author: McGrath, J. C. C.,

text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. WALLACE ADAMS, DEFENDANT.
    Superior Court of New Jersey Law Division—(Criminal)
    Decided January 21, 1975.

      Mr. Stanley C. Van Ness, Public Defender, attorney for defendant (Mr. Richard S. Lehrich, First Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Karl Asch, Union County Prosecutor, attorney for the State of New Jersey (Mr. J. Michael Evans, Assistant Prosecutor, of counsel).
   McGrath, J. C. C.,

Temporarily Assigned. This is a motion to suppress evidence seized from defendant incident to his arrest on a disorderly person’s charge in the early hours of February 13, 1974.

Defendant and a companion were detained by members of the Elizabeth Police Department after admitting that they had not paid their bill at 400 Diner earlier in the evening, as reported to the police. The officers returned to the diner with the two men, where a woman identified them as the subjects of the report and agreed to sign a complaint. The men were then arrested, patted down and transported to headquarters. After being booked on charges of failure to pay a restaurant bill, N. J. S. A. 2A:170-47, Officer Richard Pelesko, one of the arresting officers, testified that it was the responsibility of the desk sergeant to take defendant’s belongings and hold them until his release.

Another report was received that night from Miss Melinda Jones that she had been robbed of her purse at the Penn Central Station about 11 p.m., February 12. On the morning of the 13th, Detective James O’Connell called Miss Jones to headquarters for questioning about the robbery. After she described the items contained in the stolen purse, including a Bahamian 50-cent piece, the detective testified that he asked her to step into the courtroom to determine whether she could identify anyone there as her assailant. Approximately 75 people were in court and after five or ten minutes the detective joined her. She identified defendant in the prisoner’s dock where he was awaiting arraignment on the disorderly charge.

On their way back to Detective O’Connell’s desk to file a complaint for the robbery he suggested that they examine the contents of defendant’s property box for any evidence of the robbery. He stated that Miss Jones’ reference to the Bahamian coin suggested to him the advisability of checking defendant’s property box. He further testified that he did not procure a search warrant because he believed the property was in police custody, making a warrant unnecessary. Miss Jones spotted her ring, with the letters P. E. A. C. E. inscribed, which had been in the stolen purse. The defense characterizes this activity as a warrantless search and seeks to suppress the use of the ring as evidence.

There is no doubt that a search of the person incident to an arrest is reasonable. State v. Doyle, 42 N. J. 334, 343 (1964); Chimel v. California, 395 U. S. 752, 89 S. Ct., 2034, 23 L. Ed. 2d 685 (1969). The time lapse from the point of this defendant’s arrest to the seizure of his belongings at headquarters does not affect its reasonableness. In State v. Mark, 46 N. J. 262, 278 (1966), the court found no legal significance in the fact that a period of time elapsed from defendant’s arrest to the taking of his clothes at the jail for use as evidence. On the contrary, the court found it to be lawful police procedure and indeed preferable to taking the clothes at the scene of the arrest.

There is no evidence in this case that the original seizure of the property was for purposes other than inventory and safekeeping. While that procedure was clearly proper, the issue before this court is whether the subsequent examination of the contents constituted a search which required a warrant.

This question has not been decided in New Jersey although it has been dealt with a number of times in the federal courts. Well reasoned opinions of federal courts, while not binding, are persuasive on the issue of reasonableness of a search and seizure, in the absence of decisions of New Jersey reviewing courts. State v. Chance, 71 N. J. Super. 77, 79 (Cty. Ct. 1961).

This question has not been decided in New Jersey although it has been dealt with a number of times in the federal courts. Well reasoned opinions of federal courts, while not binding, are persuasive on the issue of reasonableness of a search and seizure, in the absence of decisions of New Jersey reviewing courts. State v. Chance, 71 N. J. Super. 77, 79 (Cty. Ct. 1961).

In the recent case of United States v. Edwards, 415 U. S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1914), the Supreme Court considered the reasonableness of the seizure of defendant’s clothing for use as evidence while in custody at the city iail, but some ten hours after his arrest when substitutes could be purchased. In reversing the Sixth Circuit Court of Appeals, the court said:

This was and is a normal incident of a custodial arrest, and reasonable delay in effectuating' it does not change the fact that Edwards was no more imposed upon then he could have been at the time and place of the arrest or immediately upon arrival at the place of detention. * * [I]t is difficult to perceive what is unreasonable about the police examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest. [415 U. S. at 805-806, 94 S. Ct. at 1238, 39 L. Ed. 2d at 777]

The court stated the result to be the same as that reached by a number of federal appellate courts upholding the use as evidence of clothing and effects which were seized upon arrival at the jail, held in defendant’s name in the property room and searched at a later time, citing Evalt v. U. S. 382 F. 2d 424 (9 Cir. 1967); Westover v. United States, 394 F. 2d 164 (9 Cir. 1968), and Baskerville v. United States, 227 F. 2d 454 (10 Cir. 1955). A contrary position was taken by the Fifth Circuit Court of Appeals in Brett v. United States, 412 F. 2d 401 (1969), cited by the defense. It should be noted, however, that that court distinguished its holding in the later case of U. S. v. Grill, 484 F. 2d 990 (5 Cir. 1973), cert. den. 416 U. S. 989, 94 S. Ct. 2396, 40 L. Ed. 2d 767 (1974).

In that case, when defendant Grill was searched at the county jail where he was to be held as a federal prisoner, his personal belongings, including a loose single key, were turned over to the jailer. The key was sealed in an envelope and all of defendant’s property was placed in a pouch and locked in a vault. A month after the arrest a federal agent went to the jail to determine if Grill’s stored effects included a key that would fit the lock of a duffel bag said to have been left behind by defendant. The information was Ob'tamed from Grill’s confederate that the bag contained an explosive device, which later proved to be true. The agent saw the key, inserted it in the lock and took possession of it. The court restated its position in Brett that:

* * * [T]he fact that police have custody of a prisoner’s property for the purpose of protecting it while he is incarcerated does not alone constitute an exception to the requirement of a search warrant and that the single fact of police custody is not a surrender by the prisoner of his expectations of privacy. [484 F. 2d at 991]

However, the facts were compared to those of the Evalt case, supra, in which a later examination of the serial numbers of bills in a knapsack seized at the time of arrest to compare them with those reportedly stolen, and the Westover ease, supra, in which a similar comparison was made of currency stored in the prisoner’s room where the searches were in each case upheld by the Ninth Circuit Court of Appeals.

The underpinning of all these cases was stated to be that because the items had been exposed to police view under unobjectionable circumstances, no reasonable expectation of privacy was breached by an officer’s taking a second look at the items. Grill, supra 484 F. 2d at 991.

The rationale is clearly applicable to the facts of this ease, for while the items were validly seized at the time of defendant’s arrest for an offense other than robbery, the action of the detective and the complainant in no way constituted a further invasion of defendant’s expectation of privacy with respect to items readily visible in the box.

This court finds that it was reasonable, in light of the complainant’s identification of defendant as Iter assailant, to allow her to view the items already legally in police custody as a result of his previous arrest. Wo further warrant was necessary as this act did not constitute an unreasonable search prohibited by the Fourth Amendment of the United States Constitution.

The motion to suppress the evidence so obtained is denied.


source: Caselaw Access Project

license: Public Domain

text:
    JOSE AND EPIFANIA MENDEZ, PLAINTIFFS, v. CITY OF NEWARK, A MUNICIPAL CORPORATION AND MR. AND MRS. JAMES HARLEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 13, 1975.

      Mr. Alfred F. Brown for plaintiffs.

      Mr. David R. Rudd for defendant City of Newark.

      Mr. Judson L. Levin for defendants Mr. and Mrs. James Harley.
   Schwahtz, L., J. C. C., Temporarily Assigned.

The issue to be determined by the court is whether a municipal governing body may reject the highest bid, after public sale, for the purchase of municipally-owned real property without affording to the highest bidder a hearing and without basing such rejection upon a reason which is in the public interest.

The municipal council of the City of Newark adopted a resolution providing for the public sale of premises known as 204 Johnson Avenue, not needed for public use, and fixing a minimum price of $500, with the further condition that the sale would be subject to final approval by the council whjch, in its discretion, could reject all bids.

In accordance with the resolution the public sale was held on June 14, 1974, and plaintiffs offered the highest bid of $5,600. On July 17, 1974 the council adopted a resolution providing that the offer made for the purchase of this property “be, pursuant to N. J. S. 40A:12-13, rejected.”

Plaintiffs filed a complaint in lieu of prerogative writs challenging the right of the governing body to reject their highest bid “giving no reason for so doing” and demanding that the conveyance be consummated.

They joined as defendants Mr. and Mrs. James Harlejq the occupants of the premises. The complaint made no demand for relief against them, but at the pretrial conference it appeared that they were joined as they had made an offer to purchase the property from the council at a higher price subsequent to the date the auction was held. However, all parties agreed no testimony would be offered in this respect at the plenary trial. The Harleys are improper parties defendant in this cause of action challenging municipal conduct, and we need concern ourselves no further with their position.

At a pretrial conference, upon the court inquiring as to the nature of the testimony to be proffered and whether the municipality would be prepared to offer a reason for the rejection, the parties stipulated they would rely on the exhibits which contained the facts as to the bidding and rejection heretofore recited. The municipality asserted it rested on its absolute right to reject without a hearing, and would not offer testimony as to the reason for the rejection.

Under these circumstances the court advised it would review the exhibits and legal argument and make its determination.

N. J. S. A. 40A:12-13 provides that any municipality may sell real property not needed for public use by various methods, including:

(a) By public sale to the highest bidder after advertisement thereof in a newspaper circulating in the municipality or municipalities in which the lands are situated by two insertions at least once a week during 2 consecutive weeks, the last publication to be not earlier than 7 days prior to such sale. In the ease of public sales, the governing body may by resolution fix a minimum price, or prices, with or without the reservation of the right, to reject all bids where the highest bid is not accepted.

In the Home Rule Act (L. 1917, c. 152), the Legislature had provided in Art. XVIII that every municipality may sell or dispose of any lands or buildings or any right or interest therein not needed for public use * * * at public sale and to the highest bidder, after public advertisement.

In L. 1947, c. 417, § 1, the Legislature for the first time provided that upon the completion of the public sale, “the highest bid made thereat shall be subject to acceptance or rejection by the governing body.”

In 1957 N. J. S. A. 40:60-26 was amended (L. 1957, c. 86, § 1) to confer upon municipalities the power to set a minimum price to be realized at the "sale and at the same time to reserve the right to reject bids.

The revision of the statute, now N. J. S. A. 40A:12-13 (a), which became effective July 1, 1971 (L. 1971, c. 199, § 13), made no change in the authority of the governing body “to reject all bids where the highest bid is not accepted.”

At issue is the nature of the authority to reject the highest bid. Is it absolute and unimpeachable or is it subject to limitations to guard against abuse of discretion ?

Generally, bidding statutes have been enacted for the purpose of providing fair competitive bidding which will prevent favoritism and opportunity for fraud and corruption. Jersey City Merchants Council v. Jersey City, 39 N. J. 42 (1962); Skakel v. North Bergen, 37 N. J. 369, 378 (1962); Samuel v. Wildwood, 47 N. J. Super. 162 (Ch. Div. 1957); Summer Cottagers’ Ass’n of Cape May v. Cape May, 34 N. J. Super. 67 (Law Div. 1954); Escrow v. Haworth, 36 N. J. Su per. 469 (App. Div. 1955); Juice Bar Corp. v. Neptune Tp. Committee, 36 N. J. Super. 164 (App. Div. 1955).

Somewhat analogous to the bidding requirements of this statute is a provision of the Local Public Contracts Law, N. J. S. A. 40A :11—32:

Nothing herein contained shall be construed as depriving any contracting agent of the right to reject a bid at any time prior to the actual award of a public work or contract where the circumstances of the prospective bidder have changed subsequent to the qualification and classification of the said bidder, which in the opinion of the awarding contracting unit would adversely affect the responsibility of the bidder.

However, as distinguished from N. J. S. A. 40A:12-13(a), which does not provide any procedure for challenging the rejection of the highest bid, the public contract statute further provides:

Before taking final action on any such bid, the contracting agent concerned shall notify said bidder and afford him an opportunity to present any additional information which might tend to sustain the existing classification.

In Jersey City Merchants Council v. Jersey City, supra, the Supreme Court applied to the sale of public lands the same principles of fair dealing applicable to awards of municipal contracts, in a case involving restrictions and conditions imposed by the municipality affecting the use of the lands. It is the promise of impartiality and stability, the court held, which is the inducement for bidding at such sales.

In Lieberman v. Neptune Tp., 50 N. J. Super. 192 (App. Div. 1958), dealing with an arbitrary requirement for the filing of a deposit by potential bidders three days before the sale, the court said the statutory language does not permit municipalities to deal with real estate absolutely and without limit, as a private vendor.

Although N. J. S. A. 40:48-5 contained no requirement affording a hearing to a rejected lowest responsible bidder for a contract to render services for a municipality, the court in Automatic Laundries, Inc. v. Bayonne Housing Authority, 45 N. J. Super. 266 (Law Div. 1957), found that the lowest bidder was entitled to a hearing before his bid was rejected.

There would appear to be a more substantial reason for restraining a governing body from rejecting the highest bid in the sale of lands than rejecting the lowest bid in awarding a contract. In the latter the municipality is concerned with the quality of the performer. In the former, when the use of the property is not at issue, the legal tender is the same no matter who is the highest bidder delivering it.

The failure of the statute to provide that a hearing shall be afforded to the highest bidder before rejection, although such privilege is afforded to the lowest bidder under the public bidding statute, is not dispositive of the question of legislative intent or policy. The fundamental purpose of both bidding statutes is the same.

[ The ] will of the law-giver is to be gathered from the object and nature of the subject matter, the contextual setting, and the mischief felt and the remedy in view [and the] particular terms are to be made responsive to the essential principles of the law. [San-Lan Builders, Inc. v. Baxendale, 28 N. J. 148, 155 (1958)].

Constitutional issues were not raised in the cited cases. While the Fourteenth Amendment was adopted to sustain the rights of the emancipated freemen, Slaughter House Cases, 16 Wall. 36, 21 L. Ed. 394 (U. S. Sup. Ct. 1873), its provisions, particularly its reference to “due process”, have continued to form the basis for challenges to limitations of personal and property rights. (See the recent United States Supreme Court opinion holding that public school pupils are entitled to notice and adequate hearing before suspension. Goss v. Lopez, - U. S. --, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975)).

Does the denial of a hearing contravene the right of a successful bidder to due process under the United States Constitution ?

In Greene v. McElroy, 360 U. S. 474, 496-497, 79 S. Ct. 1400, 3 L. Ed. 2d 1377, 1390, 1391 (1969), the court affirmed the principle that where governmental action injures an individual and the reasonableness of the action depends on fact findings, the evidence used to prove the government’s case must be disclosed to the individual so that he might be permitted an opportunity to prove its untruth.

This principle received further elaboration in Justice Marshall’s dissenting opinion in Board of Regents of State College v. Roth, 408 U. S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (19-72). He quoted from Professor Gellhorn, "Summary of Colloquy on Administrative Law,” 6 J. Soc. Pub. Teachers of Law, 70, 73 (1961), that due process of law "is the best insurance for Government itself against those blunders which leave lasting stains on a system of justice — blunders which are likely to occur when reasons need not be given” for official action.

Present-day concepts of due process require an opportunity by one aggrieved to be heard at a “meaningful time and in a meaningful manner”. Avant Industries Ltd. v. Kelly, 127 N. J. Super. 550, 553 (App. Div. 1974). In other tiran legislative matters due process requires adjudicative hearings by governing bodies. Yellow Cab Corp. v. Passaic City Council, 124 N. J. Super. 570 (Law Div. 1973).

The highest bidder has acquired a status to be afforded an opportunity to be heard. His rights are not "vested” as his bid did not ripen into a contract by acceptance by the governing body. His interest may be deemed as putative from the Latin putare, meaning “to compete”. American Heritage Dictionary of the English Language (1971), 1063. Whatever the dimensions of his status or interest may be, it will support his claim to a hearing, not for his personal benefit but solely in order that the public interest may be served by compelling the governing body to account for its actions and to perform its public trust. As to public contract bidding, see Trap Rock Industries, Inc. v. Kohl 59 N. J. 471 (1971); M. A. Stephen Const. Co. v. Rumson, 125 N. J. Super. 67 (App. Div. 1973), certif den. 64 N. J. 315 (1973).

A stable principle of public policy is to encourage competitive bidding. While barring a public body from rejecting bids could pave the way for corruption among bidders, the unbridled power to reject bids could afford a means of frustrating, under color of a statutory right “to reject all bids”, the Legislature’s intention in enacting a competitive bidding statute. Only by reviewing a hearing can it be determined if the rejection was arbitrary or if it was exercised in good faith and for some public reason. M. A. Stephen Construction Co. v. Rumson, 117 N. J. Super. 431 (App. Div. 1971).

There is nothing in the record from which the court could determine whether the action of the municipality was arbitrary or a bona fide judgment in the public interest, based upon facts to support its determination. Its cold rejection may be regarded as a reflection on the nature of power.

While counsel for the municipality did not present evidence to justify the action of his client, we shall remand the matter to the governing body with instructions that it provide a hearing for the plaintiff within thirty days from the date of this opinion.

Courts will not substitute their judgment for that of a municipal governing body in matters solely involving questions of judgment. They will not infiltrate the realm of business judgment which resides in municipal officials. It is equally clear that possible illegality or avoidance of the spirit or purpose of the laws and principles controlling governmental action cannot escape judicial scrutiny under the guise of business judgment. The absence of corrupt motive, or even the presence of good faith, does not alone preclude judicial examination or remedy. [Ott v. West New York, 92 N. J. Super. 184, 197 (Law Div. 1966)].

We shall retain jurisdiction. A transcript of the hearing, prepared at the expense of the municipality, shall be forwarded to the court, with counsel then being afforded an opportunity to present legal argument.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN CALVIN JONES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted October 29, 1974
    Decided November 12, 1974.

      Before Judges Collester, Lora and Handler.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. James I. Peck IV, Assistant Deputy Public Defender, on the letter brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Harry Robinson, III, Assistant Prosecutor, on the letter brief).
   Per Curiam.

Defendant was indicted for the possession of a revolver, possession of a stolen automobile and robbery and robbery while armed. He was also charged in an accusation with' escape. Thereafter, he pleaded guilty to the separate charges of robbery and escape and, upon the recommendation of the prosecutor the remaining counts were dismissed. Defendant was later sentenced to the Youth Eeception and Correction Center at Yardville upon the count of robbery for an indeterminate term with a waiver of the statutory five year maximum and the imposition of a maximum term of seven years. He was sentenced to a consecutive indeterminate term upon the escape charge.

Defendant contends that this sentence was manifestly excessive in that the two indeterminate terms should have been concurrent because of his poor physical condition. Defendant, it may be noted, had been shot in the lower spine when arrested, as a result of which he underwent a double colostomy. He will be impaired for life and apparently will suffer continuing pain. The sentencing judge, however, was acutely aware of defendant’s physical condition and gave this careful and conscientious consideration in meting out sentence. We do not believe, under all of the circumstances, including the nature of the crimes and defendant’s past criminal record and the information disclosed in the presentence report, that the imposition of these consecutive indeterminate terms was manifestly excessive.

It is further argued that the sentence mistakenly failed to effectuate a plea bargain under -which it is claimed that sentences would be concurrent. Our examination of the record does not satisfy us that there was such a plea bargain. Indeed, it was made clear to defendant that, by his guilty pleas, he was exposing himself to maximum consecutive sentences upon each of the charges. To the extent that the understanding was that the prosecutor would merely recommend concurrent sentences, such a recommendation is not binding on the sentencing judge in any event.

It is also urged that the imposition of consecutive indeterminate sentences was an abuse of discretion because repugnant to the legislative policy of rehabilitation. We disagree. State v. Horton, 45 N. J. Super. 44 (App. Div. 1957); State v. Prewitt, 127 N. J. Super. 560 (App. Div. 1974); State v. Bono, 128 N. J. Super. 254 (App. Div. 1974); compare State v. Carroll, 128 N. J. Super. 234 (App. Div.), certif. granted 65 N. J. 570 (1974).

Einally, it is contended that the seven-year maximum imposed for the robbery charge was improper and inappropriate. The court may impose an indeterminate term with a maximum greater than five years but not to exceed the statutory maximum for the particular crime. State v. Costello, 59 N. J. 334, 338 (1971). It is argued, however, that the court did not indicate good cause for increasing the maximum of defendant’s indeterminate term as required by N. J. S. A. 30:4-148. At sentencing there should be a statement of reasons by the judge for the imposition of a maximum term in excess of the statutory five year maximum. State v. Prewitt, supra, 127 N. J. Super, at 565. It is clear from the record, however, that the court would have imposed a more severe sentence had it not been for defendant’s physical condition. It is obvious that the circumstances which would have justified such a sentence were the factors which prompted the judge to raise the maximum.

The sentence is affirmed.


text:
    VINCENT E. PAOLICELLI, ET AL., PLAINTIFFS-APPELLANTS, v. JOSEPH R. WOJCIECHOWSKI, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted December 17, 1974
    Decided January 15, 1975.

      Before Judges Carton, Crane and Kole.

      Messrs. Blumberg, Rosenberg, Mullen and Blackman, attorneys for appellants {Mr. William F. Mullen on the brief).

      Mr. Arthur L. Alexander, attorney for respondent (Mr. Richard D. Fifield on the brief).
   Per Curiam.

Plaintiffs, by this action, sought various forms of relief against defendant, an adjoining landowner, contending that defendant’s creation of a pond on his land resulted in a trespass and an unreasonable overflow of water on their land. They claim that the waters of the pond were retained by an earth embankment and resulted in the overflow, either by release from a pipe or otherwise; that in constructing the pond there was a trespass on plaintiffs’ land through use of plaintiffs’ top soil and other dirt to construct the embankment; that the pond constitutes a nuisance, and that it was erected in violation of the municipal ordinance since no building permit was obtained therefor. A mandatory injunction directing removal of the pond and restoration of the lands of plaintiffs and defendant to their natural state was requested. Compensatory and punitive damages were also demanded.

The trial judge denied the injunction and compensatory damages but rendered a judgment for $2,500 punitive damages. Both parties appeal.

Our review of the proofs satisfies us that the injunction was properly denied, since the remedy at law, damages, was adequate under the circumstances. Accordingly, we affirm that part of the judgment, essentially for the reasons given by the trial court. Further, as the judge held, the question of whether there was a violation of the ordinance need not be decided, for we conclude that the judge correctly determined that the harm done to plaintiffs by reason of any such violation may be compensated for adequately in damages.

However, we find that the judge erred in not awarding compensatory damages and in granting punitive damages. Our consideration of the evidence and the law convinces us that his determinations in both respects were so mistaken as to create a clearly unjust result. Hence, we make our own independent findings and determinations as to these issues. Neither of them, in our view, necessarily involve matters of credibility or the trial judge’s “feel” of the case. See State v. Johnson, 42 N. J. 146, 161—162 (1964); Rova Farms Resort v. Investors Ins. Co., 65 N. J. 474, 483-484 (1974).

The judge properly found a causal relationship between the construction of the pond and the water damage to plaintiffs’ land. .But he erred when it found that such damage was not measurable. There was adequate evidence justifying a compensatory damage award.

We need not determine whether a cause of that damage was (1) the pipe which easts water from the pond onto plaintiffs’ land; (2) the change effected by the pond’s banks in the flow of water from the road so as to divert more of it to such land than before its erection, or (3) both of these factors. The court below determined that (2) was the causative element. In any event, we find that the testimony of plaintiffs’ experts, Burns, Burd and Bowser, as to the extent of the damage to plaintiff’s property causally related to defendant’s dereliction, enables us to make a fair and reasonable estimate thereof and that substantial reliance thereon would produce a just result.

In a case such as this plaintiffs do not have the difficult burden, imposed by the court below, to show the extent to which the wet condition of their land resulted from the pond, as compared with the degree of its wetness at and beyond its boundary with defendant’s land before construction of the pond.

Where, as here, it is certain that damage has resulted, mere uncertainty as to the amount will not preclude recovery. Evidence affording a basis for estimating damages with some reasonable degree of certainty is sufficient to support an award of compensatory damages. Tessmar v. Grosner, 23 N. J. 193 (1957). If it is impossible to distingish between the damage arising from the actionable injury and that caused by another or natural conditions, the court should attempt to make the best estimate possible under the circumstances as a basis for the damages to be allowed. Jenkins v. Pennsylvania R. R. Co., 67 N. J. L. 331 (E. & A. 1902); Betenbaugh v. Princeton Hospital, 50 N. J. 390 (1967). See also, Dziedzic v. St. John’s Cleaners & Shirt Launderers, Inc., 53 N. J. 157 (1968); Fosgate v. Corona, 66 N. J. 268 (1974); 525 Main Corp. v. Eagle Roofing Co., 34 N. J. 251 (1961). This the trial judge failed to do.

There was conflicting evidence as to the amount of damage caused by the pond. Nevertheless, there were sufficient proofs upon which to predicate a reasonable estimate and finding of compensatory damages. The judge found that defendant had committed a tort against plaintiffs’ land compensable in damages. Under these circumstances plaintiffs should not be without a remedy of that kind. See Armstrong v. Francis Corp., 20 N. J. 320 (1956).

The proofs support the conclusion that plaintiffs’ property fronting Bickel Eoad may be useable as building plots, but as a result of flooding from the pond and the resulting wetness at least one such plot has been lost. Additionally, even if this flooding condition is rectified in the manner hereafter discussed, suggested by plaintiffs’ expert Burns, there will be probable future damage to plaintiffs’ lands, including this plot, resulting from the erection of the pond.

Burd estimated that the lot adjacent to the pond, if build-able, would be worth at least $8,000. The marshy wetness, however, resulting from the pond devalued it to $2,000. The lot next to it, because of its proximity to the low marshy land, a breeding place for mosquitos, he said, was worth $6,000 instead of $8,000. We are satisfied that at present the claimed partial $2,000 loss of a second buildable lot is not substantiated by the proofs. The evidence as to the depreciation of the first lot to $2,000 is in a sense speculative, since it requires the obtaining of a municipally approved subdivision by plaintiffs. However, the damage to plaintiffs’ land is sufficiently certain so that it is reasonably clear that in no event could that lot be used for building purposes in its present state even if such approval were obtainable. Thus, Burd’s estimate of damage might be serviceable as a measure thereof.

Nevertheless, under the circumstances here, we deem the more appropriate standard of damages to be the cost of substantially remedying the adverse flooding effects on plaintiff’s land and restoring it to its prior condition. See 525 Main Street Corp. v. Eagle Roofing Co., supra; Berg v. Reaction Motors Div., 37 N. J. 396 (1962).

Burns suggested an alternative to removal of the pond which we find is reasonable, even though he said it would only partially rectify the adverse effects of the pond on plaintiffs’ property. That involves the construction of a concrete ditch, stabilization, seeding and topsoil with regard to plaintiff’s property, and certain additional work and materials to which he testified and which are set forth in a document he prepared and referred to in his testimony. That document appears as a supplement to the pretrial order. The proposed remedy does not include piping the flow of water, which would be more expensive. His estimate for this suggested means of relieving the flooding impact is $6,938, or rounded out, $7,000. We find this to be the minimum cost for the project. We further conclude that it will substantially alleviate plaintiffs’ problem, provided that additional compensation is awarded them for increased costs since the September 197 Shearing date, the probable future adverse effect of the flooding on plaintiffs’ land, particularly if the area further develops, and the probability that the price of the lot adjoining the pond, if subdivided, would be reduced because of its proximity to the pond and earth embankment. We consider the snm of $3,000 as adequate to cover these additional elements of damage.

Accordingly, compensatory damages will be awarded to plaintiffs in the total sum of $10,000.

In awarding punitive damages the trial judge found that defendant was liable for his contractor’s trespass on plaintiffs’ lands when the pond was erected; that defendant “had to know” that the east wall of the pond would be very close to plaintiffs’ line and that the natural flow of surface water would be altered in the area of the boundary line, and that defendant was recklessly insensitive to plaintiffs’ rights in not taking a more conservative approach in planning and constructing the pond by not showing the boundary line to the contractor and in not consulting plaintiffs prior to planning the project so as to limit its bad effects. The judge said that “the admitted invasion” of the contractor’s bulldozer “left the beginning of the east wall at different points,” the height of the bank on plaintiffs’ land going up to four feet. It concluded that the “substantial elements for punitive damages * * * are the reckless indifference of the defendant to the likelihood of trespass, amounting to * * * an intent to invade, the resulting sense of insult which I find the plaintiff [s] quite naturally felt, the need of [their] * * * seeking legal redress * * * with resulting expense, the need to remove the substantial earthwork construction deliberately put on * * * [plaintiffs’] land, the need to adjust road drainage to meet the influence of the pond embankment.” It allowed $2,500 in punitive damages.

We find insufficient evidence to justify these findings. In any event, we have determined that, even if what the judge found were supported by the proofs, punitive damages were not warranted. The matters referred to by the judge generally are more appropriately the subject of compensatory damages.

The record supports the conclusion that there was a lack of awareness by defendant that the contractor would trespass, and that soon after the trespass both defendant and the contractor endeavored to remedy the damage to plaintiffs’ land resulting therefrom, even though the extent and effectiveness of that remedy were unsatisfactory to plaintiffs. There is inadequate evidence to show that defendant knew or had to know what the consequences of construction of the pond would be, as far as plaintiffs’ land was concerned.

We find no evidence of either actual malice by defendant or any act or omission by him accompanied by a wanton and willful disregard of plaintiffs’ rights. Under these circumstances, punitive damages should not have been awarded. See Neigel v. Seaboard Finance Co., 68 N. J. Super. 542 (App. Div. 1961); La Bruno v. Lawrence, 64 N. J. Super. 570 (App. Div. 1960), certif. den. 34 N. J. 323 (1961) ; Di Giovanni v. Pessel, 55 N. J. 188 (1970); Berg v. Reaction Motors Div., supra. See and compare Barber v. Hohl, 40 N. J. Super. 526, 530, 533-534 (App. Div. 1956); Security Corp. v. Lehman Associates, Inc., 108 N. J. Super. 137, 145 (App. Div. 1970).

In view of the foregoing, the judgment, to the extent it denies injunctive relief, is affirmed. In all other respects it is reversed and a judgment shall be entered awarding plaintiffs compensatory damages against defendant in the sum of $10,000, together with costs.

      The work and materials involved in Burd’s estimate include restoring the lot adjacent to the pond. Thus, allowing, in addition, the $6,000 for the devalued lot, testified to by Burd and requested by plaintiffs, in effect would result in a double recovery for the loss of that lot.


author: Cabton, P. J. A. D.

text:
    JOSEPH DAVIS, a/k/a JOSEPH MC EACHIN, APPELLANT, v. NICHOLAS D. HEIL, CHAIRMAN, NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 6, 1974
    Decided January 31, 1975.

      Before Judges Carton, Crane and Kole.

      'Mr. Gerald D. Miller argued the cause for appellant (Messrs. Miller, Hochman, Meyerson & Miller, attorneys).

      Mr. Marie A. Geann&tte, Deputy Attorney General, argued the cause for respondent (Mr. William, F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Sleillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Cabton, P. J. A. D.

This case presents another challenge on equal protection grounds to the New Jersey parole system as it affects inmates of county correctional institutions.

Joseph Davis is currently serving a one-year term in the Hudson County Penitentiary to which he was sentenced on March 25, 1974 for possession, and possession with intent to distribute, of a controlled dangerous substance. On April 15 of that year he was sentenced for atrocious assault and battery to a term of 18 months in the Mercer County Correction Center, to be served consecutively to the Hudson County term.

Davis, on April 18, 1974, requested the State Parole Board to consider him for parole upon completion of the one-year Hudson County sentence. The Parole Board declined the request by letter of April 26, 1974, advising that aggregation of sentences to determine parole eligibility pursuant to N. J. S. A. 30:4-123.10 was not permitted for inmates of county institutions. The Parole Board further advised him that he could not be considered for parole from the Mercer County sentence because that sentence was to a county workhouse from which there can be no parole under N. J. S. A. 30:4—123.35.

Considering this denial to be a final action by a state agency from which an appeal will lie, R. 2 ¡2-3 (a), Davis filed this appeal. His claim that he has been deprived of equal protection focuses on the application of two provisions of the statutory parole system. He first challenges the application of N. J. S. A. 30:4—123.35 to deny parole eligibility to county workhouse inmates sentenced to more than a year while extending eligibility to similarly sentenced county penitentiary prisoners. He also attacks the application of N. J. S. A. 30: 4-123.10. That provision denies inmates of county institutions serving consecutive sentences of more than one year any right to aggregation of such sentences for the purpose of determining parole eligibility while extending that opportunity to similarly sentenced prisoners in state institutions.

New Jersey’s correctional system has evolved in piecemeal fashion over the years so that today it encompasses a wide range of institutions of different purposes and under diverse jurisdiction. Not surprisingly, the parole system which has developed to serve inmates of these correctional institutions recognizes these historical distinctions and varies its treatment of inmates according to the institution to which they are confined. This court has reviewed in some detail the complex workings of the parole and correctional system in the recent case of Bonilla v. Heil, 126 N. J. Super. 538 (App. Div. 1974). We need sketch here only those elements of the system having direct application to the present case.

Of major significance in the present case is the fact that a court may select from among several institutions in sentencing an adult male offender convicted of a crime. Under N. J. S. A. 2A:16A-15 the general requirement is that sentences of less than one year be served in county institutions, sentences of greater to be served in the State Prison. However, under a series of exceptions set forth in the statute, sentences of from one year to 18 months may be served in a county workhouse, in a county penitentiary or in the State Prison, at the discretion of the sentencing court.

Sentences to State Prison are for maximum and minimum terms, N. J. S. A. 2A :164—7. State Prison inmates become eligible for parole upon completion of the minimum sentences or one-third of the maximum, whichever is less, N. J. S. A. 30:4-123.10. Those with prior offenses must serve proportionately longer periods, N. J. S. A. 30:4-123.12.

I

THE PENITENTIARY-WORKHOUSE DISTINCTION

Parole is authorized for inmates of county institutions under N. J. S. A. 30:4-123.35, which provides, in relevant part:

*■ * * [A]ny prisoner in a county penitentiary serving a term having a maximum greater than a year and who has served at least 1 year of such term shall be permitted to make application to the board for parole. ^

The one-year requirement of this statutory provision has been construed to mean an “adjusted year of the term” with reductions for good conduct and work credits. See Bonilla v. Heil, supra, 126 N. J. Super, at 550, which holds that the one-year minimum requirement was valid even though some inmates of State Prison may become eligible for parole in less than a year.

The State Board has interpreted N. J. S. A. 30:4-123.35 as permitting parole only for inmates of county penitentiaries and, by implication, as denying parole to inmates of county workhouses. Davis, facing an 18-month sentence in the Mercer County Correction Center, a workhouse, contends that this differentia] treatment unlawfully discriminates against him.

This contention must be weighed against the well-settled rule that challenged statutes are presumptively valid, N. J. Sports Authority v. McCrane, 119 N. J. Super. 457, 472 (App. Div. 1971), mod. on other grounds 61 N. J. 1 (1972). An attack on a statutory classification based on the Equal Protection Clause must demonstrate that the distinction complained of bears no rational relationship to a legitimate state end. McDonald v. Bd. of Election Comm’rs of Chicago, 394 U. S. 802, 809, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969). The New Jersey Supreme Court has applied the same standard in examining classifications of criminal offenders, holding in State v. Smith, 58 N. J. 202 (1971) :

* * * The Legislature has wide discretion in the creation or recognition of different classes of offenders for separate treatment. * * * If there is some reasonable basis for the recognition of separate classes, and if the disparate treatment of the classes has a rational relation to the object sought to be achieved by the lawmakers, the Constitution is not offended. *' * * [at 207]

The thesis first advanced here is that the application of the statute serves to deprive him of his liberty and thus that a fundamental right is at stake. The argument proceeds that the statute can be sustained only if it satisfies a more stringent “compelling State interest” standard. This argument is without merit. The United States Supreme Court, faced with a similar argument in an attack on the New York parole system, held, in McGinnis v. Royster, 410 U. S. 263, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973), that the state need only satisfy the rational relation standard. See also, Bonilla v. Heil, supra.

Whether there is a rational basis underlying the distinction between county workhouse and county penitentiary inmates for parole eligibility purposes was a question that the Bonilla court explicitly declined to decide, 126 N. J. Super, at 548, n. 8. The court in Bonilla noted a number of variations in the treatment of prisoners that were favorable to county inmates. These included the availability of a split sentence pursuant to N. J. S. A. 2A :164-16, the probability that the place of incarceration will be near the offender’s place of residence so that he might be able to retain previous local employment under a work release program, and the fact that a county sentence does not constitute a prior offense under N. J. S. A. 30 : 4-123.12. Hone of these distinctions exists as between prisoners in county workhouses and county penitentiaries.

Historically, the distinction between workhouses and other places of incarceration rested on the fact that inmates of the former were required to engage in labor to defray the cost of their accommodations. The workhouse was a product of the Elizabethan Poor Law system transported to this country. See State v. Ellis, 26 N. J. L. 219 (Sup. Ct. 1857). That historical distinction has long been blurred in New Jersey. The first penitentiary established in this State, at Caldwell in Essex County, was called both a penitentiary and workhouse. McDonald v. Vermilye, 39 N. J. L. 282, 285 (Sup. Ct. 1877). Although there once existed special legislation (L. 1874, p. 313) authorizing the Essex County Penitentiary, that statute was repealed. Since 1894 the same statute (now N. J. S. A. 30:8—29) deals with the construction of both workhouses and penitentiaries. Virtue v. Essex Freeholders, 67 N. J. L. 139, 147-148 (Sup. Ct. 1901).

Today penitentiaries and workhouses are managed under the same auspices. Further, the record does not indicate, nor have we been able to discover, any essential difference in the treatment of prisoners in the two institutions. Thus, the distinction complained of by the prisoner here lacks even a viable historical basis. Whether a county inmate serving more than a year is entitled to parole eligibility seems to turn on no more than an accident of geography, as only Essex and Hudson Counties have penitentiaries.

We view the Parole Board’s interpretation and application of N. J. S. A. 30:4-123.35 as creating a distinction between workhouse and penitentiary prisoners which is invalid as violative of the Equal Protection Clause. However, this court is not bound by the statutory construction employed by an administrative agency. Nevertheless, we are required to construe the statute in a fashion that would render it constitutional if it is reasonably susceptible to such interpretation. State v. Profaci, 56 N. J. 346, 350 (1970); Woodhouse v. Woodhouse, 17 N. J. 409 (1955). See also, Application of Marvin, 97 N. J. Super. 62 (1967), aff’d 53 N. J. 147 (1969), cert. den. 396 U. S. 821, 90 S. Ct. 62, 24 L. Ed. 2d 72 (1969).

As we have already noted, research into the history of workhouses and penitentiaries in this State indicates quite dearly that, at least since 1894, the terms “workhouse” and “penitentiary” were used to describe the same single statutory creature. The statutory use of one or another of these terms reflects outmoded usage and represents no real distinction. In these circumstances the only reasonable construction of N. J. S. A. 30 :4-123.35 is to recognize that the term “penitentiary” includes the term “workhouse/’ the two words signifying a single category of county correctional facility.

Therefore, we hold that parole eligibility is available to county workhouse inmates on the same conditions applicable to county penitentiary inmates under N. J. S. A. 30:4-123.35.

II

AGGREGATION OF CONSECUTIVE SENTENCES

The prisoner’s attack on the Parole Board’s application of N. J. S. A. 30:4-123.10 and 30:4-123.35 to deny the benefit of sentence aggregation procedures to inmates of county institutions presents a more complex situation'.

It should first be noted that while the Board’s letter to the prisoner indicates a blanket denial, the Attorney General’s advisory opinion referred to therein is less sweeping. That advisory opinion, issued in letter form June 29, 1973, maintains that aggregation is available to county inmates when each sentence to be aggregated has a maximum term of more than one year and the inmate has served at least one year of each sentence. Thus there are two distinct questions to be resolved. First, whether sentence aggregation is available under any circumstances to county inmates, and second, if so, in what fashion.

We conclude that sentence aggregation is available to county inmates under N. J. S. A. 30 :4-123.10 and 30 :4-123.35. Two observations support this view. First, it is of the greatest significance that neither of the relevant statutory provisions contains express language denying sentence aggregation to county inmates. The statutes are silent on this point. A denial of sentence aggregation from such silence is unwarranted, especially when to do so would threaten the validity of the statute. Interpretations which lead to absurd or unreasonable results are to be avoided. State v. Gill, 47 N. J. 441 (1966); Lilly v. Union Cty. Bd. of Freeholders, 125 N. J. Super. 471 (App. Div. 1973). We attach no significance to the fact that N. J. S. A. 30 :4-123.10 describes the application of the aggregation techniques to sentences of minimum and maximum terms, which sentences are only to the State Prison under N. J. S. A. 2A:164-17. We concur with the advisory opinion of the Attorney General that the fixed term of a sentence to a county institution is to be construed as both a minimum and a maximum for purposes of aggregation, a practice observed under other, albeit unusual, circumstances in State v. Roleson, 25 N. J. Super. 461 (App. Div. 1953), aff'd 14 N. J. 403 (1954), cert. den. 347 U. S. 947, 74 S. Ct. 647, 98 L. Ed. 1095 (1954).

A proper understanding of the manner in which sentence aggregation applies to inmates of county institutions requires that N. J. S. A. 30:4-123.10 and 30:4—123.35 be construed in relation to each other. The first section, N. J. S. A. 30: 4—123.10, provides in part:

Xo inmate of a penal or correctional institution serving a sentence for a fixed minimum and maximum term shall be eligible for consideration for release on parole until he has served his minimum sentence or 1/3 of his fixed maximum sentence * * *.

Paragraph 2 of this provision provides the method for determination of the date at which an inmate, serving consecutive sentences imposed by the same court at the same time, shall become eligible for parole consideration. Such sentences are deemed a single sentence, the minimum of which shall be the sum of the minimum terms of each sentence imposed, the maximum the sum of the maximum terms of each sentence.

The third paragraph provides a similar aggregation procedure where consecutive sentences have been imposed by different courts at different times, with two significant variations. In these eases aggregation is at the discretion of the Parole Board and requires the consent of the inmate.

N. J. S. A. 30:4-123.35 provides, in relevant part:

* * * [A]ny prisoner in a county penitentiary serving a term having a maximum greater than a year and who has served at least 1 year of such term shall be permitted to make application for parole. *« *

As noted above, the Attorney Gen,eral has maintained that this language requires that the county inmate, unlike one confined to State Prison, must serve at least one year of each of the consecutive sentences before sentence aggregation may be used. We disagree. It is axiomatic that the meaning of a particular phrase or provision of a statute is to be determined in the context of the whole statute. See Maritime Petroleum Corp. v. Jersey City, 1 N. J. 287 (1949); Petition of Sheffield Farms Co., 22 N. J. 548 (1956); Seatrain Lines v. Medina, 39 N. J. 222 (1963).

N. J. S. A. 30 :A-123.35 is concerned with the parole eligibility of county inmates serving a single sentence. In its limited scope it may be viewed as parallel to the first paragraph of N. J. S. A. 30 :A-123.10, quoted above, which is also concerned only with inmates serving a single sentence. It is therefore inappropriate to give too’ much weight to N. J. S. A. 30:4-123.35 in construing those paragraphs of N. J. S. A. 30: 4-123.10 which concern tire aggregation of consecutive sentences.

The extent to which N. J. S. A. 30 :-123.35 should apply to the aggregation procedures of N. J. S. A. 30:4-123.10 to county inmates is best determined by reference to the clear intent of the Legislature in providing parole for county inmates. Two limitations are apparent in the language quoted above. The Legislature intended that no county prisoner should he 'eligible for parole until he has been incarcerated for at least one year. Additionally, the greater than one-year sentence requirement limits parole eligibility only to those inmates whose sentences might have been served in State Prison. We agree with the view taken by the Attorney General in the advisory opinion cited above that the Legislature did not intend to make parole available to county inmates serving disorderly person sentences of six months, even where several such consecutive sentences have been imposed.

Consistent with the above analysis of N. J. S. A. 30:4-123.10 and 30:4-123.35, we conclude that inmates of county institutions sentenced to consecutive sentences where each sentence has a term of at least one year shall be eligible to apply for parole upon completion of the aggregated minimum sentence or one-third of the aggregated maximum term. In no case shall parole eligibility arise until the inmate has served at least one full year.

Computation of the aggregated sentence shall be according to N. J. S. A. 30:4-123.10, with the fixed term of the county sentence to be considered as both a minimum and maximum term. In the present case the prisoner was sentenced to consecutive terms of 12 and 18 months. His aggregated term, both minimum and maximum, is 30 months. We recognize that a State Prison inmate with an aggregated maximum sentence of 30 months would be eligible for parole at a marginally earlier time than a similarly sentenced county inmate — ten months as opposed to one year. This result is dictated by the clear requirement of N. J. S. A. 30 :A-123.35 that county inmates serve at least one year before applying for parole.

Finally, it should be noted that the prisoner here is not automatically entitled to the benefit of sentence aggregation. Since his consecutive sentences were imposed by different courts at different times, ho is subject to the third paraagraph of N. J. S. A. 30:4-123.10 which makes the application of sentence aggregation at the discretion of the Parole Board.

The matter is therefore remanded to the Parole Board for a prompt determination as to whether the prisoner’s consecutive sentences are to be aggregated. Such determination must, of course, be made according to the same standards applicable to similarly situated State Prison inmates. If that decision is favorable to the prisoner, he is entitled to make immediate application for parole pursuant to N. J. S. A. 30:4-123.35 since he has already completed one year of his term. If the Board’s decision as to aggregation is unfavorable, the prisoner Shall, in any case, be eligible to apply for parole upon completion of one year of the 18-month sentence to the Mercer County Correctional Center.


author: Handler, J. A. D.

text:
    IN THE MATTER OF HACKENSACK WATER COMPANY APPLICATION TO AUTHORIZE CONDEMNATION OF CERTAIN LANDS OF ROBERT JUZEK AND ANNA JUZEK, HIS WIFE, ALSO KNOWN AS ROBERT JUSEK AND ANNA JUSEK, HIS WIFE, HACKENSACK WATER COMPANY, PETITIONER-APPELLANT, v. ROBERT JUZEK AND ANNA JUZEK, HIS WIFE, RESPONDENT, AND WATER POLICY AND SUPPLY COUNCIL, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 9, 1974
    Decided February 4, 1975.

      Before Judges Lora, Lynch and Handler.

      Mr. Donald de Cordova argued the cause for appellant (Messrs. Morrison & Griggs, attorneys; Mr. William B. Morrison on the brief).

      Mr. William J. Stohler, Deputy Attorney General argued the cause for respondent (Mr. William, F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen BTcillman, Assistant Attorney General of counsel; Mr. Stuart B. Meislilc, Deputy Attorney General, on the brief).

      Mr. David A. G-eTber, attorney for respondents Robert and Anna Juzek submitted a statement in lieu of brief.
   The opinion of the court was delivered by

Handler, J. A. D.

On July 6, 1965 the application of Hackensack Water Company (Hackensack) for the construction of Reservoir No. 3 (also referred to as Lake Tappan Reservoir), primarily in the Township of River Yale and the Borough of Old Tappan, was approved by the Water Policy and Supply Council (Council). On December 14, 1966 Hackensack filed an application with the State of New Jersey, Department of Conservation and Economic Development, Division of Water Resources, for approval of the right to exercise the power of eminent domain pursuant to N. J. S. A. 58:1-17 etseq. and N. J. S. A. 58:6-1 et seq., affecting the land of Robert and Anna Juzek in the Township of River Yale. Eive separate hearings were held between February 6, 1967 and August 17, 1967, before the Council. On October 30, 1967 the Council filed its recommendations with the Commissioner. The Commissioner did not approve the Council’s action and remanded it for further consideration.

On August 18, 1969 the Council affirmed its action of October 30, 1967, subject to reopening the hearings, if necessary, for the introduction of new evidence. This action was approved by the Commissioner, although no formal notification thereof was given. The Council’s decision was subsequently confirmed by letter dated July 22, 1971. Thereafter, on August 13, 1971, Hackensack filed an application with the Council for further hearings for the introduction of new evidence.

On August 20, 1971 the Council requested Hackensack to submit a statement outlining the new evidence to be presented. Such an outline was forwarded to the Council by letter dated October 21, 1971. On April 19, 1972 the application for a rehearing was denied.

Hackensack filed a notice of appeal on May 12, 1972. On August 2, 1972 the Appellate Division denied Juzek’s motion to dismiss the appeal. On February 6, 1973, ¡however, the matter was remanded to the Council for the preparation of findings of fact and conclusions of law based on the existing record. New findings were prepared and submitted to the parties, and Hackensack filed objections thereto. The Council’s final decision was rendered on April 23, 1973.

The Council approved Hackensack’s acquisition by eminent domain of a portion of the Juzek property east of a line located 120 feet west of and parallel to the center line of the Lake Tappan Dam as extended therefrom. The Council also determined that the Juzeks should grant to Hackensack an easement for flooding to the 45-foot contour line of the Juzek property as said contour existed as of April 23, 1973, the date of decision, and in conjunction therewith that the parties should enter into an agreement whereby Hackensack would not be held responsible for flood damage to' the; Juzek property caused by controlled releases over the dam or by severe storms.

Hackensack claims that the Council’s determination is invalid as a matter of law because of the inadequacy of its findings of fact, and that its findings, such as they are, are not supported by the evidence in the record.

We are satisfied, from our review of the record, that the findings of fact incorporated in the determination of the Council are adequately expressed and that there is substantial credible evidence on the record as a whole to support the determination of the Council, which approved in part and denied in part the application of Hackensack to secure approval for the condemnation of the Juzek property. In reaching this conclusion we have been mindful of the broad discretionary powers accorded the agency below. In re Application of Hackensack Water Co., 88 N. J. Super. 362, 368-369 (App. Div. 1965). A reviewing court should avoid supplanting the determination of the administrative tribunal with its own independent judgment where there are essentially only differing evaluations as to the persuasiveness of evidence. In re Application of Hackensack Water Co., 41 N. J. Super. 408, 418 (App. Div. 1956). Deference must be accorded the findings of the agency where they could reasonably have been reached on sufficient credible evidence present in the record in light of all of the proofs, with due regard not only to the opportunity of the agency to assess witness credibility but also to the agency’s expertise where this is a salient feature in the controversy. Close v. Kordulak Bros., 44 N. J. 589, 599 (1965).

Against this standard of review there was adequate competent evidence in the record to sustain the determination of the Council. There was no essential dispute that the taking line fixed by the Council would afford access to the dam and reservoir. The Council properly rejected the testimony concerning an auxiliary dam and an increased taking to accommodate such a dam as “irrelevant” since such plans were not encompassed in the present project. It was also sufficiently established by the evidence that the periodic or occasional flood of Juzek’s lands within the 45-foot contour which might occur under normal or full reservoir conditions would not reasonably require the acquisition of the exposed land.

With respect to the acquisition of the additional lands for pollution control, the likelihood of deleterious developments was small and an actual threat of pollution was not established. It was also shown that a properly designed sewage disposal system could protect against sanitary problems.

It is further argued that the line of acquisition established by the Council would endanger the dam and was, therefore, arbitrary, capricious and unreasonable. For that reason it is also contended that the Council should have granted Hackensack’s application for a rehearing. As we understand his position, the Attorney General argues that the evidence in the record was sufficient to support the determination of the Council as to the location of the taking line, although it would not have been inappropriate to have granted the rehearing or at this juncture to remand the matter for the taking of any additional, noncumulative testimony on this issue.

It appears that it is the essential position of the Council, and of the Attorney General, that the determination of the taking line as it might affect the physical soundness of the dam itself was adequately supported by the evidence before it, and, equally significant, that the decision not to reopen the matter, based as it was upon a review and consideration of the outline or proffer of evidence by Hackensack, was not an abuse of discretion. We are satisfied, on the present record, including the application for a rehearing, that the Council’s decision in this respect should be upheld. In so ruling it is to be understood that Hackensack, if it considers itself aggrieved, may upon a sufficient evidential showing seek to have the Council reconsider its decision. Cf. In re Application of Hackensack Water Co., supra, 88 N. J. Super, at 376-377; Handlon v. Belleville, 4 N. J. 99, 107 (1950).

Finally, it is contended that the Council exceeded its authority “to substitute a hold-harmless agreement for the right to condemn.” In actuality, the Council determined that Hackensack has the power to acquire by condemnation an easement over the Juzek property for purposes of periodic or occasional flooding and, in conjunction therewith, that the parties shall enter into an agreement to hold Hackensack harmless from any liability resulting from such flooding. This latter ruling was based upon the willingness of the Juzeks to enter into a covenant “running with the land” to protect Hackensack from liability for flood damage.

There is, in our view, implied authority on the part of tiie Council to sanction the condemnation of an easement, rather than a fee interest, in property which will be affected through the creation of a reservoir by a water utility such as Hackensack. Cf. Albright v. Sussex Cty. Lake & Park Comm’n, 68 N. J. L. 523, 541 (Sup. Ct. 1902), rev’d on other grounds 71 N. J. L. 303 (E. & A. 1904). Occasional or periodic flooding may not constitute a permanent taking or an appropriation of land but rather a mere injury thereto. 26 Am. Jur. 2d, Eminent Domain, § 165 at 838. The extent of flooding and the consequent loss of beneficial use may be a question of degree. 2 Nichols, Eminent Domain (3d ed.), § 6.23 [3]. Consequently, in light of the evidence as to the unlikelihood of chronic, serious or frequent floods as a result of the creation of the reservoir, the approval of the grant of an easement therefor was not unreasonable.

It was not, however, within the implied statutory authority of the Council to dispense with the necessity to provide just compensation for the acquisition of that interest. The damage or injury to land as a result of actual or threatened flooding must be redressed through the award of just compensation. Cf. Trenton Water Power Co. v. Raff, 36 N. J. L. 335, 343 (Sup. Ct. 1873); 26 Am. Jur. 2d, supra § 195 at 877. It was, therefore, improper for the Council to have conditioned the approval for the award of an easement for periodic flooding upon the execution by the property owners of a so-called hold-harmless agreement in the nature of a covenant running with the land. This is not to say that the parties would be otherwise barred from entering voluntarily into an agreement to accommodate their respective interests. But absent such an agreement •—• which, in this setting, cannot be directed or dictated by the administrative agency or the court •— the grant of the easement to Hackensack and the just compensation which must be paid therefor should be the subject of a condemnation proceeding brought pursuant to statute.

Accordingly, the determination of the Water Policy and Supply Council is affirmed, except as modified to the extent that appellant shall be required to include in the statutory condemnation proceedings an issue as to the amount of compensation to be awarded for the acquisition of an easement over respondent’s property for purposes of periodic flooding.


author: Pee Ctjeiam.

text:
    ARARAT, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION (FORMERLY DEPARTMENT OF CONSERVATION AND ECONOMIC DEVELOPMENT), DIVISION OF WATER RESOURCES, WATER POLICY AND SUPPLY COUNCIL AND HACKENSACK WATER COMPANY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 9, 1974
    Decided February 4, 1975.

      Before Judges Lou a, Lynch and Handles.

      Mr. Martin A. JN albanduin argued the cause for appellant.

      Mr. William J. Stohler, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of Hew Jersey, attorney; Mr. Stephen STcillman, Assistant Attorney General, of counsel).

      Mr. Donald 17. de Cordova argued the cause for respondent Hackensack Water Company (Messrs. Morrison & Griggs, attorneys).
   Pee Ctjeiam.

On March 15, 1967 defendant Hackensack Water Company (Hackensack) filed an application with the State of New Jersey, Department of Conservation & Economic Development, Division of Water Resources, for approval of the right to exercise the ower of eminent domain pursuant to N. J. S. A. 58:1-17 et seq. and N. J. S. A. 58:6-1 et seq., affecting the lands of plaintiff-appellant, Ararat, Inc., in the Borough of Old Tappan. Hearings were held on July 14, 1967, September 5, 1967, and November 27, 1967, before the Water Policy & Supply Council (Council). The Council ultimately granted Hackensack’s application and notified plaintiff by letter dated April 28, 1972.

On June 12, 1972 plaintiff filed an action in lieu of prerogative writs in the Superior Court, Law Division. The Attorney General, acting on behalf of the State, filed a motion to dismiss on the ground that the Law Division lacked jurisdiction over the subject matter. On July 18, 1972 the matter was transferred to the Superior Court, Appellate Division, in accordance with R. 1:13-4. On January 22, 1973 the matter was remanded upon the Attorney General’s motion to the Council for the preparation of findings of fact and conclusions of law based on the existing record.

By letter dated April 4, 1973 plaintiff received a copy of the hearing examiner’s report and filed a reply thereto on May 11, 1973. An amended final decision of the Council was sent to plaintiff on October 24, 1973.

Plaintiff asserts that since the decision rendered by the Council was not made within the 60-day period prescribed in N. J. S. A. 58:1-21, the Council’s decision is invalid. The State claims that the 60-day requirement is inapplicable because the present hearing was conducted pursuant to N. J. S. A. 58:6-1 et seq.

A distinction between N. J. S. A. 58:1-17 et seq. and N. J. S. A. 58:6-1 was recognized in Juzek v. Hachensack Water Co., 48 N. J. 302, 313 (1966), wherein the court pointed out that the power of condemnation and approval for its exercise axe the primary concern of N. J. S. A. 58:6—1 et seq., although proceedings for the approval of plans under N. J. S. A. 58: 1-18 and for condemnation are frequently combined.

We conclude, therefore, that the statutory 60-day requirement under N. J. S. A. 58 :1-21 was not specifically applicable to this proceeding.

Plaintiff further claims that the decision by the Council is invalid since it was not filed in writing, as prescribed by N. J. S. A. 58 :1-22, and did not state the grounds upon which it was based. Aside from the pertinency of that statutory provision, the issue was effectively mooted by the remand to the Council and its subsequent submission of findings of fact and conclusions of law.

Plaintiff argues that the Council’s failure to notify plaintiff of any action or decision for four years and five months constitutes a violation of constitutional due process.

In no sense can the extreme delay which occurred in these proceedings be condoned. An administrative agency must notify the parties affected by its decision of its determination. Cf. N. J. S. A. 52:14B-10(d). Although the Council had a duty to notify the parties of its determination, plaintiff itself failed to request an earlier decision. Irish v. S E C, 367 F. 2d 637 (9 Cir. 1966), cert. den. 386 U. S. 911, 87 S. Ct. 860, 17 L. Ed. 2d 784 (1967); cf. In re Emberton, 109 N. J. Super. 211, 216 (App. Div. 1970). Moreover, it has not shown that it was prejudiced in any way by the delay. Cf. In re Darcy, 114 N. J. Super. 454, 462 (App. Div. 1971)

Plaintiff also complains of the Council’s failure to furnish it with a copy of the hearing examiner’s report so that exceptions could be filed prior to the final decision.

Plaintiff quite clearly should have been furnished with ropies of the hearing examiner’s report so that it could have filed its objections before the rendition of the final decision. On the remand of this case, however, the hearing examiner’s report was submitted to the parties and objections were filed before the Council rendered its final decision. In light of the remand plaintiff was accorded administrative due process in this respect.

Plaintiff also argues that the statutory provisions by which the Council may grant approval to a public utility to condemn specific property violates due process and equal protection because once a public utility is granted the authority to condemn, thex^e is no limitation upon the time within which it xnay be required to proceed with condemnation.

The argument lacks merit. In the absence of explicit statutory strictures consistent with precepts of due process, these may be implied. Cf. Juzek v. Hackensack Water Co., supra. We are satisfied that under this condemnation statute, the condemning body may be compelled to institute condemnation proceedixxgs within a reasonable time.

It is asserted by plaintiff that laches bars Hackensack from exercisixxg the right of eminent domain. Plaintiff claims that the payment of taxes on the property during the five years in which there was no final decision in the condemnation proceedings resulted in prejudice to it. This coxxtention must be rejected since there was no showing of tangible prejudice occasioned by the delay, especially in light of the fact that plaintiff is entitled to receive the current fair market value of its property, at the time of the taking.

Plaintiff contends in a supplemental brief that the determixxations of the Council, particularly its findings number three and four, were not based upon competent proof. We are satisfied, xxpon a full x'eview of the record, that the deterxxxination of the Council was founded upon sufficient credible and competent evidence in the record as a whole, and should be sustained.

Finding Number 3 provides as follows:

3. All drainage from the aforesaid property is through a lo-inch pipe which terminates near the proposed southerly taking line. Results of analyses made on samples taken from the discharge of said pipe indicate, from the relatively high concentrations of detergent and phosphate, that domestic type wastes are finding their way into the drain. The number of coliform organisms is excessive at times. Pollution by means of the shopping center’s drainage system is reaching an open water course, draining into the reservoir. Observations indicate that the discharge from the lo-inch drain pipe reaches the reservoir, over a distance of some 500 feet during and after periods of rain. During dry periods the discharge goes into the ground.

The fourth finding made by the Council reads as follows:

4. The expansion of any subsurface disposal systems in the remaining lands of Ararat, Inc. would be aggravated by the expected rise in the groundwater level that would be caused by a full reservoir. Spills of fuel and chemicals on the parking area would pollute surface run-off.

Pursuant to its statutory authority under N. J. S. A. 58: 6-2, the Council was required in this ease to determine the extent, if any, of plaintiff’s land necessary to implement the plans Which it had previously approved concerning the Hackensack reservoir so as to protect adequately that source of supply. The Council ultimately approved Hackensack’s acquisition by eminent domain of all the property described in the proceedings, amounting to approximately 4.86 acres. That determination was based upon the Council’s conclusion that those lands were necessary to protect the reservoir against pollution and to provide for its patrolling, maintenance and fencing. Moreover, acquisition of appellant’s lands was concluded to be consistent “with the previously approved plans dealt with by this Council.” This comported with the observation in Juzek v. Hackensack Water Co., supra, viz:

It is, therefore, apparent that the Water Council has the power and duty to protect the source of State water supply from contamination and to that end may require that a water company make adequate provision for the protection of a proposed reservoir from perimeter pollution. [48 N. J. at 310].

There was ample and persuasive evidence to justifying the findings made by the Council. In particular, Kobert Gerber, the sanitary engineer in charge of watershed sanitation for Hackensack testified as to the necessity for the acquisition of land for protective purposes. In part his opinion was based upon the results of a report, which was not itself introduced in evidence. Other tests were taken by Hackensack’s employees, however, under the witness’ supervision and were utilized by him to support his conclusion as to the extent of pollution draining to the reservoir from the nearby shopping center. Further support for the position of the water company was found in the testimony of other expert witnesses who agreed that modest marginal area, as sought by Hackensack, was necessary to prevent pollution.

In the context of all of the proofs before the Council we are unable to conclude that its determination was tainted to any significant degree by undue or exclusive reliance upon incompetent evidence. In light of the testimony in the record acknowledging the need of a marginal area to serve as a buffer strip, the existence of a shopping and office center with parking facilities on adjoining lands of plaintiff, drainage directed toward the reservoir, the incidence of pollution and the establishment of patrolling, fencing and maintenance operations, the Council’s determination is soundly based upon the evidefice. It is singularly appropriate that, since a high degree of agency expertise is involved, substantial deference be accorded the Council’s decision. Cf. Close v. Kordulak Bros., 44 N. J. 589 (1965).

■ For the foregoing reasons the decision of the Water Policy and Supply Coitncil is affirmed.


author: Pee Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. FREDERICK FISHER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 28, 1975
    Decided February 7, 1975.

      Before Judges Matthews, Eritz and Bottee.

      Mr. Stanley G. Van Ness, Public Defender, attorney for appellant (Mr. Jasper J. Jachson, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Bichará W. Berg, Deputy Attorney General, of counsel).
   Pee Curiam.

After having signed a waiver of indictment and trial by jury defendant pleaded guilty to an accusation charging him with receiving stolen property (N. J. S. A. 2A: 139-1) and carrying weapons without first having obtained a permit (N. J. S. A. 2A:151-41). Ultimate^ he was sentenced to two to three years in State Prison on each count, the sentences on the respective counts to be served concurrently. He now appeals on the ground that no factual basis for the plea was elicited during the taking of the plea, as is required by R. 3 :9—2.

The rule clearly directs that a judge taking a plea “shall not accept such plea without first addressing the defendant personally and determining by inquiry of defendant and others, in the court’s discretion, that * * * there is a factual basis for the plea.” There is no question at all hut that the judge below failed to comply with the mandate of the rule, although he did ascertain that the waiver of indictment and trial by jury was signed voluntarily and with an understanding of what the words therein meant. Thereafter the following colloquy occurred:

THE COURT: You are charged with receiving stolen property. Ton are charged with carrying weapons without a permit or an ID card.
Do you understand the nature of those offenses?
THE DEFENDANT FISHER: Yes, sir.

We need not here decide the minimum inquiry necessary to satisfy the requirement of the rule, for we are satisfied that merely asking defendant if he read the formal language of the charge and understood that language is not sufficient. For one thing —■ and we do not suggest that there are not others —a “yes”-“no” inquiry relating to defendant’s understanding of the nature of the offenses with which he is charged is not at all productive with respect to whether defendant's understanding is in fact correct, an essential purpose of the rule.

Satisfied that there was manifest error below (although it was never raised until this appeal), we turn to what, if anything, should be done here about it in the circumstances of this case. The State suggests, and we agree, that where an appeal is brought after sentence in criminal actions in which a guilty plea has been entered, the considerations affecting the determination should be akin to those involved on a motion to withdraw a guilty plea after sentence. When such a motion is first made after sentence our courts generally require a demonstration of manifest injustice before the plea and sentence are set aside. State v. Deutsch, 34 N. J. 190, 198 (1961). Innocence or guilt is relevant even with respect to a motion before sentencing. State v. Johnson, 131 N. J. Super. 252 (App. Div. 1974). In the matter before us not only does defendant not here argue his innocence, but his guilt is too manifestly apparent upon the record to be ignored. In such circumstances, the error, though obvious and not to be condoned, is not ground for reversal. The time is long since past that all trial errors necessarily lead to reversal. State v. Macon, 57 N. J. 325 (1971).

Defendant also argues here that his sentence was excessive and a mistaken exercise of the trial court’s discretion. Considering the circumstances of the offenses and defendant’s record, we find no merit in this ground.

Affirmed.


text:
    EDWARD ZIMMERMAN, APPELLANT, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, DAWSON FORD INC., RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 16, 1974
    Decided February 14, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Joseph Lipofslcy argued the cause for appellant (Somerset Sussex Legal Services, attorneys).

      Mr. Douglass L. Derry argued the cause for respondents (Mr. William F. Hyland, Attorney General of Uew Jerse3q attorney).
   Per Curiam.

This appeal is taken from a decision of the Board of Review, Division of Employment Security, which affirmed a decision of the Appeal Tribunal, which in turn upheld a determination by the deputy that the claimant-appellant was disqualified from receiving unemployment benefits for a period commencing March 22, 1973 and ending April 9, 1973. Appellant was held disqualified for failure to report to an appointed claims office in accordance with agency regulations.

Claimant had been gainfully emloyed as the assistant manager of Dawson Ford in Summit, New Jersey, from November 1971 until February 14, 1973, on which date his employment was terminated by his employer because of lack of work. Claimant filed for unemployment benefits on February lo, 1973, and after certification of his eligibility benefits were paid through March 21, 1973.

Claimant’s scheduled date to report to the local office of the Division of Unemployment and Temporary Disability Insurance was March 23, 1973. On March 21, 1973, however, he informed the local office by telephone that he would be unable to report since he would be out-of-state seeking employment. He was advised by an agency employee to notify the claims office of that fact by letter. Such a letter was sent on March 22 and received by the agency. In that letter he advised the office that he would be unable to report on March 23 since he would he out-of-state seeking employment, would be returning on April 7, and would be reporting to the office as soon as possible after his return.

Claimant testified that while in Florida he actively sought work. He described in detail the agencies to which he applied and the persons to whom he talked in an effort to locate employment in that state.

Following the unsuccessful search for employment in Florida claimant departed Florida on April 6, a Friday, by car, arriving in New Jersey on April 8, Sunday. An attempt to report on April 9 was aborted as a result of car trouble and claimant called the local office on that date to so advise them. He finally reported on April 10.

Eligibility requirements for receipt of unemployment compensation benefits can be found in N. J. S. A. 43:21-4. Section (a) of that provision is the source of the regulations adopted by the Division of Employment Security. It provides :

An unemployed individual shall be eligible to receive benefits with respect to any week only if it appears that:
(a) He has registered for work at, and thereafter continued to report at, an employment office in accordance with such regulations as the division may prescribe, except that the division may, by regulation, waive or alter either or both of the requirements of this subsection as to individuals attached to regular jobs, and as to such other types of cases or situations with respect to which the division finds that compliance with such requirements would be oppressive, or would be inconsistent with the purpose of this act; provided, that no such regulation shall conflict with subsection (a) of section 43:21-3 of the Revised Statutes.

Pursuant to this delegation of rule-making power, the Division promulgated a set of regulations pertaining to registration for work, reporting requirements and the procedure for making claims. The two regulations pertinent to the present controversy are N. J. A. C. 12:17-2.1(b) and (c). N. J. A. C. 12:17-2.1(b) provides:

In order to establish eligibility for benefits or for waiting period credit for any week of unemployment, the claimant shall report during each such week on the day or days and at the time or times designated by a representative of the Division to the local employment service office at which he is registered for work. A claimant who has failed to report on his assigned reporting day shall be considered as having complied with this reporting requirement; provided, he reports in person as soon as possible thereafter but not later than seven days after his assigned reporting day; and provided further, he shows good cause for having failed to report sooner.

N. J. A. C. 12:17-2.1 (e) provides:

In order to file a continued claim for benefits for a week or weeks of unemployment, the claimant shall report in person to the local employment service office on the day and time designated by a representative of the Division, after the completion of such week or weeks, and certify that with respect to such week or weeks he was unemployed, eligible and not subject to disqualification. The Division, Cor reasons found to constitute good cause for any individual’s failure to report on the day and at the time designated for him to report at the local employment service office for the purpose of filing a continued claim, may accept a continued claim from such individual for the week or weeks in question; provided, he reports in person at the local employment service office within seven days after Ms assigned reporting day, or, if he is unable to so report, he notifies the local employment service office within such time of the reason for his failure to report on his reporting day.

The seven-day grace periods utilized in both of the above quoted sections have been expanded to 14 days due to the change in benefit payment schedule from weekly to bimonthly payments.

The Division has taken the view that claimant’s letter dated March 22 had the effect of complying with section (c), validating a previous period of unemployment for which eligibility had been established by claimant reporting in person to the local office in compliance with section (b), and that the Division had accordingly honored the claim for the period ending March 21. The Division contends, however, that with respect to the following period, March 22 to April 6, the letter was an ineffective attempt to comply with section (b), aDd since claimant did not report in person within 14 days thereafter, i. e., by April 6, he never established eligibility for that period and therefore could not collect therefor. In taking Ihis position the Division views sections (b) and (c) of the above quoted regulations as both being applicable with respect to each claimed two-week period of unemployment. Section (b) requires a personal appearance by the claimant on the reporting date or no later than 14 days thereafter as a condition to eligibility for that claimed two-week period of unemployment. Personal appearance by the claimant within this period of time is an indispensable prerequisite to eligibility. It is only wth respect to section (c), which concerns validating a prior two-week period of unemployment for which eligibility has already been established by personal appearance, that a letter giving sufficient reason for an inability to personally appear can be held sufficient compliance.

Claimant, on the other hand, views sections (b) and (e) as applying alternatively to different stages of the claim. According to claimant, initial eligibility must be established by personal reporting under section (b). Once established, claims for continued unemployment and eligibility therefor are established by compliance with section (e) of these regulations, which dispenses with personal appearance where “he [claimant] reports in person * * * within [14]' days after his assigned reporting day.” Since claimant did report within 14 days of April 6, he complied.

Because of these conflicting contentions as to which meaning should be attributed to these two regulations, it is incumbent upon us to construe N. J. A. C. 12:17-2.1(b) and (e) together in a way so as to avoid rendering any part of these provisions inoperative, superfluous or meaningless. Stellmah v. Hunterdon Coop. G. L. F. Serv., Inc., 47 N. J. 163, 192 (1966); State v. Sperry & Hutchinson Co., 23 N. J. 38, 46 (1956); Benson v. Coca Cola Co., 120 N. J. Super. 60, 63-64 (App. Div. 1972).

Although claimant’s contention that since his was a “continued claim for benefits,” only section (e) applies (dispensing with the necessity for personal appearance) and that section (b) does not apply, finds some support in section (c) which by its language applies to a “continued claim,” such a construction renders meaningless the language in section (b) that in order to establish eligibility for benefits “for any week of unemployment, the claimant shall report during each such week.” Such language unequivocally requiring a claimant to personally report in order to become eligible for each and every period of unemployment must be given effect.

Giving effect to this command in section (b), as we must, it becomes clear that both section (b) and section (c) apply to each two-week period of unemployment for which claim is made. Initial eligibility for each two-week period is established by personally reporting on an appointed day or within 14 days thereafter at a local claims office. A claimant must also, however, comply with section (c) in order to receive benefits for that same two-week period by either reporting in person after that two-week period or within 14 days thereafter, or notifying the office why he is unable to report. The reporting requirement imposed by section (c) serves to validate a claim for a two-week period of unemployment for which a claimant has established eligibility made by personally reporting and therefore is less exacting in its requirements. In practice, one personal appearance at the office serves to comply both with section (b) with respect to the next two-week period of unemployment and with section (c) to the immediately past two weeks of unemployment, by reaffirming that after establishing eligibility therefor, he, the claimant, has remained unemployed and has not otherwise disqualified himself from benefits.

This is the interpretation placed upon these regulations by the Division which drafted these regulations, and since it has the effect of giving effect to all the provisions in both sections and since the agency’s interpretation of its own regulations is entitled to great weight, this will be the interpretation placed on these regulations by this court. Offhouse v. State Board of Education, 131 N. J. L. 391, 395 (Sup. Ct. 1944), app. dism. 323 U. S. 667, 65 S. Ct. 68, 89 L. Ed. 542 (1944), reh. den. 323 U. S. 814, 65 S. Ct. 114, 89 L. Ed. 648 (1944).

Applying this interpretation to the facts of this case, it is clear that the claimant’s letter of March 22 did not constitute compliance with section (b) since he did not personally report within 14 days of March 23, which would have been on April 6. He reported on April 10, four days late.

The advice allegedly given the claimant by a Division employee to notify the claims office that he would be unable to comply with the March 23 reporting date, does not require a finding that he complied with the applicable regulations or that the Division is estopped from asserting that he failed to do so. The advice that he notify the claims office by letter of his inability to appear on March 23 did. not advise him that personal appearance would be unnecessary. In any event, our cases are clear that we cannot here apply estoppel against this governmental agency. Summer Cottagers’ Ass’n of Cape May v. Cape May, 19 N. J. 493 (1955); Boyd v. The Dept. of Inst. and Agencies, 126 N. J. Super. 273 (App. Div. 1974).

Affirmed.