Petition for Writ of Certiorari — Rattan Nath, Petitioner v. New Jersey

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SUPREME COURT OF NEW JERSEY

M-665 September Term 2018

081256

State of New Jersey,

Plaintiff,

FEILI!D

MAR O82i

ORDER

e',+

CLRt LI

Rattan Nath,

Defendant-Movant.

It is ORDERED that the motion for reconsideration of the Court's order

denying the petition for certification is denied.

WITNESS, the Honorable Stuart Rabner, Chief Justice, at Trenton, this

5th day of March, 2019.

CLERK OF THE SUPREME COURT

JUN10 2019

SUPREME COURT OF NEW JERSEY

M-665 September Term 2018

081256

State of New Jersey,

Plaintiff,

ORDER

Rattan Nath,

Defendant-Movant.

It is ORDERED that the motion for

reconsideration of the Court's order denying the

petition for certification is denied.

WITNESS, the Honorable Stuart Rabner, Chief

Justice, at Trenton, this 5th day of March, 2019.

CLERK OF THE SUPREME COURT

SUPREME COURT OF NEW JERSEY

C-367 September Term 2018

081256

State of New Jersey,

PlaintiffRespondent,

ORDER

Rattan Nath,

DefendantPetitioner.

A petition for certification of the judgment in A001178-16 having been submitted to this Court, and the

Court having considered the same;

It is ORDERED that the petition for

certification is denied.

WITNESS, the Honorable Stuart Rabner, Chief

Justice, at Trenton, this 13th day of November, 2018.

CLERK OF THE SUPREME COURT

NOT FOR PUBLICATION WITHOUT THE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-1178-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

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.

We first set forth the ordinances defendant was

found to have violated. Code § 14-8.1, entitled

"Maintenance of Exterior of Premises," states:

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:

Refuse, garbage and rubbish

as defined in subsection 14-2.1 contained

herein.'

Code § 14-2.1 defines "Refuse" as "all putrescible and

nonputrescible solid wastes," "Garbage" as "putrescible animal and

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 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:

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:

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).

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)

ft 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.

[Ibid. (emphasis added).]'

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 §148.2(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.

...

Township Code Sections 14-8.1 and 14-8.2 (Apr. 11, 2018),

http://www.westorange.org/AgendaCenterfViewFile/Item/70?filel

D=282.

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 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 wiremesh 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 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.

Failure to Prove Each Element.

Shielding Hypocrisy.

Undermining Constitutional.

Protections.

Allowing Prosecutor to Testify.

Defendant Testimony Disrupted.

Irrebuttable Presumption of no

Racism.

Speculative Factual Findings.

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. 2:113(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

lOa

"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, 163 (2015) (citations omitted).

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 hazardous condition" for both the

occupants and pedestrians in violation of Code § 148.1(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 § 142.1 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

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." Two. of

Pennsauken v. Schad, 160 N.J. 156, 181 (1999) (citations

omitted). "To withstand a void-for- vagueness

...

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.

12a

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 with its intended purpose.

Hevert 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"

13a

includes "yard clippings, leaves, [and] wood." Code § 148.1(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 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

...

14a

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 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.

Further, defendant argues that because the

ordinances are vague, the rule of lenity applies.

15a

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 H 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 Enft v. Boardwalk Regency Corp., 227

N.J. Super. 549, 556 n.2 (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

iGa

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 "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.

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

17a

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 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

18a

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 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.

...

19a

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

MEMORANDUM

To:

DATE: May 25, 2017

Rattan Nath

1417 Pleasant Valley Way

West Orange, NJ 07052

FROM: EVA SHUM

(609) 815-2950, ext. 5-2655

RE: STATE OF NEW JERSEY V. RATTAN

NATH

A-001178-16

Mr. Nath,

Attached please find the order denying your

motion to supplement the record. Please amend your

brief to remove all supplemental items from the

appendix and transcript table. Your transcript table

should now only list 2 dates: 6/22/2016 municipal

hearing and 9/30/2016 Superior Court hearing.

Your amended brief will be due 30 days from the

date of this notice. Respondent's brief will be due 30

days from receipt of appellant's amended brief.

Thank you.

Eva Shum

cc: ROBERT S ROGLIERI TRENK DIPASQUALE

DELLA FERA & SODONO, PC

20a

FILED, Clerk of the Appellate Division, May 25, 2017,

A-001178-16

ORDER ON MOTION

SUPERIOR COURT OF

NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00117816T1

STATE OF NEW JERSEY MOTION NO. M005873-16

BEFORE PARTD

RATTAN NATH

JUDGE(S): ALLISON E.

ACCURSO

THOMAS V.

MANAHAN

MOTION FILED:04/13/2017 BY: RATTAN NATH

ANSWER(S)

04/21/2017 BY: STATE OF NEW

JERSEY

FILED:

SUBMITTED TO COURT: May 22, 2017

ORDER

THIS MATTER HAVING BEEN DULY

PRESENTED TO THE COURT, IT IS, ON THIS 24th

day of May, 2017, HEREBY ORDERED AS

FOLLOWS:

MOTION BY APPELLANT

MOTION TO SUPPLEMENT THE RECORD

21a

DENIED

SUPPLEMENTAL:

FOR THE COURT:

ALLISON E. ACCURSO,

J.A.D.

2016-029

ESSEX

22a

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION, CIVIL PART

ESSEX COUNTY, NEW JERSEY

COMPLAINT NOS.: SC-2016-3228 & SC-20163229

MUNICIPAL APPEAL NO.: MA-2016-029

A.D. #: A-001178-16-T1

STATE OF NEW

JERSEY,

Plaintiff,

TRANSCRIPT

TRIAL

RATTAN NATH,

Defendant.

Place: Veterans Courthouse

50 West Market Street

Newark, New Jersey 07103

Date: September 30, 2016

BEFORE:

HONORABLE JOHN ZUNIC, J.S.C.

TRANSCRIPT ORDERED BY:

RATTAN NATH

1417 Pleasant Valley Way

West Orange, NJ 07052

23a

APPEARANCES:

ROBERTS. ROGLIERI, ESQ.

JESSICA A. BUFFMAN, ESQ.

(Trenk, DiPasquale, Della Fera & Sadona PC)

Attorneys for the Township of West Orange.

RATTAN NATH, PRO SE DEFENDANT.

Transcriber: Lisa Kane

Brittany Transcription, LLC

60 Washington Street

Morristown, New Jersey 07960

(973)285-9690

Digitally Recorded

25a

THE COURT: On the record. This is State

versus Rattan Nath, N-A-T-H. It's municipal appeal,

2016-029. It's on appeal from Complaint number SC2016-3228 and 3229 from the West Orange Municipal

Court.

Appearances please?

MR. ROGLIERI: Good morning, Your

Honor. Robert Roglieri from Trenk, DiPasquale, Della

Fera & Sodono on behalf of the Township of West

Orange. Next to me is my colleague, Jessica Buffman.

THE COURT: Okay. Good morning. Yes,

sir, your name?

MR. NATH: Rattan Nath. I'm a resident

of West Orange.

THE COURT: Okay. Thank you.

All right. So this is an appeal filed by Mr. Nath.

Let me just first summarize what the Court does have

in its possession. I have the transcript of the trial which

took place in the West Orange Municipal Court on June

22nd, 2016. It's the certified copy of the transcript and

it's 173 pages.

I then have a letter brief from the defendant that

was originally addressed to Judge Leath who had the

case dated September 6th, 2016, consisting of 24 pages.

And I have the defendant's letter brief addressed to me

dated September 27th, 2016, which consists of 13 pages.

I also have the exhibits from the trial court—from the

Municipal Court which consisted of various

photographs. And then I have the municipal

Prosecutor's brief in opposition to the appeal dated

September 20th, 2016. So I have all those items. I've

reviewed all those items.

Mr. Nath, since it's your appeal, I would ask you

if you have an additional argument to make other than

what's in the papers. I already know what's in the

26a

papers. But if you wish to highlight any portion of it, if

you wish to tell me something new, the floor is yours.

MR. NATH: Okay. As you've already

seen, it's basically based on due process because my

testimony was interrupted and my witness was not

allowed to complete his testimony.

THE COURT: Which witness?

MR. NATH: Mr. Azize. So he was just

asked to step down which in the way we see the case, it

makes reaching proof beyond a reasonable doubt

impossible when the defendant is not allowed to

actually make their case. That's the strongest and the

most troublesome aspect of the trial.

In addition, we—as far as we can tell and the

proceedings were already murky so we couldn't tell, a

fast moving thing, what really happened. But as far as I

can tell, I was convicted for having branches that were

too low from a tree that was slowly falling and which

we eventually stabilized. So the branches were below 7

feet which is what the Township ordinance calls for

from a sidewalk. And that is the charge on which we

were assessed a fine of $5,000. As far as I know, the

Township has insisted in its own documents that we

don't have a sidewalk.

THE COURT: I'm sorry. That you—that

you don't want?

MR. NATH: That we don't have a

sidewalk.

THE COURT: Okay.

MR. NATH: So the criminal law is strictly

construed then we cannot possibly be in violation. And

that is recorded in Township documents and our

property record card which was never produced as part

of the discovery process and we could not introduce it

into evidence because our time was terminated

27a

•

prematurely.

So on its face, the charge is impossible. I don't

believe I have been held guilty on other charges

because the Court said they could live with the leaves,

the branches, et cetera because they have a common

place. But I'm not sure exactly what happened.

But I never could present my argument because

it was, basically, terminated as soon as I started. And I

believe there's no procedural or substantial due

process. And that's a fatally flawed case.

THE COURT: Okay. Thank you. Sir?

MR. ROGLIERI: Good morning, Your

Honor.

In terms of Mr. Nath's witness, Mr. Azize, as

you'll see in the transcript, Judge Dowd found that the

testimony that Mr. Azize was going to give was

irrelevant. And it was because the first part of his

testimony was that he didn't find a problem with the

defendant's property. That's not a standard that is

applicable under the Township code.

The second part that Mr. Azize was going to

testify about was his experience in getting a plea

agreement from myself or my colleague, Ms. Buffman,

on his own property maintenance manner. Again, that's

irrelevant. It was settlement discussions with regard to

the plea agreement. And, if anything, it shows that the

Township is more than willing to work with property

owners within West Orange to remedy the issues on

the property instead of going to trial.

In terms of Mr. Nath's presentation at trial

being interrupted, again, Judge Dowd allowed for three

witnesses to be direct—have direct examination. Mr.

Nath also took the stand himself and testified at length

regarding his position. And at the end of the—Mr.

Nath's testimony, Judge Dowd, again, found that his

28a

contentions were irrelevant to the matter. He—it's a

lengthy transcript as I'm sure Your Honor is aware.

And this isn't a case where Mr. Nath wasn't given the

opportunity to present relevant arguments. The

problem is that Mr. Nath's arguments weren't relevant

at the time.

And then the final point that Mr. Nath made,

with regard to being found guilty of only one of the

summons, I think that the transcript is clear that he

was found guilty on all three summons. There's a

summons for failure to maintain the exterior under

Township Code 14-8.1(a)1, 14-8.1(a)2, and 14-8.2(a)2. The

first

THE COURT: Two—two complaints or

were there more than two?

MR. ROGLIERI: I'm sorry?

THE COURT: There were two

complaints, right, not three?

MR. ROGLIERI: I think one of them

charged with—had two

THE COURT: Had two within it?

MR. ROGLIERI: Yeah.

THE COURT: Okay.

MR. ROGLIERI: Sorry, Your Honor.

So with regard to 14-8.1 (a)2, that has to do—or

sorry, 8.1(a)1, that has to do with garbage, rubbish or

refuse being on the property. The Court clearly found

in the transcript that there was paper wrappings,

leaves and wood on the property. There's abundant

testimony from Mr. Ordonez, the Code Enforcement

Officer to that effect. There's also a ton of photos which

I tried to lay out as best as I could in the charts on page

6, 7, and 8 of my brief that matches the testimony with

the photos for Your Honor. It's very clear that there's a

ton of leaves. He even uses chicken wire to hold the

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29a

leaves on his property.

Then under 8.1(a)2, that has to do with a tree

that was leaning at 45 degrees. It was marked by the

Township as a hazardous tree. And it was never—it's a

violation of the code because it says that trees shall be

kept pruned and trimmed to prevent such conditions. It

was never pruned or removed and it was marked for a

long time as being a hazardous tree.

Finally

THE COURT: One second. One second,

I'm sorry. Just have them quiet down in there please,

Officer. One second.

(Pause in proceeding.)

THE COURT: All right. You may

continue. Sorry.

MR. ROGLIERI: Thank you, Your

Honor.

Under 7, this has to do with the tree hanging

below 7 feet over a sidewalk. Mr. Ordonez testified

defendant's property is on the corner, so the front of

the—the part that faces the front street, Pleasant

Valley Way, does not have a sidewalk, but Underwood

Terrace on the side does. And that tree, Mr. Ordonez

testified was hanging below 7 feet.

Also under that ordinance is the issue of the

grass being over 8 inches high. And Mr. Ordonez also

testified that the grass was over 8 inches high. There

are also photos which are documented in a chart on

number—on page 9 of my brief where there's actually a

yardstick being used to demonstrate that it's over 8

inches high.

So Judge Dowd found guilt on all three of those.

And the only point that—I think that adequately

addresses Mr. Nath's points.

The only point I want to point out is that Mr.

30a

Nath argues in his briefs that there's a $5,000 fine that

was entered by Judge Dowd. Judge Dowd never got to

the sentencing phase. This appeal was filed prior to

sentencing, so any finding—there had been mention

and you'll see in the transcript of a potential $5,000 fine.

But Judge Dowd was willing to—as I said before, the

Township's goal is to abate these violations. We're not

ever looking for a gigantic fine. So under Judge Dowd's

method, he wanted us to meet with Mr. Nath to point

out each issue that we have before entering a fine

because if Mr. Nath had abated some of these issues, it

would affect the fine.

So this appeal was filed—was filed before then,

so no

MR. NATH: No, that's not right.

THE COURT: One second, sir, you'll get

an opportunity.

MR. ROGLIERI: So no fine was ever

entered on this. And you'll see from, I believe, Mr.

Nath's Notice of Appeal doesn't even mention a fine. It

says that we're trying to take his property or

something like that.

THE COURT: So there was talk about

coming back in a month for a court date. That never

transpired then?

MR. ROGLIERI: It never transpired

THE COURT: Okay.

MR. ROGLIERI:—because the Notice of

Appeal was filed and, obviously, removes jurisdiction to

this court.

THE COURT: Okay.

MR. ROGLIERI: Thank you, Your

Honor.

THE COURT: Thank you.

Did you want to respond, sir?

31a

MR. NATH: Yes.

THE COURT: Okay.

MR. NATH: The Township's method of

enforcement, the law, as we understand it, and we've

put it down in the brief which you've read is that this

really is zoning comes out of the law of nuisances. So

the Township is arguing that our conditions are a

nuisance, in effect, because we own the property.

Ordinarily, the default condition would be—we control

what goes on it.

If there's a nuisance, we agree, they have a right

to, you know, insist on abatement and we do it. We

have absolutely no reservations about it. What we

pointed out was at trial and this is what we were trying

to do was that by selecting these salvations and that

grouping over 10 years, the abatement process is not

focused on zoning issues, it's focused on getting us to

hire certain companies. And that has been the case for a

long time. That is exactly what Mr. Azize was going to

testify about and that's what I was going to point out.

And we have now evidence of that conduct. That is not

permissible. In fact, it doesn't even establish a nuisance

under which they can even come to our property.

The second thing, a property record card which

is an official document maintained by the Township

which was litigated in 2014 to correct it and the

Township refused to do it, insist that we do not have a

sidewalk. And the point was specifically raised. If we do

not have a sidewalk, how can we have branches getting

too low to the sidewalk.

Thirdly, and I believe this is in the page, a tree

that is slowly falling that we are trying to stabilize. We

don't want to lose the tree. We don't want to cut it

down. There's nothing in the code that says you have to

cut it down. We managed to stabilize it and plus

32a

continually being trimmed. The four sequence of

photograph shows that the tree was continuously

trimmed until it became stable.

THE COURT: You think that's a stable

tree?

MR. NATH: Yes, it is. At this point it is.

And at this point, actually, we are curious to see how

well it works finally. We have short it out. It was a

three trunk tree, it is down to one trunk and the

branches now have support from the ground. It is

entirely on our property now. It doesn't encroach the

sidewalk at all. All those portions have been trimmed

off. And this was happening in the normal course. There

was no crime here. There was no intent of any type.

Lastly, I point out this. The tree is such a big

issue and the branches are such a big issue, the officers

have branches below 5 feet right outside and so does

the Court itself. The Municipal Court has trees on the

sidewalk and the front on the main street with branches

that are below my height. I'm only 5 feet high. I cannot

even reach 7 feet to cut anything.

But be that as it may, assuming that there is a 7

foot person somewhere in Underwood Drive that is

going to walk down the sidewalk that according to

Township does not exist and here's a property record

card which they never produced, but they should have

and they insisted on saying there's no sidewalk.

So I would say they don't have a case. There was

no intent to commit anything. There was continuous

activity to control the tree. If we want to preserve the

tree it's not a crime. It cannot possibly be a crime that

they can come into our property any time without

notice and do anything they feel like and we are

actually helpless and they specifically pick on the South

Asian.

33a

Mr. O'Leary at trial mentioned one and three

examples of enforcement that were not against South

Asians. Now, that is misleading. Those properties are

abandoned properties, they're unoccupied. There was

no real enforcement.

THE COURT: Sir, with all due respect,

we're talking about your property and whether your

property violated the ordinance. I'm not discussing

other cases, other summons issued by the Town. We're

discussing whether your property violated on the days

the inspector

MR. NATH: I understand, Your Honor.

THE COURT:— went to the premises.

MR. NATH: But there is no clear line to

get to our property without looking at others. The

Court calls for neighborhood standards. And,

furthermore, even the right to enforce the Code

depends on having a uniform enforcement elsewhere. If

you do not have uniform enforcement elsewhere, you

cannot do it.

The Court requires strict enforcement meaning

on anybody and everybody. They don't do that. He

admitted in court they don't do that. Before this in 2011

they do not do it. You would say maybe it's because

they don't have the manpower, that is not the case.

They were specifically asked with two inspectors, can

you site every property. The Township said yes, they

just don't do it.

So we established our case of discrimination. The

only question is why. It's not a question of whether.

THE COURT: Thank you. Any response?

MR. ROGLIERI: Just very briefly, Your

Honor.

First, 1100 percent agree with your comment

that this is about Mr. Nath's property. It isn't about the

34a

Township's property. It isn't about Mr. Azize's

property across the street or 1 and 3 Powell up the

street from him. The question is did—was his property

in violation on the day that the inspectors were there.

The photos conclusively show and Mr. Ordonez's

testimony shows that it was in violation.

With regard to the sidewalk, it's confusing

because Mr. Nath just said that the tree hangs over the

sidewalk, but then he says that he doesn't have a

sidewalk. But if there's any debate to it, if you look at

the first photo in the series of S-4, you can clearly see

the sidewalk running along the side of his property.

And you can also see all of the leaves, the high grass

and whatnot. So there's clearly a sidewalk on the

property.

I have nothing to do with the tax records. I'm

not even sure if that's relevant or how it's relevant.

And then, finally, with regard to selective

enforcement, there's no evidence before this Court or

before Judge Dowd that there was selective

enforcement. Judge Dowd specifically said and it's

pointed out in the brief that his courtroom, especially

on property maintenance days, has Italians, Irish,

African-Americans. This is not a case of selective

enforcement.

Mr. Nath solely points to his—his area of town

which he calls PV1 or something to that regard and

says oh, two South Asian people were summonsed in

this area. If you take any tiny section of something,

you'll be able to find or make up some type of evidence

that there was discrimination.

But here there—it—these property maintenance

inspectors have 15,000 properties in the Township of

West Orange that they have to review. There's 50,000

residents in West Orange. This isn't a tiny town.

35a

The fact that—I don't know what Mr. Nath

points to that they said in the transcript that they can

look at every property. I don't recall that testimony

ever being elicited in this trial.

But it's just the fact of the matter they can't get

to every town—property. But this is pretty egregious

when you look at the leaves, the fact that he's purposely

putting up wire fences to hold the leaves in place. This

isn't an accident where they're an elderly couple and

they can't, you know, go out there and rake leaves. He's

purposely trying to keep these leaves on the property.

And then the only thing with the stable tree, he

go—he states that he wants to see how well his

stabilization works. That—that's not how this Township

code operates. We can't just allow a tree that's at a 45

degree angle to sit on a property and see how well it

works while it's running up along a sidewalk. It's

dangerous. If that tree—if this doesn't work, his

stabilization doesn't work, it's a hazard to anyone

walking on that sidewalk. Thank you, Your Honor.

THE COURT: All right. Thank you.

MR. NATH: Your Honor, can I respond?

THE COURT: One last point.

MR. NATH: Okay. Here's the transcript

from earlier trial in which the inspector was specifically

asked if you can site—

THE COURT: What page, sir?

MR. ROGLIERI: It's a previous trial that

he engaged in 2011.

MR. NATH: Your Honor, it is relevant.

THE COURT: One second.

MR. NATH: It's a ruling—it's a

statement by the State.

THE COURT: What's the date of the

transcript?

36a

MR. NATH: This is December 21, 2011.

THE COURT: It's a different hearing,

right?

MR. NATH: Not entirely, it's the same—

THE COURT: Different summons.

MR. NATH: Not the different summons.

THE COURT: Different summons.

MR. NATH: It's the same department

explaining how they enforced the statute.

THE COURT: Go ahead, read it for me.

MR. NATH: "The maintenance

inspector"—this is—let me read it.

THE COURT: Is it Inspector Ordonez?

MR. NATH: No, it's Mr. Randomski

(phonetic).

MR. ROGLIERI: Randomski.

MR. NATH: So he's being asked by the

prosecutor "In your estimation, can you site every

violating condition at any given time in the Township?

INSPECTOR: "Yes."

MR. PROSECUTOR: "You can? Let me

rephrase the question. Is every condition that exists

which violates Township code sited?"

"No."

I would say at that point you know they

deliberately don't site it. But, again, to the angle about

the tree angle, there must be a couple of hundred trees

at that angle within our neighborhood because all of us

have slopes. Trees grow at that angle normally.

The reason that tree is coming down is because

there was erosion on the surrounding property. When

they came to our property on June 25th, we ask them to

photograph not just our property, but the surrounding

area to accurately depict what is happening. They flatly

refuse. They said, "No, we will only photograph what's

37a

favorable to us, nothing us."

Even on our property they did not photograph

the part that they had left undone. There was a whole

bunch of gravel and other debris that was deposited

with—which had not been cleared up for six weeks.

They flatly defuse to the Court that.

Now, I would say that is way too much power.

But more than that across the street there was a tree

that was two feet off the ground, refused to photograph

that either. I would say it's the only issue here is why is

this there in a neighborhood that has a peculiar

characteristic that should be reflected in the record. It

should not be out of the record. There's no authority for

any state worker.

In fact, I will find out something. James Artist,

back in early 1700's when the record of support was set

up, his argument was against two intrusive estate

government which is what John Adams said was the

starting point of the American revolution. That is when

people really got upset about people walking onto their

property without permission and doing anything they

feel like. This is exactly what was ruled allowed to be

perfectly okay that the inspector could trespass rather

than identify himself, take photographs whenever he

feels like, and we just get surprised by summons, not

even a notice is needed. That is not correct.

The statute doesn't have to be construed.

Nothing else would be really laid out. I don't have to be

allowed to testify. I will say that's a—where you cannot

have a proof beyond a reasonable doubt.

THE COURT: Thank you.

MR. NATH: There's no point in having a

defense if one can be seen rule that way.

THE COURT: All right. Thank you.

All right. The Court will now render its decision.

38a

Defendant, Rattan Nath, was sent a Notice of Violation

in order to correct on or about November 20th, 2015.

The Notice of Violation stated that defendant must

landscape the entire property by November 30th, 2015.

On January 8th, 2016, over one month later when

the defendant did not comply with the Notice of

Violation, Township Code Enforcement Officer William

Ordonez issued two summonses. Defendant was

charged with an ongoing violation for failure to

landscape property in violation of West Orange Code

14-8.2 (a)2 under Complaint Number 0722-SC-032228.

Defendant was also charged with an ongoing

violation for failure to maintain exterior property in

violation of West Orange Code 14-8.1 (a)1 and 14.8.1(a)2

under Complaint Number 0722-SC-032229.

On June 22nd, 2016, the Honorable Dennis 0.

Dowd, the Municipal Court Judge for the Township of

West Orange, conducted a trial where various

witnesses testified. The defendant represented himself

in the matter. Robert Roglieri, Esq. appeared on behalf

of the State. After the trial, Judge O'Dowd found the

defendant guilty of the violations.

The sentencing, there was a fine mentioned of

$5,000, but apparently that was not imposed. It was to

be held over for another hearing a month later, but

prior to that the defendant filed an appeal. And on June

29th, 2016, one week after Judge Dowd's decision, the

defendant filed his Notice of Appeal.

The facts giving rise to the matter are somewhat

undisputed really. Defendant—some are disputed, some

are not. Defendant owns certain real property within

the Township located at 1-3 Underwood Drive in West

Orange. He was sent the Notice of Violation on or about

November 20th, 2015. He failed to abate the violations

on his property although it looked like some work was

•

39a

done with regard to leaves on the sidewalk, you know,

despite given the additional time. It did look from the

photographs that some work was done. Therefore, over

one month later since the entire work was not

completed, defendant was issued two summonses by

Inspector Ordonez.

During trial, the Municipal Court heard

testimony from Mr. Ordonez, the inspector, on behalf of

the state. Defendant called as witnesses a neighbor,

Arshad Azize, his daughter, Ursula Nath, and his son

Nehal Nath. Defendant also testified.

On behalf of the Township, Mr. Ordonez testified

as to the issuance of the summons and testified that the

conditions existed on the defendant's property when he

went there on at least two occasions.

In his opinion, the defendant failed to meet his

obligations to maintain his property in good repair with

respect to landscape and exterior maintenance. The

inspector testified as to various items of rubbish that

existed on the defendant's property, tree branches that

obstructed the sidewalk and fell below 7 feet to the

ground, weeds that were over 8 inches high, and a tree

which was leaning in a 45 degree angle. Photographs

were submitted—introduced into evidence depicting

these conditions.

Defendant's witnesses consisted of his two

children and the neighbor, Mr. Azize. Both children

testified that the wire mesh holding the leaves and

mulch was to stop the water flow on this sloped

property. The children testified that this was done for

experimental and educational purposes.

At the conclusion of the trial, Municipal Court

Judge Dowd reviewed the photographs submitted into

evidence by the Township and found the defendant

guilty under both ordinances.

40a

Defendant contends that the Municipal Court

erred and denied in due process of law. He contends

also that the West Orange ordinances are void for

vagueness. He further contends that the Municipal

Court record is defective in that the charges should be

dismissed because he did not have a fair opportunity to

present his defense.

Moreover, the defendant claims that the West

Orange violations placed unjustifiable limitations on his

liberty to worship and express himself. He contends

that he is of Hindu origin practicing Karma Yoga which

he claims involves organic landscaping as a form of

expression. He claims that such worship helps sustain

and rejuvenate nature and these beneficial acts are

used to perform religious obligations.

Therefore, the defendant contends that the

Municipal Court's verdict must be reversed. And he

also submits that if he is found guilty for any violation

then the maximum punishment should be imposed

which by his calculation is over $350,000 given the daily

penalty that may be imposed.

In his various arguments, defendant has not

denied that the property was in the condition as

testified to by the inspector and depicted by the

photographs. The State contends that the record

sufficiently established the condition of defendant's

property and showed that—showed the defendant's

failure to maintain such property in accordance with

the Township's Property Maintenance Code.

The State asserts that all elements of the

applicable ordinance which were required to be proven

were proven and evidenced by the record.

Moreover, the State contends that the

defendant's challenge to the ordinance as void for

vagueness must be rejected because the language other

41a

relevant sections of Chapter 14 of the Township's code

are clear and unambiguous.

Lastly, the State contends that defendant's

contention that the Township seeks to infringe on

defendant's first amendment rights relating to religion

as a Hindu Karma Yoga must similarly—similarly be

rejected because defendant failed to establish any

evidence that the Township's property maintenance

and zoning code interfered with his religion. Therefore,

the State maintains that the Municipal Court's verdict

must be affirmed.

Testimony during the trial, Mr. Ordonez testified

that he was a Township inspector for West Orange and

his occupation entails code enforcement. He further

testified that he has worked for the West Orange

Township for six years on and off. He testified that he

issued a notice of violation and order to correct to the

address at 1-3 Underwood Drive in West Orange on

November 20th, 2015. A notice was issued to the

defendant due to the hedges, bushes, and grass on the

property being overgrown.

When viewed by Mr. Ordonez on November

20th, 2015, Mr. Ordonez testified that the notice gave

the defendant 10 days to fix the landscaping on the

property. Mr. Ordonez testified that commencing

December 1, 2015, when the first set of pictures were

taken, defendant was being charged with an ongoing

violation. He testified that the ordinance violation were

issued on January 8th, 2016, which was more than the

10 days expressed on the initial notice.

Mr. Ordonez took multiple photos of the

property from December 1, 2015, to April 11th, 2016.

Each set of photographs were introduced into evidence

by the State.

Mr. Ordonez testified that the photos dated

42a

December 1, 2015, Exhibit S-4, show leaves on both

sides of the sidewalk. Another photo showed a very

large pile of wood that was just placed on the property

as well as cinderblocks that were also placed on the

property which is construction material that should be

stored away.

Mr. Ordonez testified that the photos dated

December 21, 2015, Exhibit S-5, showed that the wood

piles were still present, but had been spread out a bit.

He also testified that there was a mesh lining between

two trees holding up mounds of leaves. He testified as

to—that he was unsure as to the purpose for the mesh

wire holding the leaves.

Mr. Ordonez testified that the photos dated

December 28th, 2015, Exhibit S-6, showed the picture

of the wood chips with the yardstick in front of it which

showed it was at least 3 feet high. He further testified

that the picture showed the accumulation of branches,

tree stumps, and tree limbs that were cut and placed on

the edge of the property.

Mr. Ordonez testified further that the photos

dated April 11, 2016, Exhibit S-15, showed that there

was still wood branches, leaves, and a brick paver and

black plastic wrapping on the edge of the sidewalk.

Lastly, a tree leaning in a 45-degree angle was

taped off and deemed a nuisance after being in such

position for several months. Mr. Ordonez testified that

defendant failed to trim a tree on the property in

accordance with the Township code and that the tree

branches fell below the 7 feet required by the

ordinance. He testified that the defendant never got in

contact with him to discuss the violations.

There was cross-examination by Mr. Nath of Mr.

Ordonez. Much of the questioning and information

sought was deemed to be irrelevant by Judge Dowd.

43a

Arshad Azize was called as a witness by the

defendant. Defendant asked Mr. Azize about a previous

ordinance violation that Mr. Azize had pled guilty to

which the judge did not allow. The defendant asked Mr.

Azize if he had helped him work on his property to

which he responded yes. Mr. Azize further testified

that he saw nothing wrong with the property besides

growing organic landscaping. Mr. Azize testified that he

lived across the street from the defendant.

Ursula Nath testified that she is the defendant's

11-year old daughter who attended Edison—who

attends Edison Middle School. She testified that they

put branches into different old socks to slow the water

down when it would pass through. She testified that

she was doing it for a school project. She further

testified that the mesh wire they have—they put up

was to stop storms and reduce floods since they live on

a sloped property. The house appears to be on top of

the slope, so that any water would flow away from the

house.

Nehal Nath testified that he interacted with Mr.

Ordonez when he came onto their property to take

pictures. Nehal also testified that the experiments on

their property were educationally beneficial.

Defendant, Rattan Nath, testified that he has—

that he experienced a similar violation in the past,

specifically in 2012. He testified that he believes that he

is being unfairly targeted and that this case is about

selective enforcement. He testified that all the

properties in PLy-i which I guess would be his

neighborhood look like his, but only he is receiving the

ordinance violations while other property owners are

not.

Defendant contends that in December he was—

he and his family were out of town in District—

44a

Washington DC and that is why the leaves were all

over the property. He further testified that the wind

blows the leaves around, but that they generally keep

their lawn clear. He also testified that the tree stumps

on his property were as a result of a falling tree around

November 30th, 2015, which they decided to help clean

up even though the driveway is not entirely owned by

him.

He also testified as to the scientific purposes for

the mesh and mulch on his property.

He further alleged that he is not treated equally

because he is being targeted for his religious beliefs. He

also testified that South Asians are targeted in his

community.

The Municipal Judge's factual findings were as

follows. The Judge found that there was "buckets of

proof' that defendant was in violation of the ordinance

for having leaves piled up more than 8 inches and

weeds over 8 inches high. The Judge found that

defendant was also in violation of the ordinance by

having tree branches hang below 7 feet. The Judge

found defendant was in violation by placing the mesh

wiring that accumulated the mounds of leaves.

The Judge also found that based on "the pictures

I've seen and I'm going to say it again clearly show

unequivocally violations of the ordinance." Thus, based

on the above, Judge Dowd found the defendant guilty of

failure to maintain exterior property in violation of

West Orange Code 14-8.1(a)1 and 14-8.1(a)2 and guilty

of failure to landscape property in violation of West

Orange Code 14-8.2(a)2.

The defendant was given 30 days to get the

property in compliance and then return for sentencing

in 30 days. If nothing was done, the Judge stated that a

fine of $5,000 would be imposed. But as I mentioned,

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the appeal was filed seven days later by the defendant.

Therefore, there was no sentencing argument made for

sentence opposed.

This appeal is subject to de novo review under

Rule 3:23-8a. Although the Law Division is required to

make its own findings and rulings of the evidence, it is

bound the evidentiary record of the Municipal Court.

See State versus Loce, L-O-C-E, 267 N.J. Super. 102

Law Division 1991.

The Court, therefore, must give due although

not necessarily controlling regard to the assessments of

the judge below who had the opportunity to observe

the credibility of the witnesses at the time of trial.

State versus Johnson, 42 N.J. 146. 1964 State Supreme

Court case.

According to Rule 3:23-8a, if a verbatim record

or sound recording was made pursuant to Rule 7:8-8 in

the courtroom from which the appeal is taken, the

original transcript, thereof, duly certified as correct

shall be filed by the Clerk of the Court below with the

Criminal Division Manager's Office and a certified copy

served on the prosecuting attorney by the Clerk of the

Court below within 20 days after the filing of the Notice

of Appeal or within any extension of time as the Court

permits.

A Municipal Ordinance under review by a Court

enjoys a presumption of validity and reasonableness.

State v. Clarksburg Inn, 375 N.J. Super. 624, 2005

Appellate Division case. Since Municipal Court

proceedings to prosecute violations of ordinances are

essentially criminal in nature, penal ordinances must be

strictly construed. State versus Gollen, 363 N.J. Super.

474 2003 Appellate Division case.

The applicable ordinances here read as follows.

14-8.1 "Maintenance of exterior of premises, Subsection

46a

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.

Number 1) Refuse garbage and rubbish as

defined in subsection 14-2.1 contained herein. Refuse

shall mean all putrescible and non-putrescible solid

waste except body wastes including, but not limited to

garbage, rubbish, ashes, street cleaning, dead animals,

abandoned automobiles, and side market and industrial

wastes.

Garbage shall mean putrescible animal and

vegetable waste resulting from the handling

preparation, cooking and consumption of food. Rubbish

shall mean non-putrescible solid wastes consisting of

both combustible and non-combustible wastes such as

paper, wrappings, cigarettes, cardboard, tin cans, yard

clippings, leaves, woods, glass, bedding, crockery and

similar materials.

Number 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 removed

from the vicinity of any public sidewalk or roadway."

14-8.2 "Appearance of exterior of premises and

structures. Subsection A, residential and nonresidential. "The exterior of the premises, the exterior

of dwellings, structures, and the condition of accessory

47a

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 matter set

forth herein including, but not limited to the following:

Storage of commercial and industrial material.

There shall not be stored or used at a location visible

from the sidewalk, street or other public areas

equipment and materials related to commercial or

industrial uses unless permitted under the zoning

ordinance for the premises;

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 to not obstruct the 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 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 8 inches from the ground. All lawns, trees, hedges,

and bushes in violation of any and all provisions of this

section shall be removed, trimmed or cut to conform to

their requirements set forth herein."

Under Ordinance 1-5.1 maximum penalty. "For

violation of any provision of this chapter and any other

provision of this"—strike that—"and any other chapter

of this provision or any other ordinance of the Township

with no specific penalty is provided regarding the

section violated, the maximum penalty shall on

conviction of a violation be one or more of the following:

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A fine not exceeding $1,250 or imprisonment for

a period not exceeding 90 days or a period of

community services for a period not exceeding 90

days."

In the present case, the record is complete as the

transcript of the trial before Judge Dowd on June 22nd,

2016, was included. Although this case is reviewed ik

novo, this Court is satisfied and agrees with the rulings

of the Municipal Court judge as to the finding of the

fact in this matter.

And as I said before, the condition of the

property as depicted by the photographs is essentially

undisputed. Defendant makes other arguments as to

why he believes the complaints should be dismissed.

But none of them really address the authenticity of the

photographs or the fact that the condition—that the

premises was in that condition on the dates that the

inspector visited the premises.

The record reflects that the Court was provided

with ample evidence that the defendant, indeed,

violated the Township ordinances. The pictures are

dated and show that defendant failed to properly

remedy his property once given notice. Although it

appears to me from the photograph that some remedial

action was taken, but it wasn't full.

Specifically, I guess of most concern to the Town

and to this Court is that the defendant failed to remedy

the tree leaning in a 45 degree angle which was

pictured to be in the same position from January 7th,

2016 to April 11th, 2016. I've seen the photographs of it.

Defendant argues that it is stable. I don't see it. The—

just from the photographs itself,you can tell that the

roots are out of the ground. It's a hazard. That tree will

definitely constitute a hazardous condition under 148.1(a)2 either for the homeowner or occupants or for

49a

any pedestrians walking near that area. It's a

significant tree. It's tall. You don't know where it's

going to fall, but it's not stable.

Moreover, the pictures dated December 1, 2015,

show that the weeds are piled up next to a ruler that

indicates it is higher than 8 inches as required under 148.2 (a)2. The picture is dated January 7th, 2016 also

show the mesh holding together a large pile of leaves

which is in violation of 14-8.2 (a)2.

Additionally, there are pictures which show the

tree branches encroaching onto the sidewalk hanging

below 7 feet in violation of Section 14-8.2 (a)2.

Furthermore, there are pictures which show

that there is black wrapping on the edge of the

property, leaves falling onto the sidewalk, tree stumps

along the lawn. A blue garbage container and crates on

the lawn as well as cinderblock from the outside area of

the property all in violation of Section 14-8.1 (a)1.

Defendant alleges that his home was targeted

due to his religious beliefs and his organic landscaping

preference. However, he never explained how the

landscaping was relevant to his religious beliefs. But

even so the Court below or even this Court has not

been provided with any evidence that he is being

targeted because of his religious beliefs. Again, the

condition of the property it's undisputed even by the

defendant.

Moreover, the Township Ordinances are not

vague as they are detailed as to what is not allowed on

the property and how the property is to be maintained.

The therefore, the Court finds that the record

is complete and this Court finds no reason to disrupt

the factual findings made by the Municipal Court. This

Court adopts those factual findings and, therefore, the

defendant is found guilty of failure to maintain exterior

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of property in violation of Code 14-8.1 (a)1 and 8.1 (a)2

and failure to landscape property in violation of 14-8.2

(a)2.

Now, sentencing was never reached, so this is

also a de novo sentencing. I'll hear the Prosecutor.

What do you think an appropriate sentence is here? I

know compliance and abatement, I get that. That's a

two-way street, I guess. But as far as fines, what is

your recommendation?

MR. NATH: 350,000 is a good number.

THE COURT: Sir, I'll get to you, sir.

You'll get your chance.

MR. ROGLIERI: Your Honor, from—

based on the photos that Mr. Ordonez testified to and

are before Your Honor, the violation was from

December 1st, 2015, through April 11th, 2016. As Your

Honor read, the code allows for a fine of $1,250 per day

that the violations existed. As Your Honor knows,

there has been some, but not total cleanup on the

property, so this is continuing until now, but, obviously,

the pictures only go up until April. On my count that's

about 130 days. The Township is not looking to impose a

gigantic fine on Mr. Nath. Again, our goal is to get this

abated, to clean up the property. I—based on that, my

recommendation would be the same recommendation

that we sought below from Judge Dowd which was a

$5,000 fine.

THE COURT: Thank you. Mr. Nath I'll

hear you as to sentencing.

MR. NATH: Yeah, I disagree. I think the

fine should be out because we're not going to change

anything. Not only that, since his office has a tree that

is below 5 feet outside and so does the courthouse, the

whole thing is BS.

THE COURT: Sir, right now—

51a

MR. NATH: I would say 350,000 because

I'm really not a gamble.

THE COURT: You want 350,000?

MR. NATH: Under the statute that's—

under what circumstances would the fine raise to 350?

THE COURT: I don't know, you

mentioned that figure, he didn't.

MR. NATH: I'm say—they're saying we

have abated something. We always abate things either

it should be an acquittal or it should be 350.

THE COURT: All right. Thank you. Well,

it's not an acquittal because I already found you guilty,

but I do think the $5,000 amount is high.

I looked at the photographs a couple of times.

Yes, I do find the defendant guilty. I think the tree is

the biggest concern. There was some attempt at

abatement, but, again, it wasn't full abatement. It really

seems to be a defiance by the defendant on abating

which I think will only lead to additional summons

being issued by the Township unfortunately and we

may find ourselves back here again.

But I think the $5,000 fine is excessive, so my

ruling is as follows on 0722-SC-03228 it's $1,250; on

0722-SC-03229 it's $1,250, $30 court cost on each.

All right. Sir, you do have 45 days from today

within which to appeal if you are not satisfied with the

decision of the Court. The Court will prepare an order

reflecting my decision today and we'll provide it to both

of you. Okay.

MR. NATH: Do I need to give my email

to get the order?

THE COURT: Do we have a physical

address we can mail it there?

MR. NATH: I just want to make sure I

get it.

52a

THE COURT: If you want the email you

can just write it down and the Officer will give it to my

Clerk.

MR. NATH: Okay.

THE COURT: Thank you. Have a good

day.

MR. NATH: Your Honor, you too.

MR. ROGLIERI: Thank you, Your

Honor.

MR. NATH:—we're never going to

address, but that's okay.

(Matter concluded.)

53a

CERTIFICATION

I, Lisa Kane, the assigned transcriber, do hereby

certify the foregoing transcript of proceedings,

Digitally Recorded, index number from 10:41:44 to

11:31:25 is prepared in full compliance with the current

Transcript Format for Judicial Proceedings and is a

true and accurate non-compressed transcript of the

proceedings as recorded.

Lisa Kane

Brittany Transcription, LLC

Agency Name

Date

665 cc

AOC Number

December 8, 2016

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14-1.2 Findings and Declaration of Policy.

It is hereby found and declared that there exists in

the Township structures used for residential and

nonresidential use which are, or may become in the

future, substandard with respect to structure,

equipment or maintenance, or further that such

conditions including but not limited to structural

deterioration, lack of maintenance and appearance of

exterior of premises, infestation, lack of essential

heating, plumbing, storage or refrigeration equipment,

lack of maintenance or upkeep of essential utilities and

facilities, existence of fire hazards, inadequate

provisions for light and air, unsanitary conditions and

overcrowding, constitute a menace to the health, safety,

morals, welfare and reasonable comfort of the citizens

and inhabitants of the Township. It is further found and

declared that by reason of lack of maintenance and

progressive deterioration, certain properties have the

further effect of creating blighting conditions and

initiating slums, and that if the same are not curtailed

and removed, the conditions will grow and spread and

will necessitate in time the expenditure of large

amounts of public funds to correct and eliminate the

same, and that by reason of timely regulations and

restrictions as herein contained, the growth of slums

and blight may be prevented and the neighborhood and

property values thereby maintained the desirability

and amenities of residential and nonresidential uses and

neighborhoods enhanced and the public health, safety

and welfare protected and fostered.

It is further found and declared that by reason of the

peculiar and special conditions existing in lodging

houses, boarding houses and nursing homes as herein

defined, the licensing and regulation of same is

necessary so that the regulations may be better

55a

enforced in the public interest for the protection of

health, safety and welfare of the public to prevent slum

and blighted conditions from expanding in the

Township and for the social and economic stability of

the Township. (1972 Code § 16-1.2)

14-1.3 Purposes.

The purpose of this Code is to protect the public

health, safety, morals and welfare by establishing

minimum standards governing the maintenance,

appearance, condition and occupancy of residential and

non-residential premises, to establish minimum

standards covering utilities, facilities and other physical

components and conditions essential to make the

facilities fit for human habitation, occupancy and use; to

fix certain responsibilities and duties upon owners and

operators, and distinct and separate responsibilities and

duties upon occupants to require the licensing and

regulation of lodging houses, boarding houses and

nursing homes; to authorize and establish procedures

for inspection of residential and nonresidential

premises; to fix penalties for the violations of this Code;

to provide for the right of access across adjoining

premises to permit repairs; and to provide for the

repair, demolition or vacation of premises unfit for

human habitation or occupancy or use. This Code is

hereby declared to be remedial and essential for the

public interest and it is intended that this Code be

liberally construed to effectuate the purpose as stated

herein. (1972 Code § 16-1.3)

14-2.1 Meaning of Certain Words.

The following terms wherever used in this Code shall

have the respective meanings assigned to them unless a

different meaning clearly appears from the context:

56a

Accessory structure shall mean any structure, the

use of which is incidental to that of the main

building and which is attached thereto or located on

the same premises.

Basement shall mean the portion of the building

that is partly underground which has more than

one-half (1/2) of its height, measured from clear floor

to ceiling above the average adjoining ground level.

Where the natural contour of the ground level

immediately adjacent to the building is interrupted

by ditching, pits or trenching, then the average

adjoining ground level shall be the nearest natural

contour line parallel to the walls of the building

without regard to the levels created by the pitching,

pits or trenching.

Bathroom shall mean an enclosed space containing

one (1) or more bathtubs, showers, or both, and

which shall also include toilets, lavatories, or

fixtures serving similar purposes.

Boardinq house shall mean any dwelling unit in any

zoning district in which any room is offered for rent

or lease.

Building shall mean a combination of materials to

form a construction adapted to permanent or

continuous occupancy or use for public, institutional,

residence, business or storage purposes.

Building Code shall mean the Building Code of the

Township of West Orange.

Cellar shall mean the lowermost portion of the

building partly or totally underground, having half

(1/2) or more of its height measured from clear floor

to ceiling below the average adjoining ground level.

Where the natural contour of the ground level

immediately adjacent to the building is interrupted

by ditching, pits or trenching, then the

57a

average adjoining ground level shall be the nearest

natural contour line parallel to the walls of the

building without regard to the levels created by the

ditching, pits or trenching.

Central heating system shall mean a heating system

in a fire resistant enclosed space or spaces, separate

and apart from the area to be heated, which system

is permanently affixed on a fireproof base and

connected by breaching to a stack in accordance

with the Building Code. Direct electric or gas

heating systems without the use of a boiler, serving

all dwelling units in a structure, are exempt from

the above requirements.

Community kitchen shall mean kitchen facility

shared by occupants of one (1) or more rooming

units or dwelling units.

Deterioration shall mean the condition of a building

or part thereof, characterized by holes, breaks, rot,

crumbling, cracking, peeling, rusting or other

evidence of physical decay or neglect, lack of

maintenance or excessive use.

Disabled person shall mean any person who by

reason of his or her physical or mental condition is

not sufficiently ambulatory, or otherwise by reason

of physical or mental incapability, to reach or use

the two (2) means of egress most accessible to his or

her living quarters without assistance and with

reasonable facility, or who is unable to attend to his

or her daily personal and bodily needs.

Dwelling shall mean a structure, or part of a

structure, arranged, intended or designed to be

occupied as a residence.

Dwelling unit shall mean a single unit providing

facilities for one (1) or more persons including

58a

provisions for living, sleeping, eating, cooking, and

sanitation.

Emancipated minor shall mean any person under

the age of eighteen (18) years of age who is gainfully

employed and self-supporting or who is married to a

spouse who is gainfully employed and who supports

the minor, or who is a student living away from

home and in regular attendance at an institution of

higher learning.

Establishment subject to licensing shall mean any

lodging house, boarding house or nursing home

which is required to be licensed pursuant to this

Code.

Exposed to public view shall mean any premises, or

part thereof, or any building or any part thereof,

which may be lawfully viewed by the public, or any

member thereof, from a sidewalk, street, alleyway,

licensed open air parking lot or from any adjoining

or neighboring premises.

Exterior of the premises shall mean open space on

the premises outside of any building thereon.

Extermination shall mean the control and

elimination of insects, rodents and vermin by

eliminating their harborage places; by removing or

making inaccessible material that may serve as their

food; by poisoning, spraying, fumigating, trapping or

by other approved means of pest elimination.

Family. (See I?nmediate family.)

Fire Chief shall mean the Fire Chief of the

Township of West Orange.

Fire hazard shall mean:

a. Any device or condition likely to cause fire

and which is so situated as to endanger either

persons or property.

59a

The creation, maintenance or continuance

of any physical condition by reason of which

there exists a use, accumulation or storage of

combustible or explosive material sufficient in

the amount or so located or in such a manner as

to put in jeopardy, in event of ignition, either

persons or property.

The obstruction to or of fire escape ladders

which may be used as escape stairways, aisles,

exits, doors, windows, passageways or halls,

likely in the event of fire to interfere with the

operations of the Fire Department or of the

safety and ready egress of occupants.

The violation of any rule now or hereafter

promulgated by the Fire Department, or the

Township.

Floor area, superficial shall mean the net floor area,

within the enclosing walls of the room, excluding

built-in equipment such as wardrobes, cabinets,

kitchen units or fixtures which are not readily

removable and excluding the floor area where the

floor to ceiling height is less than seven (7) feet.

Garbage (See also Refuse, Rubbish) shall

mean putrescible animal and vegetable waste

resulting from the handling, preparation, cooking

and consumption of food.

Habitable rooms shall mean rooms used or designed

for use by one (1) or more persons for living or

sleeping or cooking and eating, but not including

bathrooms, water closet compartments, laundries,

serving and storage pantries, corridors, foyers,

vestibules, cellars, heater rooms, boiler rooms,

utility rooms, and other rooms or spaces that are not

used frequently or for an extended period of time or

that have less than fifty (50) square feet of

60a

superficial floor area shall not be considered as

habitable rooms.

Health Officer shall mean the Health Officer of the

Township of West Orange.

Hotel shall mean any building kept, maintained,

advertised as, or held out to be a place where

sleeping accommodations are supplied for pay to

transient or permanent guests in which fifteen (15)

or more rooms are rented furnished or unfurnished,

including any room found to be arranged for or used

for sleeping purposes, with or without meals, for the

accommodation of such guests, or every building, or

part thereof, which is rented for hire to thirty (30)

or more persons for sleeping accommodations.

There shall not be included rooms which are

physically a part of a self-contained and enclosed

dwelling unit. This definition shall not be construed

to include any building defined as a tenement house

pursuant to Title 55 of the Revised Statutes of New

Jersey, or any amendments now or hereafter

enacted thereto.

Housing inspectors shall mean all officials, officers

or employees of the Township entrusted with the

enforcement of this Code.

Immediate family shall mean the head of the family,

spouse, the parents and the children (including

adopted children) of either the head of the family or

spouse. There shall be a rebuttable presumption

that three (3) or more persons occupying any

dwelling unit or rooming unit are not related to one

another so that any two (2) or more shall be

members of an immediate family, and the burden of

proving such relationship shall be on the person or

person asserting it.

61a

Incidental cooking shall mean cooking facilities

containing no more than two (2) plates or burners

not exceeding six (6) inches in diameter.

Independent rooming unit shall mean a rooming

unit in other than a single family dwelling which

opens directly to the exterior of the premises by

way of a common hallway, common areaway or

common stairway or door to the exterior of the

premises without passing through any other

rooming unit or dwelling unit.

Infestation shall mean the presence of insects,

rodents, vermin or other pests on the premises

which constitute a health hazard.

Kitchen shall mean any room or part of a room used

for cooking or the preparation of food.

Lodging house shall mean any dwelling, whether

furnished or unfurnished, in which there are one (1)

or more independent rooming units where there are

sleeping accommodations for occupancy or available

for occupancy by four (4) or more persons, and

where there is no agreement between the operator

and any occupant for feeding, personal care or

special supervision or attention, except that hotels

as defined by N.J.S.A. 29:1-11 containing fifteen (15)

or more rooms or accommodating thirty (30) or more

persons shall be excluded therefrom.

Mixed occupancy shall mean any building

containing one (1) or more dwelling units or rooming

units and also having a portion thereof devoted

to nondwelling uses or as a hotel.

Nuisance shall mean:

a. Any pubic nuisance known at public law or

in equity jurisprudence, or as provided by the

Statutes of the State of New Jersey, or the

ordinances of the Township.

62a

Any attractive nuisance which may prove

detrimental to the health or safety of children

whether in a building, on the premises of a

building, or upon an unoccupied lot. This

includes, but is not limited to: abandoned wells,

shafts, basements, excavations, abandoned

iceboxes, refrigerators, motor vehicles, any

structurally unsound fences or structures,

lumber, trash, debris, or vegetation such as

poison ivy, oak or sumac, which may prove a

hazard for inquisitive minors.

Physical conditions dangerous to human life

or detrimental to health of person on or near the

premises where the conditions exist.

Overcrowding of a room with occupants in

violation of this Code.

Insufficient ventilation or illumination in

violation of this Code.

Inadequate or unsanitary sewage or

plumbing facilities in violation of this Code.

Unsanitary conditions or anything

offensive to the senses or dangerous to health,

in violation of this Code.

Whatever renders air, food or drink

unwholesome or detrimental to the health of

human beings.

Fire hazards.

Nursing home shall mean any building in which two

(2) or more disabled persons are housed for

purposes of care, special attention, treatment or

supervision, and are housed for such purposes

overnight or longer, but dwellings where not more

than two (2) disabled persons live with members of

their families to whom they are related by blood or

marriage, shall be excluded therefrom.

63a

Occupant shall mean any person living, sleeping, or

having actual possession of a dwelling unit or

rooming unit.

Operator shall mean any person who has charge,

care or control of a dwelling or premises, or a part

thereof, whether with or without the knowledge and

consent of the owner.

Owner shall mean any person who, alone or jointly

or severally with others, shall have legal or

equitable title to any premises, with or without

accompanying actual possession thereof; or shall

have charge, care or control of any dwelling or

. dwelling unit, as owner or agent of the owner, or as

executor, administrator, trustee, receiver or

guardian of the estate, or as a mortgagee in

possession, regardless of how such possession was

obtained. Any person who is a lessee subletting or

reassigning any part or all of any dwelling or

dwelling unit shall be deemed to be a co-owner with

the lessor and shall have joint responsibility over

the portion of the premises sublet or assigned by the

lessee.

Person requiring special care shall mean any person

who does not suffer from such physical or mental

incapacity as to be classified as a disabled person,

but by reason of physical or mental limitations, or

advanced years, does require a limited degree of

care and attention to assure personal safety at all

times.

Plumbing shall mean all of the following supplies,

facilities and equipment: gas, pipes, gas-burning

equipment, water pipes, garbage disposal units,

waste pipes, water closets, sinks, installed

dishwashers, lavatories, bathtubs, shower baths,

installed clothes washing machines, catch basins,

64a

vents and any other similar supplied fixtures,

together with all connections to water, sewer or gas

lines, and water pipes and lines utilized in

conjunction with air conditioning equipment.

Premises shall mean a lot, plot or parcel of land

including the buildings or structures thereon.

Public Officer shall mean the Planning Director of

the Township or such other person as the Town

Council may specifically designate and such other

officials as the Public Officer may designate to act in

his/her behalf.

Refuse (See also Garbage, Rubbish) shall mean

all putrescible and nonputrescible solid

wastes

(except body wastes), including but not limited to:

garbage, rubbish, ashes, street cleanings, dead

animals, abandoned automobiles and side market

and industrial wastes.

Registered mail shall mean registered mail or

certified mail.

Room shall mean space in an enclosed building or

space set apart by a partition or partitions, and any

space in a building used or intended to be used as a

bedroom, dining room, living room, kitchen, sewing

room, library, den, music room, 'dressing room,

enclosed sleeping porch, sun room, party room,

recreation room, breakfast room, study, storage

room and similar uses.

Rooming house. (See

definition

of Lodging

house and Boarding house.)

Rooming unit shall mean a group of rooms forming

a single habitable unit other than a dwelling unit,

which is rented or available for rent for sleeping

purposes, with or without cooking facilities.

Rubbish (Also see Garbage, Refuse) shall

mean nonputrescible solid wastes consisting of both

65a

combustible and noncombustible wastes, such as

paper, wrappings, cigarettes, cardboard, tin cans,

yard clippings, leaves, wood, glass, bedding,

crockery and similar materials.

Sanitary sewer shall mean any sanitary sewer

owned, operated and maintained by the Township

and available for public use for the disposal of

sewage.

Sewage shall mean waste from a flush toilet,

bathtub, sink, lavatory, dishwashing or laundry

machine, or the water-carried waste from any other

fixture or equipment or machine.

Single family dwelling shall mean any dwelling

containing one (1) and only one (1) dwelling unit, but

which may contain in addition thereto one (1)

rooming unit with incidental cooking facilities.

Sleeping room shall mean any room within a

dwelling unit which contains a bed and/or other

furniture which is or may be used by persons for

sleeping.

Smoke detector whenever used in this chapter shall

mean a fire alarm device capable of sensing visible

and invisible particles of combustion providing an

alarm suitable in all sleeping areas.

Story shall mean that portion of a building included

between the upper surface of any floor and the

upper surface of the floor next above, except that

the topmost story shall be that portion of a building,

included between the upper surface of the topmost

floor and the ceiling or roof above. If the finished

ceiling level directly above a basement or cellar is

more than six (6) feet above grade, such basement

or cellar shall be considered a story.

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Structure shall mean any combination of any

materials, whether fixed or portable, forming a

construction, including buildings.

Superficial

floor

areas. (See Floor

area,

superficial).

Ventilation shall mean supply and removal of air to

and from any space by natural or mechanical means.

Ventilation, mechanical shall mean ventilation by

power-driven devices.

Ventilation, natural shall mean ventilation by

opening to outer air through windows, skylights,

doors, louvres, or stacks with or without winddriven devices.

Washrooms shall mean enclosed space containing

one (1) or more bathtubs, showers, or both, and

which shall also include toilets, lavatories or fixtures

serving similar purposes.

Water closet compartment shall mean enclosed

space containing one (1) or more toilets which may

also contain one (1) or more lavatories, urinals and

other plumbing fixtures.

Weathering shall mean deterioration, decay or

damage caused by exposure to the elements.

(1972 Code H 16-2.62, 16-20.1; Ord. No. 579-80 § 1;

Ord. No. 1456-97 § 1; Ord. No. 1637-99 § 1; Ord. No.

1690-00 § 1; Ord. No. 1827-02 § 1)

14-3 APPLICABILITY.

Every residential and nonresidential building and the

premises on which it is situated in the Township, used

or intended to be used for dwelling, commercial

business or industrial occupancy shall comply with the

provisions of this Code, whether or not such building

shall have been constructed, altered or repaired before

or after the enactment of this Code, and irrespective of

67a

any permits or licenses which shall have been issued for

the use or occupancy of the building or premises for the

construction or repair of the building, or for the

installation or repair of equipment or facilities prior to

the effective date of this Code. This Code establishes

minimum standards for the initial and continued

occupancy and use of all such buildings, and does not

replace or modify standards otherwise established for

the construction, repair, alteration or use of the

building, equipment or facilities contained herein

except as provided in Section 14-4. Where there is

mixed occupancy, residential or nonresidential use

therein shall be nevertheless regulated by and subject

to the provisions of this Code. (1972 Code § 16-3)

14-8.1 Maintenance of Exterior of Premises.

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:

Refuse, garbage and rubbish as defined

in subsection 14-2.1 contained herein.

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

68a

kept pruned and trimmed to prevent such

conditions. All weeds shall be removed from

the vicinity of any public sidewalk or

roadway.

3. Overhangings. Loose and overhanging

objects, and accumulations of ice and snow

which by reason of location above ground

level constitute a danger of falling on persons

in the vicinity thereof.b

14-8.2 Appearance of Exterior of Premises and

Structures.

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

69a

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 section shall be

removed, trimmed, or cut to conform to the

requirements set forth herein.

70a

28 use 1257 (a)

Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may be

reviewed by the Supreme Court by writ of certiorari

where the validity of a treaty or statute of the United

States is drawn in question or where the validity of a

statute of any State is drawn in question on the ground

of its being repugnant to the Constitution, treaties, or

laws of the United States, or where any title, right,

privilege, or immunity is sp(ecially set up or claimed

under the Constitution or the treaties or statutes of, or

any commission held or authority exercised under, the

United States.

.:iV'EQ.

j JON10 2111.9

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.