June 10, 2013
STATE OF NEW JERSEY, Plaintiff-Appellant,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 Mr. Gittleman's house is located?
A. I don't believe so, but I couldn't know for sure.
Q. Was that property ever dedicated to the township?
A. Again, I do not know for sure. . . .
Following trial, the municipal judge found Gittleman guilty of violating Section 173-19 of the Code. In his oral decision, the municipal judge stated:
Now[, ] the question therefore becomes where does Mr. Gittleman's property interest end and where does it begin. My reading of the case law is that that property line on the water is not a fixed property line. It can go – move out, it can move in depending upon what's happening with the tidal flow. . . .
So since it's not a fixed enumerated line on the water . . . Mr. Gittleman owns, since his land abuts directly on the water, it's waterfront property, he owns to the high water mark where the bulkhead is contiguous with the other bulkheads in the area. So that area is sort of not a real straight line but sort of a straight line running down a lagoon. So he owns to the bulkhead. I think the bulkhead is his responsibility. The ordinance sort of infers that the bulkhead is the homeowner's responsibility, the property owner's responsibility because it places the onus upon the property owner to fix the dilapidated bulkhead and it gives the township the authority to go in and cite the owner when they don't do what the ordinance requires the propertyowner to do. . . .
So based upon that analysis of the ordinance violation in chief and also the case law supporting who owns what in that area, and that's the issue before the [c]ourt because that was the issue raised by [Mr. Gittleman]. [Mr. Gittleman's] issue was simple: I don't own the bulkhead because the bulkhead is beyond my survey line, but I don't read that survey line as being fixed pursuant to the case law because it's on tidal flowed land. So[, ] therefore, I find [Mr. Gittleman] guilty as charged beyond a reasonable doubt.
At sentencing, the judge imposed a $47, 000 fine, representing a $100 fine for each day Gittleman violated the ordinance, which the judge found at that point had been 470 days. The judge also imposed court costs. He granted Gittleman's application for a stay and stated that he would reconsider the sentence imposed and permit a "diminution of all the fines except for $100 for one day if, in fact, he's in a position to abate the nuisance."
On appeal de novo before the Law Division, Gittleman urged the court to vacate the conviction and find him not guilty because the municipal judge's decision was based upon a theory of accretion, meaning that his property line "can go or your property can shrink when you are located on the water[, ]" which theory lacked proof in the record. Judge Kyran Connor agreed:
The argument and the State's theory of the case, which, I think, the judge, as I said, essentially adopted, is an argument that's based on what I think is a misunderstanding of the 1968 New Jersey Supreme Court case of Wildwood Crest v. Masciarella, which is at 51 N.J. 352 [(1968)]. I am also persuaded that the argument under Masciarella that the State has advanced relies on facts that are not actually in evidence.
With respect to our case and our particular piece of litigation, there is no evidence in the record – none – to establish that the exterior boundary of [Mr. Gittleman's] property has accreted as a result of tidal flow. . . .
[T]here's no evidence in the record to establish that anyone has ever identified and described a mean high water line in the vicinity of [Mr. Gittleman's] property. Much less, is there any evidence that would establish that that line has moved in either direction, if there is a line.
Also in our case, I find no evidence that the land that is covered by this lagoon's water was ever previously flowed by the mean high tide of a natural waterway which existed prior to the creation of the lagoon. And there is, therefore, no evidence that the land under the water of this lagoon belongs to the State of New Jersey. . . .
There is no factual foundation in the record below for an appropriate invocation of the doctrine of acquisition by accretion. This man here owns what the survey says he owns and no more, in my view. Since the bulkhead is not on his premises, he's not guilty of violating the ordinance.
The present appeal followed. On appeal, the State raises the following arguments:
THE TRIAL COURT'S MISINTERPRETATION OF THE TOWNSHIP ORDINANCE RESULTED IN THE LEGALLY MISTAKEN REVERSAL OF [GITTLEMAN'S] CONVICTION FOR FAILURE TO MAINTAIN AND REPAIR A DILAPIDATED BULKHEAD.
THE TRIAL COURT'S MISINTERPREATION OF THE RIPARIAN DOCTRINE AND OTHER APPLICABLE REAL PROPERTY PRINCIPLES RESULTED IN THE LEGALLY MISTAKEN REVERSAL OF [GITTLEMAN'S] CONVICTION FOR FAILURE TO MAINTAIN AND REPAIR A DILAPIDATED BULKHEAD.
The constitutional guarantees of the Double Jeopardy Clause apply to the states through the Due Process Clause of the Fourteenth Amendment. State v. Widmaier, 157 N.J. 475, 490 (1999) (citing Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716 (1969)). Additionally, our Court has definitively stated that federal double jeopardy principles apply to non-indictable offenses resolved through a trial de novo. State v. Barnes, 84 N.J. 362, 367-72 (1980).
State v. Carlson, 344 N.J.Super. 521 (App. Div. 2001), represents a more recent occasion we have had to address the Double Jeopardy Clause in the context of a municipal matter. There, the defendants were convicted of violating a municipal ordinance prohibiting the storing of horses as a commercial use in a five-acre zone. Id. at 523. On appeal de novo to the Law Division, the judge found that the defendants were engaged in "agricultural uses" as defined under the applicable ordinance rather than boarding horses and found the defendants not guilty. Id. at 525. The State pursued no appeal of that determination, but a private citizen sought designation as a private or special prosecutor. Ibid. We did not address whether a private or special prosecutor may be substituted for the State once a defendant has successfully appealed to the Law Division because we concluded the doctrine of double jeopardy precluded an appeal from the Law Division decision because the case was "submitted on stipulated facts and terminated in favor of [the] defendant by the fact-finder on trial de novo, based on a determination defendant was innocent or not guilty." Id. at 528.
Here, the parties did not submit the matter to the Law Division on stipulated facts. However, the fact that the bulkhead was not located on Gittleman's property was undisputed. As Judge Connor observed, the State's witness, Naticchione, acknowledged the bulkhead was not on Gittleman's property. The judge then noted that the municipal judge, who initially found as a fact that the bulkhead was not located on Gittleman's property later reached the determination that Gittleman violated the Code by adopting the State's accretion argument, namely, that Gittleman's property line was not fixed.
Judge Connor found there was absolutely no evidence presented to support that theory, and in the absence of such evidence, the State failed to prove an essential element of the offense, namely, ownership.
The State's argument on appeal that Judge Connor, in essence, dismissed the complaint and, therefore, double jeopardy principles do not apply, is without merit. The judge's decision was a decision on the merits, as evidenced by the judge's statement that "[t]his man here owns what the survey says he owns and no more . . . . Since the bulkhead is not on his premises, he's not guilty of violating the ordinance." "[Judge Connor's ruling] 'whatever its label, actually represents a resolution [by the fact-finder], correct or not, of some or all of the factual elements of the offense charged.'" State v. Carlson, 344 N.J.Super. 521, 528 (2001) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642, 651 (1977)), certif. denied, 171 N.J. 336 (2002)). The State's argument that Gittleman's purported ownership is tied to his riparian rights was likewise unsupported by any evidence in the record and, therefore, properly rejected by the judge.
In short, the de novo appeal to the Law Division was not terminated "on a basis unrelated to factual guilt or innocence." Widmaier, supra, 157 N.J. at 491 (quoting Barnes, supra, 84 N.J. at 371). Consequently, the State is barred from appealing Judge Connor's ruling Such an appeal would be barred even if we had found and we do not so find Gittleman's acquittal rested upon an "'egregiously erroneous foundation'" Id. at 490 Appeal dismissed as moot