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State of New Jersey v. Pereira

A-6079-01T3 (N.J. Super. App. Div. 2004) (Unpublished)

VIOLATIONS—It is fundamentally unfair for a municipality to charge a property owner with the same building code violation for which he has previously been tried and acquitted because the owner is entitled to rely on the fact that the activity which formed the basis for the earlier charges was not improper.

A municipal court found a property owner guilty of a municipal code provision that limited the owner’s use of his property to a single family residence. The owner appealed the decision to the Law Division, which found that the owner’s maintenance of a bedroom, kitchen, and additional living space in the basement violated the municipal code. The code section upon which he was convicted only permitted single family dwellings, and, other than in a basement, a single family home could have only one kitchen. The lower court based its decision on another section of the code that prohibited bedrooms in basements. The owner appealed, arguing that he had been tried for violating one code section, but was found guilty of violating another without being given the opportunity to defend himself.

The Appellate Division agreed and reversed. It found that the owner was entitled to, but did not receive, a chance to respond to the charges. It also noted that after the owner had been charged and acquitted on similar charges many years earlier, he continued to maintain his property based on that decision. The Court found it fundamentally unfair to charge the owner with a violation when he had previously been tried for the same violation of the code, had been acquitted, and was entitled to reasonably rely on the fact that his continued use of the basement was permissible.

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