On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 15947.
Before Judges King, Braithwaite and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2003
Defendant Michaela Golin, who acted pro se throughout these proceedings, was convicted on multiple summonses by the East Windsor Municipal Court for violating a municipal ordinance prohibiting the maintenance of a public nuisance and was sentenced to pay a total of $3370 in fines and court costs. The court's judgment was based on the fact that defendant allowed the branches of trees on her property to overhang and obstruct a public sidewalk. Defendant refused to cut the tree branches for several months following her convictions and she received more than 100 additional summonses which remain outstanding. On appeal to the Law Division, R. 3:23-2, defendant was again convicted of the same offenses after a trial de novo, R. 3:23-8(a). The Law Division judge imposed fines and costs totaling $520.
In her appeal to this court, defendant's principal contention is that the ordinance under which she was convicted is unconstitutionally vague. We agree with this contention and reverse. Because of this disposition we do not address defendant's remaining arguments.*fn1
The facts are not in dispute. After receiving a complaint on June 21, 2001 that tree branches in the right front corner of defendant's property were knocking down a neighbor's electrical lines, an East Windsor Health Department inspector went to defendant's property, saw an overgrowth of grass and weeds on the front lawn and tree branches overhanging the front sidewalk. She issued a Notice of Violation, giving defendant ten days to abate the nuisances. Defendant did not comply.
Defendant has never denied the description by the inspector of the condition of her property. She acknowledged in her testimony that tree branches extended all the way to the surface of the sidewalk. However, she contended the tree branches did not block passage on the sidewalk because the sidewalk ended in front of her house and there was very little traffic on it. Further, she explained her property adjoined a municipal sewer pump and the trees shielded her from the noise and fumes of heavy equipment that was often used to service the pump. She also claimed that the plants growing in her yard were not weeds but were"ornamental grasses" that were not in any way obnoxious. She asserted that tree branches obstruct sidewalks throughout the Township without prompting municipal action and opined that she was being singled out for prosecution. Defendant pursued the same arguments in support of her appeal to the Law Division. After that court delivered its opinion convicting defendant and imposing the lower fines, defendant promised she would trim the overhanging tree branches. She removed them on June 30, 2002, and no summonses have been issued against her since that date.
We recount the municipal court proceedings. On November 12, 2001, defendant appeared for trial on two summonses issued for failure to cut the grass and remove the overhanging tree limbs. The court found defendant guilty on both summonses and directed her to abate the nuisances prior to sentencing in order to minimize the fine that would be imposed.
At sentencing on December 3, 2001, defendant informed the judge that she cut the grass and weeds on her property but had not removed the tree branches. The judge set the fine at $500 and told defendant to remove the branches by the end of the day. When defendant appeared later that afternoon, she stated that the branches still had not been cut. The judge then merged the weed violation into the tree branch violation and set the fine at $1000 plus $30 in court costs. The judge warned defendant that the fine would increase by $100 per day until the problem was rectified.
On February 11, 2002, defendant again appeared in the municipal court in response to thirty-six summonses that had been issued to her since the December 3, 2001 sentencing hearing. The judge again warned defendant that she would continue to receive summonses and that"eventually, the town is going to take your house." On February 25, 2002, defendant was tried on eighteen outstanding summonses, all for maintenance of a nuisance in the form of overhanging tree branches. The judge found defendant"guilty beyond any doubt" and imposed a fine of $100 per summons plus court costs of $30 per summons. The total fines and costs imposed on this occasion were $2340.
Defendant then filed her Law Division appeal. The Law Division judge found it unnecessary to address defendant's violation of the weed control ordinance because that conviction had been merged into her conviction for maintaining a nuisance in the form of overhanging tree branches, in violation of ordinance 18-3.1 §§ 2.1 (a) and 2.1(b). After reviewing the municipal court record, the judge found there was proof beyond a reasonable doubt that the overhanging tree branches constituted a public nuisance. However, the judge further found there was no reasonable correlation between the number of fines imposed and the abatement of the ...