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State v. Carlson

October 29, 2001

STATE OF NEW JERSEY, PLAINTIFF- RESPONDENT,
v.
TERRANCE CARLSON AND JEANETTE LEEHR, DEFENDANTS-RESPONDENTS. IRVING D. ISKO, APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal Docket No. 99-074.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically September 21, 2001

Before Judges Stern and Eichen.

Irving D. Isko, designated "a person interested in the prosecution," purports to appeal from an order of June 30, 2000, denying his request for appointment as "Special Municipal Prosecutor" to appeal the defendants' successful disposition of their municipal appeal to the Law Division and "reversal" of the municipal convictions. Isko argues that "the application to intervene as private prosecutor met all the requirements" of law and should have been granted; its denial constituted "an abuse of discretion"; there is no double jeopardy prohibition precluding the appeal of the Law Division's reversal of defendant's conviction in municipal court, and "an important public interest" would be promoted were the appeal permitted to go forward.

Defendants were found guilty in the Mendham Municipal Court of violating a zoning ordinance, Art. IV, Sec. 215-13, which appellant believes proscribes the boarding of horses as a commercial use or "commercial enterprise" in a five acre zone. They were each fined $50 and ordered to pay $25 in court costs. Each was also directed by the municipal court judge to "remove" the horses from the property within ninety days.

The ordinance provides, in part:

§215-13. Uses permitted.

In the 5-Acre, 3-Acre, 1-Acre and ½-Acre Residence Zones, no building or land shall be used and no building or structure shall be erected, constructed, reconstructed, altered or repaired which is arranged, intended or designed for any use or occupancy except for the following:

A. One single-family dwelling per lot which shall include any use of single-family dwellings protected by statute. [Amended 6-15-1998 by Ord. No. 14-98]

B. Playgrounds and parks.

C. Agricultural uses.

D. Home Occupations.

E. Accessory ...


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