Amicus Curiae Brief — Zoning Board of Adjustment v. DeBlasio
Supreme Court brief1995
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No. 95-163
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IN THE
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OCTOBER TERM, 1995
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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,
Petitioners,
—
ALFRED DEBLASIO,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
MOTION BY THE NEW JERSEY STATE LEAGUE OF
MUNICIPALITIES TO FILE BRIEF AMICUS CURIAE AND
BRIEF AMICUS CURIAE IN SUPPORT OF PETITIONERS
Gerald T. Ford Fred G. Stickel, III*
Derek A. Ondis Stuart R. Koenig
SIFF ROSEN STICKEL KOENIG & SULLIVAN
One Gateway Center 571 Pompton Avenue
Suite 500 Cedar Grove, New Jersey 07009
Newark, New Jersey 07102 (201) 239-8800
(201) 623-2700 Attorneys for The New Jersey
State League Of Municipalities
*Counsel of Record
No. 95-163
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
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,
ALFRED DEBLASIO,
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
MOTION BY THE NEW JERSEY STATE LEAGUE
OF MUNICIPALITIES TO FILE AMICUS CURIAE
BRIEF AND BRIEF IN SUPPORT OF PETITIONERS
Gerald T. Ford Fred G. Stickel, III*
Derek A. Ondis Stuart R. Koenig
SIFF ROSEN STICKEL KOENIG & SULLIVAN
One Gateway Center 571 Pompton Avenue
Suite 500 Cedar Grove, NJ 07009
Newark, New Jersey 07102 (201) 239-8800
(201) 623-2700 Attorneys For The New Jersey State
League Of Municipalities
ame i all A eon litlas,
No. 95-163
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
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,
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
MOTION BY THE NEW JERSEY STATE LEAGUE
OF MUNICIPALITIES TO FILE AMICUS CURIAE
BRIEF IN SUPPORT OF THE PETITIONERS
The New Jersey State League of Municipalities ("the
League") moves the Court for permission to file an amicus
curiae brief in support of the petition for a writ of certiorari
filed by the Zoning Board of Adjustment for the Township of
West Amwell, the volunteer members of the Zoning Board,
the Zoning Board’s attorney and the Township’s building
inspector. Petitioners have consented to the League’s filing
an amicus brief in support of the petition. The League sought
2
consent from respondent but he declined. Leave to file is
therefore sought pursuant to Rule 37.2 of this Court.
NATURE OF APPLICANT’S INTEREST
The League is an organization of over 560 New Jersey
municipalities, organized to address legal, political and social
issues Of vital importance to New Jersey communities. The
League’s policy is to file amicus briefs when, and only when,
important issues affecting New Jersey’s municipalities are
presented. In particular, it has appeared before the Supreme
Court of New Jersey in numerous cases of prime importance
to municipalities.’ On several occasions, the Supreme Court
of New Jersey sua sponte has asked the League to appear as
amicus curiae.’
The League has taken an active interest in zoning and land
use issues which, as this Court has recognized, is perhaps
"the most essential function performed by local
government."? Because of the importance of zoning issues
to municipalities --and the frequency with which they arise --
| See, e.g., Morton International Inc. v. General
Accident Ins. Co., 134 N.J. 1 (1993); Rochinsky v. New
Jersey Dep’t of Transportation, 110 N.J. 399 (1988).
2 See, e.g., New Jersey Transit Corp. v. Borough of
Somerville, 139 N.J. 582 (1995).
> Village of Belle Terre v. Boraas, 416 U.S. 1, 13
(1974) (Marshall, J., dissenting) ("I am in full agreement
with the majority that zoning . . . may indeed be the most
essential function performed by local government.").
3
the League has appeared as amicus in a variety of zoning
cases before the Supreme Court of New Jersey and the
Appellate Division of the Superior Court of New Jersey.‘
The League’s role in the use of the civil rights laws to
resolve land use issues is of particular relevance to this case.
The League appeared as amicus in the leading New Jersey
state court decision on the use of 42 U.S.C. §1983 to resolve
zoning disputes. See Anastasio v. Planning Board of West
Orange, 209 N.J. Super. 499 (App. Div.), cert. denied, 107
N.J. 46 (1986). Most recently, it filed an amicus brief with
the Supreme Court of New Jersey on a §1983 claim similar
to that presented by the petition before this Court -- a local
government official who voted against plaintiff on an
application was allegedly biased and should have recused
himself. Rivkin v. Dover Township Rent Leveling Board, 277
N.J. Super. 559 (App. Div. 1994).
The members of the League are seriously concerned about
the increasing use of §1983 for local land use issues and the
impact it has on their budgets and their ability to attract good
* See, e.g., The Great Atlantic & Pacific Tea Co. v.
Borough of Point Pleasant, 137 N.J. 136 (1994); Urban v.
Planning Board of the Borough of Manasquan, 124 N.J. 651
(1991); Kaufmann v. Planning Board for Warren Township,
110 N.J. 551 (1988); Committee for a Rickel Alternative v.
City of Linden, 214 N.J. Super. 631 (App. Div. 1987).
4
people to local government, particularly in the zoning area
where officials, like petitioners here, often serve on a
volunteer basis.
Gerald T. Ford
Derek A. Ondis
SIFF ROSEN
One Gateway Center
Suite 500
Newark, NJ 07102
(201) 623-2700
Respectfully submitted,
/s/ Fred G. Stickel, Til _
Fred G. Stickel, III*
Stuart R. Koenig
STICKEL KOENIG & SULLIVAN
571 Pompton Avenue
Cedar Grove, NJ 07009
(201) 239-8800
Attorneys for the
New Jersey State
League of Municipalities
*Counsel of Record
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
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,
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
BRIEF OF THE NEW JERSEY STATE LEAGUE OF
MUNICIPALITIES AS AMICUS CURIAE
IN SUPPORT OF PETITIONERS
Gerald T. Ford Fred G. Stickel, [II*
Derek A. Ondis Stuart R. Koenig
SIFF ROSEN STICKEL KOENIG & SULLIVAN
One Gateway Center 571 Pompton Avenue
Suite 500 Cedar Grove, NJ 07009
Newark, New Jersey 07102 (201) 239-8800
(201) 623-2700 Attorneys For The New Jersey State
League Of Municipalities
TABLE OF CONTENTS
PAGE
ee CF 9 a 8 0 ew 9 0 8s 80-0 0 0 8 80% ii
Interest of Amicus Curiae .......0ccecevcves 2
OP ES pg pcp ecles creek eteee en 2
ES ee ke ee ee ee Pr ee 5
GENERALIZED NOTIONS OF
SUBSTANTIVE DUE PROCESS SHOULD
NOT BE USED FOR LAND USE
TE EN 64 Wie Sih ee Oe bee ewe 5
ALBRIGHT PROVIDES ADDITIONAL
REASON FOR REVIEWING’ THE
PROPERTY INTEREST QUESTION ...... 9
THERE IS A SPLIT IN THE LOWER
COURTS OVER THE IMPACT OF AN
ADEQUATE STATE REMEDY ON A
SUBSTANTIVE DUE PROCESS CLAIM .... 11
A. Justice Kennedy’s and Thomas’
Concurring Opinion in Albright ........ il
B. The Split In The Circuits ............ 13
C. The Split Between ‘ihe Third Circuit
And The New Jersey State Courts ...... 13
I id os a ne a a ee A oe ee ke
TABLE OF AUTHORITIES
Cases
Albright v. Oliver, 114 S. Ct. 807 (1994) .....
Alexander’s v. Borough of Paramus, 125 N.J.
i ee res es eo ae
Anastasio v. Planning Board of Township of
West Orange, 209 N.J. Super. 499 (App.
Div.), cert. denied, 107 N.J. 46 (1986) ......
Bello v. Walker, 840 F.2d 1124, (3d Cir.),
cert. denied, 488 U.S. 868 (1988) .........
Bensalem Road Corp. v. Bensalem Township,
38 Fe ae GE CH. TORB) ok ks cw cb oS
Bernardsville Quarry, Inc. v. Bernardsville
Borough, 129 N.J. 221 (1992) ...........
Chicago B & QR. Co. v. Chicago, 166 U.S.
ee Ce a ee eee
Collins v. Harker Heights, 503 U.S.
Pe wee 0 oe 0a in ta er es
Deblasio v. Zoning Board of Adjustment for
the Township of West Amwell, 53 F.3d 592 (3d
Se es oes oe oe eee ee
ae ee eee
ee ee Le ad tenes S
ili
Dolan v. City of Tigard, 114 S. Ct. 2309
SE dada eee oe are eee oe hs ts Oh 7
FERC v. Mississippi, 456 U.S. 742 (1982) ........ 8
First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U.S.
IN A a gar hea ge cas a leas oo hoe ks 7
Genty v. RTC 937 F.2d 899 (3d Cir. 1991)........ 16
Graham v. Connor, 490 U.S. 386 (1989) ......... 6
Hudson v. Palmer, 468 U.S. 517 (1984) ...... 11, 16
Kramer v. Board of Adjustment, Sea Girt, 45
ee a Er -O a ee ace wo ow wa 3, 16
McKinney v. Pate, 985 F.2d 1502 (11th Cir.), vacated,
994 F.2d 772 (11th Cir. 1993) (en banc), superseded
by, 20 F. 3d 1550, 1556-57 (11th Cir. 1994) (en banc) 13
Mid-American Waste Systems, Inc. v. City of
Gary, 49 F.3d 286 (7th Cir. 1995) ............. 9
Neiderhiser v. Borough of Berwick, 840 F.2d
213 (3d Cir.), cert. denied, 488 U.S. 822
aia ae Swe ee bP nae Ok wie oe “ered 14
New Burnham Praire Homes, Inc. v. Village of
Burnham, 910 F.2d 1474 (7th Cir. 1990) ......... 13
New Jersey Transit Corp. v. Borough of
Somerville, 139 N.J. 582 (1995). .............. 2
iv
Nollan v. California Coastal Comm’n,
Se Se oo hd CS be eee 7
Parratt v. Taylor, 451 U.S. 527 (1981) ....... passim
Pearson v. City of Grand Blanc, 961 F.2d
Rae Gee Ge EE bob ees ow oe See elie 5
Planned Parenthood of Southeastern, Pa. v.
Ca, AEs Oe es ee COD. 65 OSS eee 10
Regents of University of Michigan v. Ewing,
i ee. rae a 8, 10
Rivkin v. Dover Twp. Rent Leveling Board,
277 N.J. Super. 539 (App. Div. 1994) ... 3, 15, 17, 18
Silverman v. Rent Leveling Board of
Cliffside Park, 277 N.J. Super. 524 (App.
ee, no ae Pa eh ee ease Oe eee 0d 18, 19
Triomphe Investors v. City of Northwood, 49
Fie Se ee Gale SPO) 6 8 0.8 es OE owe oe 9
United of Omaha Life Ins. Co. v. Solomon,
SGe Fine Os Gee ae Be be 0 CRS ew 13
Village of Belle Terre v. Boraas, 416 U.S.
OME Skok ain os oe a ore aaa a ee 8
Ward v. Keenan, 3 N.J. 298 (1949) ......... 15, 16
Williamson County Regional Planning Comm’n
v. Hamilton Bank, 473 U.S. 172 (1985).......... 11
ait iste itis syns
V
Withrow v. Larkin, 421 U.S. 35 (1975) .......... 12
Zinermon v. Burch, 494 U.S. 113 (1990) ...... ie
Constitutions
ek ke tw 15
Statutes
ee ce tt ee 17
Me SPU I ea eee ee ee ee passim
I 2
Rules
supreme Court Rule 37.2 ............. ae
N.J. Court Rule 4:69-6(a) .................. 16
Other
Rohan, 6 Zoning And Land Use Controls
ee 8
» No. 95-163
beta ie
SUPREME COURT OF THE UNITEI: STATES
OCTOBER TERM, 1995
2 -
ZONING BOAKD 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,
Petitioners.
ALFRED DEBLASIO,
Respondent,
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
BRIEF OF THE NEW JERSEY STATE LEAGUE OF
MUNICIPALITIES AS AMICUS CURIAE
IN SUPPORT OF PETITIONERS
The New Jersey State League of Municipalities ("the
League") respectfully submits this brief as amicus curiae in
support of the petition for certiorari filed by the Zoning
Board of Adjustment for the Township of West Amwell, the
volunteer members of the Zoning Board, the Zoning Board’s
attorney and the Township’s building inspector.
YD Se An ik NF ta, ot
TN eee ee a
2
The applicant’s interest is stated in the accompanying
motion.
SUMMARY OF ARGUMENT
This case arises from a homeowner’s complaint about the
activities of a neighboring landowner and the landowner’s
resulting application for a zoning variance, which was denied
by the local Zoning Board of Adjustment. Review of
variance applications is the main function of local Zoning
Boards in New Jersey and elsewhere and is the type of issue
they confront on a regular and recurring basis. In New
Jersey, a disappointed applicant has the right to seek review
of the zoning Board’s decision in the Superior Court of New
Jersey, a right that the landowner here chose not to pursue.
The question presented by this case is whether and when an
unsuccessful applicant should also have the right to assert a
substantive due process claim in addition to his state court
remedy.
With increasing frequency disgruntled landowners and
developers are turning to the substantive due process clause
and 42 U.S.C. §1983 as the preferred method of litigating
zoning disputes. The reasons are obvious and include:
- the ability to recover their attorney’s fees
under 42 U.S.C. §1988;
- the ability to seek damages against local
officials in their individual capacity;
Ae DOR Vind ale teats terdanttin Tae icbiat, a
Se ee weed
3
- the ability to embroil the municipality in
protracted litigation through burdensome and
time-consuming discovery;
- the ability to take the municipality out of the
familiar setting of the local state court and into
the less familiar and sometimes distant federal
court;
- the ability to avoid the presumption of valid-
ity which attaches to local agency decisions in
state court.!
By raising the stakes, civil rights claims are an excellent
way to pressure a municipality in a zoning dispute and the
lawyers who make a living representing disappointed
applicants know it. Moreover, "[t]he possibility of facing
expensive and aggravating litigation as a result of making a
decision on an application for development may in a subtle
way impact on the decision making process." Anastasio v.
Planning Board of Township of West Orange, 209 N.J.
Super. 499, 526 (App. Div.), cert. denied, 107 N.J. 46
(1986).
The increasing use of the substantive due process clause
for zoning disputes is best demonstrated by the growing
number of reported and conflicting decisions from the
Circuits attempting to apply the clause in this context.
Guidance from this Court is desperately needed to bring order
to the confusion created by the conflicting Circuit and state
' Kramer v. Board of Adjustment, Sea Girt, 45 N.J.
268, 296 (1965).
4
court positions. In particular, this Court should clarify the
following issues for the Circuits and the local municipalities
and local officials who may be subject to damage and
attorney’s fee claims for any misstep in this area.
First, this Court’s recent opinion in Albright v. Oliver,
114 S. Ct. 807 (1994), suggests that the generalized notion of
substantive due process should not be used to resolve land use
disputes in light of the explicit protection for excessive land
use regulation in the takings clause of the Fifth Amendment.
Albright was decided after the parties briefed the case below
in the Third Circuit and is not cited in the Third Circuit’s
decision.
Second, if there is a substantive due process claim for
zoning disputes, then it should be conditioned on having a
"fundamental right" at stake. The law in the Circuits on this
particular issue is in chaos and uniformity is needed on this
critical issue.
Finally, if there is a substantive due process claim for
zoning disputes, and if such a claim does not require a
"fundamental right" to be at stake, then it should be
conditioned on the state remedy being inadequate. Here
again, there is confusion in the circuits. There also is a
dramatic conflict between the Third Circuit and the New
Jersey state courts on this aspect of §1983 with the end result
being that zoning plaintiffs have a much greater incentive to
file their substantive due process claim in federal court rather
than state court, where zoning claims have historically been
resolved. This reversal of roles is inimical to the concept of
federalism and this Court should resolve the conflict causing
it.
ee a ee Me ey
5
POINT I
GENERALIZED NOTIONS OF SUBSTANTIVE
DUE PROCESS SHOULD NOT BE USED FOR
——____— LAND USE DISPUTES _
In 1992, the Sixth Circuit made a herculean effort to
summarize the conflicting positions of the Circuits on the use
of the substantive due process clause for zoning cases. See
Pearson v. City of Grand Blanc, 961 F.2d 1211, 1215-18 (6th
Cir. 1992). Since then, as petitioners point out, the
disharmony has increased. See Petition at 13-14.
Lurking in this morass is a larger question -- whether the
substantive due process clause should ever be used for land
use disputes. "As a general matter, the Court has always
been reluctant to expand the concept of substantive due
process because guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended." Collins v.
Harker Heights, 503 U.S. 115, 125 (1992).
This Court’s recent decision in Albright v. Oliver, 114 S.
Ct. 807 (1994), suggests that larger question has to be
answered and provides even more reason for the Court to
take this case and end the confusion.” Albright is the latest
decision to hold that the substantive due process clause should
* Although the Third Circuit’s decision in Deblasio was
decided some 16 months after Albright, the Third Circuit
never cited it, no doubt because Deblasio was briefed before
Albright was decided. In short, it does not appear that the
Third Circuit was aware of Albright when it decided
Deblasio.
6
not be used to analyze claims that are covered by another,
specific provision in the Constitution. The plaintiff in
Albright asserted a substantive due process claim for being
subjected to criminal charges without probable cause. Seven
members of the Court agreed that the substantive due process
claim should be dismissed as a matter of law. Chief Justice
Rehnquist’s plurality opinion (joined in by Justices O’Connor,
Scalia and Ginsberg) found the existence of the Fourth
Amendment’s more specific provisions fatal to assertion of a
generalized substantive due process claim:
It was through [the] provisions of the Bill of
Rights that [the] Framers sought to restrict the
exercise of arbitrary authority by the
Government in particular situations. Where a
particular amendment "provides an explicit
textual source of constitutional protection"
against a particular sort of government
behavior, "that Amendment, not the more
generalized notion of ‘substantive due
process,’ must be the guide for analyzing these
claims."
Id. at 813 (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)).
Justice Kennedy, joined by Justice Thomas, agreed "with
the plurality that an allegation of arrest without probable
cause must be analyzed under the Fourth Amendment without
reference to more general considerations of due process." Jd.
at 817 (Kennedy, J. concurring). Justice Souter likewise
noted the Court’s tradition of "reserving due process for
otherwise homeless substantial claims." Jd. at 820 (Souter,
J., concurring).
7
With respect to zoning, the Bill of Rights contains a
specific provision for arbitrary and irrational land use
decisions by municipalities. The takings clause of the Fifth
Amendment provides in pertinent part:
nor shall private property be taken for public
use, without just compensation.?
In the words of Albright, because the takings clause "provides
an explicit textual source of constitutional protection" from
overzealous or misguided zoning officials, that clause, and
“not the more generalized notion of ‘substantive due process,’
must be the guide for analyzing these claims."
In recent years, this Court has not hesitated to use the
takings clause to invalidate arbitrary action by local officials
with respect to zoning issues. See Dolan v. City of Tigard,
114 S. Ct. 2309 (1994) (City Planning Commission
conditioned approval of landowner’s application to expand her
store and pave her parking lot upon the landowner dedicating
a public greenway and a pedestrian/bicycle pathway); Nollan
v. California Coastal Comm’n, 483 U.S. 825 (1987) (Coastal
Commission conditioned approval of homeowners’ rebuilding
permit upon homeowners allowing the public an easement to
pass across their beach); First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U.S. 304
(1987) (clause extends to temporary takings).
* The takings clause has been made applicable to the
States through the Fourteenth Amendment. See Chicago B &
Q. R. Co. v. Chicago, 166 U.S. 226, 239 (1897).
8
To be sure, some ‘cal actions are not severe enough to
constitute a taking but yet still burden a property owner.
Those local actions, however, should not be subject to a
substantive due process challenge where, as here, New Jersey
provides a "safety valve" in the form of the variance
application process by which the property owner can seek
relief from that burden from the local agency and appeal any
adverse decision to the Superior Court. See Rohan, 6 Zoning
and Land Use Controls, §43.01[3] (1995).
This conclusion is bolstered by local government’s
historical and primary role in land use regulation. Justice
Marshall was no doubt correct when he stated:
I am in full agreement with the majority that
zoning . . . may indeed be the most essential
function performed by local government.
Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974)
(Marshall, J., dissenting). Accord, FERC v. Mississippi, 456
U.S. 742, 768 n.30 (1982) ("regulation of land use is perhaps
the quintessential state activity"). Local government’s special
and unique role in the zoning field counsels against the use of
a substantive due process cause of action as a supplement to
the remedies provided by the takings clause and state law.
See Regents of University of Michigan v. Ewing, 474 U.S.
214, 225-26 (1985) (noting "the prerogatives of state and
local educational institutions" and stating "Considerations of
profound importance counsel restrained judicial review of the
substance of academic decisions.")
POINT II
ALBRIGHT PROVIDES ADDITIONAL
REASON FOR REVIEWING THE
_PROPERTY INTEREST QUESTION
If a substantive due process claim exists for zoning
disputes, the next issue is the nature of the property or other
interest required in order to assert such a claim. As
petitioners aptly point out, the Circuits are hopelessly
splintered as to the nature of the interest required for a
substantive due process claim in the zoning area. In 1995
alone, three Circuits have taken three different approaches to
the issue.‘
Here again, this Court’s decision in Albright suggests a
solution and supports a decision to take this case and bring
some much needed harmony to this important area of
constitutional law. Chief Justice Rehnquist’s plurality opinion
(joined by O’Connor, Scalia and Ginsberg) indicates that
unlike a procedural due process claim, a substantive due
process claim lies only where a "fundamental right" is at
stake:
* Compare Deblasio v. Zoning Board of Adjustment for
the Township of West Amwell, 53 F.3d 592 (3d Cir. 1995)
(applying "mere ownership" test) with Mid-American Waste
Systems, Inc. v. City of Gary, 49 F.3d 286 (7th Cir. 1995)
(applying "fundamental rights" test) and Triomphe Investors
v. City of Northwood, 49 F.3d 198 (6th Cir. 1995) (applying
"legitimate entitlement” test).
10
The protection of substantive due process have
for the most part been accorded to matters
relating to marriage, family, procreation, and
the right to bodily integrity.
114 S. Ct. at 812. See, e.g., Planned Parenthood of
Southeastern, Pa. v. Casey, 112 S. Ct. 2791 (1992)
(describing cases in which substantive due process rights have
been recognized); Regents of University of Michigan, 474
U.S. at 228-29 (Powell, J. concurring) (While property
interests for procedural due process purposes are created by
state law, "substantive due process rights are created only by
the Constitution. ")
The "mere ownership" test adapted by the Third Circuit
in this case can not be reconciled with this Court’s recent
writings on the substantive due process clause. Moreover,
petitioners are clearly correct when they argue that the "mere
ownership" standard is really no standard at all. See Petition
at 14-15. In essence, it permits any landowner to transform
any routine zoning dispute into a substantive due process
claim, thereby placing it on the same plane as fundamental
rights relating to marriage, family, procreation, and bodily
integrity. This dramatic expansion of substantive due process
needs to be addressed by this Court.
11
POINT Ii
THERE IS A SPLIT IN THE LOWER COURTS OVER
THE IMPACT OF AN ADEQUATE STATE REMEDY
ON A SUBSTANTIVE DUE PROCESS CLAIM __
A. Justice Kennedy’s and Thomas’
Concurring Opinion in Albright
If a substantive due process claim exists for zoning
disputes, and if such a claim is not limited by the
"fundamental rights" test advocated above, then it should be
available only if state law does not provide an adequate
remedy. The adequacy of state remedies is a relevant factor
in reviewing constitutional claims under both the takings
clause, see Williamson County Regional Planning Comm’n v.
Hamilton Bank, 473 U.S. 172, 196-97 (1985), and the due
process clause. See Parratt v. Taylor, 451 U.S. 527, 535-44
(1981); Hudson v. Palmer, 468 U.S. 517, 531-36 (1984).
Justice Kennedy’s and Thomas’ concurring opinion in
Albright support the proposition that the Parratt doctrine
should apply to substantive due process claims for zoning
issues if such claims can be asserted when "fundamental
rights" are not at stake.
The commonsense teaching of Parratt is that
some questions of property, contract, and tort
law are best resolved by state legal systems
without resort to the federal courts, even when
a state actor is the alleged wrongdoer.
The Parratt principle respects the delicate
balance between state and federal courts and
comports with the design of §1983, a statute
12
that reinforces a legal tradition in which
protection for persons and their rights is
afforded by the common law and the laws of
the States, as wel! as by the Constitution.
114 S. Ct. at 818-19 (emphasis added).
Moreover, Justices Kennedy and Thomas correctly pointed
out that the "Parratt rule has been avoided by attaching a
substantive rather than procedural label to due process claims
(a distinction that if accepted in this context could render
Parratt a dead letter)." Id. at 819. The instant case is an
excellent example of that very problein. The essence of
plaintiff's claim is that a local official was biased and should
have recused himself. The right to an _ impartial
decisionmaker has traditionally been considered a component
of "procedural" due process. See Withrow v. Larkin, 421
U.S. 35, 47 (1975).
In this case, however, plaintiff styled his claim as both a
procedural and a substantive due process violation. The
Third Circuit dismissed the procedural due process claim
because New Jersey zoning law provided an adequate remedy
for this violation. But when it considered the same claim
under a substantive due process label, the adequacy of the
state remedy played no role in the analysis.
This result makes no sense. If the state provides an
adequate remedy for a procedural due process violation
arising from a biased decisionmaker, then surely that remedy
is just as adequate if the same claim is called a substantive
due process violation. The Parratt doctrine should apply to
both procedural and substantive due process claims, unless a
» ee ee Oe we
13
fundamental right is at stake. But see Zinermon v. Burch,
494 U.S. 113, 125 (1990) (5-4 decision).
B. The Split In The Circuits
Unlike the Third Circuit, where the Parratt doctrine seems
to have no bearing on a substantive due process zoning claim,
a post-Zinermon decision from the Seventh Circuit continues
to require the developer to demonstrate the inadequacy of
state remedies before pursuing a substantive due process
claim. See New Burnham Praire Homes, Inc. v. Village of
Burnham, 910 F.2d 1474, 1479 (7th Cir. 1990). A post-
Zinermon decision from the Sixth Circuit also has relied on
the adequacy of state remedies to dismiss a substantive due
process claim where a fundamental right was not at stake.
See United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31,
35 (6th Cir. 1992). See also McKinney v. Pate, 985 F.2d
1502, 1507-15 (11th Cir.) (Tjoflat, C.J., concurring ) (noting
the problems in this area when substantive due process is not
limited to fundamental rights), vacated, 994 F.2d 772 (11th
Cir. 1993) (en banc), superseded by, 20 F.3d 1550, 1556-57
(11th Cir. 1994) (en banc) (substantive due process applies
only to fundamental rights; therefore adequacy of state
remedies is irrelevant).
C. The Split Between The Third Circuit
And The New Jersey State Courts _
Even more significant, at least for purposes of federalism,
is the split on this issue between the Third Circuit and the
New Jersey state courts. In the Third Circuit
a land-owning plaintiff states a substantive due
process claim where he or she alleges that the
af
decision limiting the intended land use was
arbitrarily or irrationally reached. 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.
Deblasio, 53 F.3d at 601.° And as Deblasio and earlier
Third Circuit cases demonstrate, those substantive due
process claims often survive summary judgment motions
because of issues of fact.°
Unlike the Third Circuit, where the adequacy of a state
remedy for an arbitrary zoning decision seems to be
> Accord, Bensalem Road Corp. v. Bensalem Township,
57 F.3d 253 (3d Cir. 1995) (developer who had been denied
building permits stated a substantive due process claim by
alleging that officials did so for reasons unrelated to the
merits); Neiderhiser v. Borough of Berwick, 840 F.2d 213 (3d
Cir.), cert. denied, 488 U.S. 822 (1988) (lessor who had
been denied an exemption from a zoning ordinance stated a
substantive due process claim by alleging that the exemption
was arbitrarily and irrationally denied); Bello v. Walker, 840
F.2d 1124 (3d Cir.), cert. denied, 488 U.S. 868 (1988)
(developer who had been denied a building permit application
stated a substantive due process claim by alleging arbitrary
abuse of power by municipal official).
6 See, e.g., Bensalem, 57 F.3d 253 (reversing dismissal
and ordering a third trial); Neiderhiser, 840 F.2d 213
(denying summary judgment motion on substantive due
process claim); Bello, 840 F.2d 1124 (same).
15
irrelevant, that is the critical factor for the New Jersey state
courts when they apply §1983 to zoning claims. This is
perhaps explained by the state court’s familiarity with, and
confidence in, the New Jersey state law remedy for correcting
zoning mistakes by local officials. A brief discussion of that
remedy is therefore in order.
In New Jersey, the actions of municipal agencies and
officials are subject to review in the Superior Court, in an
action in lieu of prerogative writs.’ See generally
Alexander's v. Borough of Paramus, 125 N.J. 100, 107-08
(1991). The trial court’s review of the municipal action is
based on the record below, and the agency’s determination is
set aside if it is arbitrary, capricious or unreasonable, not
supported in the evidence, or otherwise contrary to law. See,
e.g., Rivkin v. Dover Township Rent Leveling Board, 277
N.J. Super. 559, 569 (App. Div. 1994).
Prerogative writ actions are available to protect "an
aggrieved citizen from almost every form of improper official
action.” Ward v. Keenan, 3 N.J. 298, 308 (1949). The
Supreme Court of New Jersey has described the prerogative
court action as a "safeguard of liberty" and "one of the best
of all the securities for the maintenance of the supremacy of
the law." Jd. (quoting Holdsworth, 10 History of English
Law 517).
7 The prerogative writs are certiorari, quo warranto,
prohibition and mandamus. They were superseded by the
New Jersey Constitution in 1947 which provided for "review,
hearing and relief" in the Superior Court in lieu of the
superseded writs. N.J. Const. art. VI §5, 44.
16
In contrast to federal civil rights litigation, the prerogative
writ action was designed for deliberate speed. In fact, the
current system for prerogative writ actions was created by the
New Jersey Constitution of 1947, in part because of
dissatisfaction over the delays inherent in the former system.
See Ward, 3 N.J. at 304-05. The drafters of the 1947
Constitution recognized that "[t]hese cases are required to be
decided promptly as befits the transaction of important public
business." Jd. at 305.
Thus, while a plaintiff has a two year statute of limitations
in the Third Circuit for bringing a §1983 claim, Genty v.
RTC 937 F.2d 899, 919 (3d Cir. 1991), a prerogative writ
claim generally must be brought within 45 days of the
adverse municipal action. New Jersey Court Rule 4:69-6(a).
While a civil rights plaintiff can take full advantage of the
discovery available under the federal rules, the general rule
in prerogative writ actions is that there is no discovery and
the trial court is limited to the record developed by the parties
before the municipal agency. Kramer v. Board of
Adjustment, Sea Girt, 45 N.J. 268 (1965).
As the Appellate Division recently recognized, the
prerogative writ action is, in certain respects, more effective
than a money damage claim under §1983 for correcting due
process violations:
The review of agency determinations afforded
in actions in lieu of prerogative writs is a more
effective postdeprivation remedy than the
postdeprivation tort claims that ware available
to the plaintiffs in Parratt and Hudson... .
The tort remedy is indirect; it redresses the
violation of a plaintiff's rights with a payment
17
of money. The action in lieu of prerogative
writs provides a direct remedy; it substantially
restores the status quo by overturning the
agency ruling that was the fruit of the due
process deprivation.
Rivkin, 277 N.J. Super. at 569-70.°
Given the powerful and speedy nature of this remedy, it
is not surprising that the New Jersey state courts have deemed
it to be an adequate remedy for zoning and other local agency
abuses, thereby obviating the need for a due process claim.
The leading decision is Anastasio v. Planning Board of
Township of West Orange, 209 N.J. Super. 499, 521 (App.
Div.), cert. denied, 107 N.J. 46 (1986), where a developer
filed a §1983 damage claim against various municipal officials
because they had denied the developer’s request for site plan
approval. The trial court found that the municipal officials
"were acting with malicious intent which resulted in depriving
plaintiffs of their rights," id. at 515, and a compensatory and
punitive damage award was entered.
The Appellate Division reversed the finding of §1983
liability because the prerogative writ action provided an
adequate remedy:
New Jersey law granted the victim of such a
mistaken action a complete remedy, so there
® To the extent damages are relevant, the New Jersey
Tort Claims Act provides a damage remedy against
municipalities and local officials subject to the immunity
provisions of that Act. See N.J.S.A. 59:1-1 et seq.
18
was no deprivation of any interest, only a
delay.
Id. at 522 (citing Parratt). Subsequent New Jersey decisions
have consistently rejected §1983 claims for arbitrary and
Capricious action by municipal officials because review of that
action was available in a prerogative writ action.” As the
Appellate Division stated:
If we were to hold a municipal agency liable
under 42 U.S.C. §1983 merely for mistakenly
exercising power under state law remediable
under state law, public entities on all levels
would face a myriad of potential claims and
would serve at great financial peril. .. . We
do not believe that Congress intended such
broad liability for ordinary governmental
decisions.
9 See Bernardsville Quarry, Inc. v. Bernardsville
Borough, 129 N.J. 221, 246-47 (1992) (affirming Appellate
Division’s denial of §1983 claim for arbitrary and capricious
denial of license under a quarry ordinance because "the
availability of review of that action in the Superior Court
prevented such alleged violation from being actionable under
[$1983]."); Rivkin, 277 N.J. Super. at 569-70 (prerogative
writ action provides adequate post-deprivation remedy for a
claim that member of rent leveling board had a conflict of
interest); Silverman v. Rent Leveling Board of Cliffside Park,
277 N.J. Super. 524, 537-38 (App. Div. 1994) (prerogative
writ action provides adequate post-deprivation remedy for a
claim that Mayor and Council arbitrarily denied application
for a rent hardship increase).
19
Silverman v. Rent Leveling Board of Cliffside Park, 277 N.J.
Super. 524, 538 (App. Div. 1994).
In sum, the contrast between the Third Circuit law and the
New Jersey state court law is dangerously dramatic. We say
"dangerously" because it invites zoning plaintiffs to file
zoning cases in federal court rather than state court where
they have historically been resolved. This Court should
resolve this conflict --as well as the conflict among the
Circuits -- and bring some much-needed uniformity to this
area of the law that is of the utmost importance to local
government.
CONCLUSION
The petition for a writ of certiorari should be granted.
Dated: September 26, 1995
Respectfully submitted,
/s/ Fred G. Stickel, III
Gerald T. Ford Fred G. Stickel, II*
Derek A. Ondis Stuart R. Koenig
SIFF ROSEN STICKEL KOENIG & SULLIVAN
One Gateway Center 571 Pompton Avenue
Suite 500 Cedar Grove, NJ 07009
Newark, NJ 07102 (201) 239-8800
(201) 623-2700 Attorneys for the
New Jersey State
League Of Municipalities
*Counsel of Record
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.