March 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PARAMOUNT MARINAS, LLC, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 26, 2011
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. Lastly, defendant argued that because the soil removal operations were conducted under the oversight of the DEP, the subject ordinance is preempted by N.J.S.A. 40:48-2.57.*fn4
Judge Mellaci rejected these arguments, denied defendant's motion to dismiss, and entered a judgment of conviction that is the subject of this appeal. The court found defendant's soil removal operations required a permit because defendant moved soil across the township boundary. Specifically, the court stated:
Although the definition of premises does not list township line as a divider that would split the premises, there is no question that it applies only as far as the boundaries of Millstone, as Millstone would not have jurisdiction outside of these township lines.
Although the words, "in the township," do not appear in the aforementioned definitions [of "move" and "premises"], the Court does not find this to be an attempt to read additional language into the ordinance. It is clear that the intention of all of Millstone or any township's ordinances would be to control what goes on only within the Township as this is as far as any township jurisdiction extends.
Defendant's interpretation would require the words, "in the township," to appear in every ordinance. It would essentially be nothing more than superfluous and unnecessary words. Additionally, the words, "in the township" do appear within the section 23-3.1, which states, "on any premise in the township." This language clearly was intended for situations such as this one where a person's property spreads over more than one township.
It is the opinion of this Court that this language was included here to make clear that a premises ends for the purposes of the exemption found in Section 23-2 as well as that found in 23-3.1 once it is beyond the township lines. To simply read it as a statement that Millstone Township only has jurisdiction in Millstone would make the language meaningless.
Furthermore, under defendant's contention any property that extends two or more townships would be beyond the control of any township. Millstone would be without any ability to control that [which] occurs within the township on this property and without any recourse for unlawful actions that occur.
Turning to defendant's preemption argument, Judge Mellaci noted that nothing in the subject ordinance seeks to govern either the investigation or the cleanup of historic pesticide contamination. He concluded that "[t]he words are neither found nor is the subject of the environmental cleanup of historical pesticide contamination even alluded to in the language of the ordinance, which merely imposes a duty upon . . . an excavator to simply obtain a permit prior to removing soils."
The court did not expressly address defendant's void for vagueness argument, but stated that the "in the township" language contained in Section 23-3.1 "clearly was intended for situations such as this one where a person's property spreads over more than one township."
On appeal, defendant seeks reversal of the conviction, renewing the arguments made to the Law Division:
BECAUSE THE FACTS ARE UNDISPUTED AND THIS APPEAL PRESENTS SOLELY QUESTIONS OF LAW, THIS COURT'S REVIEW IS PLENARY.
PARAMOUNT DID NOT VIOLATE MILLSTONE'S SOIL REMOVAL ORDINANCE BECAUSE IT DID NOT REMOVE SOIL FROM A "PREMISES" AS DEFINED IN THE ORDINANCE BUT, RATHER, MOVED SOIL FROM ONE PORTION OF A PREMISES FOR USE ON ANOTHER PORTION OF THE SAME PREMISES.
THE TRIAL COURT ERRED IN CONCLUDING THAT THE EXCLUSION FROM THE PERMIT REQUIREMENT FOR MOVEMENT OF SOIL "ON THE PREMISES FROM WHICH IT WAS TAKEN" IS LIMITED TO MOVEMENT THAT OCCURS SOLELY WITHIN MILLSTONE TOWNSHIP.
IN THE ALTERNATIVE, THE ORDINANCE MUST BE STRICTLY CONSTRUED IN FAVOR OF PARAMOUNT, AND IS VOID AND UNENFORCEABLE AS APPLIED TO CONTIGUOUS PARCELS THAT STRADDLE THE TOWNSHIP'S BORDER.
BECAUSE PARAMOUNT'S SOIL REMOVAL ACTIVITIES WERE LIMITED TO THE REMEDIATION OF PESTICIDE-CONTAMINATED SOIL AS PART OF A SITE-WIDE REMEDIATION UNDER THE OVERSIGHT OF DEP, APPLICATION OF THE ORDINANCE TO THE FACTS OF THIS CASE IS PREEMPTED.
Other than agreeing with defendant that our review is plenary because the appeal presents solely questions of law to which we owe no deference to the trial court, Manalapan Realty,
L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (l995), based on our analysis of the record and applicable law, we do not find any of defendant's arguments to be persuasive. We affirm substantially for the reasons articulated by Judge Mellaci, save for the following comments.
It is undisputed defendant obtained both lots in a single deed and there is no road or natural feature that separates them. Thus, at first blush, the entire property appears to satisfy the literal definition of "premises" under Section 23-2. So, too, does it appear, under the literal language of Section 23-3.l, that defendant merely moved soil from one part of its "premises" to the other. Thus, according to defendant, relying on a plain meaning interpretation, Bergen Commercial Bank v. Sisler, 157 N.J. 188, 202 (1999), no soil removal permit was required.
However, it is further undisputed the entire property is divided by the respective townships' boundary and is comprised of two separately-designated tax parcels in different municipalities. Thus, defendant's interpretation ignores the language of Section 23-3.1, which forbids, without a soil removal permit, removing soil from a "premises in the Township" unless it is used "on the premises from which it shall be taken." (Emphasis added). Based on its placement and context, it is clear the qualifying phrase "in the Township" is intended to encompass both the start and end point of the soil movement. Although the definitions of "move" and "premises" do not contain the qualifier "in the Township," such definitional section must be read in pari materia with the permit requirement section to effectuate a sensible result consistent with the legislative intent. See Twp. of Pemberton v. Berardi, 378 N.J. Super. 430, 444 (App. Div. 2005) (stating that "[g]eneral concepts of statutory construction teach us that statutes are to be read in pari materia with each other"); see also Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (holding that "established rules of statutory construction govern the interpretation of a municipal ordinance," which "should be interpreted to 'effectuate the legislative intent in light of the language used and the objects sought to be achieved'") (quoting Merin v. Maglaki, 126 N.J. 430, 435 (1992)).
Although the "first step of statutory construction requires an examination of the language of the ordinance," Bergen, supra, 157 N.J. at 202, the various provisions cannot be read in a vacuum. Ultimately, "primary regard must be given to the fundamental purpose for which the legislation was enacted." N.J. Builders, Owners and Managers Ass'n v. Blair, 60 N.J. 330, 338 (1972).
A municipality is only able to investigate and control conduct within its borders; its powers do not extend to an adjacent property located in another municipality, even if the entire parcel straddling both municipalities is under single ownership. Thus, the logical and reasonable intent of the governing body in enacting Section 23-3.l was to exempt from the permitting process: (l) excavation on and soil movement to the same parcel, or (2) movement to one or more contiguous parcels in single ownership not "separated by a road, railroad, right-of-way, brook, stream or other natural division"; however, all the parcels must be located entirely within Millstone. In other words, the boundary that separates Millstone and Upper Freehold also constitutes the boundary of defendant's "premises."
Accordingly, because defendant removed soil from the "premises" without a permit, i.e., from Millstone to Upper Freehold, it is guilty of the charged violation.
Contrary to defendant's contention, Judge Mellaci did not rewrite the definition of "premises" contained in Section 23.2; rather, he afforded a commonsense reading and appropriately interpreted the Soil Removal ordinance sections consistent with one another. When an ordinance does not "expressly address a specific situation, the court will interpret it consonant with the probable intent of the draftsman had he anticipated the matter at hand." Schad, supra, 160 N.J. at 170 (internal quotation marks omitted). Moreover, "a court's interpretation of a statute should not lead to an absurd or unreasonable result." In re Alleged Will of Macool, 416 N.J. Super. 298, 312 (App. Div. 2010). See also In re Johnny Popper, Inc., 413 N.J. Super. 580, 589 (App. Div. 2010). Under defendant's interpretation, every landowner whose property straddles Millstone and any other neighboring municipality could remove as much soil as it wished from the Millstone lot without obtaining a permit and submitting itself to Millstone's regulation. Such "unregulated and uncontrolled removal" would "likely  result . . . in conditions detrimental to the public health, safety and general welfare of the citizens of the Township," in violation of the express findings of the Township Committee in adopting the Soil Removal provisions of the ordinance. See § 23-l(a).
Millstone's use of the qualifying phrase "in the Township" in Section 23-3.l is not inconsistent with the use of the phrase in other sections of the Code which prohibit or regulate certain activities "in the Township" such as littering, § 3-1.2, -1.4 to -1.6; maintaining an unlicensed junkyard, § 4-3.l; lodging certain motor vehicles or parking them so as to obstruct public sidewalks, § 3-9.6, -9.7; or displaying visible numbers on the houses or buildings, § 14-4.2. The phrase may be routine but it is not "superfluous," as it defines the limits of Millstone's regulation. Because these limits are defined in the substantive section designating the instances where a soil removal permit is required, there is no need for the definitions to repeat the qualifier. Thus, inserting the definitions of "move" and "premises" into Section 23-3.l, results in the following comprehensive provision, in pertinent part:
No owner . . . shall dig, excavate . . . or move . . . the soil on any lot in the Township other than for use on another portion of the same lot or to one (l) or more lots of the same ownership not separated by a road, railroad, right-of-way, brook, stream or other natural division in the Township, unless and until a soil removal permit has been taken pursuant to this chapter.
[(Emphasis added) (citations omitted).]
Just as an entity is guilty of a violation if it operates an unlicensed junkyard in Millstone, so is an entity that removes soil from its property in Millstone without a permit and does not place it elsewhere on the same property or on a contiguous property located in the township as defined by Section 23-2, unless it falls within the express exceptions of Section 23-6.2.*fn5
Defendant's reference to the legislative history of the Soil Removal
provisions does not alter our analysis. According to Ordinance 93-10,
Section 23-3.l contained the same core language as the current
section.*fn6 The Section 23.2 definitions of
"premises" and "move" appear to be the same as currently exist because
they are not reflected as amended by Ordinance 93-10.*fn7
Ordinance 93-10 amended Section 23-5, Soil Removal
Regulations, by adding subsection "u" providing, in part:
u. No soil nor topsoil shall be removed from any property or premises within the Township of Millstone to any location outside of the Township of Millstone, unless the applicant proves and the Planning Board finds that such prohibition would prevent the reasonable development of the property for any permitted use within the zoning district of which it is a part. (See Section 35-15.3). In making this determination, the Planning Board shall consider the following [ten items]: . . . .
Thus it appears, for reasons unknown, that a property owner who was removing soil from its lot in Millstone and placing it on any location outside the township needed both a soil removal permit and Planning Board approval. Section 23-5 was amended by Ordinances 93-19, § l and 94-l6, § l. Subsection "u" was deleted, without explanation, by one of these ordinances and was replaced by a completely unrelated provision pertaining to scheduling of the work to be performed on the permitted property and its restoration, which is currently in effect.*fn8 Contrary to defendant's assertion, we are unable to glean from these amendments that Millstone's determination to remove subsection "u" "belies any notion that there is some clear legislative intent to regulate all movement out of or in to Millstone ."
We turn now to defendant's challenge to the subject ordinance as unenforceably vague as applied and urging the application of the rule of lenity. See Schad, supra, 160 N.J. at l7l ("Because municipal court proceedings to prosecute violations of ordinances are essentially criminal in nature, the Court should follow the rule of strict construction, interpreting the terms of the ordinance narrowly [and] . . . [it] should also be guided by the rule of lenity, resolving any ambiguities in favor of a defendant charged with a violation thereof.") (internal citation omitted).
Vagueness "is essentially a procedural due process concept grounded in notions of fair play." State v. Lashinsky, 81 N.J. 1, 17 (1979). As such, a municipal ordinance "must not be so vague that a person of ordinary intelligence is unable to discern what it requires, prohibits, or punishes." Brown v. Newark, 113 N.J. 565, 572-73 (1989). The "decisive question" is whether the defendant was "reasonably apprised, as a matter of common intelligence, in light of ordinary human experience, that [its] particular conduct was unlawful." Lashinsky, supra, 81 N.J. at 18.
A municipal ordinance may be challenged as being either vague on its face or vague "as applied." Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 279 (1998) (citations and quotation marks omitted). If an ordinance is found to be vague as to a particular defendant, "it will not be enforced even though the [ordinance] might be validly imposed against others not similarly situated." State v. Cameron, 100 N.J. 586, 593 (1985). Vagueness determinations "must be made against the contextual background of the particular [ordinance] and with a firm understanding of its purpose." Id. at 591.
We disagree with defendant that it is "illogical to conclude that a person of ordinary intelligence would read the definitions of 'premise[s]' and 'move' in Section 23-3.1 and conclude that these definitions are modified by the words 'in the Township' found in Section 23-3.1." Although it may have been preferable if the definitions of "move" and "premises" contained the qualifier "in the Township" or the definition of "premises" included the phrase "municipal boundary" in its explanation of a non-contiguous parcel, an ordinance does not have to be perfect to withstand a "void for vagueness" challenge. Based on the plain language of Section 23-2, including the qualifier "in the Township," and considering the Township Committee's expressed intent to regulate excavation on and removal of soil from "property within the Township," a landowner of ordinary intelligence, such as defendant, would be reasonably placed on notice and understand that a permit would be required to remove and export out of the Township 55,000 to 58,000 cubic yards of clean soil. At the very least, such a landowner would have a duty of inquiry to Millstone prior to undertaking the soil removal operation.
Defendant next argues the ordinance, as applied to the facts of this case, is preempted by N.J.S.A. 40:48-2.57, which reads as follows:
No ordinance governing the investigation or cleanup of historic pesticide contamination adopted by the governing body of a municipality shall apply to any property for which any person is conducting actions related to historic pesticide contamination under the oversight of the Department of Environmental Protection . . . .[(Emphasis added).]
Preemption is a "judicially created principle based on the proposition that a municipality, which is an agent of the State, cannot act contrary to the State." Overlook Terrace Mgmt. Corp. v. Rent Control Bd. of W. N.Y., 71 N.J. 451, 461 (1976). "Preemption analysis calls for the answer initially to whether the field or subject matter in which the ordinance operates, including its effects, is the same as that in which the State has acted. If not, then preemption is clearly inapplicable." Bubis v. Kassin, 184 N.J. 612, 629 (2005) (quoting Overlook, supra, 71 N.J. at 461). Whether a local ordinance is preempted turns upon the intention of the Legislature. Where it appears the Legislature intended "its own actions, whether it exhausts the field or touches only part of it, to be exclusive," the local ordinance is preempted. Mack Paramus Co. v. Mayor and Council of Paramus, 103 N.J. 564, 573 (1986) (citation and quotation marks omitted).
In Overlook, supra, the Supreme Court outlined five factors to consider in determining whether the Legislature intended preemption:
1. Does the ordinance conflict with state law, either because of conflicting policies or operational effect (that is, does the ordinance forbid what the Legislature has permitted or does the ordinance permit what the Legislature has forbidden)?
2. Was the state law intended, expressly or impliedly, to be exclusive in the field?
3. Does the subject matter reflect a need for uniformity?
4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation? [and]
5. Does the ordinance stand "as an obstacle to the accomplishment and execution of the full purposes and objectives" of the Legislature?
[71 N.J. at 461-62 (citations omitted).]
Defendant accurately observes that "the State law is expressly intended to be exclusive in the field"; however, the relevant "fields" are completely different. The ordinance is not aimed at "the investigation or cleanup of historic pesticide contamination," N.J.S.A. 40:48-2.57, nor does it attempt to regulate the "remediation of contaminated soil." Rather, the ordinance seeks to prevent the "[u]nregulated removal, filling and excavation of soil by the owners of property within the Township." § 23-1(a). Accordingly, the ordinance does not affect the uniformity of state law pertaining to this field.
We also disagree with defendant's contention that the ordinance, as applied to the facts in this case, "stands as an obstacle to the accomplishment and execution of the Legislature's objectives." Millstone's ordinance does not thwart the state-wide goals of environmental remediation expressed in N.J.S.A. 40:48-2.57. As Judge Mellaci noted, defendant could have satisfied the remediation obligations imposed by the DEP without running afoul of the ordinance simply by obtaining a permit from Millstone prior to commencing its soil removal operation. Even if it were unable to obtain a permit from Millstone, defendant could have excavated the contaminated soil from each lot and encapsulated it on the same lot from which it was taken. While this may have interfered with defendant's development plans for the Upper Freehold lot, it certainly would not have stood as an obstacle to the accomplishment of the Legislature's objective of cleaning up historic pesticide contamination as regulated by N.J.S.A. 40:48-2.57.