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March 19, 1982

CARL F. PETERS, Plaintiff, pro se,

The opinion of the court was delivered by: DEBEVOISE

DEBEVOISE, District Judge.

I. Nature of the Proceedings

 Plaintiff in this action is Carl F. Peters, a resident of the Township of Hopewell, New Jersey. Defendants are the Township of Hopewell, a municipal corporation; James Johnson, Jeffrey Wittkop, Samuel Little and Richard Smith, who were retained by Township authorities to remove certain property from Peters' premises in December, 1972; and Walter Reikowski who, in December, 1972 was Building Inspector and Zoning Officer of the Township.

 Peters filed his complaint on December 22, 1978, charging that on December 27, 1972 defendants wrongfully seized personal property belonging to him and damaged his real estate, thus depriving him of property without due process of law in violation of the Fourteenth Amendment of the United States Constitution. Suit is brought pursuant to 42 U.S.C. ยง 1983. *fn1"

 Peters was represented by counsel until February 9, 1981, at which time I entered an order permitting his attorneys to withdraw. The case was then awaiting trial. In September, 1981 I granted Peters' request for adjournment to enable him to obtain new attorneys, advising him that it would be the last adjournment. He was unable to retain an attorney, and over his objections I required that he proceed to trial on January 12, 1982. The facts were presented exhaustively. At the conclusion of the evidence I reserved decision.

 Findings of Fact

 This is a sad case. Peters is a man who marches to a different drummer, whose visions are not shared by others. His actions, taken pursuant to firmly held convictions of his rights, flouted reasonably held expectations and rights of his neighbors and violated lawful regulations of the community in which he lives. The irreconcilable nature of these differences led to the episode which is the subject of this case.

 Peters, a machine designer having a BA in mechanical engineering, is an old car enthusiast. He values highly old equipment and devices of all sorts, despising recent machinery. He collects and seeks to preserve those things which he considers worthwhile in order to show it is possible to build things well and to put to use these older articles.

 In 1958 Peters and his family moved into the residence in Hopewell Township which he and his wife still occupy. He brought with him five old automobiles, a part of his collection. His house is located on a lot measuring 100 feet by 150 feet, situated in a modest but attractive residential neighborhood of generally well-tended homes and yards.

 As the years went by, Peters accumulated more old automobiles, which numbered 11 in December, 1972. Some were operative; some were not. Peters was continuously in the process of repairing and restoring these vehicles. At any one time some of them were in an advanced state of repair and others were dismantled and in a state of considerable disrepair. To plaintiff they were antique automobiles having great value. To his neighbors they were junk which gave Peters' property the appearance of an automobile graveyard. In fact, were each treated separately it would be an object of greater or lesser value capable of renovation and sought after by persons interested in old models of automobiles. In the aggregate they were offensive and illegally stored.

 In addition to automobiles Peters assembled on his lot an extraordinary collection of other older objects which he intended to repair and put to good use -- wire, wheels, bicycles, lawn mowers, parts, tools, lumber, trailer hitches, and the like. There were two woodpiles, a west compost pile, an east compost pile, and a stone pile.

 In an attempt to placate his neighbors and/or to provide shelter for his assemblage of objects Peters erected a number of structures on his lot. He built what he called "garages" around many of the automobiles -- made of upright poles or concrete blocks and covered with blue or black plastic cloth. He collected a large number of Christmas trees and erected them along one boundary to shield his property from his neighbors' eyes. Regretably the trees turned brown and the so-called "garages" appeared to the neighbors as unsightly as the objects they were intended to conceal. Peters erected high and low walls made of concrete blocks. In addition, there were a trellis, two fireproof sheds, other sheds, a plant stand, a cat house and a garden house.

 Peters' neighbors complained to Township authorities about the condition of his premises, and Township authorities inspected the premises from time to time. In August of 1972 an inspection was made by Fred DeFrank, the Township Health Officer, defendant Walter R. Reikowski, the Township Building Inspector and Zoning Officer, and Doris Tomlinson, the Township Director of Welfare and Public Health Nurse. A report prepared by Mrs. Tomlinson reflected that they found nine unregistered cars "apparently not in running condition" and litter consisting of "door panels, bicycle parts, auto parts, logs and brush, metal parts, flower pots, etc.". The report also noted "[s]ome evidence of clean-up effort in the back yard since the first inspection, such as articles piled more neatly and dead trees chopped into firewood and stacked". It was noted that Mr. DeFrank was to confer with the Township Attorney.

 Notices were served upon Peters directing him to remove the unregistered vehicles and to clean up his property. A re-inspection was made on September 18, 1972 and it was ascertained that conditions had not improved substantially.

 On September 28, 1972 Reikowski, acting as Zoning Officer and Building Inspector, issued a complaint which charged that Peters was maintaining ten unregistered vehicles on his property and a vast quantity of other articles. The complaint further charged that "The continued random storage of multiple types of debris on the property is contrary to the public health and safety of the citizens of the Township of Hopewell, is violation of the Public Health and Nuisance Code and it is in violation of other ordinances of the Township. Said debris constitutes a health hazard in that it encourages the harborage and breeding of rodents and insects and constitutes a danger to [sic] injury to persons on or about the premises, particularly those of tender years." The complaint asked that Peters be summoned to appear before the Township Board of Health "and dealt with according to law".

 The complaint was served upon Peters and a hearing scheduled before the Board of Health. In Hopewell Township the Township Committee also serves as the Board of Health. On the first date scheduled for the hearing Peters requested an adjournment in order to obtain an attorney. The hearing was adjourned to October 26, 1972, at which time Peters elected to proceed without an attorney. Testimony and other evidence was received as to the condition of Peters' property. Peters testified and, according to the Board of Health's Factual Summary, Findings and Order, "offered a number of philosophic reasons for keeping it, all of which may properly be summed up in his own phrase that 'everything needs a homeh'." The Factual Summary recited that "While the Defendant claims that some of the junk or parts thereof are more properly described as antique automobiles, he fixes the item value as being someplace between $ 10 and $ 800. The so-called antiques, in their present rusted condition, are of minimal value and, in any event, are not made less of a nuisance or hazard by such adjectival denomination."

 The Factual Summary also noted that the Board of Health received a petition containing twenty-one signatures of persons living near the premises. It further noted that on a prior occasion Peters had been fined under a local ordinance for maintaining and storing junk automobile parts. His conviction was affirmed by the County Court and he abandoned his appeal to the Appellate Division of the Superior Court.

 The Board of Health's Finding and Order (which followed its summary of the evidence before it) read as follows:


 It is undisputed that the junk automobiles, parts of machinery, bottles, lumber and other multiply described debris litters the Defendant's premises. It is also undisputed that there is an uncovered ditch and a combination of combustible trees and flammable liquids.

 The substances and conditions, as well as the manner of maintenance, constitutes a nuisance, a source of potential injury and a health hazard. The dangers thus created are magnified by the fact that there are admittedly a great number of children in the neighborhood who play on the Peters property in particular. The Township of Hopewell has adopted a Public Health Nuisance Code that has, as well, an Ordinance prohibiting the keeping of junk automobiles and declaring them a nuisance.This Defendant is in obvious violation of both as well as subject to the provisions of R.S. 26:3-49. The Defendant has no outstanding municipal permits which would justify or validate the keeping of building material or the existence of a trench.


 It is hereby ORDERED that the said Carl Peters shall, on or before December 20, 1972, remove and abate the several nuisances existing on the premises, more particularly,

 1. The Defendant shall remove all unregistered or inoperative motor vehicles and their parts.

 2. The Defendant shall remove all scrap junk and debris from the premises, namely, cans, bottles, broken pieces of machinery, wood, scrap iron, sheet iron, broken doors, motor vehicle parts, wires, bed parts, bottles, cinderblocks, used lumber, broken wagons and all other things of similar description.

 3. Defendant shall fill to ground level all excavations on the premises.

 4. The Defendant shall either remove or saw up and neatly pile, if he intends to use as firewood, the Christmas trees that are scattered around the premises.

 5. The Defendant shall demolish the leanto structure which is fashioned of unmortared cinderblocks and remove the cinderblocks from the premises.

 In the event that all of the above is not completed by December 20, 1972, the Defendant is hereby notified that the Board of Health, without further notice, shall proceed to abate the several nuisances and the expense incurred in such removal and abatement shall thereafter be recovered from the Defendant.

 Neither the complaint nor the pretrial order in this case challenged the regularity of the proceedings which led to these findings and order, and neither challenged the validity of the order to peters to remove and abate the nuisance. N.J.S.A. 26:3-45, et seq.; cf., Ajamian, et al. v. Township of No. Bergen, et al., 103 N.J. Super. 61 (Law Div. 1968); aff'd, 107 N.J. Super. 175 (App. Div. 1969), cert. den., 398 U.S. 952 (1970). Just prior to the trial and from time to time during the course of the trial, Peters sought to challenge the proceedings and the findings and order of the Board of Health, claiming that they were part of an unlawful conspiracy against him perpetrated by townspeople and by the Township. I did not permit expansion of the issues in this case at that late date but did permit some evidence concerning the Board of Health proceedings insofar as it related to the nature and condition of the property which Peters stored on his premises and which was seized and destroyed in late December, 1972.

 The findings and order were served upon Peters' wife on November 30, 1972. Peters made some ineffectual attempts to comply, but he did not remove the vehicles, and the over-all condition of the premises did not change significantly. Faced with this situation the Township took steps to enforce the order. The Township's Health Officer, Fred DeFrank, retained the services of defendant James C. Johnson, who in 1972 was engaged in the towing and automobile mechanics business. Johnson, in turn, arranged for defendants Jeffrey Wittkop, Richard Smith and Samuel Little to participate in the clean-up. Reikowski, DeFrank and Johnson agreed upon the equipment which would be used -- Wittkop's bulldozer and two trucks with flat bed trailers supplied by Johnson.

 At about 11:00 in the morning of December 27, 1972 Johnson, Wittkop, Smith and Little arrived at Peters' home with the equipment described above. Reikowski also arrived and was in general charge of the operations which followed.Reikowski had requested that Chief of Police Mathew J. Maloney and Patrolman Clarence Powell be on hand.

 When this crew drew up before Peters' residence they found Peters working on his wife's automobile which was in front of the driveway with the right front wheel raised on a bumper jack. Maloney read the order to Peters and requested that he not interfere with the clean-up. Johnson requested that Peters remove the bumper jack so that the automobile could be moved out of the way. Peters and Maloney are in partial but not total disagreement as to what happened next. Maloney testified that Johnson started lowering the car and that Peters then grabbed the jack handle from him and threatened to strike him with it. Maloney further testified that he took the jack handle from Peters and returned it to Johnson, at which point Peters assaulted Johnson. Maloney attempted to arrest Peters, who resisted violently and was subdued after a 45-minute struggle only with the help of Patrolman Powell. Powell was bitten and kicked, for which he was treated at a hospital emergency room. Maloney suffered chest pains and was taken to the same hospital. Peters was taken into custody, and later committed to a psychiatric hospital for observation, from which he was released after several weeks.

 Peters denies that he ever threatened Johnson with the jack handle. He was a witness to the highly destructive early phase of the clean-up operations, which will be described shortly.Peters believed that he had a constitutional right to protect his property and testified that he was not going to leave his property without a struggle.

 Peters' violent departure from the scene is not the subject of this law suit, and its significance for present purposes is simply to suggest the atmosphere in which the entire operation was conducted.

 The numerous photographs which certain members of the Peters family took during the clean-up and the testimony of two witnesses establish graphically the manner in which the operation was conducted.

 Peters' wife, Jean Peters, was a reliable and accurate witness. She is obviously an understanding and sympathetic spouse who for years has been attempting (without visible success) to counteract her husband's compulsion to clutter, but I conclude she reported her observations objectively. Another witness was the mother of a thirteen year old friend of one of Peters' sons. Peters' son had asked his friend for help when the clean-up operation began. The friend's mother accompanied him to Peters' residence.She hardly knew the Peters, and her observations appeared to be totally unaffected by personal interest or bias.

 Notwithstanding the fact that Peters' obsessive behavior compelled the Township to remove the accumulation of automobiles and other items from his property, the manner of the removal cannot be justified. Wittkop's bulldozer moved back and forth through the 100' X 150' lot with reckless abandon. The ground was unfrozen and the treads of the vehicle, particularly as it was pivoted, dug deeply into the soil. Some of the trees were knocked down; others were scarred or bent over; still others were left with their roots exposed. As the bulldozer scooped up tools, logs, piles of stone, children's bicycles and other toys, furniture and vast amounts of debris, its blade dug into the topsoil, removing or displacing it.At one point the bulldozer damaged a portion of the house and at another it struck a garage. While crossing the property it crushed Peters' cesspool.

 The only property dealt with carefully were the cinderblocks. With the assistance of neighborhood boys these were loaded upon one of Johnson's trailers. Peters claims he saw these cinderblocks at Johnson's place of business, identifying them by paint marks. Johnson denied taking the cinderblock and testified that the cinderblocks at his premises were left over from a garage he had built. One does wonder why stacked cinderblocks were a health hazard on Peters' property and not a health hazard on Johnson's property. Be that as it may, I cannot say whether the cinderblocks were taken to Johnson's place or whether they were taken with the rest of Peters' property to the town dump. They were never accounted for.

 While the bulldozer was charging about the premises, while the cinderblocks were being piled on the trailer, and while the automobiles were being smashed and hauled away, neighborhood children screamed abuse and profanities at Mrs. Peters and her children. They threw clods of earth at the Peters' property. Neither the parents and other adults watching the proceeding nor the Township officials took any steps to interfere with this behavior.

 Perhaps most destructive of all was the manner in which the automobiles were removed. The photographs in evidence demonstrate wanton disregard for these automobiles. Typically an iron bar or chain was run through the front windows of an automobile, the chain was linked over the teeth of the bulldozer blade, and the bulldozer then lifted the vehicle and placed it on a flat bed trailer. When the windows of an automobile were not open, instead of rolling them down the clean-up crew smashed them with the iron bar which was then inserted so as to extend through the car, protruding from each side for attachment to the chain. While being pushed or lifted or hauled, the sides, tops and fenders of the automobiles were crushed and bent.

 It is defendants' contention that this was the only way to remove the automobiles since many had some or all of their wheels removed and could not be towed and rolled onto the trailers. Peters and his wife testified, truthfully I believe, that in those cases where the wheels had been removed they had been placed either beside the vehicle or inside it where they could easily have been put back in place. Other vehicles had two or all wheels in place. I simply do not believe that with proper and readily available equipment the clean-up crew could not have moved the automobiles onto the flat bed trailers in the condition in which they were without causing them significant damage. Further, with the exercise of a moderate amount of care and skill, these experienced persons could have put the wheels back on where they had been removed and simply rolled the vehicles onto the truck.

 It is quite obvious that the Township officials and the men they employed had no intention of exercising care. They had surveyed the premises well in advance; they brought with them on December 27th no equipment such as dollies or a tow truck which would have permitted the careful loading of the vehicles. They went about their work with an abandon typified by the manner in which the bull dozer was operated on this small parcel of land. The greater expense of using proper removal procedures was no excuse for not using them since Peters was required to pay for the operation in any event.

 After the automobiles were loaded on the flat bed trailers they were taken to the town dump where they were left. Several months later they simply disappeared. The Township and its officials have offered no explanation as to what happened to them.

 There is no question that just before the clean-up operation these eleven automobiles had value. Defendants' expert conceded as much although, not surprisingly, his opinion of value differed substantially from Peters'. Peters had no expert witness but I permitted him, as the owner, to testify as to his opinion of the value of his automobiles. He is very knowledgeable in the field of old cars and his opinion is not without weight. I must discount it to some extent because of his tendency to view all his possessions in an unrealistically favorable light. Having heard the testimony concerning the condition and value of these automobiles and having examined the photographs of them in the condition they were in while being or after being subjected to the clean-up operations, I have arrived at an opinion of their value on December 27, 1972, just prior to their removal. This value includes the value of the parts, tools and components which were stored in or about the automobiles but not actually installed. The following chart lists the automobiles and sets forth Peters' opinion of their value, defendants' expert's opinion, and my conclusion: Average Peters' Defendants' Finding of Automobile Value Value Value 1. '62 Studebaker, 4 Dr. Stn. Wag., red (P-27). $ 800 $ 150 2. '60 Studebaker, 4 Dr. Stn. Wag., yellow (P-95). 900 125 250 3. '52 Studebaker, 2 Dr. Sedan, green and white 1200 (no opinion) 100 4. '52 Studebaker 2 Dr. Starlite Coupe, green (P-99). 1400 20 300 5. '49 Studebaker Pickup Truck, 3/4 ton, red (P-101). 1000 175 400 6. '51 Kaiser 4 Dr. Traveller, green (P-13). 2500 50 500 7. '53 Kaiser 4 Dr. Sedan, red (P-58). 1350 200 8. '53 Kaiser 4 Dr. Sedan, blue & black (P-106). 1350 150 9. '53 Volkswagen 2 Dr. Beetle, white (P-10, P-35). 3500 200 800 10. '58 Volkswagen 2 Dr. Beetle, black 1000 (no opinion) 300 11. '41 Plymouth, 2 Dr. Sedan, green (P-15). 1200 88 350 Totals $ 16,200 $ 658 $ 3500


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