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Catalano v. Township of Upper Freehold

United States District Court, Third Circuit

October 30, 2013

Steven D. Catalano, et al.,
Township of Upper Freehold, et al.


MICHAEL A. SHIPP, District Judge.

Dear Counsel:

This matter comes before the Court upon Defendants' Motions to Dismiss and/or for Summary Judgment.[1] (ECF Nos. 28-29.) Plaintiff Steven D. Catalano filed Opposition.[2] (ECF No. 31.) Defendants replied. (ECF Nos. 32-33.) The Court has carefully considered the submissions and has decided the motion without oral argument pursuant to Local Civil Rule 78.1. For the reasons set forth below, and other good cause shown, Defendants' motions are granted.

I. Background

A. Factual History

The epicenter of this action is a 79-acre parcel of converted farmland (the "Property") at 720 Monmouth Road in New Jersey's Upper Freehold Township (the "Township"). The Property belongs to two corporations of which Plaintiff Steven D. Catalano ("Plaintiff' or "Catalano") is the sole shareholder.

Catalano, not an attorney, appears to have authored the Complaint. (ECF No. 1.) In it, Catalano accuses the Township of undertaking a campaign of harassment aimed at acquiring the Property. According to Catalano, the Township and several of its employees used local building codes as a pretext to upset his plan to construct a campground on the property. Catalano nevertheless succeeded in building the campground, but he claims the Township is now frustrating his efforts to operate it. The Complaint's factual pleadings are not a model of clarity.[3]Read liberally, however, it sets forth a rough narrative, which the Court summarizes here.

In 1996, Plaintiff persuaded the Township to pass a zoning ordinance that would allow him to develop a campground on the Property. In May 2002, Plaintiff obtained Township approval on his "Final Amended Site Plan, " which called for the construction of a 222-site campground on the Property. (Compl. ¶ 11.)

In June 2002, Defendant Ronald Gafgen, a Township Code Official, issued a "Stop Construction Order" and "Notice of Violation [with] fines." (Compl. ¶ 12.) Catalano claims the violation related to an "exempt construction trailer" and "for sale sign" on the Property. (Id.) Despite the fact that construction of the campground had not yet commenced, Gafgen insisted Catalano post a $5, 000 "engineering inspection fee" bond in escrow to "resolve" the violations. (Id.) The violations were ultimately "revoked" pursuant to a settlement agreement whereby Catalano agreed to post the $5, 000 bond.[4] (Compl. ¶ 13.)

Catalano alleges that the Township's Chief Financial Officer subsequently transferred $4, 175.50 of the bond to a lawyer who worked for the Township's Planning Board. Catalano insists this transaction was unlawful because he had no "application" before the Planning Board at the time. (Compl. ¶ 14.) Catalano also claims that when he appeared at the Township's office to protest the transfer, a secretary "admit[ted] that it was a misappropriation of funds.'" (Id.)

According to Catalano, the Township responded to his protests with a series of retaliatory acts relating to the Property. These started in November 2006, when Gafgen began a "pattern" of "unannounced" inspections of the construction that was then underway on the Property. (Compl. ¶ 17.) As a result of the inspections, which ceased only when construction finished in November 2007, Gafgen issued various notices and violations to Plaintiff, including citations for "illegally subdividing land, " refusing to permit "surprise" inspections, and violations of the "Unifonn Construction Code Certificate of Occupancy" requirements. (Compl. ¶¶ 16-19.) Gafgen also wrote letters in which he "misstate[d] many facts in order to falsely accuse Plaintiff of non-compliance" with building codes. (Compl. ¶ 18.)

The Township allegedly stepped-up its harassment once construction of the campground finished. Catalano claims the Township's Tax Assessor now joined the fray, "over assess[ing]" Catalano's taxes and the taxes of individuals who had purchased campsites from Plaintiff. (Compl. ¶¶ 20, 22.)

Gafgen, meanwhile, continued to plague Catalano with citations for code violations. Plaintiff claims that Gafgen stalled on November 2007 applications for Certificates of Occupancy ("CO") until February 2008, when Gafgen performed "surprise" inspections, found violations, and ordered Plaintiff to do more work. (Compl. ¶ 21.) After Plaintiff complained to the New Jersey Department of Community Affairs in April 2008, Gafgen "wrongly" cited Plaintiff for 18 additional violations. (Compl. ¶ 30.)

Gafgen supposedly changed his methods in 2010: instead of issuing building-related citations, which came under the jurisdiction of the "County Construction Code Board of Appeals, " Gafgen began writing tickets "that [went] straight to Municipal Court." (Compl. ¶ 35.) Gafgen wrote Catalano two such tickets in 2010, both for alleged violations of a Township ordinance prohibiting campers from occupying the Property for more than 70 days per year. (Compl. ¶ 36.) The Municipal Court sustained the violations because, Catalano insists, the Township prosecutor persuaded the presiding judge to misapply evidentiary rules. (Id.) Catalano notes that the ...

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