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LLC v. Township of Gloucester Zoning Board of Adjustment

United States District Court, D. New Jersey

August 4, 2017

1840 P. CHEESEMAN ROAD, LLC, and 1840 P. CHEESEMAN ROAD OPCO, LLC, Plaintiffs,
v.
TOWNSHIP OF GLOUCESTER ZONING BOARD OF ADJUSTMENT and TOWNSHIP OF GLOUCESTER, Defendants.

          STEVEN M. COREN, EVAN B. COREN, DAVID MICHAEL DEVITO, KAUFMAN, COREN & RESS, P.C., JACK PLACKTER FOX ROTHSCHILD LLP, KEVIN HARRY MARINO, JOHN A. BOYLE, MARINO TORTORELLA & BOYLE PC On behalf of Plaintiffs

          RICHARD L. GOLDSTEIN, WALTER KAWALEC III MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA On behalf of Defendant Township of Gloucester Zoning Board of Adjustment

          VINCENT P. SARUBBI DOUGLAS DIAZ ARCHER & GREINER On behalf of Defendant Township of Gloucester

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Presently before the Court is the motion of the Defendants, Township of Gloucester Board of Adjustment and Township of Gloucester, for reconsideration of the Court's Opinion granting in part and denying part their motion to dismiss the complaint of Plaintiffs, 1840 P. Cheeseman Road, LLC and 1840 P. Cheeseman Road OPCO, LLC. Plaintiffs allege Defendants have unlawfully impeded their efforts to build and operate a substance abuse treatment facility.[1]

         While Defendants' motion to dismiss was pending, Plaintiffs filed a motion for a preliminary injunction seeking to enjoin Defendants from persisting in their discriminatory conduct and directing them to issue the zoning approvals necessary to allow Plaintiffs to commence construction of Phase One of the proposed facility. Defendants' main objection to Plaintiffs' request for injunctive relief was that Plaintiffs failed to exhaust their administrative remedies by returning to the Planning Board for approval of what was described as Phase One of the project, separate and apart from Phase Two. Plaintiffs had presented a single use variance application containing both phases, and it was Defendants' concerns about Phase Two that was the primary roadblock to approval of the plan as a whole.

         The Court held a hearing on Plaintiffs' motion for preliminary injunction, and at the conclusion of the hearing, the Court denied without prejudice Plaintiffs' motion, but ordered that the Zoning Board must consider and rule on Plaintiffs' Phase One Application on the merits at the Zoning Board's December 14, 2016 meeting. (Docket No. 35.) At that meeting, the Township of Gloucester Zoning Board of Adjustment voted on (and unanimously approved) Plaintiffs' application for preliminary approval of Phase One of the project. (Docket No. 37.)

         Shortly thereafter, the Court considered Defendants' motion to dismiss. The Court granted Defendants' motion on Plaintiffs' claims for procedural due process violations and punitive damages, but denied the remaining arguments in Defendants' motion. Defendants seek reconsideration on several issues.[2]Each will be addressed in turn.

         Defendants' motion to dismiss argued that Plaintiffs' entire case should be dismissed for the same reason that it argued Plaintiffs' motion for preliminary injunction should be denied - Plaintiffs' failure to exhaust their administrative remedies. The Court found that argument to be moot because Plaintiffs submitted Phase One to the Zoning Board and the Board approved that application.

         Defendants ask the Court to reconsider this finding because they disagree that the issue was mooted by the Zoning Board's approval of Phase One of Plaintiffs' project. Defendants argue that the Zoning Board did not have jurisdiction to consider Phase One, as that proposed development did not require approval of a variance, and the Zoning Board has ancillary jurisdiction to consider a site plan only if it also contains a variance request.

         The Court is perplexed by the renewal of an argument that was squarely addressed at the preliminary injunction hearing and in the Opinion on the motion to dismiss. The argument does not meet the standard for a motion for reconsideration, and it also does not make sense now that the Zoning Board has approved of Phase One, despite the lack of variance with the site plan approval request. It seems that if the Township has an issue with the exercise of authority by its own Zoning Board it should take that up with them. The Court's decision on this issue stands.

         Defendants' motion to dismiss argued that Plaintiffs' claims against the Township must be dismissed because the Township and its Zoning Board are legally distinct entities under New Jersey law, and Plaintiffs fail to allege, beyond a single bare-bone allegation, how the Township is “responsible” for the purported wrongs by the Zoning Board. The Court found that Plaintiffs stated a claim against the Township separate from the Zoning Board because the complaint alleged numerous public statements by the Zoning Board's solicitor that showed discriminatory animus, and the Board solicitor was considered an employee of the Township.

         In their motion for reconsideration, Defendants argue that the Court erred in considering the Zoning Board solicitor, Anthony Costa, an employee of the Township. Defendants further argue that transcripts of the public meetings refute that Costa made several of the statements attributed to him in the complaint. Moreover, Defendants argue that Plaintiffs' characterization of Costa's statements are misleading and that his statements cannot be construed to have any discriminatory animus.

         The Court rejects both of Defendants' arguments. First, Defendants' disagreement with the Court's interpretation of Lehrhaupt v. Flynn, 356 A.2d 35, 45 ( N.J.Super. Ct. App. 1976), aff'd, 383 A.2d 428 (N.J. 1978), which served as the basis for the Court's finding that the Zoning Board attorney is an employee of the Township, is mere disagreement with the Court's interpretation of that case. In the context of deciding whether a zoning board attorney is subject to financial disclosure requirements, the New Jersey Appellate Division stated that “the position of the board of adjustment attorney has no sacrosanct characteristic which exempts him from the rigors of the legislation. His appointment by the members of the board makes him no less an officer or employee of the municipality which has created his position and compensates him for his services.” Lehrhaupt, 356 A.2d 35 at 45.[3] If Defendants have evidence to support that the Township did not create Costa's position or does not compensate him for his services, then Defendants may make the appropriate motion to bring ...


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