United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on a motion by Defendants to
dismiss Plaintiffs' Third Amended Complaint for failure
to state a claim upon which relief can be granted. The
nine-count complaint alleges: (1) due process violations
under the Fourteenth Amendment, pursuant to 42 U.S.C. §
1983; (2) violations of the equal protection clause of the
Fourteenth Amendment, pursuant to 42 U.S.C. § 1983; (3)
violations of the Racketeer Influenced Corrupt Organizations
Act (RICO), 18 U.S.C. § 1961 et seq.; (4)
violations of the New Jersey counterpart of RICO, N.J.S.A.
2C:41-1 to -6.2; (5) intentional interference with a
contractual relationship; (6) intentional interference with
prospective economic advantage; (7) intentional infliction of
emotional distress; (8) violation of the New Jersey Civil
Rights Act; and (9) retaliation for exercise of First
addition to damages, Plaintiffs seek injunctive relief,
directing the Borough to approve their transfer application
and to permit them to operate their leased restaurant
facility for a three-year period. Defendants seek dismissal
of Plaintiffs' Complaint in its entirety.
Timothy and Matthew Harmon (Harmon Plaintiffs) maintain
restaurants and bars in the Borough of Belmar, New Jersey,
including the Boathouse Bar and Grill (Boathouse). (Third
Amended Complaint (TAC), ¶ 2-3). Plaintiff 1309 Main
Street Associates (1309 Main) is an entity owned by the
Harmon Plaintiffs, which, in turn, owns the property on which
the Boathouse is located. (Id. at ¶ 3). In
January 2014, the Borough entered into a redevelopment
agreement with real estate developer, Loko, LLC.
(Id. at ¶ 8). The plan included the
construction and operation of an outdoor cafe and bar,
located at the northern boundary of the Borough by the Shark
River Inlet (Loko property). (Id. at ¶ 10, 13).
Thereafter, Plaintiffs entered into an agreement with Loko to
construct the outdoor cafe and bar, and to operate the
facility for a three-year period. (Id. at ¶
13). As part of the agreement, Plaintiffs were to transfer
the alcoholic beverage license from another restaurant that
they controlled, 507 Main, to the Loko property, which would
operate a facility to be known as Salt. (Id. at
ceased operation of 507 Main and, on April 24, 2015, applied
to the Borough for the transfer of the alcoholic beverage
license at 507 Main to the Loko property. (Id. at
¶ 16). To secure the transfer, Plaintiffs submitted a
"Retail Liquor License Application." (Id.
at ¶ 17; Declaration of April Claudio, ECF No. 56-2, Ex.
H, Liquor License Application). During this same period, Loko
demolished the existing structure on its property, in
preparation for the construction of the Salt facility and
other improvements. (TAC at ¶ 14). Thereafter,
Plaintiffs claim to have "engaged contractors, expended
substantial funds, obtained construction and other permits
from the Borough and began the process of constructing the
Salt facility." (Id.).
to Complaint, Plaintiffs expected their application would be
handled by the Belmar Police Department, which would have a
detective investigate the application and prepare a report
for the Mayor and Borough Council within sixty days.
(Id. at ¶ 19). Plaintiffs allege that the
Belmar Police Department handled similar liquor license
applications for other local restaurants, Chefs
International, Inc., and 1 Oth Avenue Burrito Company, which
were both outdoor bars and dining areas with live music, and
were near residential structures, including a senior
citizens' apartment building. (Id. at ¶
20-21). However, the Complaint alleges that, contrary to the
"policies and procedures" of the Belmar Police
Department, Palmisano, as former Chief of Police, assigned
Plaintiffs' application to Huisman, then a Captain of the
Police Department who did not ordinarily investigate
alcoholic beverage licenses. (Id. at ¶ 22).
April 2015 meeting, Mayor Doherty allegedly made the
following statements: (1) "The Borough will approve
D'Jais or Ollie Klein at that location, but not the Harmon
brothers"; (2) "The Harmons' application is
going to get lost at police headquarters and it's going
to take forever to come to the Council"; (3) "When
the Harmons' application comes before the Council, we
will deny the liquor license and force them to go to the
ABC"; and, (4) "We know people there (at the ABC)
and if by chance they approve the transfer, we will appeal.
They will never open." (Id. at ¶ 48).
Nevertheless, on June 8, 2016, over one year after Plaintiffs
filed their liquor license application, it was heard before
Councilmen Brennan and Magovern, and Councilwomen
Keown-Blackburn and Nicolay (hereinafter, "Council
Defendants"). (Id. ¶ 62, 65, 66, 6870,
72). Prior to the hearing, Mayor Doherty and Connolly
allegedly urged Belmar residents and business owners to
appear at the meeting and oppose Plaintiffs' license
transfer, (Id. at ¶ 63), and instructed
Nicolay, Keown-Blackburn, and Magovern to vote
"no," (Id. at ¶ 70). At the hearing,
Councilman Brennan recused himself from deliberations, due to
a potential conflict of interest, since his band plays at
many local establishments. (Id. at ¶ 67).
During the public deliberation, Councilwoman Keown-Blackburn
stated that she did not believe the license transfer was in
the best interests of the Borough and voted against it.
(Id. at ¶ 68; Claudio Decl., ECF No. 56-2, Ex.
I Council Meeting Minutes, at 2). Similarly, Councilwoman
Nicolay expressed concern about the potential "security,
parking, and noise" issues, and voted against the
transfer as well. (TAC, at ¶ 68; Council Meeting
Minutes, at 3). Councilman Magovern disagreed, noting that
the impact of the transfer would be no different than similar
establishments; he also acknowledged that he knew the Harmons
and "fe[lt] they would do a good job." (Council
Meeting Minutes, at 3). He voted in support of the
application; however, since there was only one vote in favor,
it did not pass. (Id.).
Dockside Dining and DCJ Belmar, interests controlled by the
Harmon Brothers, appealed the denial a week later to the
Division of Alcoholic Beverage Control (ABC), within the
Department of Law and Public Safety. (Cladio Decl., ECF No.
56-2, Ex. J, Appeal). On November 3, 2017, Plaintiffs
withdrew the appeal, since their lease of the property had
expired, and a new Redevelopment Agreement had been entered
between the Borough and Loko, LLC. (Claudio Decl., ECF No.
56-2, Ex. L, Withdrawal Letter). Before withdrawing their
appeal, Plaintiffs Dockside Dining and the Harmon Brothers
had filed a Tort Claim Form against the Borough on August 17,
2015. (Claudio Decl., ECF No. 56-2, Ex. AA, Tort Claim Form
I). Named defendants included Doherty, Connolly, Huisman, and
Palmisano. (Id.) The claim alleged, "[t]he
Borough and its police department have negligently or
intentionally failed to investigate and otherwise process
Claimants' application for alcoholic beverage license
transfer." (Id.) The notice form was amended
two more times, first to add Nicolay, Brennan, Connolly, and
Keown-Blackburn as defendants, (Claudio Decl., ECF No. 56-2,
Ex. BB "Tort Claim Form II"). In describing the
"wrongful acts" the amended claim added,
"Maliciously, intentionally or in a grossly negligent
manner denied the aforesaid application without legal or
factual basis." (Id.). The Second Amended Tort
Claim Form made no changes to the parties involved or the
description of the cause of action. (Claudio, Decl., ECF No.
56-2, Ex. CC "Tort Claim Form III").
April 2015, while Plaintiffs' liquor license application
remained pending, Mayor Doherty and Borough Administrator
Connolly allegedly engaged in a "concerted effort to
prevent the Plaintiffs from constructing and opening the Salt
facility." (TAC at ¶ 29). Mayor Doherty allegedly
told individuals "that the Plaintiffs 'would never
open a business' in that location.'"
(Id.). Doherty and Connolly allegedly directed
Bianchi, as Borough Construction Officer, "to delay,
deny and/or refuse to issue permits" for Plaintiffs'
construction, despite already having received approval from
the Borough Planning Board, to which Bianchi complied.
(Id. at ¶ 34). On another occasion, Connolly
directed Huisman and Palmisano to send police officers to the
Salt property. (Id. at ¶ 38). The officers
threatened to arrest the workers if they did not stop work.
that summer, Plaintiffs claim that Connolly and Huisman filed
a false Coastal Area Facility Review Act (CAFRA) claim with
the New Jersey Department of Environmental Protection,
"in an effort to stop the project." (Id.
at ¶ 44). Neither Connolly nor Huisman were able to
produce a copy of any violation and Kapalko later verified
that no violation existed. (Id.). That fall, Huisman
appeared before the Belmar Planning Board, to object to the
site plan for the Salt facility. (Id. at ¶ 28).
Huisman claimed that the facility's lighting was
inadequate, which purportedly contradicted a report prepared
by the Board's licensed engineer. (Id.). At some
point thereafter, Plaintiff claims that Doherty and Connolly
also directed a Stop Work Order on the Salt project, which
was later issued by Bianchi. (Id. at ¶ 37).
also assert claims relating to the Boathouse, another
restaurant they own in Belmar. At its core, those allegations
relate to Huisman's alleged attempt to prevent the
Boathouse from obtaining a permit to expand its premises
during the February 2016 St. Patrick's Day parade.
(Id. at ¶ 59). According to the Complaint,
Huisman also advised he would be "standing outside the
Boathouse on the day of the St. Patrick's Day
Parade" and would "immediately shut down the
Boathouse" if he found any violations. (Id. at
¶ 59). Plaintiffs do not allege that the permit was in
fact denied or that Huisman took any action to shut down the
restaurant during the parade.
addition, Plaintiffs allege Doherty had a personal desire to
stop their project, claiming that he received assistance from
officers of Chef s International to obtain a fifth mortgage
on his house. They also allege that Doherty indirectly
received political contributions from D'Jais, and that he
was present at the grand opening of Anchor Tavern and stated
that he had "a lot invested in this place." (TAC,
at ¶¶ 80-91).
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), the Court is required to accept as
true all allegations in the Complaint and all reasonable
inferences that can be drawn therefrom, and to view them in
the light most favorable to the non-moving party. See
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380, 1384 (3d Cir. 1994). "To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face."' Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). While a court will
accept well-pleaded allegations as true for the purposes of
the motion, it will not accept bald assertions, unsupported
conclusions, unwarranted inferences, or sweeping legal
conclusions cast in the form of factual allegations.
Iqbal, 556 U.S. at 678-79; see also Morse v.
Lower Merion School District, 132 F.3d 902, 906 (3d Cir.
1997). A complaint should be dismissed only if the
well-pleaded alleged facts, taken as true, fail to state a
claim. See In re Warfarin Sodium, 214 F.3d 395,
397-98 (3d Cir. 2000).
first contend that "the TAC does not allege that 1309
suffered any harm as a result of Defendants' alleged
actions" and therefore lacks standing. (Defendants'
Brief, ECF 56-1, at 20). According to the TAC, 1309 Main is
"an entity owned by Plaintiffs Timothy and Matthew
Harmon," which owns the real estate where the Boathouse
standing, a "plaintiff must have (1) suffered an injury
in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision." Spokeo,
Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). As owner of
the property on which the Boathouse sits, 1309 Main has
standing to assert claims relating to that property, but only
to the extent that the allegations affect development of the
property or otherwise diminished the its value. Toll
Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 141 (3d
Cir. 2009); Taliaferro v. Darby Twp. Zoning Bd, 458
F.3d 181, 190 (3d Cir. 2006). As Plaintiffs' Boathouse
allegations set forth no such claims, 1309 Main lacks
standing to bring those claims and similarly lacks standing
to bring any claims relating to the Salt facility.
1983 imposes civil liability upon any person who, acting
under the color of state law, deprives another individual of
any rights, privileges, or immunities secured by the
Constitution or laws of the United States." Shuman
v. Penn Manor Sch. Dist.,433 F.3d 141, 146 (3d Cir.
2005). "As a general matter, [courts have] always been
reluctant to expand the concept of substantive due process
because guideposts for responsible decisionmaking in this
uncharted area are scarce and open-ended." Collins
v. Harker Heights,503 U.S. 115, 125 (1992). "The
history of substantive due process 'counsels caution and
restraint.'" Nicholas v. Pa. State. Univ.,227 F.3d 133, 140 (3d Cir. 2000) (quoting Regents of
Univ. of Mich. V. Ewing,474 U.S. 214, 229 (1985)
(Powell, J., concurring)). It is "a doctrine ...