STATE OF NEW JERSEY VS. RANDY COLSON (17-014, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1107-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RANDY COLSON,
Defendant-Appellant.
______________________________
Submitted October 17, 2018 – Decided June 20, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Municipal Appeal No. 17-
014.
Schenck, Price, Smith & King, LLP, attorneys for
appellant (John E. Ursin and Raajen V. Bhaskar, on the
briefs).
Douglas R. Cabana, attorney for respondent.
PER CURIAM
Defendant appeals from a Law Division order that found him guilty of
violating a municipal zoning ordinance concerning signs. The Law Division
judge made his decision on a stipulated record. Because the record did not
establish the elements of the violation, we reverse.
Section 13-8.909(p) of The Township of Roxbury's Zoning Ordinance
prohibits "in all zones in the municipality," among other signs, "signs placed
upon motor vehicles which are continuously or repeatedly parked in a
conspicuous location to serve as a sign." On February 9, 2015, the Township's
zoning officer mailed to Starz Discount Oil Company and defendant a "Notice
of Violation." The notice stated in pertinent part:
I thank you for your response but parking your
van along Landing Road does constitute a sign in my
opinion. We are very consistent with our requests for
removal of vehicles parked similar to yours at other
locations throughout Roxbury Township. Vehicles
parked repeatedly in a conspicuous location to serve as
a sign are prohibited. We prohibit outdoor storage
located in any front yard areas as well.
We are requesting that you remove your vehicle
from this location since you do not have an operational
office at this location and because we are considering it
as a prohibited signage.
Thank you for your anticipated cooperation in
resolving this issue.
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The following month, on March 20, 2015, the zoning officer issued a
complaint summons to defendant for violating Section 13-8.909(p).
The parties tried the case in municipal court on a stipulated record. 1 The
stipulated record consisted of the Notice of Violation issued to defendant, five
photographs, and a verbal stipulation. The photographs were taken on
December 29, 2014; and January 22, February 9, March 17, and March 19, 2015.
The first photograph, dated December 29, shows a sign and what appears to be
a white company van parked behind the sign. The sign contains a large, yellow,
five-pointed star. The top point extends almost to the top border of the sign.
The two bottom points extend almost to the bottom of the sign, but there is room
enough between the bottom point and the sign's bottom border for the company's
telephone number. Two tips of the star extend to each side border of the sign.
Across the top of the star, in very large letters that appear to be red or orange, is
the word "STARZ." The name "Discount Oil Company" appears between the
1
The parties tried the case twice in municipal court. Following the first trial,
in which a municipal court judge found defendant guilty, defendant appealed.
For reasons not relevant to this appeal, a Law Division judge remanded the case
to municipal court for a second trial. A second municipal court judge found
defendant guilty. Defendant filed for a trial de novo, resulting in a third judge
finding him guilty of the ordinance, and defendant appealing from that decision.
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word "STARZ" and the company's telephone number at the bottom of the sign.
For ease of reference, we will refer to this design as the company's logo.
From the group of photographs, it appears the sign is affixed to a sign pole
that has two other signs above the Starz Discount Oil Company sign. The signs
and the pole are located in front of a building where the advertised businesses
presumably operate.
As noted, in the background of the sign with the Starz logo is a white van.
In one of the photographs the view of the van is partially obstructed by the sign.
The partial view of the van's passenger side reveals the same logo as that on the
sign. It extends across the rear passenger door toward the rear bumper. In the
remaining space between the door and the rear bumper, in what appear to be
three small panels, is the number "23.4" in black on a yellow background,
followed by "GAL." Beneath what is obviously the price per gallon is the
company's telephone number. The remaining photographs show the driver's side
of the van's exterior, which also bears the company's logo and the price per
gallon.
The price per gallon varies. In the February 9, 2015 photograph, the price
is 23.9 cents per gallon. The price either does not appear or is obstructed in the
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March 17, 2015 photograph. The price per gallon in the March 19, 2015
photograph is 24.9 cents.
The parties orally stipulated that the van depicted in the photographs "is
parked on property leased for a commercial purpose by the defendant," and the
van "is a vehicle owned by the defendant [and] used in his business."
A municipal court judge found defendant guilty of the violation.
Defendant filed a request for trial de novo in the Law Division. There, the judge
found defendant guilty of violating the ordinance.
In his decision, the Law Division judge first cited the municipal ordinance,
including its definition in section 13-8.901of "sign":
Sign shall mean any object, device, display or structure
or part thereof, situated outdoors or indoors, which is
used to advertise, identify, display, direct or attract
attention to an object, person, institution, organization,
business, product, service, event or location by any
means, including words, letters, figures, design,
symbols, fixtures, colors, illumination or projected
images.
The judge determined that "the changeable pricing sign [on the van] is a display
used to advertise or draw attention to a business product, and that fits within the
definition of a sign." The judge added that the sign painted on the van "would
advise the viewer of a product for sale, presumably at a favorable price, and that
the company is the place where you can get that. So, that is commerce 101 right
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down the middle, a display intended to attract customers by way of a favorable
price."
Addressing defendant's legal arguments, the judge first noted that an
ordinance is presumed to be valid. Next, the Law Division judge noted the
State's motor vehicle laws regulated, in broad terms, the operation of motor
vehicles, but concluded when a motor vehicle is also used as a sign, a
municipality has the authority to regulate it under a land use ordinance.
The judge determined that despite the ability to debate what constitutes
conspicuous or repeated or continuing activity, "we are talking about ultimately
visibility, we are talking about a timeline temporality repeatedly, or
continuously." The judge did not find the concepts contained in the ordinance
to be vague.
Last, the judge determined that because the municipality was regulating
the location of signage, the Municipal Land Use Law (MLUL), N.J.S.A.
40:55D-1 to -163, authorized the municipality's action. The judge found
defendant guilty, fined him, and imposed court costs. This appeal followed.
In an "appeal from a de novo trial on the record, [an appellate court]
consider[s] only the action of the Law Division and not that of the municipal
court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citation
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omitted). Appellate review of the findings of fact made by the Law Division is
limited. Deference is given to the trial court’s fact and credibility findings when
those findings are supported by substantial, credible evidence in the record.
State v. Stas, 212 N.J. 37, 48-49 (2012); State v. Locurto, 157 N.J. 463, 474
(1999). Appellate courts owe no deference, however, to either the trial court's
interpretation of the law or to its determination of the legal consequences that
result from its fact-finding. Stas, 212 N.J. at 49.
Defendant makes three arguments challenging the validity of the
ordinance. First, the Township has no authority under its delegated land use
powers to regulate motor vehicles. Next, Title 39 of the State's Revised Statutes,
sometimes referred to as the Motor Vehicle Code, preempts the Township's
application of the sign ordinance to motor vehicles. Last, the novel applicatio n
of an unconstitutionally vague sign ordinance denied him due process.
Except for the following brief comments, defendant's arguments
challenging the ordinance's validity are without sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
The municipal ordinance does not regulate motor vehicles. It does not,
for example, prohibit the use of advertising on motor vehicles. Rather, through
its use of the phrases "continuously or repeatedly parked," "in a conspicuous
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location," and "to serve as a sign," it prohibits the use of a motor vehicle as the
functional equivalent of a stationary sign.
Nor are we persuaded by defendant's as-applied vagueness challenge to
the ordinance. The challenge requires us "to determine whether either statute
fails to give [defendant] fair warning that his or her conduct is prohibited." State
v. Saavedra, 222 N.J. 39, 68 (2015) (alteration in original) (citations omitted).
Here, the ordinance gives fair warning of the prohibited conduct. The phrase
"to serve as a sign" gives notice that if a person selects a "conspicuous location"
and continuously or repeatedly parks a vehicle in that location — for the purpose
of having the vehicle serve as a sign — the person is subject to a fine. If the
vehicle is parked in a location, even if done so continuously or repeatedly, for a
purpose other than to serve as a sign, there is no violation.
Defendant also argues that "the plain meaning of the Sign Ordinance does
not encompass the facts upon which [d]efendant was convicted. Not only are
many material terms left undefined, they are simply inferred into the evidence
or ignored in furtherance of the regulation[']s ostensible purposes." We agree
with that part of defendant's argument that the facts upon which he was
convicted do not establish an ordinance violation.
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Significantly, there is no testimonial evidence about the location depicted
in the photographs. The Notice of Violation requested defendant remove his
vehicle "from this location since you do not have an operational office at this
location." The sign on the pole in the photographs suggest otherwise.
Moreover, without testimony, there is no reasonable inference a factfinder
can draw from the photographs either that the vehicle is in a "conspicuous"
location or that the purpose of placing it there is that it serve as a sign. For
example, if the van was parked at the Starz Oil office, in an appropriate parking
area for the office, a factfinder would be hard pressed to find the purpose in
parking at that location is to have the van serve as a sign, even if there were
proofs that the parking area is "conspicuous." Similarly, if defendant used the
van for both business and personal use, and parked it in his driveway at night ,
a factfinder could hardly find that the selected location – the driveway of his
home – was for the purpose of having the van serve as a sign.
We note that the first municipal court judge said he was being asked "a
difficult question to decide with very little evidence. . . . [I]t would probably
[be] more helpful to have live testimony, but I assume you gentlemen have your
reasons." The prosecutor replied, "[t]he evidence that would be presented at
trial is what is before Your Honor right now." Yet, the record is clear that the
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zoning officer was present and willing to testify about many more details than
those in the stipulated facts.
In any event, the prosecutor deliberately chose to make the precise record
upon which the Law Division judge eventually decided the case and upon which
this appeal is presented. The prosecution had the burden of proving the
ordinance violation beyond a reasonable doubt. Bellville v. Parillo's, Inc., 83
N.J. 309, 312, 318 (1980). The prosecution failed to carry its burden of proof
on the stipulated record.
Reversed.
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