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DEBLASIO v. ZONING BD. OF ADJUSTMENT FOR WEST AMWE

May 6, 1993

ALFRED DEBLASIO, Plaintiff,
v.
ZONING BOARD OF ADJUSTMENT FOR THE TOWNSHIP OF WEST AMWELL, et al., Defendant.



The opinion of the court was delivered by: CLARKSON S. FISHER

 FISHER, District Judge

 Before the court are two motions for summary judgment. First is a motion brought by plaintiff, Alfred Deblasio, for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Also before the court is a motion brought by defendants the Zoning Board of Adjustment for West Amwell Township (ZBA) and its members (ZBA defendants) for summary judgment or, in the alternative, to dismiss the complaint. Defendants Mr. and Mrs. James Lavan, plaintiff's next-door neighbors, have requested that they be joined in the motion brought by the ZBA and the ZBA defendants. The court has granted their request. For the reasons set forth below, plaintiff's motion is denied and defendants' motion is granted.

 A. FACTS

 Plaintiff is the present owner of a parcel of land (the property) located in West Amwell Township, New Jersey. Although the property is now in an R-3 (three-acre minimum residential) zone, it is undisputed that the property contains an exemption from the zoning restrictions because of a nonconforming use by its prior owners, specifically an auto body repair shop, which predated the adoption of the West Amwell Zoning ordinance (ordinance).

 In the mid-1960s, George Guidotti purchased the property from Earl Brown, who had operated a general auto and auto body repair shop at the site. Brown's use was nonconforming. Following Guidotti's purchase of the property from Brown, the former also operated an automobile repair shop.

 In 1967, after the ordinance was enacted, Gisella Niemier, a neighbor to the property, challenged the existence of the automobile repair shop on the property, alleging it was inconsistent with the R-3 Zoning ordinance. Although Niemier was aware that the property, when previously owned by Brown, had been used as an automobile repair shop, she claimed that the use had been abandoned by Brown prior to the sale of the property to Guidotti. In the alternative, Niemier claimed that even if the use had not been abandoned, Guidotti's use was an expansion of the pre-existing use.

 After conducting a hearing, the ZBA determined that the use had not been abandoned and that Guidotti's use of the property as an automobile repair shop did not constitute an impermissible expansion of Brown's pre-existing nonconforming use and was within the limits of the use of the property when owned by Brown.

 Plaintiff purchased the property from Guidotti in or about 1974. Thereafter, he filed an application with the ZBA for a variance to use the property for the storage of drywall construction materials and as the principal place for a drywall business. On December 23, 1974, following a hearing, the ZBA denied the application for the variance, concluding that such a business would be detrimental to the welfare of the Township. The plaintiff did not appeal this decision.

 In 1979, plaintiff leased the property to Peter Holmes, the owner of Interstate Battery Company, a wholesaler of vehicle batteries. Interstate Battery began as a one-man, one-truck operation distributing approximately 2,000 batteries per year and expanded over a ten-year period to an operation with seven full-time employees, two part-time employees and five tractor-trailer trucks distributing upwards of 30,000 batteries per year.

 On March 28, 1990, following Venettone's inspection, the plaintiff and Interstate Battery applied to the ZBA for an interpretation of the status of the property or, in the alternative, for a use variance to continue the present use, allowing Interstate Battery to continue its operation. The ZBA upheld Venettone's decision that the current use of the property was in violation of the local zoning ordinances.

 After several hearings regarding plaintiff's request for the use variance, the ZBA concluded that the proposed use substantially impaired the intent of the zoning plan and that plaintiff had failed to establish that the variance could be granted without substantial detriment to the public good. On June 25, 1991, the ZBA adopted a resolution of memorialization denying plaintiff's and Interstate Battery's application for a use variance permit for the property.

 B. PROCEDURAL HISTORY

 On February 28, 1992, plaintiff filed a four-count complaint against the ZBA, the ZBA defendants, and the Lavans, alleging violations under 42 U.S.C. §§ 1983 and 1985 of his due process rights pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, common-law claims for interference with contractual relations and interference with prospective economic advantage, and a violation of the Commerce Clause of the United States Constitution.

 Plaintiff later appealed an order filed by United States Magistrate Judge John J. Hughes on November 16, 1992 that granted defendants' request pursuant to Federal Rule of Civil Procedure 26(b) to limit the scope of discovery so as to prohibit plaintiff from questioning the ZBA defendants about the mental process used by each to consider plaintiff's variance application. Defendants also brought a motion for summary judgment to dismiss all counts of plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56(b) and (c). The court considered matters outside the pleadings and, therefore, treated defendants' motion as one for summary judgment, and not as a motion to dismiss.

 On January 5, 1993, this court denied plaintiff's appeal and granted defendants' motion for summary judgment as to count three, which alleged common-law tortious interference with contractual relations and prospective economic advantage, and count four, which alleged a violation of the Commerce Clause.

 Furthermore, the court denied defendants' motion for summary judgment for absolute immunity regarding counts one and two, which alleged violations of 42 U.S.C. §§ 1983 and 1985, respectively, and also denied defendants' motion for summary judgment to dismiss defendants Palilonis, the attorney for ZBA, and Venettone.

 Additionally, this court stayed consideration of defendants' summary judgment motion regarding counts one and two pending the outcome of this court's order that plaintiff amend these counts of his complaint within 20 days of the entry of its order so as to assert a cause of action with specificity or suffer dismissal of these claims. Plaintiff filed his amended complaint, as was required to withstand a motion to dismiss, on January 25, 1993. He also filed a motion to amend his complaint a second time, which this court denied on April 5, 1993.

 Motions for reargument of this court's January 5, 1993, order were made by both parties. On February 17, 1993, both motions were denied. Pursuant to the Scheduling Order executed by Magistrate Judge John J. Hughes, fact discovery closed in this case on March 26, 1993.

 C. PLAINTIFF'S SUMMARY JUDGMENT MOTION

 Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Brown v. Hilton, 492 F. Supp. 771, 774 (D.N.J. 1980). The burden of showing that no genuine issue of material fact exists rests initially on the moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977). This "burden . . . may be discharged by 'showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once a properly supported motion for summary judgment is made, the burden shifts to the ...


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