On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Pressler and O'Brien. The opinion of the court was delivered by O'Brien, J.A.D.
[229 NJSuper Page 172] Defendants appeal from their convictions for violating a municipal ordinance of the Township of West Orange requiring
a permit for the removal of trees. We reverse as to defendant Stuart Portney (Portney). We affirm the conviction of defendant Pennlen Associates (Pennlen), but reduce the penalty within the limit permitted by N.J.S.A. 40:49-5.
Pennlen is the developer of a parcel of land in the Township of West Orange identified as Lot 11 in Block 154 on the tax map and commonly known as 622 Eagle Rock Avenue. On June 4, 1986, the Planning Board of the Township (planning board) approved a site plan submitted by Pennlen for the erection of an office building after the planning board had approved variances as to the height of the proposed building and the number of parking spaces to be provided. In the resolution of approval, dated June 4, 1986, reference is made to the presentation of Leonard Garner, principal of the applicant, and Robert Williams, attorney for the applicant. By resolution adopted on April 1, 1987, the planning board amended the previously approved site plan. In that resolution defendant Portney is referred to as a "professional planner."
Section 24-12 et seq. of the Land Subdivision section of the Township of West Orange Ordinances, as revised and supplemented through October 1985, concerns tree removal and planting. Section 24-12.5al of this ordinance requires any person desiring to "destroy, cut or remove a tree," as defined in the ordinance, to apply to "the duly appointed officer"*fn1 for a permit to remove such a tree.
On March 9, 1987, Richard Manus (Manus), now the township forester, went to the Pennlen property at 622 Eagle Rock
Avenue and counted 74 tree stumps. The next day,*fn2 he signed a complaint against Portney for a violation of:
Ordinance # 24-12-5a 1.2 by committing the following offense(s): Trees were removed without permit at 622 Eagle Rock Ave., W. Orange = Lot # 11, Block # 154.
On April 16, 1987 Richard Williams, attorney for Portney, told the municipal court judge, "I can represent to the court that Mr. Portney is not the only owner of the property." Then counsel pointed out that the property is owned by Pennlen, a joint venture, and that Portney is not one of the joint venturers, but rather an employee. As counsel for Pennlen, Mr. Williams consented to the amendment of the complaint to join Pennlen as an additional defendant without any further notice to it. The matter was then adjourned.
On May 21, 1987, during the cross-examination of Manus, Mr. Williams recalled his application at the earlier hearing to dismiss the complaint against Portney and amend it to substitute Pennlen as the defendant. At that time the judge had responded that he could not dismiss as to Portney, but he did permit Pennlen to be added as a defendant.
During his cross-examination Manus explained why he had filed the complaint against Portney. He testified that he went to the building inspector who had records of applications and asked who owned the property. He ...