On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-028.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and J. N. Harris.
Defendant Paramount Marinas, LLC appeals from a judgment of conviction and fine entered by the Law Division in a de novo appeal from municipal court. Defendant was found guilty in both courts of removing soil from a premises in the Township of Millstone (Millstone) without a permit in violation of The Revised General Ordinances of the Township of Millstone, 1992 (the Code), § 23-3.1. We affirm.
On October 1, 2008, Millstone issued a summons to defendant for violating the subject ordinance. On or about December 18, 2008, defendant filed a motion to dismiss with the Millstone municipal court. On January 6, 2009, the municipal court granted the parties' request to adjourn the trial to allow defendant to apply for a soil removal permit, with the understanding that Millstone would dismiss the case if the permit were approved but the matter would be returned to municipal court if it were denied.
On August 26, 2009, the Millstone Zoning Board of Adjustment (Zoning Board) denied defendant's permit application and the municipal court reinstated defendant's motion to dismiss. The motion was denied by oral ruling and order on February 2, 2010. On or about April 6, 2010, defendant entered a conditional guilty plea, R. 7:6-2(c), preserving its right to appeal the denial of its motion to dismiss.
On de novo appeal to the Law Division, R. 3:23-8(a), following oral argument on June 25, 2010, Judge Anthony J. Mellaci, Jr. found defendant guilty of the offense as charged, and imposed the same $1,000 fine and court costs as had been imposed by the municipal court. An order entered on that date provided for a stay of the sentence pending appeal. Defendant filed a timely notice of appeal.
The following sections are contained in Chapter XXIII of the Code entitled "Soil Removal."
Section 23-3.1 states as follows:
No owner, developer, excavator or other person shall dig, excavate, scrape, or otherwise disturb or move or cause, allow, permit or suffer to be moved the soil on any premises in the Township for use other than on the premises from which it shall be taken, unless and until a soil removal permit has been issued pursuant to this chapter. [(Emphasis added) (citations omitted).] Section 23-2 defines "premises" as follows:
Premises shall mean one (1) or more contiguous parcels of land in a single ownership. Parcels shall not be deemed to be contiguous if separated by a road, railroad, right-of-way, brook, stream or other natural division.
Section 23-2 defines "move" as follows:
Move shall mean to dig, excavate, to remove; to deposit; to place and to fill; to grade, regrade, level or otherwise alter or change the location of any existing contour; to transport and to supply; to scrape or otherwise disturb; however, the act of moving soil or topsoil from one portion of a premises to another portion of the same premises shall not be included hereunder. [(Emphasis added).]
Section 23-8(b) provides that any person who violates the Ordinance shall be subject to the penalty stated in Section 1-5, which calls for a fine not exceeding $2,000.00, imprisonment for a period not exceeding 90 days or a period of community service not exceeding 90 days at the discretion of the municipal court.
On January 31, 2006, defendant acquired title to the subject property, which had been historically operated as "Wurmbrandt Farm" but was divided by a municipal boundary and consisted of two separate tax parcels, one situated in Upper Freehold Township and the other situated in Millstone. The property was identified in the deed as "Block 18, Lot 1 & 1QFARM" and "Block 54, Lots 1QFARM." According to the tax map referenced in the deed, Block l8 was located in Upper Freehold Township and Block 54 was located in Millstone.
On September 28, 2005, the Zoning Board approved defendant's
application as contract purchaser for a bulk variance to construct a
single-family residence on the lot located in Millstone.*fn1
In February 2008, defendant submitted a
plot plan to the Millstone township engineer for construction of the
residence. The plan labeled four or five acres of the property as
"encapsulated soil area," which was inconsistent with the previously
approved plan. Accordingly, the township engineer denied Paramount's
plot plan and referred it back to the Zoning Board. According to
Millstone, this was its first notice of defendant's soil removal
During the August Zoning Board hearing on defendant's application, defendant provided some testimony regarding soil it had removed from the Millstone lot as part of a remediation of pesticides resulting from the agricultural activities of the prior owners. It subsequently became apparent, and defendant does not dispute, that throughout 2007 and into 2008, defendant excavated and removed an estimated 55,000 to 58,000 cubic yards of clean soil from the Millstone lot, which it transported over to the Upper Freehold lot. Defendant then further excavated toxic soil from various parts of the Upper Freehold lot, and apparently some parts of the Millstone lot,*fn2 and encapsulated the soil on the Millstone lot in the pit from which the clean soil had been taken. The remediation was conducted pursuant to a Remedial Action Workplan approved and supervised by the New Jersey Department of Environmental Protection (DEP).*fn3 Defendant concedes it had not obtained a soil removal permit from Millstone pursuant to Section 23-3.l.
The township engineer advised defendant that such permit was required before clean soil could be removed and contaminated soil could be imported onto the Millstone lot. Consequently, on October 1, 2008, Millstone issued a summons to defendant, charging it with removing soil from the Millstone lot without a permit in violation of Section 23-3.1.
Following an unsuccessful attempt to obtain a soil removal permit from the Zoning Board and the entry of a conditional guilty plea in municipal court, defendant appealed to the Law Division. Defendant argued its soil removal operations did not require a permit because the movement of soil was limited to a unitary "premises," i.e., it did not remove any soil from its property or across any "road, railroad, right-of-way, brook, stream or other natural division." Defendant further argued that because the ordinance is quasi-criminal in nature, it must be strictly construed in defendant's favor, and it challenged the ordinance as vague and unenforceable as applied to defendant. ...