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State of New Jersey v. Maria Duarte and Armando Duarte

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 25, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARIA DUARTE AND ARMANDO DUARTE, ADMINISTRATOR OF THE ESTATE OF HORACIO DUARTE, DEFENDANTS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 004-20-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 5, 2011 --

Before Judges Axelrad and Lisa.

Defendants Maria Duarte and Horacio Duarte were found guilty in the Westwood Borough Municipal Court of violating a municipal ordinance because they failed to obtain zoning compliance certificates upon the transfer of two rental properties, one to each of them, from a corporate entity into their respective individual names.*fn1 They argued that, although the entirety of the ordinance section dealing with construction permits, zoning compliance certificates, and certificates of occupancy, repeatedly referred to transfers of ownership as one of the events requiring such approvals, because a chart in the sub-section they were charged with violating used the term "sale" rather than "transfer of ownership," they were not in violation because the transfers to them from the corporation were not in exchange for a sum of money. The municipal court judge rejected that construction of the ordinance, found them guilty, and fined them each $1,000 plus $33 costs.

Defendants appealed to the Law Division, and Judge Roma conducted a trial de novo on the record pursuant to Rule 3:23-8. No facts were in dispute. Upon de novo review, Judge Roma also rejected defendants' ordinance interpretation. Like the municipal judge, he was of the view that the chart was merely illustrative and, in the context of the overall ordinance, the term "sale" in the chart was intended to have the same meaning as "change in ownership."

More particularly, in his November 19, 2010 Order, from which this appeal is taken, Judge Roma reasoned as follows:

A reading of the ordinance clearly indicates that a "change of ownership" requires a party to apply for and obtain a Zoning Compliance Certificate. The fact that an illustrative chart at the end of the ordinance utilizes the phrase "sale" rather than "change of ownership" does not alter the plain meaning of the ordinance. The ordinance must be construed in its entirety and not viewed as individual parts or sections. See Bedford v. Riello, 195 N.J. 210 (2008) (stating that each part or section of an ordinance or statute should be construed with every other part or section to provide a harmonious whole). A reading of the ordinance as a whole demonstrates that the controlling language of the ordinance is "change of ownership" and not "sale."

Finally, this Court finds that there was a change of ownership. A corporation is [a] distinct legal entity from its shareholders. State[,] Dept. of Environment[al] Protection v. Ventron Corp., 94 N.J. 473 (1983) (citation omitted); Yacker v. Weiner, 109 N.J. Super. 351 (Ch. Div. 1970). The transfer from Alex Nicholas, Inc. to the defendant was not a "technical transfer" as the defendant alleges, but was a legal change of ownership from one entity to another.

Based upon that determination, the judge found defendants guilty and imposed the same assessments as the municipal judge had imposed.

We agree with Judge Roma's interpretation of the ordinance and affirm substantially for the reasons he expressed. Defendants' arguments do not warrant further discussion. R. 2:11-3(e)(2).

Affirmed.


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