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State of New Jersey v. Farooq Mohamed


April 21, 2011


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4797.

Per curiam.


Submitted March 29, 2011

Before Judges Carchman and Messano.

Defendant Farooq Mohamed appeals from a judgment of the Law Division on a trial de novo, wherein defendant was found guilty of violating Clifton Municipal Ordinance Code § 461-70(H)(3)(a) (the Ordinance). Specifically, defendant was charged with failure to comply with a condition imposed by the Clifton Planning Board limiting operation of his business to eighteen hours per day. Judge Scott J. Bennion in the Clifton Municipal Court concluded that defendant violated the condition. On the trial de novo Judge Jared Honigfeld also concluded that the ordinance was violated and defendant could not collaterally attack the Planning Board condition in the municipal court proceeding. We agree and affirm.

These are the relevant facts, which, as we have noted, were not in dispute. As to the specific offense, defendant admits that on November 27, 2008, he operated his store located at 849 Clifton Avenue, Clifton in excess of the eighteen-hour restriction that had been imposed on the operation of the business by a 1992 Resolution of the Clifton Planning Board.

In considering the issues raised on appeal, additional factual background is necessary. In February 1992, the then owner of the subject premises*fn1 sought to extend an existing shopping center and sought preliminary site plan approval from the Planning Board. The Board granted the approval with nineteen conditions including a condition that limited operation of new businesses to operate eighteen hours per day. The owner accepted the conditions and did not challenge the action of the Board.

In 1997, the existing tenant assigned its lease to Farman, Inc., a 7-Eleven franchisee. The owner then applied to the Planning Board to delete the eighteen-hour restriction, but that application was denied. That denial was memorialized in a resolution of November 8, 2007.*fn2 The owner took no action regarding the denial and did not commence an action in lieu of prerogative writs to challenge the Planning Board determination.

Thereafter, defendant, by his admission, violated the condition, and a complaint was filed against defendant alleging a violation of the Ordinance.*fn3 At the hearing in Municipal Court, defendant did not attack the Ordinance but challenged the underlying condition imposed in 1992, citing other instances of businesses operating in Clifton in excess of eighteen hours per day.

Both the Municipal Court Judge and the Law Division judge concluded that the municipal court proceeding was not the appropriate forum to collaterally attack the Planning Board condition. We agree and affirm substantially for the reasons set forth in the December 1, 2008 oral opinion of Judge Scott J. Bennion in the Clifton Municipal Court, which was later adopted by and expanded upon by Judge Honigfeld in his oral opinion of February 9, 2010. We add the following comments.

On appeal, defendant asserts that the eighteen-hour restriction fails to promote any legitimate public purpose "in violation of defendant's due process rights;" the "eighteen (18) hour per day restriction does not reasonably relate to the objects and purposes of the enabling statute;" and the municipal court had jurisdiction to consider these issues. We have considered these arguments and find them to be without merit.

R. 2:11-3(e)(1)(E).

The jurisdiction of the municipal court is defined by statute. N.J.S.A. 2B:12-17. Included within its jurisdiction, the court adjudicates violations of municipal ordinances.

N.J.S.A. 2B:12-17(a). The Ordinance in issue here proscribes violation of a condition imposed by the Board.

We recognize that there are instances where municipal courts must make inquiry into and apply principles of civil law that are beyond the jurisdiction of the court and "ancillary [to its] jurisdiction to resolve questions incidental to the exercise of its primary jurisdiction." State v. Bartek 129 N.J. Super. 211, 217 (App. Div. 1974). But as Bartek, a case requiring the municipal court to determine the bona fides of a prescriptive easement in determining a violation of N.J.S.A. 39:4-138(a), parking within an intersection; and N.J.S.A. 39:4-67, obstructing traffic; informs us, the better practice of resolving subsidiary or ancillary issues is through the civil process. Bartek, supra, 129 N.J. Super. at 217-218.

Here, defendant's challenge is not to the validity of the Ordinance but to the underlying Planning Board resolution. In effect, he is collaterally attacking the bona fides of the imposed condition implicating considerations that are within the sole province of the Planning Board and within its expertise and knowledge of local conditions. See Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005) ("public bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion"). Any challenge to the Planning Board condition is more appropriate for an action in lieu of prerogative writs rather than as a defense to a violation of an ordinance enforcing that condition. A municipal court proceeding cannot be utilized as an "end run" around appropriate proceedings in an appropriate forum to fully explore the propriety of a land use condition.

We conclude that the Law Division properly concluded that the State established its case beyond a reasonable doubt and properly rejected the challenge to the condition.


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