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State, Township of Marlboro v. Schneider


May 19, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MA-06-105.

Per curiam.


Argued May 5, 2008

Before Judges Stern and Kestin.

Defendant appeals from the Law Division's "Order Affirming Municipal Appeal," entered April 20, 2007, finding defendant guilty of violating Marlboro Township Municipal Ordinance 113-2 and imposing a fine of $54,000 "reflecting continuing violations at the rate of $500 per day for 108 days and $33 in court costs." The order also "affirmed" the municipal court's decision that the $51,500 balance of the fine be paid "immediately."

While we are not presented with a portion of the ordinance containing the penalty provision, section 113-2 provides:

No person shall sell, transfer, lease or rent any structure located within the Township of Marlboro unless a certificate of continued occupancy certifying that said structure is in compliance with all provisions of the BOCA Basic/National Existing Structures Code and all other applicable ordinances of the Township of Marlboro is issued.

In his non-conforming brief,*fn1 defendant complains about the receipt of three summonses for violating the ordinance and being found guilty of those violations.

The Department of Code Enforcement filed the complaints when defendant failed to comply with the ordinance requirement of a certificate of continued occupancy ("CCO") for rental property. On May 3, 2006, the municipal court had ordered certain repairs to be made, and defendant had not complied with those orders. On December 19, 2006, defendant was found neither to have complied nor to have made "a good faith effort to conform." The municipal judge found the premises unsuitable for issuance of a CCO, and ordered a $54,000 fine ($500 a day for 108 days of violations) with $51,500 "suspended" if $2,500 was paid within seven days and the balance vacated if the CCO was obtained by February 11, 2007. The building inspector was also "ordered to issue the CCO" by that date without regard to the "exterior facade" which could be painted in the spring "if the premises are in otherwise satisfactory condition."

As already noted, the defendant did not comply, and the Law Division ordered that the $51,500 had to be paid immediately.

In his brief, defendant states:

I rented my late parent's home on July 14, 2001, to Mary A. Dennis and Steven R. Trionfo. After having problems with paying the rent and utilities as stipulated in the rental agreement, I notified them on June 1, 2004, [that] I would like them to leave on or before September 1, 2004. They stayed in the home and filed a complaint with Marlboro Township Building Department on November 1, 2004. In October 2005, I received summons 001823, from the Code Enforcement Officer. I was working as I could to get this matter resolved both with the Building Department and with the Special Civil Part.

I was having an extremely hard time attempting to get access into the home, but was proceeding on the exterior repairs. In May 2006, I was found guilty. I continue to work towards completing all that was necessary for obtaining a [] Certificate of [Continued] Occupancy (CCO). In October 2006, I received a second summons 001826, for the same reason, from Code Officer Sarah Paris. Then on October 18, 2006, I received a third summons 003435, from the inspector, Dennis Vaspory. I was told I cannot go onto my property for any work at all.

After a trial, I was found guilty. The Order is extreme and the tenants continue living in a rented home without a CCO. The appeal to the Monmouth County Court has resulted in the Order being upheld. I have now sought to have this matter heard before the Appellate Division.

The Township argues there was no abuse of discretion and, as the Law Division determined, the municipal court was "extremely patient in affording [defendant] numerous opportunities to avoid the full -- bear the full brunt of statutory fines under the circumstances." It adds that no fines were ordered from November 2005, until July 2, 2006, and the municipal judge then gave defendant an opportunity to pay the fine at the rate of $25 a day he requested (or total of $2,500) if he complied and received a CCO by February 11, 2007.

The Township's brief contends the quantum of fine is not excessive, and the record reflects the municipal judge's efforts to help defendant reduce the fines, evidencing the lack of abuse of discretion. We find no basis given on which to reverse the conviction. R. 2:11-3(e)(2). Defendant does not raise any legal attack on the fine, ordinance or judgment of conviction with respect to the violation. When asked at oral argument before us what relief defendant sought, he asked us to remove his tenants because they have not been ordered to pay their rent. Apparently, the tenants want to remain on the premises despite the Code violations, because the house is essentially habitable, but all rent is being paid into court, and defendant (who is retired) claims to have no income with which to have repairs done professionally.*fn2 We understand that tenancy proceedings are now pending in the Special Civil Part, and (as noted by the Law Division judge) many of the practical economic issues may be addressed therein. In the interim, the municipality has issued no new summonses and acknowledges defendant cannot be further prosecuted so long as he acts in good faith.

Defendant conceded in the Law Division that there was no certificate of occupancy and that he was "absolutely not" contesting the violation. As the judge pointed out, a municipal appeal is not the occasion to resolve the landlord's dispute with his tenant. Accordingly, we affirm the convictions substantially for the reasons expressed by Judge Thomas F. Scully in his oral opinion of April 20, 2007.

However, in disposing of the appeal, the judge said:

Based on this record I can conclude nothing other than a good deal of restraint and a good deal of numerous opportunities to avoid the full imposition of the financial penalties were afforded here by Judge Gantner and that the municipal court went out of its way to try to afford you opportunities to avoid the financial ramifications of this continuing failure to obtain a certificate of occupancy which is clearly as you concede to, and as you have characterized as a fact, a per se violation of the municipal ordinance which is the subject matter of this proceeding.

And the only thing that I can -- I have to deny your appeal. I'm not sure I'm denying the relief that you're seeking because I'm not certain that you're seeking any relief other than a different fine.

What I would urge you to do, Mr. Schneider, is the issue that you have asserted here as being a source of ongoing frustration to you is clearly issues that have to be resolved and need to be resolved in the Special Civil Part of the Landlord/Tenant Division.

And by addressing, curing the defects that apparently are obstacles in your obtaining a certificate of occupancy. But based on the limited jurisdiction that this Court enjoys, I don't have the ability to provide you -- I don't have the ability to disturb the fine that has been imposed.

Were I to have that ability candidly, I can't conclude anything other than the fact that the municipal court has been extremely patient in affording you numerous opportunities to avoid the full -- bear the full brunt of the statutory fines under the circumstances. With that, sir, those are my findings of fact and conclusions of law.

[Emphasis added.]

His order of the same day also "affirmed" the municipal court decision of December 19, 2006.

Out of an abundance of caution, we remand to the Law Division to further address the fine. While the penalty portion of the ordinance is not provided in the record, the record reflects the fine was "not less than $25 nor more than $500" for each day of the violation. The judge was obligated to impose the fine de novo, see R. 3:23-8(e), and despite the prior recognition of his role on the municipal appeal, it is not clear he imposed the sentence de novo or why the maximum fine was imposed. Accordingly, we remand for resentencing.

Affirmed as modified, and remanded.

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