United States District Court, D. New Jersey
WILLIAM A. REED, JR. as personal representative for ELSIE M. REED, an incompetent individual, and WILLIAM A. REED, JR., individually, Plaintiff,
KAREN SCHEFFLER, Mayor of the Borough of Palmyra, TRACY KILMER Housing Official, Borough of Palmyra, BOROUGH OF PALMYRA, Defendants.
M. KOBER, On behalf of Plaintiff,
RICHARD L. GOLDSTEIN ASHLEY L. TOTH MARSHALL, DENNEHEY,
WARNER, COLEMAN & GOGGIN, PA WOODLAND FALLS CORPORATE
PARK, BETSY G. RAMOS VORIS M. TEJADA, JR. CAPEHART &
SCATCHARD LAUREL CORPORATE CENTER, On behalf of Defendants
L. HILLMAN, U.S.D.J.
matter concerns constitutional claims arising out of the
enforcement of a municipal ordinance governing the inspection
of, and issuance of certificates of occupancy
(“CO”) for, residential properties. Pending
before the Court is the motion of Defendants for summary
judgment on all of Plaintiff's claims, as well as
Plaintiff's motion for leave to file an amended
complaint. For the reasons expressed below, Defendants'
motion will be granted, and Plaintiff's motion will be
William A. Reed, Jr., held powers of attorney over the
affairs of his mother, Elsie M. Reed, who owned a home at 28
Pear Street in Palmyra, New Jersey. Ms. Reed lived in the
home until July 2012. In early 2013, Plaintiff wished to sell
the house in “as is” condition. The tax assessed
value of the property as of January 7, 2013 was $134, 900.
February 2014, Plaintiff found a buyer who was in the home
remodeling business, and after several inspections of the
property, offered plaintiff $95, 000. By the end of February
2014, the buyer had secured a mortgage and the parties were
ready to close on the property no later than April 1, 2014
because time was of the essence for the buyer.
February 27, 2014, Plaintiff sent an email to defendant Tracy
Kilmer, who is the Borough's housing official, to inquire
about the Borough's ordinance requiring a home owner to
obtain a CO from the Borough prior to the sale of a home.
Kilmer replied to Plaintiff's email and informed him that
such an ordinance was in effect and Plaintiff was required to
obtain a CO. Kilmer performed an inspection of the property
on March 10, 2014 and found 33 code violations. Plaintiff was
initially afforded until April 30, 2014 to correct the code
violations, but at Plaintiff's request for an extension
Kilmer provided Plaintiff with as much time as he needed to
make the repairs.
claims that even though the buyer still wished to purchase
the property after the March 10, 2014 inspection report, the
parties could not go through with the sale by the April 1,
2014 closing date without a CO. Ultimately, the sale fell
through. By September 2014, Plaintiff, after “great
hardship and expense, ” fixed the code violations. On
September 16, 2014, Kilmer re-inspected the property and
issued a CO to Plaintiff. On December 15, 2014, the property
sold to a different buyer for $115, 000.
as discussed below he makes other arguments, Plaintiff's
primary assertion is that Kilmer and the Borough violated his
substantive due process rights when they required him to
comply with the CO Ordinance in February 2014, even though he
claims that the effective date of that Ordinance was on hold
until April 1, 2014, as set forth on the Borough's
have moved for summary judgment in their favor. They argue
that: (1) Plaintiff lacks standing to assert his substantive
due process claim because he was not the owner of the
property when the alleged unconstitutional conduct occurred;
(2) the Ordinance requiring a CO prior to sale was in effect
as of February 1, 2014 and therefore in effect at the time
Plaintiff contacted Kilmer and she performed the inspection;
(3) because the Ordinance was in effect and is otherwise
lawful, their conduct cannot be held to “shock the
conscience”; and (4) Plaintiff ultimately sold the
house for $20, 000 more than the original buyer had offered
response, Plaintiff argues that: (1) he has standing to
assert his due process claims as he held a power of attorney
from his incapacitated mother; (2) the Ordinance was not in
effect as shown by the Borough's website, which provides
that after the request of the mayor to hold off on its
implementation, the Ordinance became effective as of April 1,
2014; (3) if the Ordinance was in effect on the date of the
proposed sale, Kilmer never informed him that he could have
obtained a temporary certificate of occupancy, which would
have saved the sale with the original buyer; and (4) if the
Ordinance was in effect on the date of the proposed sale,
Kilmer failed to accurately describe the Ordinance which as
of at least October 1, 2013 merely required a CO before
re-occupancy not as a pre-condition to a sale.
conjunction with his opposition to Defendants' motion,
Plaintiff has filed a motion to file an amended complaint.
Plaintiff seeks to add as a new defendant the Borough's
administrator, John Gural, who was the author of the
Borough's website. Plaintiff also seeks to add the mayor
back into the case. Plaintiff further seeks to assert claims
against the Borough under Monell v. Dept. of Social
Services of City of New York, 436 U.S. 658, 694 (1978).
have opposed Plaintiff's motion, arguing that not only
are Plaintiff's proposed amendments futile, they are
inequitable because Plaintiff has been aware of Gural since
the inception of the case, or at least by the end of
discovery, which concluded on June 30, 2016, and
Plaintiff's third attempt to assert claims against
Scheffler are as unavailing as the first two.
Subject matter jurisdiction
Plaintiff has brought his claims pursuant to 42 U.S.C. §
1983,  as well as the New Jersey constitution and
New Jersey state law. This Court has jurisdiction over
Plaintiff's federal claims under 28 U.S.C. § 1331,
and supplemental jurisdiction over Plaintiff's state law
claims under 28 U.S.C. § 1367.
Standard for Motion for Summary Judgment
judgment is appropriate where the Court is satisfied that the
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations, admissions, or interrogatory
answers, demonstrate 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, 330 (1986); Fed.R.Civ.P. 56(a).
issue is “genuine” if it is supported by evidence
such that a reasonable jury could return a verdict in the
nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id. In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be
believed and all justifiable inferences are to be drawn in
his favor.” Marino v. Industrial Crating Co.,
358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson,
477 U.S. at 255).
the moving party has the burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party
has met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is
a genuine issue for trial. Id. Thus, to withstand a
properly supported motion for summary judgment, the nonmoving
party must identify specific facts and affirmative evidence
that contradict those offered by the moving party.
Anderson, 477 U.S. at 256-57. A party opposing
summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements.
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
Defendants' motion for summary judgment
claims that Defendants' enforcement of the CO Ordinance
deprived him of a property interest when he lost the original
buyer of his mother's house and was forced to foot the
cost of repairs, upkeep, and property taxes until he found a
new buyer. Plaintiff argues he would not have been deprived
of that property interest if Defendants had not improperly
enforced the Ordinance, which was not in effect at the time,
as reflected by the Borough's webpage.
by way of his proposed amended complaint, also argues as an
apparent alternative theory of liability, that Kilmer's
failure to apprise him of the option of a temporary CO,
expressly permitted in the challenged ordinance, deprived him
of a property interest. Lastly, Plaintiff argues that Kilmer
informed him that a CO was required prior to the sale of his
home even though the version of the Ordinance the Borough
asserts was in effect at the time he contacted her permitted
the sale of a home without a CO so long as the new buyer did
not occupy the structure before a CO was obtained.
counter that the April 1, 2014 effective date on the website
was a typographical error. Defendants further argue that
regardless of what the webpage said, the actual effective
date of Ordinance 2013-28, which was an amendment to the
original Ordinance 2013-17, was February 1, 2014, and its
effective date had never been placed on hold, despite the
mayor's purported wish that it should be. Defendants also
point out that regardless of the effective date of Ordinance
2013-28, the requirement for a CO had been in existence since
the original Ordinance 2013-17, which became effective June
17, 2013. With regard to the temporary CO, to the extent that
such a claim is actually in the case, Defendants argue that
Plaintiff never inquired about a temporary CO, and Kilmer did
not have any obligation to inform him about a temporary CO.
Defendants also argue that Plaintiff has not provided any
proof that an issuance of a temporary CO would have saved the
sale to the original buyer.
turning to the merits, the Court must first address
Defendants' argument that Plaintiff lacks standing.