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Rivkin v. Dover Tp. Rent Leveling Bd.

Decided: December 8, 1994.

DAVID RIVKIN, EDWARD RIVKIN, JUDITH RIVKIN, T/A GALAXY MANOR, A NEW JERSEY PARTNERSHIP, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS,
v.
DOVER TOWNSHIP RENT LEVELING BOARD, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County.

Before Judges King, D'Annunzio and Eichen

D'annunzio

[277 NJSuper Page 560] The opinion of the court was delivered by

D'ANNUNZIO, J.A.D.

The issue is whether defendant deprived plaintiffs of procedural due process, thereby subjecting defendant to liability for compensatory damages and counsel fees.

Galaxy Manor, a partnership, operates a mobile home park in Dover Township. In May 1990, it filed an application for a rent increase with defendant Dover Township Rent Leveling Board (Board or defendant). The application was based on major capital improvements to the park, allegedly in the amount of $59,624.96. The Board conducted hearings and rendered its decision in October 1990, permitting rent increases based on capital improvements in the amount of $20,641.42.

Plaintiffs, the partners in Galaxy, filed this action in lieu of prerogative writs, contending that the defendant's determination was arbitrary and capricious and alleging a violation of their civil rights contrary to 42 U.S.C.A. § 1983.*fn1 The core of plaintiffs' allegations focused on the behavior of Edward Baltarzuk, a member of the Board. Plaintiffs contended that Baltarzuk participated in the hearings with a preconceived bias against their application, behaved as an advocate for the tenants during the hearing, relied on evidence outside the record and poisoned the deliberations of the Board.

In the prerogative writ aspect of plaintiffs' case, the trial court ruled that Baltarzuk had prejudiced plaintiffs. The court set aside the Board's determination, remanded for a new hearing and

barred Baltarzuk from participating as a Board member at the new hearing. On remand, the Board allowed an additional $25,089.67 in qualifying capital improvements.

Based on a finding that Baltarzuk's behavior had violated plaintiffs' civil rights contrary to § 1983, the court awarded counsel fees to plaintiffs pursuant to 42 U.S.C.A. § 1988 in the amount of $39,679.55. The court also awarded plaintiffs compensatory damages in the amount of $6,303.34, representing interest on the difference between the initial rent increase and the larger rent increase awarded as a result of the hearing on remand. Defendant appealed, and plaintiffs cross-appealed.

Plaintiffs contended, and the trial court agreed, that Baltarzuk's performance as a Board member deprived them of procedural due process. See Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct. 1610, 1613, 64 L. Ed. 2d 182, 188 (1980) (entitlement to an impartial tribunal is a procedural due process right). We conclude that even if Baltarzuk's behavior deprived plaintiffs of due process, plaintiffs had an adequate postdeprivation remedy under State law and, therefore, § 1983 was not violated.

Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981)*fn2 involved a claim by a Nebraska inmate that prison officials negligently lost a hobby kit he had ordered by mail. Plaintiff contended that he had been deprived of his property without due process of law in violation of § 1983. The district court's judgment in plaintiff's favor was affirmed by the United States Court of Appeals.

The Supreme Court rejected Nebraska's contention that only an intentional deprivation of property would support a § 1983 claim.

The Court focused on whether plaintiff had "suffered a deprivation of property without due process of law. In particular, we must decide whether the tort remedies which the State of Nebraska provides as a means of redress for property deprivations satisfy the requirements of procedural due process." Id. at 537, 101 S. Ct. at 1914, 68 L. Ed. 2d at 430.

In resolving this issue, the Court noted that deprivation of a property or liberty interest pursuant to an established state procedure usually has required a predeprivation hearing. See Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950). The Court, however, also observed that in some circumstances the availability of a postdeprivation remedy can satisfy the Due Process Clause. Parratt, supra, 451 U.S. at 538, 101 S. Ct. at 1914, 68 L. Ed. 2d at 430-31. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S. Ct. 870, 94 L. Ed. 1088 (1950)(summary seizure and destruction of drugs); Fahey v. Mallonee, 332 U.S. 245, 67 S. Ct. 1552, 91 L. Ed. 2030 (1947)(immediate seizure of property in light of substantial question regarding the competence of a bank's officers); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S. Ct. 101, 53 L. Ed. 195 (1908)(seizure and destruction of unwholesome food without a prior hearing). The Court noted that, in these cases, exigency or "the impracticality of providing any meaningful predeprivation process can, when coupled with the availability of some meaningful" postdeprivation review satisfy the requirement of procedural due process. Parratt, supra, 451 U.S. at 539, 101 S. Ct. at 1915, 68 L. Ed. 2d at 431.

Presaging its ruling on plaintiff-inmate's claim, and in terms peculiarly applicable to the ...


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