STATE OF NEW JERSEY VS. ESTRELLA PIEMONTESEÂ (5095, PASSAIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4556-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ESTRELLA PIEMONTESE,
Defendant-Appellant.1
________________________________
Submitted May 31, 2017 – Decided November 17, 2017
Before Judges Suter and Grall.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Municipal Appeal
No. 5095.
Estrella Piemontese, appellant pro se.
Domenick Stampone, Corporation Counsel,
attorney for respondent (Dawn Blakely-Harper,
Assistant Corporation Counsel, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
1
Defendant's papers reverse the caption. On appeal, the matter
remains State of New Jersey v. Piemontese even though she is the
appellant.
Defendant Estrella Piemontese appeals the April 28, 2015
judgment of conviction entered by the Law Division following a
trial de novo on her appeal of a municipal court conviction for
violating section A of City of Paterson Municipal Ordinance 271-
26. The Law Division found defendant guilty of violating sections
A and C of the ordinance. We reverse because the evidence does
not support either conviction.
Defendant owns a vacant three family residence in the City
of Paterson (City). On October 29, 2013, a housing inspector for
the City inspected and photographed the property. He issued
defendant a notice of violation under Ordinance 271-26A with the
description "[c]lean or remove rubbish or garbage." Under actions
required, the notice provided: "26A. MUST CUT HIGH WEEDS AND GRASS
FROM RODENCE [SIC] AT ENTIRE PROPERTY IMMEDIATELY." Defendant was
given to November 15, 2013, to remedy the violation. The inspector
returned to the property on November 15, 2013, but the condition
remained the same. He took additional photographs.
Defendant wrote to the City asking for two to three months
to address the property. She alleged the property had been
vandalized and that her insurance company was investigating the
vandalism.
On February 4, 2014, a City of Paterson Municipal Court
complaint-warrant was issued against defendant, which alleged that
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on November 15, 2013, defendant "unlawfully commit[ed] the Code
Violation of Housing Property Maintain[ence] Code . . . Chapter
271" by failing to "1. Clean or remove rubbish or garbage from,
entire proper[t]y has to be completed 11/15/13 or complain[t] will
result in court last and final notice. 271-26A."
City of Paterson Ordinance §271-26 addresses a myriad of
exterior property issues.
§271-26 Exterior property areas
No person shall occupy as owner-occupant or
let to another for occupancy any structure or
premises which does not comply with the
following requirements. The Building Official
of the municipality shall cause periodic
inspections to be made of all premises to
secure compliance with these requirements.
A. Sanitation. All exterior property areas
shall be maintained in a clean and sanitary
condition free from any accumulations of
rubbish or garbage.
B. Grading and drainage. All premises shall
be graded and maintained so as to prevent the
accumulation of stagnant water thereon or
within any building or structure located
thereon.
C. Noxious weeds. All exterior property
areas shall be kept free from species of weeds
or plant growth which are noxious or
detrimental to the public health.
D. Insect and rodent harborage. Every owner
of a structure or property shall be
responsible for the extermination of insects,
rodents, vermin or other pests in all exterior
areas of the premises, except that the
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occupant shall be responsible for such
extermination in the exterior areas of the
premises of a single-family dwelling.
Whenever infestation exists in the shared or
public parts of the premises of other than a
single-family dwelling, extermination shall
be the responsibility of the owner.
E. Accessory structures. All accessory
structures, including detached garages, shall
be maintained structurally sound and in good
repair.
F. Motor vehicles. No motor vehicle in a
residential district shall at any time be in
a state of any major disassembly, disrepair
or shall it be in the process of being stripped
or dismantled. At no time shall any vehicle
of any type undergo major overhaul, including
body work, in a residential district.
G. Fences. All fences shall be of approved
materials and kept in sound condition and
repair.
The case was heard in municipal court on March 21, 2014. The
inspector testified about his inspection and the photographs. He
presented no evidence of rubbish or garbage and no evidence as to
the species of the weeds. On that evidence, the municipal court
judge found that there was an "overgrowth of vegetation of sorts"
with weeds four to five feet high. He concluded it took a while
for the weeds to grow because they were "very, very high."
Defendant was found guilty of violating section A of Ordinance
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271-26. She was ordered to pay a $500 fine and costs. Defendant
appealed the conviction to the Superior Court.
The Superior Court judge found that defendant violated
sections A and C of the Ordinance that address the exterior
property areas. That judge determined the photographs showed
weeds four to five feet high. The notice told defendant to cut
the weeds and grass. Relying on Pope v. Houston, 559 S.W.2d 905
(Tex. Civ. App. 1977), the court found it was common knowledge
that "a vacant lot that is allowed to accumulate weeds, brush
and/or rubbish may well constitute a health hazard . . . ." It
found that the "accumulation of these weeds and other plant growth"
created "a health hazard" because "they could create a fire hazard
when dried out, harbor insects and rodents which might be rabid."
The court found defendant violated both sections A and C of the
Ordinance: as to section A, titled "Sanitation," "[t]he overgrowth
of weeds violate[ed] this section"; as to section C, titled
"Noxious weeds," "[t]he growth of weeds on defendants [sic]
property are detrimental to public health."
On appeal, defendant contends that she did not receive the
mailed copies of the notices of violation and complains about the
procedures at the de novo hearing, where she wanted to testify.
She alleges that the Ordinance did not apply to her. In addition,
she alleges that the Ordinance was vague and overbroad.
5 A-4556-14T3
We agree that defendant's conviction should be reversed, but
on grounds other than cited by defendant. The evidence does not
permit us to conclude that findings of violations of sections A
and C "could reasonably have been reached on sufficient credible
evidence present in the record." State v. L.S., 444 N.J. Super.
241, 247-48 (App. Div. 2016) (quoting State v. Kuropchak, 221 N.J.
368, 382-83 (2015)). Additionally, with respect to section C, the
judge applied a mistaken interpretation of the ordinance. "The
aim of courts in construing ordinances, like statutes, is to
determine legislative intent," and the first step is to consider
the "plain meaning." City Council v. Brown, 249 N.J. Super. 185,
191 (App. Div. 1991). Interpretation of legislation is subject
to de novo review. In re Liquidation of Integrity Ins. Co., 193
N.J. 86, 94 (2007).
The trial court's finding that defendant violated section A
was not supported by the record. Our review showed no testimony
about rubbish or garbage. The trial court relied on Pope, supra,
a case that we cited in an earlier appeal involving the same
defendant. See State v. Piemontese, 282 N.J. Super. 307, 309
(App. Div. 1995). There, however, we expressly "disagree[d] with
Pope to the extent that it is inconsistent with our ruling in
[that] case." Id. at 309. We did not adopt as common knowledge
any parts of that decision. In the absence of evidence about
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rubbish or garbage at the property, the trial court erred in
finding a violation of section A.
Section C required the City to prove that defendant failed
to keep the exterior of her property "free from species of weeds
or plant growth which are noxious or detrimental to the public
health." (emphasis added). The plain focus of this section is
on a harmful characteristic of the "species," that is, the type
of weed or plant, not the height of the vegetation. The first
meaning of "noxious" provided in the Webster's II New College
Dictionary (1995) is "injurious to physical health."
The court's interpretation stretched the terms of the
ordinance's mandate on weeds by finding a violation based on an
"accumulation" of weeds and other plant growth that could create
a risk of health threatening fire or an influx of insects and
disease carrying rodents. In our view, that was an improper
extension of the plain language of section C. The ordinance was
adopted after this court's decision in Piemontese invalidating a
prior ordinance for vagueness. Courts generally construe statutes
and ordinances to avoid constitutional defect, Gilman v. Newark,
73 N.J. Super. 562, 598-99 (Law Div. 1962), not to enhance the
risk of unconstitutional application. Moreover, even if section
C could be read as broadly as the trial court read it, the record
did not include any evidence supporting a finding that this
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vegetation posed a fire hazard or had become the home of insects
and rodents.
Given our holding, we have no occasion to reach any other
issues raised by defendant about service of process, the conduct
of the de novo hearing, whether the Ordinance applied to her as a
non-resident owner, or whether sections A and C are vague or
overbroad. There was no proof of rubbish or garbage at this
property, and the judge mistakenly applied section C of the
Ordinance. Defendant's conviction under sections A and C,
therefore, must be reversed and the fine vacated.
Reversed; the fine is vacated.
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