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Fowler v. Borough of Westville

May 16, 2000


The opinion of the court was delivered by: Irenas, District Judge



Presently before the Court is the summary judgment motion of defendants Borough of Westville and Westville Police Department. For the reasons set forth below, this motion is denied.


Plaintiffs, Jeffrey Fowler, Vincent Salceto, David Harris, and Sherman Tillman ("plaintiffs"), are recovering alcoholics or drug users and residents of one of two group homes located in Westville, New Jersey. *fn1 The group homes, located at 118 Broadway, Westville, New Jersey ("Broadway") and 14 Pine Street, Westville, New Jersey ("Pine Street"), are owned by Steven Savoca and John Raggio, respectively. In or around 1996, Savoca and Raggio, themselves recovering substance abusers, dedicated these properties for use as group homes for recovering alcoholics and drug addicts. The homes were run on the "Oxford House" model; the residents were self-sufficient, house conflicts were resolved democratically, and any resident who relapsed was ejected from the house by the other residents.

On June 22, 1999, plaintiffs filed the Complaint in this matter alleging that defendants sought to drive them out of Westville "by excessive police activity directed at the residents of the houses. . . and excessive regulatory actions by the Borough against the landlords of the properties." (Pls.' opp., 4). They assert claims under the Fair Housing Act, 42 U.S.C. § 3601, et seq. ("FHA"), the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1, et seq., and 42 U.S.C. §§ 1981 and 1982. *fn2 On April 14, 2000, defendants filed the instant motion for summary judgment pursuant to Fed. R. Civ. P. 56(c). Defendants move for summary judgment as to all claims and argue, inter alia, that plaintiffs are not "handicapped" as that term is defined under the FHA and the NJLAD, and that the police and regulatory activity directed at plaintiffs was lawful and justified.

In support of their Complaint and in opposition to defendants' motion, plaintiffs primarily rely on two affidavits, one from John Raggio and one from Steven Savoca. In his affidavit, Savoca alleges that the Borough Administrator for Westville, William Bittner, Jr., had several conversations with him regarding the residents of the Broadway and Pine Street properties and that Bittner "conveyed to [him] that he was against having people in recovery reside in the houses." (Aff. of S. Savoca, ¶ 10). Plaintiffs allege that Bittner either directed or prompted much of the regulatory and police activity aimed at forcing plaintiffs out of Westville.

On July 29, 1996, the Borough of Westville charged Savoca with a violation of Westville Ordinance § 89-3, alleging that he failed to obtain a Certificate of Occupancy ("C.O.") for the Broadway property. (Id. at ¶ 11). This matter was resolved on November 20, 1996, through a plea agreement. (Id. at ¶ 12). In the plea agreement, Savoca agreed to apply for a C.O. and to allow the Borough to conduct annual inspections of the Broadway property as if it were registered as a boarding house. (Pls.' Ex. B, attached to aff. of S. Savoca). In exchange, the Borough agreed that the property would be registered as a single family rental unit. (Id.) In addition, Savoca paid a fine and costs. (Aff. of S. Savoca, ¶ 13).

On November 21, 1996, in accordance with the plea agreement, Savoca applied for a C.O. (Id. at ¶ 14). Shortly thereafter, a building inspector employed by the Borough of Westville inspected the premises. (Id.) According to Savoca, the building inspector never issued him a notice of non-compliance. (Id.) However, on April 15, 1998, Savoca was again cited for not having a C.O. for the Broadway property. (Defs.' Ex. D).

In September of 1996, the New Jersey Department of Community of Affairs ("DCA") began investigating the Broadway property for purposes of determining whether it qualified as a boarding house under the Rooming and Boarding House Act of 1979, N.J.S.A. 55:13B-1, et seq. *fn3 According to plaintiffs, William Bittner took an active role in attempting to classify the Broadway property as a boarding house. (Pls.'s opp. 11-12, ¶ 35). On May 20, 1997, the DCA served an "Order to Pay Penalty, Notice of Violation and Order of the Commissioner" on Savoca. (Pls.' Ex. I). This Order stated that the Broadway property was in violation of the Rooming and Boarding House Act and ordered Savoca to pay a fine and to apply for a license to operate this property as a boarding house. (Id.)

On January 23, 1998, the Borough of Westville served Savoca with a Notice of Violation stating that a $500 a week fine was going to be assessed against Savoca until the property complied with fire safety requirements. (Defs.' Ex. D). The violation was based on a change in the property's status from "Use Group" R-3 to "Use Group" R-2. (Id.) According to plaintiffs, the Westville Building Inspector changed the property's classification in order to subject it to increased fire code compliance expenses. (Pls.' opp. 29). Pursuant to the 1990 BOCA code, category R-2 structures include:

[A]ll multiple-family dwellings having more than two dwelling units, except as provided for in Section 309.4 for multiple single-family dwelling units, and shall also include all boarding houses and similar buildings arranged for shelter and sleeping accommodations in which the occupants are primarily transient in nature.

In contrast, the code defines R-3 structures to include, "[A]ll buildings arranged for the use of one- or two-family dwelling units, including not more than five lodgers or boarders per family and multiple single-family dwellings where each unit has an independent means of egress and is separated by a 2-hour fire separation assembly. . . ." Plaintiffs contend that the Broadway property is an R-2 structure because it constitutes a single family dwelling unit. Plaintiffs point out that none of the individual rooms had locks on the doors and each of the tenants had an undivided right to occupy the entire unit. (Pls.' opp. 30).

The Pine Street property is a three unit building. According to John Raggio, the property passed inspection by the DCA and received a Certificate of Registration as a multiple dwelling. (Aff. of J. Raggio, ¶ 5). However, Raggio asserts that within ten days of the inspection an inspector from the DCA came to the property and sought to conduct a second inspection. (Id. at ¶ 6).

Aside from the above-mentioned regulatory activity, plaintiffs claim that the Westville Police Department engaged in a pattern of conduct intended to harass the residents of the Broadway and Pine Street properties. In his affidavit, Steven Savoca states that several of the residents of the properties complained to him of police harassment. (Aff. of S. Savoca, ¶ 17). Savoca alleges that he called the Westville Police Department in response to these complaints and was told that "William Bittner had been directing them." (Id.) Savoca claims that he relayed this allegation to Bittner and Bittner responded, "If you think we are going to let those people stay in this town, you have got another thing coming." (Id.)


"[S]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).


Before reaching the merits of defendants' motion and plaintiffs' opposition thereto, the Court must consider several procedural issues raised by the parties. Plaintiffs ask the Court to dismiss defendants' motion because defendants have failed to comply with the requirements of Local Rule 56.1. Rule 56.1 provides that "[o]n a motion for summary judgment, each side shall furnish a statement which sets forth material facts as to which there exists or does not exist a genuine issue." Defendants have not complied with this Rule. Although their initial brief does contain a statement of facts, defendants have not submitted a separate statement specifically identifying the disputed and the undisputed material facts. While defendants failure to comply with the Rule is itself sufficient to deny their motion, the Court declines to do so in this case. See Bowers v. NCAA, 9 F. Supp.2d 460, 476 (D.N.J. 1998)("This failure to comply with the Local Civil Rule would by itself suffice to deny [defendant's] motion for summary judgment."). Because there is no evidence of bad faith on the part of the defendants, the Court will deny defendants' motion on the merits, rather than on this procedural ground.

In their reply brief, defendants ask this Court to strike the affidavits of Steven Savoca and John Raggio. *fn4 Defendants claim that these affidavits should be stricken because "both contain either information not relevant to the case before this Court or not within the personal knowledge of the affiants." (Defs.' reply, 4). Fed. R. Civ. P. 56(e) provides that affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify as to the matters stated therein." Similarly, Local Rule 7.2 states that "[a]ffidavits shall be restricted to statements of fact within the personal knowledge of the affiant. Argument of the facts and the law shall not be contained in affidavits."

The actions of defendants testified to by Savoca and Raggio in these affidavits are clearly relevant to plaintiffs' allegations. However, several statements contained within these affidavits run afoul of Rule 56(e)'s proscriptions. First, both Savoca and Raggio make statements which are based on mere belief, rather than personal knowledge. "Affidavits speculating as to motivations but containing no factual support do not conform to the rule and statements prefaced by the phrases, `I believe' or `upon information and belief'. . . are properly subject to a motion to strike." Carey v. Beans, 500 F. Supp. 580, 583 (E.D.Pa. 1980)(internal citations omitted). In paragraph 16 of his affidavit, Savoca states "I believe that Westville did not want to give me a C.O. because they wanted to run my tenants out of town." In paragraph 18, he states, "Westville believed that it did not have to follow its own ordinances." Similarly, in paragraph 22 Savoca states "I felt this alleged violation was just another attempt to drive the tenants out of town."

The affidavit of John Raggio also violates Rule 56(e). In paragraph 9(b), Raggio states, "I believe the DCA did this at the behest of Westville but this is based only on the circumstances that I believe this." Also, in paragraph 9(d), he states, "I believe that the reason proceedings were brought against us was because our tenants were in recovery." Because these statements and the above-mentioned statements by Savoca are not founded upon personal knowledge, the Court will not consider these statements in deciding the present motion for summary judgment. See Bowdoin v. Oriel, No. Civ.A 98-5539, 2000 WL 295106, at *3 (E.D.Pa. Jan. 28, 2000)(holding that courts should disregard statements in affidavits which are not based on personal knowledge or those portions that contain inadmissible hearsay); see also Christiana Marine Service Corp. v. Seaboard Shipping Corp., No. Civ.A. 96-8705, 1997 WL 587292, at *3 n.2 (E.D.Pa. Sept. 10, 1997) (denying motion to strike affidavit in its entirety, instead disregarding those statements not based on affiant's personal knowledge).

Second, in paragraph 6 of Raggio's affidavit, Raggio states that an inspector from the Department of Community Affairs "told one of the residents that the Department of Community Affairs was going to `shut this place down.'" This statement is hearsay and would be inadmissible at trial. Therefore, this paragraph will be disregarded by the Court. See Philbin v. Trans Union Corp., 101 F.3d 957, 961 n.1 (3d Cir. 1996)(holding that hearsay ...

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