EDOUARD v. CITY OF LONG BRANCH

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ALPHONSE EDOUARD,

Civil Action No.:

Plaintiff, 3:17-cv-03582 PGS-TJB

v.

MEMORANDUM AND ORDER

CITY OF LONG BRANCH and JOHN

BUTOW,

Defendants.

This matter is before the Court on Defendants’ Motion for Summary

Judgment. (ECF No. 74). Alphonse Edouard (“Plaintiff”), a Haitian American and

member of the Roman Catholic Church, filed this action against the City of Long

Branch (the “City”) and John Butow (“Butow), the City’s tax assessor, alleging

Defendants discriminated against him based on his race, ethnicity and religion by

assessing his property at an excessive and artificially higher value than his

Caucasian, non-Roman Catholic neighbors. Plaintiff also alleges he was denied the

opportunity to obtain information from City officials concerning his increased

property assessment based on his ethnicity, race and religion.

Previously, on December 4, 2018, the Court granted Defendant’s motion to

dismiss Plaintiff’s claims under 42 U.S.C. § 1983 (Counts I, II, III) and the Open

Public Records Act, N.J.S.A. § 47:1A-1 to -13 (Count V). (ECF No. 54). The sole

claim remaining is Count IV, 42 U.S.C. § 3605, discrimination in residential real

estate-related transactions, of the Fair Housing Act (“FHA”). Oral argument was

held on September 14, 2022. For the reasons that follow, Defendants’ motion for

summary judgment is granted.

I.

The following undisputed facts are summarized based on the record.

Plaintiff is the owner of condominium located at 54 Waterview Way, Long

Branch, NJ 07440. (Defendants’ Statement of Facts, ECF No. 74-1 (“DSF”) ¶ 6,

Ex. C; Plaintiff’s Statement of Facts (“PSF”) ¶ 6). Plaintiff’s condominium is part

the Villas at Harbor Island complex. (DSF ¶ 31; PSF ¶ 31).

By letter dated October 13, 2015, Plaintiff received notice from Realty

Appraisal Company (“Realty Appraisal”), a firm retained by the City to perform

property assessments, informing him that the appraised value of his condominium

was $660,300. (DSF ¶ 30, Ex. E; PSF ¶ 30). The letter explained that the

assessment reflected the present market value and provided the opportunity to

discuss the appraisal with a representative of Realty Appraisal by making an

appointment online or by phone. (DSF ¶¶ 13, 30, Ex. E; PSF ¶¶ 13, 30).

Plaintiff did not arrange an appointment with Realty Appraisal as set forth in

the October 13, 2015 letter. (DSF ¶¶ 33-34, Ex. C 62:25-63:6). He did not allow

anyone from Realty Appraisal or the tax assessor’s office into his home to perform

an inspection for purposes of the assessment. (DSF ¶ 35; PSF ¶35). Rather,

Plaintiff alleges he attempted to contact Mayor Adam Schneider, City Manager

Kevin Hayes, and Butow for information concerning the increased assessment and

was ignored. (Second Amended Complaint (“SAC”) ¶¶ 23, 24).

In the past, on five separate occasions in 2003, 2009, 2013, 2014 and 2015,

Plaintiff filed an appeal with the Monmouth County Board of Taxation with regard

to his property assessment. (DSF ¶¶ 57-61; PSF ¶¶ 57-61). His appeals were

successful part of the time, and his assessment was lowered in 2003, 2009 and

2014. (DSF ¶¶ 57-61; PSF ¶¶ 57-61). He did not, however, file an appeal with

regard to the 2016 assessment. Plaintiff does not dispute that the tax appeal process

is the remedy for disputes involving tax assessments. (DSF ¶ 39; PSF ¶ 39). When

questioned about why he did not appeal his 2016 property assessment, Plaintiff

testified that he believed he would not have succeeded because the City

implemented an “unfair tax . . . based on race and religion.” (DSF ¶ 71, Ex. C 30:2-

11; PSF ¶ 71). On two occasions, Plaintiff was told by a neighbor whose law firm

previously represented the City that “people like [him] would always pay more

taxes and that [he] would not be able to get . . . accurate services from the city . . .

.” (DSF ¶ 72, Ex. C. 30:2-32:6; PSF ¶ 72). Plaintiff understood this to mean that he

was taxed more because of his race and religion. (DSF ¶ 72, Ex. C. 31:20-32:6;

PSF ¶ 72).

Plaintiff compares his property assessment against one other condominium

located in a separate building within the Villas at Harbor Island complex. (DSF ¶¶

47, 48; PSF ¶ 47, 48). S.H.,1 a Caucasian Jewish woman, is the owner of the other

unit. (DSF ¶ 44; PSF ¶ 44; SAC ¶ 26). No other comparative evidence was

submitted. According to public records, S.H.s’ condominium is the same square

footage as Plaintiff’s property.2 Like Plaintiff’s condominium, it does not have an

ocean view. (DSF ¶ 44; PSF ¶ 44; SAC ¶ 18). Following receipt of her 2016

assessment, S.H. met with a representative of Realty Appraisal and received a ten

percent reduction in her assessment due to “economic depreciation based on

negative external influence on the property.” (DSF ¶ 43; PSF ¶ 43). In the notes

section of S.H.’s property card maintained by the City, Realty Appraisal noted that

the assessment was lowered due to the unit’s proximity to traffic and the main

entrance to the complex. (DSF ¶ 44; PSF ¶ 44). Plaintiff testified that from

reviewing the property cards for his and S.H.’s condominium, there was no

indication of their ethnicity or religion. (DSF ¶ 66, Ex. C, 106:8-107:15; PSF ¶ 66).

Plaintiff further testified that from looking at a list of condominium owners in the

Villas at Harbor Island complex, he could not identify any of the owners’ ethnicity

1 In the interest of privacy, the Court identifies Plaintiff’s neighbor by her initials.

2 At his deposition, Plaintiff asserted that public records incorrectly state the square

footage of S.H.’s condominium. (DSF ¶ 47, Ex. C, 32:25-33:14). Plaintiff claims

S.H. acknowledged that her unit is bigger than Plaintiff’s unit. (Id.). No evidence

has been provided to confirm Plaintiff’s assertion.

or religion. (DSF ¶ 67; PSF ¶ 67). When questioned whether Plaintiff’s religion or

ethnicity was discernable based on the public record card, Plaintiff responded “I

don’t know what they would know.” (DSF ¶ 65, Ex. C 62:6-9). Plaintiff claims

Defendants were “well aware” of his race from having met with him on “numerous

occasions.” (ECF No. 83, Plaintiff’s Counterstatement of Facts ¶ 97). Outside of

residents from the Villas at Harbor Island, Plaintiff did not know of any resident of

Long Branch who was treated unfairly in the assessment of their property value by

the tax assessor because of their race or religion. (DSF ¶ 78, Ex. C 126:12-16; PSF

¶ 78).

In his deposition, Butow testified that property assessments consider “the

totality of the market data” with sales data being the “final arbiter of value.” (DSF

¶ 18; Ex. B, 37:14-40:11; 39:14-40:11; 55:7-12). The participants in the

marketplace are the arbiters of whether factors such as traffic would impact an

assessment. (Id.). Things such as square footage, location, the number of listings in

the neighborhood or building and amenities, such as a jacuzzi, fireplace, attic, deck

or balcony are factors accounted for in the assessment. (DSF ¶¶ 18-21). Tax

assessors “interpret” the market and do not calculate an “average.” (DSF, ¶¶ 22,

24). Butow further testified that if a taxpayer declines to allow an assessor to

inspect the property, the assumption is that the home has the best amenities. (DSF

¶ 36).

Plaintiff contends that since he was denied access to the municipal services

available to Caucasian, non-Roman Catholics residents, he was discriminated

against based on his race, ethnicity and religion. That is, he was denied the

opportunity to confer with City officials and representatives about his assessment

as S.H. and other non-Haitian American, non-Roman Catholics, had the

opportunity to do. To prove his contention, Plaintiff submitted two affidavits from

residents of the Villas at Harbor Island who affirmed that they met with the tax

assessor’s office, and accessed information concerning the calculation of their

property assessments. (ECF No. 83, Exs. PLA-317, PLA-318). There is no mention

of the affiants’ race, ethnicity, or religion in the affidavits. There is also no mention

of whether discriminatory factors affected their property assessments or access to

information pertaining to same.

II.

A motion for summary judgment under Fed. R. Civ. P. 56(c) should be

granted only when the moving party demonstrates that there is no genuine issue of

material fact and the evidence establishes the moving party’s entitlement to

judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). “A factual dispute is ‘genuine’ if the ‘evidence is such that a reasonable

jury could return a verdict for the nonmoving party.’” Razak v. Uber Techs., Inc.,

951 F.3d 137, 144 (3d Cir. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). “A factual dispute is ‘material’ if it ‘might affect the

outcome of the suit under the governing law.’” Id. “Only disputes over facts that

might affect the outcome of the suit under the governing law will properly preclude

the entry of summary judgment.” Anderson, 477 U.S. at 247-48. “[U]nsupported

allegations . . . and pleadings are insufficient to repel summary judgment.” Schoch

v. First Fidelity Bancorp., 912 F.2d 654, 657 (3d Cir. 1990); see Fed. R. Civ. P.

56(e) (requiring nonmoving party to set forth specific facts showing that there is a

genuine issue for trial).

Once the moving party has satisfied its initial burden, the party opposing the

motion must establish the existence of a genuine issue of material fact. Jersey Cent.

Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The opposing

party cannot rest on mere allegations and instead must present actual evidence that

creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248;

Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995);

see also Ullrich v. United States Secy. of Veterans Affairs, 457 F. App’x 132, 136

(3d Cir. 2012) (“[T]he party opposing summary judgment must support each

essential element of the opposition with concrete evidence in the record.”). If a court

determines, “after drawing all inferences in favor of [the non-moving party], and

making all credibility determinations in his favor – that no reasonable jury could find

for him, summary judgment is appropriate.” Alevras v. Tacopina, 226 Fed.Appx

222, 227 (3d Cir. 2007).

III.

The discussion set forth in the Court’s December 4, 2018 Memorandum and

Order is incorporated herein. In that decision, the Court dismissed Plaintiff’s §

1983 discrimination claims and held that that the Tax Injunction Act, 28 U.S.C. §

1341 (“TIA”), and the principal of comity barred Plaintiff from bringing a § 1983

challenge against the validity of a state’s tax system in federal court. See Fair

Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 116 (1981). In

effect, the TIA divests district courts of subject matter jurisdiction over challenges

to the administration of state tax laws. See Cal. v. Grace Brethren Church, 457

U.S. 393, 408 (1982); see also Rosewell v. LaSalle National Bank, 450 U.S. 503,

522 (1981). Accordingly, district courts are precluded from granting injunctive,

declaratory and monetary relief in such actions. See Fair Assessment in Real Estate

Ass’n, Inc., 454 U.S. at 107; Russo v. Twp. of Plumsted, No. 13-5082, 2014 U.S.

Dist. LEXIS 94318, at *20 (D.N.J. July 11, 2014) (quotation omitted) (extending

the TIA’s prohibition to monetary damages).

Taxpayers who bring claims alleging violations of constitutional rights

“must seek protection of their federal rights by state remedies, provided of course

that those remedies are plain, adequate, and complete[.]” Fair Assessment in Real

Estate Ass’n, 454 U.S. at 116. A state remedy need only meet “minimal procedural

criteria” to be adequate. Rosewell, 450 U.S. at 512 (emphasis in original). “The

critical criterion as to the adequacy of the remedy available to the taxpayers is not

the relief which they can obtain in [State court] proceedings, but whether [the

State] provides a forum for presentation of their claims.” Hardwick v. Cuomo, 891

F.2d 1097, 1106 (3d Cir. 1989). A state remedy is sufficient “if it provides the

taxpayer with a full hearing and judicial determination’ at which [the taxpayer]

may raise any and all constitutional objections.” Id. at 1105 (quoting Grace

Brethren Church, 457 U.S. at 412).

IV.

A taxpayer’s claim that a state tax, policy or procedure violates the FHA is

within the ambit of the TIA. See Cmty. Dev., Inc. v. Sarpy Cnty. Nebraska, No.

8:16CV135, 2016 WL 3748710, at *2 (D. Neb. May 26, 2016) (granting the

defendant’s motion to remand because under the TIA the district court lacked

subject matter jurisdiction to adjudicate the plaintiff’s FHA claims); United States

v. Cnty. of Nassau, 79 F. Supp. 2d 190, 195 (E.D.N.Y. 2000) (“If the federal

policies against discrimination embodied in Section 1983 are not a sufficient basis

to defeat the application of the Tax Injunction Act, [there is] no reason why similar

non-discrimination policies in the Fair Housing Act should warrant a different

result.”); Grace v. Hynes, No. 95 C 4640, 1996 WL 495561, at *1 (N.D. Ill. Aug.

28, 1996). Plaintiff takes issue with the City’s method in determining his

assessment for property tax purposes and obtaining access to information

pertaining to same. Boiled down, Plaintiff’s discrimination claim is a challenge to

the state’s tax collection procedure. Thus, the same analysis previously undertaken

by the Court with regard to Plaintiff’s § 1983 claims applies with equal force to

Plaintiff’s § 3605 claim.

Plaintiff alleges his property was assessed at a higher value compared to

non-Haitian American, non-Roman Catholic residents because of his race,

ethnicity and religion. Plaintiff also alleges that he was denied the opportunity to

meet with City representatives, and the opportunity to access information

pertaining to the increased assessment of his property based on his ethnicity, race

and religion. Notwithstanding these allegations, Plaintiff admits that he did not

comply with the procedures provided by the City as set forth in the October 13,

2015 letter. (DSF ¶¶ 33-34, Ex. C 62:25-63:6). Plaintiff did not meet with Realty

Appraisal to discuss his assessment or allow an assessor from Realty Appraisal or

the tax assessor’s office to inspect his home. (DSF ¶ 35; PSF ¶35). Further,

Plaintiff does not dispute that he did not file a tax appeal with regard to the 2016

assessment, despite having done so on five separate occasions and prevailing in

three appeals. (DSF ¶¶ 57-61).

The law is clear that taxpayers who seek to challenge a state’s property

assessment procedure “must seek protection of their federal rights by state

remedies, provided . . . that those remedies are plain, adequate, and complete[.]”

Fair Assessment in Real Estate Ass’n, 454 U.S. at 116. New Jersey law provides

several avenues for a taxpayer to challenge a local property tax assessment.

Pursuant to N.J.S.A. § 54:4-63.11, a taxpayer may appeal his or her added

assessment to the county board of taxation on or before December 1 of the year of

the assessment. Gen. Motors Corp. v. City of Linden, 143 N.J. 336, 349, 671 A.2d

560, 566 (1996). “The County Board must hear the appeal and render judgment

within one month after the last day for filing such appeals. Ibid. If the taxpayer is

still dissatisfied, he or she may appeal the Board's decision to the Tax Court within

forty-five days of the Board judgment.” Id. Furthermore, pursuant to N.J.S.A. §

2B:13-4, a taxpayer may appeal a final judgment from the Tax Court as a matter of

right to the Appellate Division of the Superior Court. See Beach Creek Marina v.

Royal Tax Lien Servs., LLC, No. CIV.A.09-2649 (KSH), 2010 WL 2674457, at *3

(D.N.J. June 30, 2010). The New Jersey Supreme Court has held that these

remedies are adequate and satisfy the Supreme Court’s “minimal procedural

criteria.” Gen. Motors Corp., 143 N.J. at 349, 671 A.2d at 566; Rosewell, 450 U.S.

at 512.

Because Plaintiff does not assert that New Jersey law fails to provide a plain,

speedy and efficient remedy through its legal system, the TIA and principles of

comity preclude the Court from entertaining a claim under 42 U.S.C. § 3605.

Plaintiff’s claims alleging violations of federal law in connection with his 2016

property assessment should have been brought to the Monmouth County Board of

Taxation or New Jersey’s Tax Court. Summary judgement is granted, and

Plaintiff’s § 3605 claim is dismissed.

The Court will briefly address Plaintiff’s FHA claim. Section 3605 of the

FHA prohibits discrimination in residential real estate-related transactions.” 42

U.S.C. § 3605. A discrimination claim under the FHA may be established under a

theory of intentional discrimination or disparate impact on a protected class. Mt.

Holly Gardens Citizens in Action, Inc. v. Twp. of Mt. Holly, 658 F.3d 375, 381 (3d

Cir. 2011) (citing Cmty. Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 176

(3d Cir. 2005). Intentional discrimination is established by showing that

“discriminatory intent against a protected group was a motivating factor for the

challenged action.” Eastampton Ctr., L.L.C. v. Twp. of Eastampton, 155 F. Supp.

2d 102, 111 (D.N.J. 2001) (citation omitted). Whether a challenged action was

because of race or religion is analyzed by determining “whether it

disproportionately burdened a particular racial [or religious] group so as to cause a

disparate impact.” Mt. Holly Gardens Citizens in Action, 658 F.3d at 381 (citing

Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 146-48 (3d Cir.1977). “Disparate

impact claims . . . do not require proof of discriminatory intent.” Id. (citing Rizzo,

564 F.2d at 147-48.

Drawing all inferences in Plaintiff’s favor, the Court is satisfied that no

genuine issue of material fact exists to preclude summary judgment. Plaintiff fails

to set forth material facts to establish intentional discrimination by Defendants or a

disparate impact resulting from the City’s procedure for assessing properties. The

record is devoid of facts sufficient to support Plaintiff’s claim that he was

discriminated because of his race or religion. The property cards recorded by

Realty Appraisal and reviewed by the City make no reference to a resident’s race,

ethnicity, or religion. (DSF ¶¶ 63, 64, 66). When questioned whether someone

would know Plaintiff’s religion or ethnicity based on the public record card,

Plaintiff responded “I don’t know what they would know.” (DSF ¶ 65). Moreover,

the affidavits submitted by Plaintiff do not suggest any facts that would support the

inference that access to the City’s resources was based on a resident’s race or

religion.

In short, Plaintiff does not assert any facts that the tax assessment process

employed by Defendants has a discriminatory effect on a protected class. The

blanket assertion that the City assesses properties owned by people similarly

situated to him, namely Haitian Americans and Roman Catholics, at a higher value

than non-Haitian Americans and non-Roman Catholics is unsupported by the

record. Other than S.H., Plaintiff has not identified any other resident whose

property assessment was affected – either positively or negatively – based on his or

her race, ethnicity or religion. Moreover, Defendants provided a legitimate, non-

discriminatory explanation for the assessments of Plaintiff’s property and S.H.’s

property. Accordingly, summary judgment is granted.

ORDER

THIS MATTER having come before the Court on Defendants’ motion for

summary judgment (ECF No. 74) and the Court having carefully reviewed and

taken into consideration the submissions of the parties, as well as the arguments

and exhibits presented therein; and for good cause shown:

IT IS on this 29th day of September, 2022,

ORDERED that Defendants’ motion summary judgment is GRANTED;

and it is further

ORDERED that the Clerk of the Court is directed to close this case.

s/Peter G. Sheridan

PETER G. SHERIDAN, U.S.D.J.