The opinion
Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
5-1-1995
DeBlasio v Zoning Board
Precedential or Non-Precedential:
Docket 93-5301
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 93-5301
___________
ALFRED DEBLASIO,
Appellant,
vs.
ZONING BOARD OF ADJUSTMENT FOR THE TOWNSHIP
OF WEST AMWELL; HARRY K. RUSH; RAYMOND G.
LINDBLAD; CHARLES A. BRITTON; GARY W.
BLEACHER; DAVID L. DONDERO; STEWART
PALILONIS; ROBERT FULPER, JR.; WERNER J.
HOFF; EUGENE J. VENETTONE; BARBARA GILL;
JOSEPH HELEWA; JAMES LAVAN; MRS. JAMES LAVAN,
Appellees.
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 92-00926)
___________
ARGUED MARCH 10, 1994
BEFORE: MANSMANN and LEWIS, Circuit Judges,
and McKELVIE, District Judge.*
(Filed May 1 , 1995)
___________
*
Honorable Roderick R. McKelvie, United States District
Judge for the District of Delaware, sitting by designation.
Nicholas R. Perrella (ARGUED)
Smith & Laquercia
28 West State Street
Suite 1414
Trenton, NJ 08608
Attorney for Appellant
Mark L. First (ARGUED)
Fox, Rothschild, O'Brien & Frankel
Princeton Pike Corporate Center
997 Lenox Drive
Building 3
Lawrenceville, NJ 08648-2311
Attorney for Appellees, Zoning Board of
Adjustment for the Township of West Amwell,
Harry K. Rush, Raymond G. Lindblad, Charles
A. Britton, Gary W. Bleacher, David L.
Dondero, Stewart Palilonis, Robert Fulper,
Jr., Werner J. Hoff, Eugene J. Venettone,
Barbara Gill and Joseph Helewa
Ivan C. Bash (ARGUED)
Brotman & Graziano
3685 Quakerbridge Road
Post Office Box 3333
Trenton, NJ 08619
Attorney for Appellees, James Lavan and Mrs.
James Lavan
___________
OPINION OF THE COURT
___________
LEWIS, Circuit Judge.
This case raises important questions regarding the
extent to which the due process clause of the Fourteenth
Amendment may serve to protect landowners against arbitrary
governmental regulation of land use. We conclude that in the
context of land use regulation, a property owner states a
substantive due process claim where he or she alleges that the
decision limiting the intended land use was arbitrarily or
irrationally reached. Here, the plaintiff, Alfred DeBlasio, did
so allege; however, the district court determined on summary
judgment that he had failed to present sufficient evidence that
the governmental decision in question was arbitrary or
irrational. We conclude that DeBlasio has presented sufficient
evidence to survive summary judgment in connection with his
substantive due process claim.
Appellant Alfred DeBlasio brought suit against the
Zoning Board of Adjustment for the Township of West Amwell
("ZBA"), its individual members, Eugene Venettone, the Building
and Zoning Official for the Township of West Amwell, the ZBA
attorney, and James and Virginia Lavan, Alfred DeBlasio's
neighbors, claiming violations of 42 U.S.C. §§ 1983 and 1985(3)
and the commerce clause, as well as tortious interference with
contractual relations and prospective economic advantage under
New Jersey common law. This is an appeal from the district
court's granting of the defendants' motion for summary judgment.
DeBlasio also appeals the district court's denial of his motion
for leave to file a second amended complaint, and the district
court's affirmance of the order of the magistrate judge
prohibiting DeBlasio from questioning the members of the ZBA
concerning the mental processes used by each to rule on
DeBlasio's variance application.
We will affirm the district court's grant of summary
judgment with respect to DeBlasio's section 1983 procedural due
process and unlawful taking claims, as well as DeBlasio's claims
under section 1985(3) and the commerce clause. We will also
affirm the district court's denial of DeBlasio's motion for leave
to file a second amended complaint, as well as the district
court's affirmance of the magistrate judge's discovery order.
Finally, we will affirm the district court's grant of summary
judgment in favor of the Lavans. However, we will reverse the
district court's grant of summary judgment with respect to
DeBlasio's section 1983 substantive due process claim and state
law tort claims against the ZBA defendants.
I.
DeBlasio owns property in West Amwell Township, New
Jersey, upon which a Quonset hut had been constructed.1 Previous
owners had used the property, and the Quonset hut, as the site of
an auto body repair business.
In the mid-1960s West Amwell enacted a zoning
ordinance, pursuant to which the future DeBlasio property was
designated R-3, which signifies 3-acre minimum residential use.
Since the property was, at that time, being used as the site of
an auto body repair business, it was not in compliance with the
newly-enacted zoning restrictions. Its owners were permitted to
continue their auto body repair business, however, because the
1
. A Quonset hut is a semicylindrical metal shelter with end
walls, usually serving as a barracks or storage shed. See The
Random House College Dictionary 1086 (Rev. Ed. 1982).
property received an exemption as a pre-existing nonconforming
use, specifically an auto body repair shop.
In 1967 a neighbor filed a complaint with the ZBA
challenging the existence of the auto body repair shop, alleging
that the pre-existing nonconforming use had been abandoned or
unlawfully expanded. The ZBA conducted a hearing and determined
that the use had been properly maintained.
DeBlasio purchased the property in 1974. In 1979, he
leased the property to Interstate Battery Systems, a small,
battery distribution business run by Peter Holmes. Holmes'
business grew considerably over the next ten years. By the end
of the 1980s, Holmes employed six full-time workers and two
part-time workers. The business used five tractor-trailer trucks
and distributed 30,000 batteries a year, many more than the 2,000
batteries Holmes distributed in 1979.
To understand the issues this appeal presents, we must
add to this background information some additional facts
concerning the Secretary of the ZBA, Werner Hoff, and his
children.
Werner Hoff's son, John Hoff, also owned property in
West Amwell which included a Quonset hut. John Hoff had used
this property as the site of an excavation business.
Toward the end of 1988, John Hoff's business was
failing. Werner Hoff believed that if John Hoff could secure
some additional funds, he would be able to conduct an orderly and
profitable liquidation of his assets. Consequently, in early
1989, Werner Hoff and his older son, Werner Hoff, Jr., loaned the
younger Hoff a sum of money. In exchange, Werner Hoff and Werner
Hoff, Jr. received a mortgage on John Hoff's property. Werner
Hoff, Jr.'s investment company, W.E.H. Realty III, paid the
monthly maintenance expenses on the property. Werner Hoff, Sr.
acted as Werner Hoff, Jr.'s business agent and handled the day to
day management tasks associated with the property.
At some point after 1989, Werner Hoff, Jr. decided to
purchase John Hoff's property. According to Werner Hoff, Sr.'s
affidavit, Werner Hoff, Jr. agreed to assume John Hoff's debts,
and to take "de facto control" of the property. Although it is
not clear when this "de facto control" occurred, it is clear from
the record that the actual sale of the property to Werner Hoff,
Jr. took place in December of 1991.
Toward the end of 1988, when John Hoff's business was
experiencing financial difficulties, Werner Hoff, Sr. had a
brief, unscheduled encounter with Peter Holmes. According to
Holmes' affidavit, in the course of this conversation,
Mr. Hoff told me that I should consider
purchasing or renting his property on
Route 31 in West Amwell Township.
Mr. Hoff stated that he would sell the
Route 31 property to me for $300,000 or, if I
did not wish to purchase the property, I
could rent it from him.
I told him that the Quonset Hut on that
property was smaller than the Quonset Hut on
the DeBlasio property, and was too small for
my vehicles.
In response, Mr. Hoff represented that the
zoning on the Route 31 property was such that
I could legally park my vehicles outside. He
told me that I wouldn't have the problems on
the Route 31 property that I was having on
the DeBlasio property. This was a clear
reference to the complaints that the township
officials had been receiving from the Lavans,
who lived across Rock Road from the DeBlasio
property.
(Appendix at 249-50). Holmes did not pursue Hoff's offer, and
Hoff did not discuss the subject with Holmes at any time in the
future.
In February of 1989, Virginia Lavan, who owned property
near the DeBlasio property, filed a "citizen's complaint"
regarding Interstate Battery. Eugene Venettone, the West Amwell
Township zoning official, inspected the property and concluded
that the Interstate battery operation constituted an expansion of
the pre-existing nonconforming use and that the operation was,
therefore, in violation of the West Amwell zoning ordinance.
In March, 1990, DeBlasio and Interstate Battery
applied to the ZBA for an interpretation of the status of
DeBlasio's property. They also requested a variance, in the
event the ZBA decided that Holmes could not continue operating
his business without one.
In June, 1990, the ZBA took up the DeBlasio/Interstate
petition, among other matters. Secretary Hoff attended the
meeting and recorded the minutes. However, when the DeBlasio
matter came before the ZBA, Mr. Hoff announced that he would not
participate in the ZBA's decision. The ZBA proceeded to find
that in issuing the February 1989 citation, Venettone had not
adequately identified the particular provision of the zoning
ordinance that Interstate had purportedly violated.
Consequently, the ZBA decided, it could not "make a
determination" regarding the violation. (Appendix at 85).
DeBlasio and Interstate then withdrew their request for a
variance.
In August of 1990, zoning official Venettone issued a
new citation to Holmes. The citation listed "Expansion of the
pre-existing, non-conforming use . . ." as the zoning violation.2
DeBlasio and Interstate filed another notice of appeal of
Venettone's decision with the ZBA. They also requested that if
their appeal were to fail, the ZBA consider their submission as a
request for a variance.
The ZBA heard the appeal in September of 1990.
Secretary Hoff participated in these proceedings, having
2
. According to DeBlasio, Hoff spoke privately with Venettone
some time between June 26 and August 7, 1990, and pressed
Venettone to issue the second notice of violation. In his brief,
DeBlasio cites to a portion of Venettone's deposition in support
of this contention, where Venettone describes a phone
conversation he had with Werner Hoff. The testimony reads:
[Venettone]: I called him on the phone about
business, and that's when the Interstate
Battery thing was being tossed around in the
papers, and I would, you know, ask him for
information about it, you know, only in his
capacity as secretary of the board.
Q: Did Mr. Hoff ever push you to issue a
notice of violation? When I say "push you,"
did he ever suggest or recommend to you that
you issue a notice of violation to Interstate
Battery?
A: Yes, that he thought they were in
violation, as did a lot of people.
(Appendix at 180).
determined that there was no longer an appearance of a conflict
now that Werner Hoff, Sr.'s son Werner Hoff, Jr. had announced
his decision to purchase John Hoff's West Amwell property. The
ZBA voted unanimously to uphold Venettone's decision that Holmes'
business operations constituted an unlawful expansion of the
nonconforming use. The next month, the ZBA adopted a resolution
to that effect.
The ZBA did not take up DeBlasio's request for a
variance until the following March. After holding hearings, the
ZBA voted against granting the request. Hoff participated fully
in these hearings and voted against the variance. In June, 1991,
the ZBA adopted a resolution of memorialization denying
DeBlasio's request for a use variance. Holmes was given six
months to relocate.
This law suit followed. DeBlasio's complaint set forth
four counts: (1) violation of 42 U.S.C. § 1983, based on the
deprivation of his Fourteenth Amendment rights to substantive and
procedural due process and his Fifth Amendment right not to have
his property taken without just compensation; (2) violation of
42 U.S.C. § 1985(3) (the civil rights conspiracy statute);
(3) tortious interference with contractual relations and
prospective economic advantage, under New Jersey common law; and
(4) violation of the commerce clause.
The district court granted summary judgment in favor of
the defendants. As to DeBlasio's claims under section 1983, the
district court held that DeBlasio's allegations of violations of
procedural due process, substantive due process and unlawful
taking failed to rise to the level of constitutional violations.
The district court further concluded that DeBlasio failed to
allege that he was part of any protected class which would bring
him under the protection of section 1985. With respect to
DeBlasio's tort claims under New Jersey common law, the district
court held that DeBlasio failed to comply with the notice
provision contained in the New Jersey Tort Claims Act. Finally,
with regard to DeBlasio's claims under the commerce clause, the
district court held that DeBlasio failed to establish any
evidence of a burden on interstate commerce.
II.
Subject matter jurisdiction in the district court was
predicated on 28 U.S.C. §§ 1331, 1343 and 1367. We have
jurisdiction over this appeal under 28 U.S.C. § 1291. Since this
is an appeal from a district court's granting of summary
judgment, we exercise plenary review. Equimark Commercial Fin.
Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 142 (3d Cir.
1987).
III.
We have fully considered the issues raised in
connection with the district court's dismissal of DeBlasio's
taking of property without just compensation claim, his section
1985(3) claim, his claim under the commerce clause, as well as
his claims that the district court erred in affirming the
magistrate judge's discovery order and in denying DeBlasio's
motion for leave to file an amended complaint. We conclude that
these issues lack merit and do not require discussion.
We now address whether the district court properly
granted summary judgment in favor of the defendants in connection
with DeBlasio's due process claims. DeBlasio asserts that the
defendants' actions violated his Fourteenth Amendment right to
both procedural and substantive due process. We will consider
each of these contentions in turn.
A. Procedural Due Process
Relying on our decisions in Bello v. Walker, 840 F.2d
1124 (3d Cir. 1988), and Midnight Sessions, Ltd. v. City of
Philadelphia, 945 F.2d 667 (3d Cir. 1991), the district court
concluded that DeBlasio's procedural due process claims failed
because New Jersey provides a constitutionally adequate process
for challenging wrongful zoning decisions. We agree that our
decisions in Bello and Midnight Sessions defeat DeBlasio's
procedural due process claims.
In order to establish a violation of his right to
procedural due process, DeBlasio, in addition to proving that a
person acting under color of state3 law deprived him of a
protected property interest,4 must establish that the state
3
. DeBlasio's violation of due process claims do not run afoul
of the "person acting under color of state law" requirement.
Clearly, in finding the zoning ordinance violation and in denying
the application for a variance, the defendants were acting under
color of state law.
4
. On occasion, we have refrained from conducting inquiry into
the question whether the plaintiff was deprived of a protected
property interest, and have proceeded directly to evaluate the
nature of the process the plaintiff received. See e.g., Bello,
840 F.2d at 1127-28. Following our example in Bello, among other
cases, the district court never explicitly considered whether
DeBlasio had a protected property interest before evaluating the
sufficiency of the process afforded DeBlasio.
procedure for challenging the deprivation does not satisfy the
requirements of procedural due process. Midnight Sessions, Ltd.
v. City of Philadelphia, 945 F.2d 667, 680 (3d Cir. 1991)
(citation omitted). As we observed in Bello, a state provides
constitutionally adequate procedural due process when it provides
reasonable remedies to rectify a legal error by a local
administrative body. Bello, 840 F.2d at 1128 (citations
omitted). In other words, when a state "affords a full judicial
mechanism with which to challenge the administrative decision" in
question, the state provides adequate procedural due process,
id., whether or not the plaintiff avails him or herself of the
provided appeal mechanism. Midnight Sessions, 945 F.2d at 682.
In Bello, a developer sued the Code Enforcement Officer
of Bethel Park, Pennsylvania, as well as the municipal council
and the municipality itself, for denying him a building permit.
Bello alleged that the Code Enforcement Officer denied him a
building permit as a result of pressure from members of the
council who were trying to hinder Bello's building project for
personal and political motives. We found that sufficient
evidence supported Bello's allegations to create a genuine issue
with respect to their truth. Thus, for reasons we will discuss
at greater length below, we reversed the district court's grant
of summary judgment in favor of the defendants on Bello's
substantive due process claim. However, as for procedural due
process, we stated:
Pennsylvania affords a full judicial
mechanism with which to challenge the
administrative decision to deny an
application for a building permit. Indeed,
the plaintiffs utilized that mechanism and
obtained a building permit. While the
Pennsylvania courts have ruled that the
initial decision to deny the permit was
wrong, the plaintiffs have not and cannot
show that the decision was made pursuant to a
constitutionally defective procedure . . . .
It is the law in this Circuit that a
state provides adequate due process when it
provides "reasonable remedies to rectify
legal error by a local administrative body."
Pennsylvania clearly provides such remedies,
as this case exemplifies, and therefore
plaintiffs have no justifiable [procedural]
due process claim.
Bello, 840 F.2d at 1128 (citations omitted).
New Jersey provides a full judicial process for
challenging adverse zoning decisions. As the district court
noted,
N.J.S.A. § 40:55D-70 (a) and (b) provide that
the ZBA shall have power to hear and decide
appeals of the zoning officer's enforcement
of a zoning ordinance and hear and decide
requests for an interpretation of a zoning
ordinance. Furthermore, pursuant to
subsections (c) and (d) of this statutory
section, the ZBA shall have the power to
grant a request for a variance or other
relief, so long as the variance or other
relief can be granted without substantial
detriment to the public good and will not
substantially impair the intent and purpose
of the zone plan and zone ordinance.
Also, pursuant to N.J.S.A. § 40:55D-72,
any interested party affected by any decision
of an administrative officer of the
municipality based on or made in the
enforcement of the zoning ordinances or
official map can appeal to the ZBA.
Last, pursuant to Rule 4:69-1, et seq.
of the New Jersey Court Rules, plaintiff is
entitled to a review, a hearing and relief by
filing a complaint, before the expiration of
45 days from the time the plaintiff received
notice that his or her application was
denied, in the Superior Court, Law Division,
bearing the designation "In Lieu of
Prerogative Writs."
(Appendix 306-07).
DeBlasio has not alleged that this procedure is
inadequate, or that it is anything less than the procedure we
found constitutionally adequate in Bello. We conclude that the
procedures for challenging Venettone's citation as well as the
ZBA's denial of DeBlasio's variance application are
constitutionally sufficient.5
B. Substantive Due Process
Substantive due process is an area of the law "famous
for its controversy, and not known for its simplicity." Schaper
v. City of Huntsville, 813 F.2d 709, 716 (5th Cir. 1987). Our
substantive due process inquiry is rendered even more difficult
by the paucity of Supreme Court guidance.
The district court based it dismissal of DeBlasio's
substantive due process claim on its conclusion that DeBlasio had
failed to offer sufficient evidence to support the allegation
that the ZBA had employed unlawful criteria in denying DeBlasio's
application for a use variance and in determining that DeBlasio's
property was in violation of the West Amwell zoning ordinance.
5
. In Rogin v. Bensalem Tp., 616 F.2d 680 (3d Cir. 1980), we
upheld Pennsylvania's scheme for challenging zoning ordinances,
which scheme provided for a ministerial review of a proposed use
by a Zoning Officer, appeal to the Zoning Hearing Board, and
appeal of that decision to the Court of Common Pleas. Rogin, 616
F.2d at 694-95.
Before addressing the sufficiency of DeBlasio's evidence of
improper motive, we must first determine (1) whether a plaintiff
such as DeBlasio must, as a predicate to a substantive due
process claim, establish possession of a property interest worthy
of substantive due process protection; and (2) if so, whether
DeBlasio possesses a property interest worthy of protection under
substantive due process. See Ersek v. Township of Springfield,
Delaware County, 822 F. Supp. 218, 220 (E.D. Pa. 1993).
In Reich v. Beharry, 883 F.2d 239 (3d Cir. 1989), we
observed that the issue of whether and when state-created
property interests invoke substantive due process concerns has
not been decided by the Supreme Court. Reich, 883 F.2d at 243.
Without attempting to define the set of state-created property
interests protected by the concept of substantive due process, we
concluded in Reich: "[i]t is apparent . . . that, in this
circuit at least, not all property interests worthy of procedural
due process protection are protected by the concept of
substantive due process." Id. at 244.
In Reich, the plaintiff was hired by Washington County,
Pennsylvania, to investigate and prosecute the Washington County
controller. Reich carried out his assignment and then submitted
bills for payment to the county. Id. at 239. However, to
receive payment, Reich first had to secure the controller's
approval, which the controller refused to provide. Reich sued
the controller, claiming that she had deprived him of property
without due process of law in violation of the procedural and
substantive components of the Fourteenth Amendment's due process
clause. Id. at 240. The controller filed a motion to dismiss
for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The
district court granted the controller's motion. Id.
We affirmed the district court's dismissal of Reich's
complaint. We held that Reich had failed to state a substantive
due process claim. We relied on Ransom v. Marrazzo, 848 F.2d 398
(3d Cir. 1988), a case in which we held that an entitlement under
state law to water and sewer services does not constitute a
protectible property interest for purposes of substantive due
process. Id. at 244. We explained in Reich:
We believe it follows a fortiori from the
holding in Ransom that Reich's complaint
fails to state a substantive due process
claim. As we have noted, the only interest
that Reich had at stake before Beharry was
his interest in avoiding delay in the receipt
of payment of a bill for professional
services rendered. We can think of no basis
for according substantive due process
protection to this interest while denying it
to those who have had their utility service
terminated.
Id. at 244-45.
While we refrained in Reich from defining the set of
property interests protected by the concept of substantive due
process, we did suggest that only fundamental property interests
are worthy of such protection. We stated that:
[i]n Mauriello v. U. of Med. & Dentistry of
N.J., 781 F.2d 46 (3d Cir. 1986), this court
acknowledged that what constitutes a property
interest in the procedural due process
context might not constitute one in that of
substantive due process. In Mauriello, a
student [was] dismissed for academic reasons
from a doctoral program . . . .
In discussing the student's substantive
due process claim, the Mauriello court
appeared to approve of Justice Powell's view
. . . that, while property rights for
procedural due process purposes are created
by state law, substantive due process rights
are created by the Constitution. The
Mauriello court also "share[d] Justice
Powell's doubt about the existence of . . . a
substantive due process right in the
circumstances here," noting that the
student's claim to continued enrollment in a
graduate program bore "`little resemblance to
the fundamental interests that previously had
been viewed as implicitly protected by the
Constitution.'"
Reich, 883 F.2d at 244 (quoting Mauriello, 781 F.2d at 50)
(quoting Regents of University of Michigan v. Ewing, 474 U.S. 214
(1985) (Powell, J., concurring)).
Though we have yet to clearly define the category of
property interests protected by the concept of substantive due
process, in Bello v. Walker we provided some guidance in the area
of land use regulation.
In Bello, the plaintiffs obtained municipality approval
for a five stage subdivision building plan. After obtaining
building permits for the first stage of the plan, and completing
the first stage of construction, the municipality's code
enforcement officer denied the plaintiffs' application for
building permits to allow the plaintiffs to commence construction
of the housing units which comprised the fifth stage of the
project. The code enforcement officer contended that he denied
the plaintiffs' building permit application because the
plaintiffs sought to construct the fifth stage of the project
before completing phases two through four. Bello, 840 F.2d at
1126. The plaintiffs, however, had never agreed to develop the
project in the order suggested by the numerical sequence of the
stages. Id.
The plaintiffs ultimately sought redress in the Court
of Common Pleas of Allegheny County, Pennsylvania. After a
hearing, the court ordered the municipality to issue the building
permits. Id. However, prior to obtaining relief in state court,
the plaintiffs filed a complaint under 42 U.S.C. § 1983 against
the municipality and the individual municipal officials in the
United States District Court for the Western District of
Pennsylvania. The plaintiffs alleged that a number of the
defendant officials had improperly influenced the decision to
deny the plaintiffs' building permit application, in violation,
inter alia, of the plaintiffs' constitutional rights to due
process. Id. at 1127.
The defendants moved for summary judgment, presenting
evidence that the building permit denial had issued solely
because the plaintiffs sought to undertake the fifth stage before
developing stages two through four. In opposition to the motion,
the plaintiffs presented evidence indicating that certain town
council members had personal animosity towards one of the
plaintiffs' employees, and that various defendant members of the
town council had pressured members of the council to hinder the
plaintiffs' building project so long as the plaintiffs employed
this particular employee. Id. The district court granted the
defendants' motion for summary judgment.
We reversed the district court's grant of summary
judgment in connection with the plaintiffs' substantive due
process claims. We explained in this regard, after canvassing
the recent Supreme Court jurisprudence in the area, that "the
deliberate and arbitrary abuse of government power violates an
individual's right to substantive due process." Id. at 1129. We
found that the plaintiffs presented evidence from which a
fact-finder could reasonably conclude that certain council
members "improperly interfered with the process by which the
municipality issued building permits, and that they did so for
partisan political or personal reasons unrelated to the merits of
the application for the permits." Id. at 1129.
These actions can have no relationship to any
legitimate governmental objective, and if
proven, are sufficient to establish a
substantive due process violation actionable
under section 1983. While the defendants
claim that the building permit was denied
because of plaintiffs' failure to build in
numerical sequence, thus presenting an
arguably rational ground for the denial of
the permit, it is the factfinders' role to
resolve this factual dispute.
Id. at 1129-30.
In Bello we did not discuss whether the plaintiffs
possessed a property interest worthy of substantive due process
protection.6 In subsequent cases we have clarified that to state
6
. Similarly, in the cases of Pace Resources, Inc. v.
Shrewsbury Tp., 808 F.2d 1023, 1034-36 (3d Cir. 1987), and
Neiderhiser v. Borough of Berwick, 840 F.2d 213, 217-18 (3d Cir.
1988), in the context of land use regulation, we did not identify
a specific property interest at issue worthy of substantive due
process before addressing whether the zoning decision in question
violated substantive due process.
a substantive due process claim, a plaintiff must have been
deprived of a particular quality of property interest. Our most
recent restatement of this proposition is found in Acierno v.
Cloutier, 40 F.3d 597 (3d Cir. 1994).7 There we stated that when
complaining of a violation of substantive due process rights, a
plaintiff must prove that the governmental authority "acted to
`infringe [ ] a property interest encompassed by the Fourteenth
Amendment.'" Acierno, 40 F.3d at 616 (quoting Midnight Sessions,
945 F.2d at 679);8 accord Taylor Investment v. Upper Darby
Township, 983 F.2d 1285, 1292 (3d Cir. 1993) (stating, in dicta,
that to prevail on a substantive due process claim, a plaintiff
7
. Though one issue in Acierno was considered by the court
sitting in banc, the substantive due process issue was considered
by the panel only. Acierno, 40 F.3d at 600.
8
. We further explained in Acierno:
As the Supreme Court has previously stated:
Property interests, of course, are not
created by the Constitution. Rather, they
are created and their dimensions are
defined by existing rules or understandings
that stem from an independent source such
as state law -- rules or understandings
that secure certain benefits and that
support claims of entitlement to those
benefits. Board of Regents v. Roth, 408
U.S. 564, 577 (1972).
Thus . . . when analyzing substantive
due process claims courts are required to
turn to state and local law to determine
whether the plaintiff possessed a property
interest which was abrogated by the
governmental action.
Id. at 616.
"must demonstrate that an arbitrary and capricious act deprived
them of a protected property interest").
We think it consistent with Bello to conclude that
ownership is a property interest worthy of substantive due
process protection.9 See, e.g., Ersek v. Township of
Springfield, Delaware County, 822 F. Supp. 218, 221 n.3 (E.D. Pa.
1993) (offering a similar interpretation of Bello). Indeed, one
would be hard-pressed to find a property interest more worthy of
substantive due process protection than ownership. Thus, in the
context of land use regulation, that is, in situations where the
governmental decision in question impinges upon a landowner's use
and enjoyment of property, a land-owning plaintiff states a
9
. The dissent does not read Bello as "standing for the
proposition that mere ownership is a sufficient substantive due
process property interest." Dis. Op. Typescript at 5. Instead,
the dissent would hold that "legitimate claim[s] of entitlement"
determine the set of property interests worthy of substantive due
process. Our understanding of Bello's impact upon this case
leads us to a different conclusion.
First, we note that in Bello, we did not undertake an
entitlement analysis before finding that the plaintiff's asserted
substantive due process claim survived summary judgment. See
Bello v. Walker, 840 F.2d 1124, 1128-1130. Second, we are less
certain that the "legitimate claim of entitlement" approach is
mandated by Supreme Court jurisprudence. As we have previously
noted, the Supreme Court has yet to articulate a standard for
determining which state-created property interests merit
substantive due process protection. See Reich v. Beharry, 883
F.2d 239, 243 (3d Cir. 1989). As for Board of Regents v. Roth,
408 U.S. 564 (1972), a decision the dissent relies upon, we agree
with the observation of the Court of Appeals for the Second
Circuit: in Roth, the Court announced that a property interest
within the meaning of the Fourteenth Amendment "includes not only
what is owned but also, in some limited circumstances, what is
sought." RRI Realty Corp. v. Inc. Village of Southampton, 870
F.2d 911, 915 (2d Cir. 1989) (emphasis supplied) (citing Roth,
408 U.S. at 577).
substantive due process claim where he or she alleges that the
decision limiting the intended land use was arbitrarily or
irrationally reached.10 Where the plaintiff so alleges, the
plaintiff has, as a matter of law, impliedly established
possession of a property interest worthy of substantive due
process protection.11
C. Sufficiency of Evidence of
Substantive Due Process Violation
We now turn our attention to the question of the
sufficiency of DeBlasio's evidence of improper motive.
As explained above, in Bello, we reversed the district
court's grant of summary judgment, concluding that the plaintiffs
10
. In Neiderhiser v. Borough of Berwick, 840 F.2d 213 (3d Cir.
1988), we held that a lessor who had been denied an exemption
from a zoning ordinance stated a substantive due process claim by
alleging that the exemption application was arbitrarily and
irrationally denied. See Neiderhiser, 849 F.2d at 218 (citing
Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988). Having implied in
Neiderhiser that a lessor possesses a property interest worthy of
substantive due process protection against arbitrary and
irrational governmental deprivation, an actual property owner, a
fortiori, possesses such an interest.
11
. We do not share the dissent's legitimate concern that this
standard "will invite land owner into any federal court to
challenge even the most mundane and routine zoning decisions[.]"
Dis. Op. Typescript at 7. The standard we articulate today is
implicit in Bello, and Bello has not over-burdened the federal
courts by inviting meritless landowner suits. Moreover, we note
by way of analogy that persons denied licenses required for the
practice of certain occupations are not required to demonstrate
entitlement to the license sought in order to state a substantive
due process claim. To state a substantive due process claim,
such persons need only assert that the license sought was
arbitrarily denied. See RRI Realty Corp., 870 F.2d at 917-18 n.4
(citing Wilkerson v. Johnson, 699 F.2d 325 (6th Cir. 1983)).
This rule has not invited abuse of the federal courts by persons
denied licenses to pursue particular occupations.
had presented evidence from which a fact-finder could reasonably
conclude that certain council members, for partisan political or
personal reasons, improperly interfered with the process by which
the municipality issued building permits. Bello, 840 F.2d at
1129-130. DeBlasio has made allegations that, if proven, would
establish a similar violation of his right to be free from
arbitrary and capricious government action affecting his interest
in use and enjoyment of property. The question is whether
DeBlasio has come forward with enough evidence in support of
those allegations to survive a motion for summary judgment.
The district court did not think so. The court
down-played the significance of Werner Hoff, Sr.'s 1988
unscheduled encounter with Holmes, stating:
The only possible "illegal conduct" which
plaintiff might be referring to appears in
Holmes's affidavit and recites that Hoff
participated in the hearings in light of the
five-minute conversation which took place
between the two individuals. This evidence
is not sufficient to enable a jury to
establish bias, bad faith, improper motive,
racial animus, or the existence of partisan
political or personal reasons and, therefore,
to return a verdict in plaintiff's favor.
(Appendix at 309).
We disagree with the district court. We conclude that
a genuine issue of material fact must be resolved to determine
whether or not Werner Hoff, for personal reasons, improperly
interfered with the process by which the Township of Amwell
rendered zoning decisions, and that summary judgment should not
have been entered in favor of the defendants. Werner Hoff had
decided to abstain from participating in the ZBA hearings in May
or June of 1990. By September, however, he believed that his
apparent conflict had been resolved. We do not understand why he
believed this to be so. One of his sons still owned the West
Amwell property, and the property remained unoccupied. In fact,
Werner Hoff, Sr. continued to hold a mortgage on it. On the
other hand, and contrary to DeBlasio's assertions, the record
does not show that Hoff ever "pressured" Holmes to abandon the
DeBlasio property in favor of his own. Still, Werner Hoff did
state, both to Holmes and later to Venettone, that he believed
his family's property would be a good place for Holmes' business.
In addition, in his conversation with Holmes, Hoff specifically
mentioned that one advantage of the Hoff property was its more
favorable zoning status.
Hoff never approached Holmes after 1988, and the ZBA
hearings did not begin until May of 1991. Additionally, even if
Holmes were forced to leave the DeBlasio property, he never
indicated that he would want to relocate on Hoff's land. To the
contrary, in his conversation with Hoff, Holmes stated that he
was not interested in the Hoff property, because the Quonset hut
was not large enough to suit his needs. We conclude,
nonetheless, that a genuine issue of material fact exists as to
whether the ZBA's decisions were, in some part, influenced by
Werner Hoff, Sr.'s personal, financial interest in the resolution
of DeBlasio's zoning problems. Under Bello, DeBlasio thus
presented sufficient evidence to withstand the defendants' motion
for summary judgment in relation to DeBlasio's substantive due
process claim.12
IV.
For the reasons stated above, we will reverse the
district court's grant of summary judgment in relation to
DeBlasio's substantive due process claim and New Jersey tort
claims against the ZBA defendants and remand for proceedings
consistent with this opinion. We will affirm the district
court's dismissal of DeBlasio's procedural due process claim,
claim for taking of property without just compensation, section
1985(3) claim, commerce clause claim, and state tort claims
against the Lavans. We will also affirm the district court's
denial of DeBlasio's motion for leave to file an amended
complaint, as well as the district court's affirmance of the
magistrate judge's discovery order.
12
. In Count III of his complaint, DeBlasio stated claims under
New jersey tort law for intentional interference with contractual
relations and economic opportunity. The district court granted
summary judgment on those claims in favor of the ZBA defendants
because DeBlasio failed to comply with the notice provisions of
the New Jersey Tort Claims Act ("NJTCA"). Because DeBlasio has
asserted intentional tort claims, the notice provisions of the
NJTCA do not apply and it was error for the district court to
apply them. See Fuchilla v. Layman, 210 N.J.Super. 574
(N.J.Super. A.D. 1986).
Although it offered no explanation for having done so, the
district court also appears to have granted summary judgment in
favor of the Lavans in relation to DeBlasio's tort claim against
them. We will affirm the district court's grant of summary
judgment in favor of the Lavans as there is no evidence to
support DeBlasio's tort claim against them.
McKELVIE, District Judge (sitting by designation), dissenting.
I agree with the majority that this court should affirm
the district court’s grant of summary judgment in favor of the
defendants with respect to DeBlasio’s 42 U.S.C. § 1983 procedural
due process claim, unlawful taking claim, § 1985(3) claim,
commerce clause claim, and state tort claims against the Lavans.
I further agree that we should reverse the grant of summary
judgment in favor of the ZBA defendants with respect to the New
Jersey tort claims. However, because I believe this court should
affirm the grant of summary judgment as to DeBlasio’s substantive
due process claim, I must dissent from parts III.B & C of the
majority’s opinion.
I. Introduction and Factual Background
DeBlasio claims the ZBA defendants violated his rights
to substantive due process in determining that his property was
not in compliance with the West Amwell zoning ordinances and in
denying his application for a use variance. I agree with the
majority that this case raises important questions about what
property interests substantive due process will protect and that
searching for the proper standard is a complicated matter. The
majority correctly determines that in order to establish a
violation of substantive due process, a plaintiff such as
DeBlasio must demonstrate that he possesses a property interest
worthy of substantive due process protection. However, I believe
the majority’s next conclusion, that a plaintiff need only be a
property owner to raise a substantive due process violation, is
unwarranted and unwise. This standard opens the doors to the
federal courts far wider than the Constitution contemplates, and
surely will require the federal courts to sit as “zoning boards
of appeals.” See RRI Realty Corp. v. Incorporated Village of
Southampton, 870 F.2d 911, 918 (2d Cir. 1989). Furthermore, even
under the majority’s definition of what constitutes a sufficient
property interest, I believe DeBlasio has failed to demonstrate
the existence of a genuine issue of material fact and thus, the
district court’s grant of summary judgment must be affirmed.
The facts of this case are simple and straightforward.
Indeed, the parties do not disagree as to the following central
facts. This case begins with the only two quonset huts existing
in West Amwell Township, each located on a different piece of
property. Plaintiff is the owner of one of these pieces of
property, which he began renting in 1979 to Peter Holmes for his
lead acid battery distribution business.13 The other parcel of
land is owned by the son of defendant Werner Hoff, a member of
the ZBA. On February 8, 1989, Zoning Officer Venettone issued a
first notice to DeBlasio that his property was in violation of
West Amwell zoning ordinances. At around the same time, Hoff
encountered Holmes in a diner and suggested that Holmes consider
renting Hoff’s son’s quonset hut property. Holmes told Hoff that
he was not interested because the hut was too small for his use.
13
. I would note that the record is devoid of any explanation as
to why it is pertinent that the structure on each piece of
property is a quonset hut, or why it was crucial that Holmes’s
business be located in a quonset hut.
On June 26, 1990, the ZBA conducted a hearing on DeBlasio’s first
notice of violation, and decided that since Venettone’s letter to
DeBlasio failed to specifically identify the zoning ordinance
violated, it was therefore inappropriate to make a determination
on the violation. Some time after this hearing, Venettone called
Hoff concerning zoning business, at which time they discussed the
DeBlasio matter and Hoff gave Venettone his opinion that
DeBlasio’s property was in violation of the zoning laws. On
August 7, 1990, Venettone issued a second notice of violation to
DeBlasio, stating that his use of the property was an expansion
of a pre-existing, nonconforming use exception to the zoning
ordinances. DeBlasio appealed the decision and applied for a use
variance. On October 23, 1990, the ZBA voted to uphold
Venettone’s determination of noncompliance. In addition, on May
28, 1991, the ZBA adopted a motion to deny DeBlasio’s application
for a variance, and on June 25, 1991, they adopted a resolution
memorializing that decision.
Thus, the parties are not in dispute as to the events
that occurred leading up to the ZBA’s determination that
DeBlasio’s property was in violation of West Amwell’s zoning
ordinances and its decision to deny DeBlasio a use variance. The
only dispute, therefore, is as to what inferences may reasonably
be drawn from those facts. The district court determined that,
after the close of lengthy discovery, DeBlasio failed to offer
evidence sufficient to allow a reasonable jury to draw the
inference that the ZBA’s zoning decisions were based on bias,
improper motive, or some other unlawful criteria. As such, the
case was ripe for the grant of a summary judgment. However, the
majority disagrees, concluding that “a genuine issue of material
fact must be resolved to determine whether or not Werner Hoff,
for personal reasons, improperly interfered with the process by
which the Township of Amwell rendered zoning decisions.” Slip
op. at 25.
II. DeBlasio’s Property Interest
The majority correctly begins its analysis with the
property interest DeBlasio must possess in order to make out a
claim under substantive due process, and focuses on Bello v.
Walker, 840 F.2d 1124 (3d Cir. 1988). In Bello, we did not
discuss whether the plaintiffs possessed a requisite property
interest; however, we examined the district court’s grant of
summary judgment assuming that plaintiffs had a sufficient
property interest in obtaining a municipal building permit.
Thus, the majority notes that one can read Bello as requiring a
plaintiff to possess “a particular quality of property interest”
before he or she may bring a claim for a substantive due process
violation. This court recently reaffirmed this position in
Acierno, holding that a plaintiff “complaining of a violation of
substantive due process rights . . . must prove that the
governmental authority acted to ‘infringe[] a property interest
encompassed by the Fourteenth Amendment.’” Acierno v. Cloutier,
40 F.3d 597, 616 (3d Cir. 1994) (quoting Midnight Sessions, Ltd.
v. City of Philadelphia, 945 F.2d 667, 679 (3d Cir. 1991), cert.
denied, 112 S. Ct. 1668 (1992)); see also Reich v. Beharry, 883
F.2d 239, 245 (3d Cir. 1989) (finding plaintiff “possesses no
property interest that entitles him to substantive due process
protection”).
The majority falters, however, when it turns to the
determination of exactly what property interests will qualify for
substantive due process protection. The majority finds “it
consistent with Bello” to hold that mere ownership is “a property
interest worthy of substantive due process protection.” Slip op.
at 22. Thus, in order to establish a violation of substantive
due process, a plaintiff need only allege that a decision
limiting the use of land he or she owns was “arbitrarily or
irrationally reached.” I believe this rule of law is incorrect
for two reasons.
First, I believe that the majority’s standard
represents a departure from the legal precedent of the Supreme
Court and of this Circuit. The majority relies on Bello and
Neiderhiser v. Borough of Berwick, 840 F.2d 213 (3d Cir. 1988),
to support its conclusions. However, I do not read Bello to
stand for the proposition that mere ownership is a sufficient
substantive due process property interest. As stated above, the
property interest at issue in Bello was the apparent right to a
municipal building permit. Similarly, Neiderhiser does not
support such a broad standard. In Neiderhiser, as in Bello, we
skipped the necessary determination of what property interest
plaintiffs possessed. However, in that case, the plaintiffs were
lessors who asserted a right to a special zoning exemption “based
on the fact that the property had been operated on a commercial
basis for the past 30 years and that the proposed use was
consistent with prior non-conforming . . . use.” Neiderhiser,
840 F.2d at 214. Thus, it was this interest in the right to a
zoning exemption which we assumed was sufficient to allege a
viable due process violation.
To answer the question of what “particular qualities”
of property interests are protected by substantive due process, I
believe our analysis is dictated by our recent decision in
Acierno, which follows the Supreme Court’s teachings in Board of
Regents v. Roth, 408 U.S. 564 (1972). In Acierno, we adopted the
Court’s position that property interests are not created by the
Constitution, but instead “stem from an independent source such
as state law--rules or understandings that secure certain
benefits and that support claims of entitlement to those
benefits.” Acierno, 40 F.3d at 616 (quoting Roth, 408 U.S. at
577). In so doing, we held that “when analyzing substantive due
process claims courts are required to turn to state and local law
to determine whether the plaintiff possessed a property interest
which was abrogated by the governmental action.” Id.
In Roth, the Supreme Court focused its definition of a
property interest under the Fourteenth Amendment on “what is
sought.” RRI Realty Corp. v. Incorporated Village of
Southampton, 870 F.2d 911, 915 (2d Cir. 1989). In its test, the
Court rejected the supposition that a property interest in a
certain benefit could stem from a mere “abstract need or desire
for it” or “unilateral expectation of it.” Instead, there must
be a “legitimate claim of entitlement.” Roth, 408 U.S. at 576;
accord RRI, 870 F.2d at 915. As we recognized in Acierno, this
claim of entitlement must be found in state law.
In footnote 9 of its opinion, the majority displays its
uncertainty that Roth’s “legitimate claim of entitlement
approach” is mandated by the Supreme Court, restating its belief
that the Court has “yet to articulate a standard for determining
which state-created property interests merit substantive due
process protection.” Slip op. at 22. Whether or not the Roth
approach is required by the Supreme Court, it would appear that
this court has already indicated its approval of the “claim of
entitlement” standard by holding in Acierno that property
interests are created by “rules and understandings that secure
certain benefits and support claims of entitlement to those
benefits.” Acierno, 40 F.3d at 616 (emphasis added).
In addition, the “claim of entitlement” standard should
be applied in this case not only because it follows from the
Supreme Court’s and Third Circuit’s prior jurisprudence, but also
because it represents the approach to substantive due process
zoning cases adopted by many other circuits as well. See Gardner
v. Baltimore Mayor and City Council, 969 F.2d 63, 68 (4th Cir.
1992) (holding that existence of a property interest turns on
whether there is a “legitimate claim of entitlement” under state
law); Spence v. Zimmerman, 873 F.2d 256, 258 (11th Cir. 1989)
(same); RRI Realty Corp. v. Incorporated Village of Southampton,
870 F.2d 911, 917 (2d Cir. 1989) (same); Carolan v. City of
Kansas City, 813 F.2d 178, 181 (8th Cir. 1987) (same); Yale Auto
Parts, Inc. v. Johnson, 758 F.2d 54, 58-59 (2d Cir. 1985) (same).
Second, and perhaps equally as important, I believe the
majority's new standard of “mere ownership” is erroneous because
essentially it is tantamount to no standard at all. It is
difficult to imagine that a plaintiff would argue his or her
substantive due process rights had been violated as to property
he or she did not even own (or at least possess a significant
financial interest in). The majority's conclusion establishes a
precedent whereby a plaintiff states a substantive due process
claim merely by alleging deliberate and arbitrary abuse of
government power. It invites any land owner into federal court
to challenge even the most mundane and routine zoning decisions,
ignoring the oft-cited admonition that the role of the federal
courts “is not and should not be to sit as a zoning board of
appeals.” Village of Belle Terre v. Boraas, 416 U.S. 1, 13
(1974) (Marshal, J., dissenting). As Judge Posner wrote for the
Seventh Circuit: “[I]t is tempting to view every zoning decision
that is adverse to the landowner . . . as a deprivation of
property. . . . [However, n]o one thinks substantive due process
should be interpreted so broadly as to protect landowners against
erroneous zoning decisions.” Coniston Corp. v. Village of
Hoffman Estates, 844 F.2d 461, 465-66 (7th Cir. 1988).
I believe the majority misunderstands the concern I
have articulated above when it states in footnote 11 that “Bello
has not over-burdened the federal courts by inviting meritless
landowner suits.” Slip op. at 24. My objection to the
challenges to routine zoning decisions that could be brought,
under the majority’s standard, by anyone who owns land is not
that the courts will now be flooded by claims that are meritless
per se. It is, rather, that claims brought under this standard
do not raise the issues of constitutional significance
appropriately addressed by the federal courts. As the First
Circuit has consistently held, “the due process clause may not
ordinarily be used to involve federal courts in the rights and
wrongs of local planning disputes. In the vast majority of
instances, local and state agencies and courts are closer to the
situation and better equipped to provide relief.” Nestor Colon
Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir.
1992). Every zoning decision seemingly “impinges upon a
landowner’s use and enjoyment of property.” See slip. op. at 23.
Thus, confining the category of property interests a plaintiff
must possess simply to ownership subjects every zoning decision
to potential federal review.
I believe, as Judge Posner wrote in Coniston,
“[p]roperty is not a thing, but a bundle of rights.” 844 F.2d at
465. Hence, we must look to what particular rights and uses a
person is entitled by the state through the ownership of a parcel
of land in order to determine whether he or she possesses a
property interest that merits due process protection. While I
can appreciate the majority's frustration at the perceived lack
of guidance in its search for what constitutes such a sufficient
property interest, the difficulty of the task does not grant us
license to set the threshold so low as to eradicate all utility
it was intended to possess.
With that preface, I now turn to the evaluation of
DeBlasio’s claims. DeBlasio alleges his substantive due process
rights were violated by two actions of the ZBA--the affirmance of
Venettone’s determination that DeBlasio's property was not in
compliance with a previously granted exception to the West Amwell
zoning code and the denial of DeBlasio’s application for a use
variance. The first step in analyzing DeBlasio’s claims is to
determine whether he possesses a property interest that is
cognizable under the Fourteenth Amendment. See Gardner, 969 F.2d
at 68. In order to make this determination, we must look to what
“claims of entitlement” can be found in state law.
DeBlasio’s claims raise two possible property
interests: his right to the continued nonconforming use of his
property and his right to obtain a use variance. As to the
first, the question of whether a claim of entitlement exists
“should depend on whether, absent the alleged denial of due
process, there is either a certainty or a very strong likelihood”
that DeBlasio’s property would have been found to comply with the
pre-existing, nonconforming use exception granted to the first
owner. See Yale Auto Parts, 758 F.2d at 59. It is true that
under the New Jersey Municipal Land Use Act, “[a]ny nonconforming
use or structure existing at the time of the passage of an
ordinance may be continued.” N.J. Stat. Ann. § 40:55D-68 (1991).
However, the New Jersey Supreme Court has recognized the general
policy in the law to restrict and disfavor a nonconforming use:
“Because nonconforming uses are inconsistent with the objectives
of uniform zoning, the courts have required that consistent with
the property rights of those affected and with substantial
justice, they should be reduced to conformity as quickly as is
compatible with justice.” Town of Belleville v. Parrillo’s,
Inc., 416 A.2d 388, 391 (N.J. 1980). Thus, an existing
nonconforming use may not be enlarged or changed as of right and
will be allowed to persist only “if it is a continuance of
substantially the same kind of use as that to which the premises
were devoted at the time of the passage of the zoning ordinance.”
Id. Furthermore, “[w]here there is doubt as to the
substantiality of the extension, it should be disapproved.”
Hartman v. Township of Randolph, 155 A.2d 554, 558 (N.J. Super.
Ct. App. Div. 1959).
The previous owners of DeBlasio's property were
operating a one-man automobile repair shop when West Amwell
adopted its first zoning ordinance, and it was this use that was
permitted to continue as a pre-existing nonconforming exception
to the zoning restrictions. Holmes’s interstate battery
distributorship clearly represents a departure from this prior
use, and there would appear to be some doubt as to whether this
battery business is “substantially the same kind of use” as the
previous single person car repair shop. Thus it cannot be said
that there is a “certainty or a very strong likelihood” that
DeBlasio would have been permitted to continue the present use of
his property indefinitely, and that he would never have been
deemed to have expanded the pre-existing nonconforming use
exception granted to the prior owners. Consequently, DeBlasio
possesses no claim of entitlement under state law to the
continued nonconforming use of his property, and thus does not
possess this first category of property interest which he
asserts.
As to the second possible property interest, that is,
whether DeBlasio had a right to approval of his application for a
use variance, many courts have held that “whether a property-
holder possesses a legitimate claim of entitlement to a permit or
approval turns on whether, under state and municipal law, the
local agency lacks all discretion to deny issuance of the permit
or approval. Any significant discretion conferred upon the local
agency defeats the claim of a property interest.” Gardner, 969
F.2d at 68; accord New Burnham Prairie Homes v. Village of
Burnham, 910 F.2d 1474, 1480 (7th Cir. 1990); Spence, 873 F.2d at
258; RRI, 870 F.2d at 918; Carolan, 813 F.2d at 181; Michigan
Environmental Resources Associates, Inc. v. City of Macomb, 669
F. Supp. 158, 160 (E.D. Mich. 1987). Thus, a cognizable property
interest exists “only when the discretion of the issuing agency
is so narrowly circumscribed that approval of a proper
application is virtually assured.” RRI, 870 F.2d at 918. This
standard “balances the need for local autonomy in a matter of
paramount local concern” (such as zoning regulations) with the
need for constitutional protection from governmental abuses of
power. See Gardner, 969 F.2d at 69.
New Jersey zoning law authorizes a zoning board of
adjustment to grant a variance in “particular cases and for
special reasons” to permit “(1) a use or principal structure in a
district restricted against such use or principal structure, [or]
(2) an expansion of a nonconforming use.” N.J. Stat. Ann. §
40:55D-70(d). However, no variance may be granted unless it can
be done “without substantial detriment to the public good and
will not substantially impair the intent and the purpose of the
zone plan and zoning ordinance.” Id. These provisions include
no mandatory language but instead appear to create a flexible
standard which assigns boards of adjustment the power to grant a
variance in special cases at their discretion. Moreover, the New
Jersey courts have recognized that the legislature “has vested
discretionary authority in boards of adjustment to grant or deny
variance applications.” Eagle Group v. Zoning Bd. of Adjustment,
644 A.2d 1115, 1120 (N.J. Super. Ct. App. Div. 1994). It
follows, then, that state law has given DeBlasio no claim of
entitlement to a use variance, and thus no property interest in
the approval of his application.
Therefore, since DeBlasio has failed to demonstrate he
possesses any property interests cognizable under the Fourteenth
Amendment that could have been abrogated by the ZBA, the district
court was correct in granting summary judgment in favor of the
defendants on this issue, and I believe this court should affirm
that decision.
III. Evidence of Personal Bias or Improper Motive
After determining that “a land-owning plaintiff” who
alleges that any governmental decision affecting the use of his
or her land was arbitrarily or irrationally reached has, “as a
matter of law, impliedly established possession of a property
interest worthy of substantive due process protection,” the
majority goes on to examine “whether DeBlasio has come forward
with enough evidence in support of [his] allegations to survive a
motion for summary judgment.” Slip op. at 23-25. Even if I were
to adopt the majority’s position that mere ownership constitutes
a property interest sufficient to invoke constitutional
protection, I do not agree with the majority’s conclusion that
DeBlasio has presented sufficient evidence from which a fact-
finder could reasonably conclude that the government action was
taken based on improper motives or unlawful criteria.
The Supreme Court has stated, “the mere existence of
some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A
genuine issue of material fact arises only if a reasonable jury
could find for the nonmoving party on that fact. Id. at 248.
The nonmovant is not given the benefit of every inference or
possibility, but only of every reasonable inference. Spence, 873
F.2d at 257. The nonmoving party must offer sufficient evidence
such that a reasonable jury could return a verdict in favor of
that party. Anderson, 477 U.S. at 248. “If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Id. at 250-51 (citations omitted).
After convincing the court he possesses a cognizable
property interest, DeBlasio must demonstrate he was the victim of
arbitrary and capricious government action in order to establish
that his substantive due process rights were violated. The
district court correctly recognized that this determination turns
on whether the actions taken by the ZBA against DeBlasio were
based on unlawful criteria such as personal bias, bad faith, or
improper motive.
To support his allegations of personal bias and
improper motive, DeBlasio appears to allege the following facts:
1) At some point in early 1989, Hoff encountered Holmes in a
diner and suggested that Holmes consider renting Hoff’s son’s
quonset hut property. During the conversation, Hoff noted that
the zoning regulations were more beneficial for his business.
However, Holmes told Hoff that he was not interested because the
hut was too small for his use. 2) Some time after June 26, 1990,
Venettone called Hoff concerning zoning business, at which time
they discussed the DeBlasio matter and Hoff gave Venettone his
opinion that DeBlasio’s property was in violation of the zoning
laws. 3) Hoff participated in the 1990-91 zoning hearings
regarding DeBlasio’s property. As I stated above, defendants do
not dispute that these events occurred. The district court found
that this evidence was insufficient to enable a reasonable jury
to find bias or improper motive, and thus to return a verdict in
DeBlasio’s favor, and I agree.
As the majority recognized, “the record does not show
that Hoff ever ‘pressured’ Holmes to abandon the DeBlasio
property in favor of his [son’s].” Slip op. at 25-26. He had no
contact with Holmes regarding this suggestion after early 1989.
It is also undisputed that Holmes believed the other quonset hut
property was inadequate for his business, and there is no
evidence to suggest that Holmes would have relocated to that
property. Furthermore, Venettone’s own testimony shows that he
called Hoff in his capacity as secretary of the board of
adjustment and broached the subject of the DeBlasio zoning matter
to get information about it. None of the above evidence is
sufficient to support the inference that Hoff’s actions as a
member of the ZBA were influenced by personal bias or improper
motive; no reasonable jury could draw this inference, as it would
be based solely on mere speculation.
DeBlasio also contends that Hoff’s involvement in the
hearings reveals a conspiracy on the part of the ZBA to violate
his substantive due process rights. However, DeBlasio has
provided insufficient evidence to support this theory. It would
appear that discovery in this case lasted for twelve months, and
yet DeBlasio has been unable to present any facts to demonstrate
the existence of a conspiracy. While the district court
prohibited DeBlasio from deposing the members of the ZBA as to
the mental thought processes they employed in reaching the
decision to deny a use variance, DeBlasio remained free to
inquire into ex parte meetings, off-the-record communications, or
discussions between Hoff and other ZBA members, or other
manifestations of personal animus, and to probe for documentary
evidence of such events. But after the close of lengthy
discovery, DeBlasio has come forward with no evidence of any
discussions, arrangements, promises, or agreements between Hoff
and the other ZBA members to vote against DeBlasio. Furthermore,
he has not identified a single occasion of contact between Hoff
and any board member that would suggest improper conduct.
Similarly, DeBlasio has supplied no evidence that would show Hoff
was retaliating against Holmes because he did not wish to move to
Hoff’s son’s property. Thus, no reasonable jury could find that
a conspiracy existed within the ZBA to deprive DeBlasio of
substantive due process.
Finally, DeBlasio has failed to offer any facts to show
a causal link between Hoff’s alleged personal bias and membership
on the zoning board and the decisions affecting DeBlasio’s
property. First, the ZBA’s vote to affirm Venettone’s
determination that DeBlasio’s property was an expansion of the
pre-existing nonconforming use exception was unanimous. Second,
the vote to deny the application for a variance was four to
three, with Hoff voting against. However, the grant of a
variance requires five votes by law. See N.J. Stat. Ann. 40:55D-
70(d). Even if Hoff did not participate in the vote, DeBlasio
would have garnered only three votes in support of the variance,
still rendering his application unsuccessful. Again, no
reasonable jury could find that the ZBA’s decisions were based on
unlawful criteria. DeBlasio simply has been unable to provide
evidence that would support his allegations. Because DeBlasio
has, after adequate time for discovery, failed to make a showing
sufficient to establish essential elements of his case, upon
which he will bear the burden of proof, I would affirm the
district court’s grant of summary judgment. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
IV. Conclusion
The district court granted summary judgment in favor of
the ZBA defendants on DeBlasio's substantive due process claim.
The majority reverses this decision, finding that DeBlasio has
offered sufficient evidence to survive summary judgment. In so
doing, the majority holds that mere ownership is a sufficient
property interest worthy of substantive due process protection.
I disagree with that conclusion, and furthermore would affirm the
grant of summary judgment as DeBlasio has failed to demonstrate
he possesses a property interest cognizable under the Fourteenth
Amendment. However, even under the majority’s conclusion as to
the requisite level of property interest, I would affirm summary
judgment, as I believe DeBlasio has failed to present evidence
that would permit a reasonable jury to find the ZBA’s zoning
decisions with regard to DeBlasio were based on personal bias,
improper motive, or some other unlawful criteria.
I respectfully dissent.