This court finds that when construing the facts and inferences in a light most favorable to plaintiff, his allegations of violations of procedural due process, substantive due process and a taking fail to rise to the levels of constitutional violations; therefore, defendants' motion for summary judgment as to plaintiff's § 1983 claim on these grounds is granted.
a. PROCEDURAL DUE PROCESS
The court will first address defendants' motion to dismiss plaintiff's § 1983 count on procedural due process grounds. To establish a cause of action for a violation of procedural due process, plaintiff must prove that he was deprived of a protected property interest by a person acting under color of state law and that the state procedure for challenging the deprivations does not satisfy the requirements of procedural due process. Parratt v. Taylor, 451 U.S. at 537. Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 680 (3d Cir. 1991), cert. denied, U.S. , 118 L. Ed. 2d 389, 112 S. Ct. 1668 (1992).
It is the role of the court, and not the jury, to decide whether the scheme for challenging zoning ordinances satisfied procedural due process. Midnight Sessions, Ltd., 945 F.2d at 682. The Third Circuit has held, "when a state affords a full judicial mechanism with which to challenge the administrative decision . . ., the state provides adequate process." Id. at 680 (citations omitted).
In this case, the court finds that the New Jersey legislature has enacted a mechanism under the Municipal Land Use Law (MLUL) which does satisfy procedural due process. This scheme enables a party to challenge the zoning officer's decision that plaintiff's property is in violation of the local zoning ordinance, as well as the ZBA's denial of plaintiff's application for a use variance permit for his property.
Plaintiff agrees with defendants that the state scheme was adequate, but states that it is irrelevant to this case because "defendants and conspirators failed to follow that scheme, and invented their own scheme to suit the purposes of the conspiracy against Mr. Deblasio. That failure provides an independent basis for a procedural due process claim." See Pl.'s Br. in Opp'n at 33-34. This court disagrees and finds, as a matter of law, that the procedure did not violate the requirements of procedural due process.
Specifically, N.J.S.A. § 40:55D-70 (a) and (b) provide that the ZBA shall have the power to hear and decide appeals of the zoning officer's enforcement of a Zoning ordinance and hear and decide requests for an interpretation of a zoning ordinance. Furthermore, pursuant to subsections (c) and (d) of this statutory section, the ZBA shall have the power to grant a request for a variance or other relief, so long as the variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zone ordinance.
Also, pursuant to N.J.S.A. § 40:55D-72, any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the zoning ordinance or official map can appeal to the ZBA.
Last, pursuant to Rule 4:69-1 et seq. of the New Jersey Court Rules, plaintiff is entitled to a review, a hearing and relief by filing a complaint, before the expiration of 45 days from the time plaintiff received notice that his application was denied, in the Superior Court, Law Division, bearing the designation "In Lieu of Prerogative Writs." On March 9, 1993, plaintiff filed a state court action in the Superior Court of New Jersey, Hunterdon County, Law Division, against the same defendants and alleging the same claims, approximately twenty months after plaintiff had been notified of the ZBA's decision to deny plaintiff's request for a variance, rather than within the requisite 45-day period.
Plaintiff states that his failure to exhaust state remedies is not relevant in this case, because a § 1983 case does not depend upon exhaustion of state remedies. Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 516 (1982). Nevertheless, in the Third Circuit, a state provides adequate due process when it provides reasonable remedies to rectify a legal error by a local administrative body. Bello v. Walker, 840 F.2d 1124, 1128 (3d Cir. 1988), cert. denied, 488 U.S. 868 (1988) (quotations omitted) (citations omitted). Therefore, even assuming that plaintiff has a protected property interest, this court finds as a matter of law that the state procedure for challenging the ZBA's denial of a variance satisfies the requirements of procedural due process. Accordingly, defendants' motion for summary judgment on plaintiff's § 1983 claim of a procedural due process violation is granted.
b. SUBSTANTIVE DUE PROCESS
The test to determine whether a law comports with substantive due process is whether the law is rationally related to a legitimate state interest. Rogin v. Bensalem Township, 616 F.2d 680, 689 (3d Cir. 1980), cert. denied sub nom. Mark-Garner Assocs., Inc. v. Bensalem Township, 450 U.S. 1029 (1981); Midnight Sessions, Ltd., 945 F.2d at 682. Whether a legislative scheme is rationally related to a legitimate government interest is a question of law for the court to determine. Id. at 682. However, "in disputed factual situations, determinations of the existence of bias, bad faith, improper motive, racial animus, or the existence of partisan political or personal reasons are properly made by the finder of fact." Id. at 683.
In the instant case, plaintiff's complaint alleges that defendants' denial of plaintiff's application for a use variance with respect to the property and defendants' determination that the property was in violation of a municipal zoning ordinance was based upon unlawful criteria. See Pl.'s Am. Compl. at P 44(b). However, discovery is now closed and plaintiff has failed to offer any evidence to support such allegation.
The only possible "illegal conduct" which plaintiff might be referring to appears in Holmes's affidavit and recites that Hoff participated in the hearings in light of the five-minute conversation which took place between the two individuals. See Holmes Aff. This evidence is not sufficient to enable a jury to establish bias, bad faith, improper motive, racial animus, or the existence of partisan political or personal reasons and, therefore, to return a verdict in plaintiff's favor.
Furthermore, as stated above, Hoff also provided the court with an affidavit that stated, "at no time during the hearings on either of the two applications filed by the plaintiff or Interstate Battery before the ZBA, did I ever feel that I could not be fair and impartial in my consideration of the issues presented to the ZBA." See Hoff Aff. at P 36. Accordingly, defendants' motion for summary judgment on plaintiff's § 1983 claim of a substantive due process violation is granted.
c. TAKING WITHOUT JUST COMPENSATION
Even assuming that plaintiff's taking claim is ripe, plaintiff has failed to establish that defendants' denial of plaintiff's application for a use variance with respect to the property and defendants' determination that the property was in violation of a municipal zoning ordinance constitutes a taking. This Circuit has consistently taken a narrow view of what constitutes a taking of property by regulation. Midnight Sessions, Ltd., 945 F.2d at 677; Rogin, 616 F.2d at 692.
In Rogin, the court stated that the Supreme Court would uphold the application of the law, unless such application destroys or severely diminishes the value of the property, even if the legislation prohibits a beneficial use to which individual parcels had previously been devoted, and thus causes substantial individualized harm. Id. at 690 (quotations omitted) (citations omitted).
In the instant case, the zoning ordinance which plaintiff alleges constitutes a taking was enacted in the 1960's, before plaintiff purchased the property. In 1979, when plaintiff rented the property to Holmes, plaintiff did not consult with the Township as to whether Interstate Battery's use of the property as a distributor of pre-manufactured lead acid batteries was permissible. Therefore, the legislature did not "take" property with a beneficial use which the property previously enjoyed.
In Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667 (3d Cir. 1991), the court stated that "a taking requiring compensation occurs only when a regulation that 'destroyed or adversely affected recognized real property interests' reaches a certain magnitude." Id. at 676 (citing Keystone Bituminous Coal Ass'n v. Duncan, 771 F.2d 707, 715 (3d Cir. 1985), aff'd, 480 U.S. 470 (1987)). In that case, the district court denied defendant's motion for summary judgment on the issue of a taking of property without just compensation, and the Third Circuit reversed this ruling. The Third Circuit stated that the denial of dance hall licenses did not destroy the value of the properties and, therefore, that appellants were not denied all economically feasible uses of the properties. Midnight Sessions, Ltd., 945 F.2d at 678.
Likewise, in the instant case, the denial of plaintiff's application for a use variance to enable Interstate Battery to remain on the property does not destroy the value of the property. Plaintiff states in his complaint that "the value of the property in its present use was $ 72,000.00 and that the value of the building lot after the removal of the building was $ 32,250.00." See Pl.'s Am. Compl. at P 38(c).
In Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023, 1031 (3d Cir. 1987), cert. denied, 482 U.S. 906 (1987), the court affirmed defendants' motion to dismiss plaintiff's allegation of a taking where the property had a value of $ 495,600.00 before the zoning change and a value of $ 52,000.00 after the zoning change. Id. at 1031. It stated that, "although there has been a substantial diminution in value, this property retains a substantial value that establishes the existence of residual economically feasible uses." Id.
In the instant case, not only was the zoning ordinance in effect before plaintiff purchased the property, thus putting plaintiff on notice, but plaintiff states in his complaint that the property would retain half of its value without Interstate Battery on the property. Accordingly, the court does not find that there has been a taking without just compensation and, therefore, defendants' motion for summary judgment on plaintiff's § 1983 claim of a taking without just compensation is granted.
2. PLAINTIFF'S § 1985 CLAIM
For plaintiff to establish a § 1985(3) violation, he "'must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.'" Wagner v. Township of Harmar, 651 F. Supp. 1286 (W.D. Pa. 1987), aff'd, 826 F.2d 1058 (3d Cir. 1987) (citing United Bhd. of Carpenters & Joiners of America, Local 610, AFL-CIO, et al. v. Scott et al., 463 U.S. 825, 828-29 (1983)).
Courts have construed the second element to require "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Wagner v. Township of Harmar, 651 F. Supp at 1288. In Rodriguez v. Nazario, 719 F. Supp. 52 (D.P.R. 1989), the court granted defendant's motion to dismiss plaintiff's § 1985(3) claim on the ground that being a member of a political party did not constitute a protected class under this statute. Id. at 56-57.
Plaintiff's allegation that he was discriminated against because he was not a political insider similarly fails to allege that he is part of any protected class which would bring him under the protection of § 1985. Accordingly, defendants' motion for summary judgment on plaintiff's § 1985 claim is granted. An order accompanies this opinion. No costs.
ORDER - May 6, 1993, Filed, Entered
THIS MATTER having come before the court on motion by plaintiff, Alfred Deblasio, for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and on motion by defendants the Zoning Board of Adjustment for West Amwell Township and its members, Harry K. Rush, Raymond G. Lindblad, Charles A. Britton, Gary W. Bleacher, David L. Dondero, Stewart Palilonis, Robert Fulper, Jr., Werner J. Hoff, Eugene J. Venettone, Barbara Gill and Joseph Helewa, joined by defendants James Lavan and Mrs. James Lavan, for summary judgment or, in the alternative, to dismiss the complaint; and the court having considered the written submissions and oral argument of counsel; and for good cause shown,
IT IS on this 6th day of May, 1993,
ORDERED that plaintiff's motion for partial summary judgment be and hereby is denied; and it is further
ORDERED that defendants' motion for summary judgment be and hereby is granted and the matter is dismissed with prejudice.
CLARKSON S. FISHER, United States District Judge
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