On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 33-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Yannotti and LeWinn.
Defendants appeal from a judgment of conviction entered by the trial court following a trial de novo at which defendants were found guilty of violating a municipal ordinance prohibiting the removal of sand from beach dunes. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendants own oceanfront property in Ship Bottom and were charged with removing sand from the dune which stood between their house and the beach. The municipality presented two witnesses in support of the charge--Frank Little, the borough engineer, and Alex McIndoe, the code enforcement officer. Defendants did not present any witnesses. The testimony established the following.
In 1993, Ship Bottom's code enforcement officer charged defendants with the disorderly persons offenses of obstruction, in violation of N.J.S.A. 2C:29-1(a) and maintaining a nuisance, in violation of N.J.S.A. 2C:33-12. The conduct alleged was removing sand from a beachfront dune. That matter was resolved when Mr. Jedziniak pled guilty to violation of a municipal ordinance and agreed to restore the dune to the grading that was approved by the Ship Bottom Planning Board in 1983. As a result, the grading was to extend to the toe of the dune, twenty feet east of the rear of the house. This required the placement of forty tons of sand on defendants' property, approximately twenty-five feet west of an existing retaining wall and fifteen to twenty feet east of that retaining wall. The work was completed to the satisfaction of the borough.
There were no further proceedings until January 4, 2007, when the Ship Bottom code enforcement officer issued a summons charging defendants with violating Ship Bottom ordinance 16.72.010.7, which provides: No person shall remove, cart away or redistribute sand, or cause the removal, carting away or redistribution of sand, by any mechanical or other means from the strand, beach, dune line or beach dune area of the borough.
In 2006, Ship Bottom was contemplating constructing a new municipal building, and it arranged for aerial photographs to be taken to assist it in determining whether there was municipal property that could be sold to provide financing for the project. When the borough engineer reviewed these photographs, he noted that the dune on defendants' property had been altered from its remediated condition. The retaining wall was exposed and there was a large level area extending from the rear of defendants' house which was clearly being used as a patio. Testimony estimated this level area to extend approximately forty-five to fifty feet from the rear of the house. The engineer alerted the borough.
After further investigation, the municipality contacted the Department of Environmental Protection; the Department, however, declined jurisdiction, with the result that the municipality issued the summons in question.
Testimony at the municipal court proceeding established that the height of the dune following the 1994 remediation was to be eighteen feet. By the time of the hearing, however, it had increased to approximately twenty-six feet. There was also testimony that no other dune in the borough had increased in height in such a manner.
Finally, the code enforcement officer testified that he issued the summons in question because he had been instructed by his superior to do so. He did not personally observe defendants removing any sand and was unable to determine from the street or the beach whether any sand had been removed. He did not know of any other summonses that had been issued for violating this ordinance.
Defendants sought to establish through questioning that the summons was issued in retaliation for their efforts in opposing a beach replenishment project that had been proposed to Long Beach Island. They also sought to establish that the change in the dune could have resulted from the natural force of storms and wind over the years since the earlier remediation.
Both the municipal court judge and the Law Division judge found defendants guilty of violating the ordinance. Defendants were ordered to restore the dune and were fined. This appeal followed. On ...