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State of New Jersey v. Golin

363 N.J. Super. 474, 833 A.2d 660 (App. Div. 2003)

MUNICIPALITIES; ORDINANCES—Generally, penal ordinances beginning with “any matter, thing, condition or act which is or may become detrimental or a menace to health” are too vague to be applied.

A woman allowed branches of trees on her property to overhang and obstruct the public sidewalk. She refused to cut them for several months following a conviction for violating a municipal ordinance prohibiting the maintenance of a public nuisance. Consequently, she received more than 100 additional summonses. She appealed her conviction to the Law Division and was again convicted and fined. She then further appealed, contending “that the ordinance under which she was convicted [was] unconstitutionally vague.” She did not deny the cited “overgrowth of grass and weeds on [her] front lawn and tree branches overhanging the front sidewalk.” She contended, however, that they did not block the sidewalk “because the sidewalk ended in front of her house and there was very little traffic on it.” She alleged that the trees “shielded her from noise from an adjacent municipal sewer pump and also alleged that the plants were not weeds, but were ‘ornamental grasses’ that were not in any way obnoxious.” She also argued that she was being singled out for prosecution because tree branches obstruct the sidewalk throughout the municipality.

The municipal ordinance in question read as follows: “The following matters, things, conditions or acts and each of them are hereby declared to be a nuisance and injurious to the health of the inhabitants of this municipality: (a) Any matter, thing, condition or act which is or may become detrimental or a menace to the health of the inhabitants of this municipality. (b) Any matter, thing, condition or act which is or may become an annoyance, or interfere with the comfort or general well-being of the inhabitants of this municipality.”

The municipal court judge gave short shrift to the constitutional argument. The Law Division judge “considered the issue more carefully, but also concluded that [these particular subsections] of the municipal code [were] not too vague to be applied.”

On further appeal, the Appellate Division pointed out that “because municipal court proceedings to prosecute violations of ordinances are essentially criminal in nature, penal ordinances must be strictly construed ... In interpreting a penal ordinance, a court must be guided by the rule of lenity, resolving any ambiguities in the ordinance in favor of a defendant charged with a violation.” Ordinances offend due process when they do not “provide legally fixed standards and adequate guidelines for police and others who enforce the laws.” In a prior case involving a different municipality, the Court had already found that the language in subpart (b) “subjected defendants to an unascertainable standard.” Even though the other case dealt with the feeding of pigeons, the Court believed that the two subparts of the municipal ordinance in question, (a) and (b), were of the same ilk. Consequently, it held that both subparts (a) and (b) were unconstitutionally vague. Lastly, the Court believed that there was no reason why the municipality could not “enact a more specific ordinance to proscribe the objectionable conduct.”


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