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Reed v. Scheffler

United States District Court, D. New Jersey

April 27, 2018

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.

          PETER M. KOBER, On behalf of Plaintiff,



          NOEL L. HILLMAN, U.S.D.J.

         This 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 denied.


         Plaintiff, 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.

         In 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.

         On 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.

         Plaintiff 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.

         Although 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 webpage.[1]

         Defendants 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 Plaintiff.[2]

         In 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;[3] (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;[4] 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.

         In 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.[5] 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).

         Defendants 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.


         A. Subject matter jurisdiction

Plaintiff has brought his claims pursuant to 42 U.S.C. § 1983, [6] 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.

         B. Standard for Motion for Summary Judgment

         Summary 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).

         An 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).

         Initially, 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. 2001).

         C. Analysis

         1. Defendants' motion for summary judgment

         Plaintiff 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.

         Plaintiff, 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.

         Defendants 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.

         Before turning to the merits, the Court must first address Defendants' argument that Plaintiff lacks standing.

         a. Whether ...

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