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State v. Gittleman

Superior Court of New Jersey, Appellate Division

June 10, 2013

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
BRUCE GITTLEMAN, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 15, 2012

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0050-11.

Lewis Goldshore argued the cause for appellant.

Eric C. Garrabrant argued the cause for respondent (Flaster Greenberg, P.C., attorneys; Mr. Garrabrant, on the brief).

Before Judges Axelrad and Sapp-Peterson.

PER CURIAM

The State appeals from the Law Division order entered, following a de novo review of the record, finding defendant, Bruce Gittleman, not guilty of violating a local property maintenance code. We dismiss this appeal as moot on double jeopardy grounds.

The facts are not in dispute. The Property Maintenance Code (Code) of the Township of Egg Harbor (Township) requires "the owner to keep the premises free from hazards, which include but are not limited to . . . [d]ilapidated bulkheads." Egg Harbor Twp. Code § 173-19.D (2009). The Code defines "owner" as "[t]he owner or owners of the freehold of the premises or lesser estate therein . . . or other person, firm or corporation in control of a building, or their duly authorized agents." Id. § 173-4.E. The Code defines "premises" as "[a] lot, plot or parcel of land, including the buildings or structures thereon and shall also include the area between the sidewalk and the gutter line where applicable." Ibid.

Gittleman owns waterfront property in Somers Point, which is subject to the Code. The metes and bounds description of Gittleman's property does not include a bulkhead. On August 12, 2009, Gittleman's neighbor filed a property maintenance complaint against him alleging that Gittleman had allowed the bulkhead adjacent to his property to become dilapidated. Following an inspection, the Township construction official, Pat J. Naticchione, issued a Notice of Violation, which instructed Gittleman to repair the bulkhead. Naticchione conducted a re-inspection a few months later and observed that the bulkhead had not been repaired. He issued a second Notice of Violation, once again directing Gittleman to repair the bulkhead. When Gittleman did not comply, Naticchione filed a complaint against him in municipal court charging him with violating § 173.19.D.

At trial, two surveys were admitted into evidence. Both surveys depicted the bulkhead as beyond Gittleman's property line. Naticchione testified that the bulkhead was not located on Gittleman's property. Rather, it was located "within a foot" of the bulkhead. When asked why he filed a complaint against Gittleman when the bulkhead was not within Gittleman's property line, he responded:

[A]s I tried to state before, just as the property along the street, your curb and sidewalk, would not be inside your property lines, but as a property owner you're responsible for maintaining that. That bulkhead is in the lagoon, inlet is considered a street, and that is the curb-line of it.

He testified he did not believe the portion of land on which the bulkhead was situated was ever owned at any time by the property upon which Gittleman's house is located and was not sure whether it had ever been dedicated to the Township:

Q. Was the property, that portion where the bulkhead is on, was that ever owned at any time by the property upon which ...

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