020, defendant filed an application with the Board for
a variance to construct an in-ground pool, a fence, a walkway, and a driveway.
At the October 2020 public hearing, defendant's variance application was
presented, and the Board heard testimony from defendant's engineer regarding
the proposed improvements. Defendant's engineer confirmed defendant would
seek the "consent and approval" of the township engineer for the location of the
improvements between the front property line and Estate Point Road because
the Board did not have the power to approve the improvements that were
"offsite" and within the right of way. Defendant also agreed to maintain the
improvements in the area between the property lines and the right of way Estate
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Point Road as shown in the plans submitted to the Board and remove the
improvements if necessary.
Thereafter, on November 12, 2020, the Board issued a resolution
approving defendant's application subject to certain conditions. In the
resolution's findings, the Board noted that it did not have the power to approve
the installation of the pavers in the easement. Thus, in paragraph 7 of the
resolution, defendant was required to obtain a building permit within two years
and if he failed to obtain the building permit within the prescribed period, the
resolution was declared null and void. Paragraph 17 further required that
defendant seek approval from the Township engineer for "any improvements
proposed between the property lines and the [r]ight of [w]ay of Estate Point
Road;" and if those improvements were granted by the Township engineer,
defendant would execute an indemnity and hold a harmless agreement for the
benefit of the Township for permitting the improvements, agree to maintain
those improvements, and remove them if requested by the Township.
Defendant's application was denied on December 22, 2020 because
improvements located in the shade tree and utility easement were not permitted.
Defendant was told to redesign and remove those improvements or to obtain
permission from the Township engineer. In a January 11, 2021 email, defendant
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was told that written approval was required from the Township Engineer's Office
for work in the shade tree and utility easement. Four days later, in a January 15,
2021 email, the Township's Engineer notified defendant that he would not be
given permission to construct any improvements in the shade tree and utility
easement and that all improvements must be removed.
Later in May 2021, defendant was denied a construction permit for the in-
ground pool because the pavers had not been removed. That same day,
defendant initialed the grading and plot plan and noted a section of the driveway
should be cut back to the shade tree easement.
Defendant did not obtain the permit or execute an indemnity or hold
harmless agreement. In July 2022, the Township issued four complaints-
summonses regarding the installation of pavers, asserting violations for (1)
failure to abide by a condition in the development permit approval (Municipal
Ordinance 348-3.11E); (2) failure to correct violation of a condition of approval
after thirty days (Municipal Ordinance 348-3.11E(1)); (3) failure to obtain
zoning permit approval to install pavers (Municipal Ordinance 348-3.7A); and
(4) mandate no development shall occur within the shade tree and utility
easement (Municipal Ordinance 348-8.12D).
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On January 25, 2023, a municipal court trial was held, at which the State
presented testimony from Township officials. The trial record shows the
November 12, 2020 resolution did not permit defendant to install pavers within
the easement area. Nor did any Township official give defendant approval to
install the pavers in the easement area. Defendant stipulated that the pavers had
been installed, but explained that he believed the March 31, 2020 email from the
Township engineer and the April 23, 2020 email from the Township zoning
officer were sufficient approval to install the pavers in the easement
notwithstanding the explicit January 15, 2021 email that denied approval and
directed the removal of the pavers.
After considering the evidence and testimony, the court found defendant
guilty of violating the Township's ordinances. The court-imposed fines and
penalties, which was stayed and would be vacated subject to defendant's
correction of the violations by removal of the pavers within thirty days.
On January 30, 2023, defendant filed an appeal from his municipal court
convictions in the Law Division. Defendant then moved to dismiss the
municipal summons and complaint, vacate the convictions, and to supplement
the record to include trial exhibit D1 (March 30, 2021 and March 31, 2021
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emails), exhibit J3 (January 13, 2022 and January 15, 2021 emails), and the
zoning officer's April 23, 2020 email.
Judge Vicari heard oral argument on defendant's municipal appeal and
motions. In a well-reasoned written opinion, issued on August 4, 2023, the
judge granted defendant's motion to supplement the record, denied the motion
to dismiss, and affirmed defendant's convictions. After a thorough review of the
municipal court record, the judge concluded defendant was properly charged
under each municipal code section. Judge Vicari rejected defendant's reliance
on Caldwell Terrace Apartments, Inc. v. Borough of Caldwell, 224 N.J. Super.
588 (App. Div. 1988), reasoning this matter was factually distinguishable
because, in this case, defendant had a municipal court trial, defendant did not
take any remedial action to comply with the municipal ordinance, and
defendant's violations were "continuous" daily offenses because the pavers were
installed in the shade tree and utility easement and had not been removed.
Finally, the judge found that the Township timely issued the four summonses to
defendant. Thereafter, Judge Vicari imposed the same fines and penalties as the
municipal court but ordered the fines would be removed if defendant removed
the pavers within forty-five days. This appeal followed.
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II.
On appeal, defendant raises the following issues for our consideration:
POINT I: THE CONVICTIONS MUST BE
OVERTURNED BECAUSE TOMS RIVER NEVER
ISSUED ANY WRITTEN NOTICE OF VIOLATION
WHICH IS A PREREQUISITE FOR ANY
VIOLATIONS OR PENALTIES UNDER THE
SUBJECT ORDINANCE VIOLATIONS.
POINT II: THE CONVICTIONS MUST BE
OVERTURNED AS THE ALLEGED VIOLATION
(INSTALLATION OF PAVERS IN A SHADE TREE
EASEMENT) OCCURRED MORE THAN ONE
YEAR BEFORE THE SUMMONSES WERE ISSUED.
POINT III: THE STATE DID NOT PROVE BEYOND
A REASONABLE DOUBT THAT OTTILIO
VIOLATED THE ORDINANCES.
POINT IV: THE COURT SHOULD OVERTURN
THE CONVICTIONS FOR VIOLATIONS OF TOMS
RIVER MUNICIPAL ORDINANCE 348-3.IIE AND
348-3.1IE(1) AS THEY PERTAIN TO
ENFORCEMENT PROVISIONS FOR OTHER
ORDINANCE VIOLATIONS AND ARE NOT 1N
THEMSELVES VIOLATIONS.
POINT V: THE COURT SHOULD OVERTURN THE
CONVICTION FOR A VIOLATION OF TOMS
RIVER MUNICIPAL ORDINANCE 348-3.7A AS
THERE WAS NO SIGN OR STRUCTURE, NOR WAS
THERE A CHANGE IN THE USE OF A
STRUCTURE OR LAND, NOR WAS THERE A
CHANGE IN THE NATURAL CONDITION OF
LAND THAT WOULD REQUIRE THE ISSUANCE
OF A PERMIT.
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POINT VI: THE COURT SHOULD OVERTURN
THE CONVICTION FOR A VIOLATION OF TOMS
RIVER MUNICIPAL ORDINANCE 348-8.12D AS
THE ORDINANCE DOES NOT STATE THAT
DEVELOPMENT MAY NOT OCCUR IN SHADE
TREE EASEMENTS, NOR ARE THE PLACEMENT
OF PAVERS DEFINED AS DEVELOPMENT.
Where defendant appeals from a municipal court conviction, a Law
Division judge conducts a de novo trial on the municipal court record. R. 3:23-
8(a)(2). On an appeal from a municipal court conviction, the Law Division is
"to determine the case completely anew on the record made in the municipal
court" in making 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); State v. Powers, 448 N.J. Super. 69, 72 (App. Div. 2016).
"Our review of the factual record is also limited to determining whether
there is sufficient credible evidence in the record to support the Law Division
judge's findings." Powers, 448 N.J. Super at 72 (citing State v. Johnson, 42 N.J.
146, 161-62 (1964)). Thus, we review the legal conclusions drawn from the
facts de novo. State v. Radel, 249 N.J. 469, 493 (2022); State v. Hubbard, 222
N.J. 249, 263 (2015). "[T]he rule of deference is more compelling where . . .
two lower courts have entered concurrent judgments on purely factual issues."
State v. Locurto, 157 N.J. 463, 474 (1999). "Under the two-court rule, appellate
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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." State v. Reece, 222 N.J. 154, 166 (2015) (quoting
Locurto, 157 N.J. at 474). However, we owe no deference to the Law Division
judge or the municipal court with respect to legal determinations. State v.
Handy, 206 N.J. 39, 45 (2011).
In this appeal, defendant recasts the arguments presented on appeal in the
Law Division: defendant believed he had approval, the Township did not
provide notice to cure before issuing the complaints and summonses, and two of
the four summonses were enforcement of the code and not violations. We reject
defendant's arguments.
We are satisfied there was ample evidence in the record to support the
municipal court and Judge Vicari's factual findings, conclusions of law, and the
subsequent convictions. The record shows at least two instances when
defendant was notified that a building permit was required for the installation of
the pavers. Nonetheless, defendant did not obtain a permit or execute the
indemnity and hold harmless agreement in compliance with the resolution,
which rendered the resolution null and void. Moreover, Township officials
informed defendant on at least two occasions that he was required to remove the
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pavers before the violations were issued. Defendant failed to comply by failing
to correct the installation of the pavers within thirty days and failing to remove
them after six months. Thus, we have no reason to disturb the findings that
defendant violated the municipal ordinances.
In addressing the penalty, the judge found that the Township's ordinance
provided that each day defendant was in violation of § 348-11 constituted a
separate violation. See Toms River Municipal Ordinance § 348-11(A). Based
on our review of the record, defendant was properly sentenced in accordance
with the ordinance.
We conclude from our de novo review that any of defendant's other
contentions are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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