1840 P CHEESEMAN ROAD, LLC et al v. TOWNSHIP OF GLOUCESTER ZONING BOARD OF ADJUSTMENT et al

Filing 39

OPINION. Signed by Judge Noel L. Hillman on 12/16/2016. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

1840 P. CHEESEMAN ROAD, LLC,
and 1840 P. CHEESEMAN ROAD
OPCO, LLC,

1:16-cv-01680-NLH-KMW
OPINION

Plaintiffs,
v.
TOWNSHIP OF GLOUCESTER ZONING
BOARD OF ADJUSTMENT and
TOWNSHIP OF GLOUCESTER,
Defendants.

APPEARANCES:
STEVEN M. COREN
EVAN B. COREN
DAVID MICHAEL DEVITO
KAUFMAN, COREN & RESS, P.C.
3900 TWO COMMERCE SQUARE
2001 MARKET STREET
PHILADELPHIA, PA 19103
JACK PLACKTER
FOX ROTHSCHILD LLP
1301 ATLANTIC AVENUE
MIDTOWN BUILDING
ATLANTIC CITY, NJ 08401
KEVIN HARRY MARINO
JOHN A. BOYLE
MARINO TORTORELLA & BOYLE PC
437 SOUTHERN BOULEVARD
CHATHAM, NJ 07928-1488
On behalf of plaintiffs
RICHARD L. GOLDSTEIN
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA
WOODLAND FALLS CORPORATE PARK
200 LAKE DRIVE EAST
SUITE 300

CHERRY HILL, NJ 08002
On behalf of defendant Township of Gloucester Zoning Board
of Adjustment
VINCENT P. SARUBBI
DOUGLAS DIAZ
ARCHER & GREINER
ONE CENTENNIAL SQUARE
HADDONFIELD, NJ 08033
On behalf of defendant Township of Gloucester
HILLMAN, District Judge
This case concerns what Plaintiffs deem to be a “NIMBY”
matter – that the Defendants have systematically rejected
Plaintiffs’ efforts to build a cutting edge substance abuse
treatment facility for unfounded and misguided “not in my
backyard” reasons.

Presently before the Court is the motion of

Defendants to dismiss several of Plaintiffs’ claims.

For the

reasons expressed below, Defendants’ motion will be granted in
part and denied in part.
BACKGROUND
Plaintiff 1840 P. Cheeseman Road, LLC ("1840 P., LLC"), is
the owner of a parcel of property located on 1840 Peter
Cheeseman Road, Blackwood, Township of Gloucester, County of
Camden, State of New Jersey, Block 14003, Lot 13.

1840 P., LLC

is affiliated with Recovery Centers of America Holdings, LLC, a
for-profit organization committed to providing cutting edge
treatment for drug and alcohol addiction in neighborhood-based
residential treatment facilities around the country.

2

Plaintiff

1840 P. Cheeseman Road OPCO, LLC ("OPCO"), is affiliated with
RCA, and is the operating company formed for the purpose of
operating RCA's campus-like residential treatment facility in
Blackwood, Gloucester Township, New Jersey.
Plaintiffs allege in their complaint the following. 1

Drug

and alcohol abuse is wreaking havoc on public health and safety
in communities across the United States, with drug overdose
deaths now surpassing traffic accident deaths.

On March 10,

2016, the United States Senate passed the Comprehensive
Addiction and Recovery Act of 2016, which recognized the abuse
of heroin and prescription opioid painkillers as having "a
devastating effect on public health and safety in communities
across the United States.”
The overdose death rate in New Jersey is three times the
national average, with Camden County (including Gloucester
Township) accounting for the highest percentage of overdose
deaths in New Jersey's twenty-one counties.

Recognizing

addiction's devastating effects, the New Jersey Legislature has
declared: “[H]uman suffering and social and economic loss caused

1

The factual contentions contained in this ruling are drawn from
the Complaint. In keeping with the Court's duty to assume the
veracity of the allegations contained in the Complaint when
deciding the pending Motion to Dismiss, Morse v. Lower Merion
Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997), any contradictory
factual assertions on the part of Defendants have not been
credited. The Court makes no finding on the veracity of the
allegations.
3

by drug addiction are matters of grave concern to the people of
the state and it is imperative that a comprehensive program be
established and implemented through the facilities of the state,
the several counties, the federal government, and local and
private agencies to prevent drug addiction and to provide
diagnosis, treatment, care, rehabilitation for drug addicts.”
N.J.S.A. 30:6C-1.
As affiliates of Recovery Centers of America, Plaintiffs’
mission is to provide neighborhood-based recovery campuses for
patients suffering from drug and alcohol addiction.

To fulfill

that mission, Plaintiffs purchased a 150-acre parcel in
Gloucester Township’s Institutional Zone - a zone specifically
designated for residential healthcare facilities, among other
uses - and plan to construct and operate on the site residential
healthcare facilities dedicated to treating drug and alcohol
abuse.
According to Plaintiff, steeped in pretext, the Defendants,
Township of Gloucester Board of Adjustment and Township of
Gloucester, have thrown one illegal hurdle after another in
Plaintiffs’ path, thereby presenting "the familiar conflict
between the legal principle of non-discrimination and the
political principle of not-in-my-backyard."

Ignoring the plain

language of the Township's Land Development Ordinance, which
expressly states that residential healthcare facilities and
4

residential uses ancillary thereto are permitted uses in the
Institutional Zone, the Defendants have illegally: (a) burdened
Plaintiffs with seven days of unnecessary hearings before the
Township's Zoning Board and Planning Board, (b) caused
Plaintiffs to litigate against both Boards when they improperly
denied Plaintiffs' previous applications, (c) required
Plaintiffs to seek a use variance for a use that is expressly
permitted under the governing ordinance, (d) denied Plaintiffs'
use variance in a “kangaroo” proceeding that screamed pretext
and discrimination (with the Defendant Board finding that
Plaintiffs' four step-down inpatient residential treatment
facilities did not qualify as residential healthcare facilities
under the Ordinance because, in the Board's arbitrary and
capricious view, they are "more of a residence than a treatment
center"), and (e) denied Plaintiffs’ preliminary site plan for
the residential detoxification facility which it had already
approved as a permitted use, thereby requiring Plaintiffs to
start the entire application process anew, for a third time,
based on a fictional jurisdictional deficit.
Having erected one improper procedural hurdle after another
in service of its openly discriminatory objectives, the
Plaintiff alleges, the Board has delayed life-saving treatment
needed by Plaintiffs' prospective patients who reside in and
around Gloucester Township, jeopardized Plaintiffs $8.8 million
5

investment in the project, and caused Plaintiffs to suffer
substantial and continuing economic harm, including lost
profits.
As a result of the alleged wrongdoing, Plaintiffs seek
compensatory damages, punitive damages, injunctive relief, and
attorneys' fees and costs, and assert claims under the
Constitution of the United States, 42 U.S.C. § 1983, 42 U.S.C. §
12132 (the "Americans with Disabilities Act" or "ADA"), 42
U.S.C. § 3601 (the "Fair Housing Amendments Act" or "FHAA''),
29 U.S.C. § 791 (the "Rehabilitation Act" or "RA"), the
Constitution of the State of New Jersey, the New Jersey
Municipal Land Use Law, and N.J.S.A. 10:5-1 (the "New Jersey Law
Against Discrimination" or "NJLAD").
(Complaint, Docket No. 1.)
While Defendants’ motion to dismiss was pending, Plaintiffs
filed a motion for a preliminary injunction seeking to enjoin
Defendants “from persisting in their discriminatory conduct and
directing them to issue the zoning approvals necessary to allow
Plaintiffs to commence construction of Phase One of the proposed
facility and renovate and expand the existing building on the
property for use as a residential treatment facility for persons
recovering from drug addiction and alcoholism.”

(Docket No. 27-

1 at 9.)
Defendants’ main objection to Plaintiffs’ request for
6

injunctive relief was that Plaintiffs failed to exhaust their
administrative remedies by returning to the Planning Board for
approval of Phase One separate from Phase Two.

Plaintiffs had

presented a single use variance application containing both
phases, and it was concerns about Phase Two that was the primary
roadblock to approval of the plan as a whole.
The Court held a hearing on Plaintiffs’ motion for
preliminary injunction on November 16, 2016.

At the conclusion

of the hearing, the Court denied without prejudice Plaintiffs’
motion, but ordered that the Zoning Board must consider and rule
on Plaintiffs' Phase One Application on the merits at the Zoning
Board’s December 14, 2016 meeting.

(Docket No. 35.)

Defendants’ motion to dismiss argues that Plaintiffs’
entire case should be dismissed for the same reason that it
argued Plaintiffs’ motion for preliminary injunction should be
denied – Plaintiffs’ failure to exhaust their administrative
remedies.

In light of the decision of Plaintiffs to submit

Phase I to the Zoning Board and the Board’s approval of that
application, this aspect of Defendants’ motion is moot.

(Docket

No. 33.)
In addition to their exhaustion argument, Defendants have
moved to dismiss several aspects of Plaintiffs’ complaint.

They

argue that (1) Plaintiffs have failed to state a claim against
the Township separate from the Zoning Board; (2) OPCO, as the
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operator of the facility rather than the property owner, lacks
standing to pursue any claims; (3) Plaintiffs have failed to
properly allege a viable Fourteenth Amendment procedural due
process claim; and (4) Plaintiffs’ request for punitive damages
for their claims arising under federal law is prohibited.
Plaintiffs have opposed Defendants’ motion on all bases, except
for the dismissal of their demand for punitive damages, which
Plaintiffs concede the weight of authority bars recovery of
punitive damages against a municipality for federal claims. 2

The

Court will therefore address the three remaining arguments in
Defendants’ motion.
DISCUSSION
A.

Subject matter jurisdiction

This Court has jurisdiction over Plaintiffs’ federal claims
under 28 U.S.C. § 1331, and supplemental jurisdiction over
Plaintiffs’ state law claims under 28 U.S.C. § 1367.
B.

Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as

2

Plaintiffs reserve “the right to reassert [punitive damages]
should the legal landscape change during the course of this
litigation.” (Docket No. 19 at 29 n.9.)
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true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

It is well

settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Under the

liberal federal pleading rules, it is not necessary to plead
evidence, and it is not necessary to plead all the facts that
serve as a basis for the claim.
F.2d 434, 446 (3d Cir. 1977).

Bogosian v. Gulf Oil Corp., 562
However, “[a]lthough the Federal

Rules of Civil Procedure do not require a claimant to set forth
an intricately detailed description of the asserted basis for
relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”

Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.

147, 149-50 n.3 (1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’”

Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)

(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for
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the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under
Rule 12(b)(6).

First, the factual and legal elements of a claim

should be separated; a district court must accept all of the
complaint's well-pleaded facts as true, but may disregard any
legal conclusions.
S. Ct. at 1950).

Fowler, 578 F.3d at 210 (citing Iqbal, 129
Second, a district court must then determine

whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a “‘plausible claim for relief.’”
Id. (quoting Iqbal, 129 S. Ct. at 1950).

A complaint must do

more than allege the plaintiff's entitlement to relief.

Id.;

see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d
Cir. 2008) (stating that the “Supreme Court's Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.

This

‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element”).

A court need not credit either “bald

assertions” or “legal conclusions” in a complaint when deciding
a motion to dismiss.

In re Burlington Coat Factory Sec. Litig.,
10

114 F.3d 1410, 1429-30 (3d Cir. 1997).

The defendant bears the

burden of showing that no claim has been presented.

Hedges v.

U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages,
Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).

A court may consider,

however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”

Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).

If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
C.

Fed. R. Civ. P. 12(b).

Analysis
1.
Whether Plaintiffs have failed to state a claim
against the Township separate from the Zoning Board

Defendants argue that Plaintiffs’ claims against the
Township must be dismissed because the Township and its Zoning
Board are legally distinct entities under New Jersey law, and
Plaintiffs fail to allege, beyond a single bare-bone allegation,

11

how the Township is “responsible” for the purported wrongs by
the Zoning Board.
In New Jersey, zoning boards are independent quasi-judicial
administrative bodies, and their powers are authorized by
statute.

Endreson v. Dover Township Zoning Bd. of Adjustment,

2009 WL 1066053, at *5 (N.J. Super. Ct. App. Div. 2009) (citing
Dolan v. DeCapua, 16 N.J. 599, 612, 109 A.2d 615 (1954); Duffcon
Concrete Prods., Inc. v. Borough of Cresskill, 1 N.J. 509, 51516, 64 A.2d 347 (1949)).

Because of this, zoning boards are

“entities independent of the governing body of the
municipality.”

Lehrhaupt v. Flynn, 356 A.2d 35, 45 (N.J. Super.

Ct. App. Div. 1976), aff'd, 383 A.2d 428 (N.J. 1978).

Thus, it

is clear that without any separate involvement with the events
giving rise to a plaintiff’s claims against a zoning board, a
municipality cannot be held liable for the acts of the zoning
board.
This proposition does not compel the dismissal of
Plaintiffs’ claims against Gloucester Township, however, because
Plaintiffs have alleged wrongs perpetrated by the Township
itself, separate from and in concert with the Zoning Board.
Even though the bulk of the complaint focuses on the Zoning
Board’s actions, Plaintiffs have alleged discriminatory animus
by at least one Township employee – the Township solicitor - who
has been directly involved in the Zoning Board’s deliberations
12

and decisions. 3

For example, in one public hearing, the

Township’s solicitor “mused out loud that RCA would attract
violent offenders to the community,” and that “’one of the
problems with addicts is they lie . . . almost to the point
where you believe them.’”

(Compl. ¶ 34.)

The complaint

contains several other allegations concerning the solicitor’s
alleged discriminatory animus.

(Compl. ¶¶ 68, 75, 87, 123, 124,

146.)
Thus, Plaintiffs have alleged sufficient facts that
suggest, if proven, the Township and its Zoning Board were both
motivated to prevent Plaintiffs’ addiction treatment facility
from being in its “backyard” for discriminatory reasons.

The

Township shall remain in the case at this stage in the
litigation.
2.
Whether OPCO, as the operator of the facility
rather than the property owner, lacks standing to
pursue any claims
Defendants argue that the entity – OPCO - which will
operate the treatment facility on the property owned by 1840 P.
Cheeseman Road, LLC, does not have standing to assert the claims
in the complaint because it holds no interest in the property.

3

A board of adjustment attorney is appointed by the members of
the zoning board, but that appointment “makes him no less an
officer or employee of the municipality which has created his
position and compensates him for his services.” Lehrhaupt v.
Flynn, 356 A.2d 35, 45 (N.J. Super. Ct. App. 1976), aff'd, 383
A.2d 428 (N.J. 1978).
13

The Court rejects this narrow proposition when considering
Plaintiffs’ claims in the context of entire complaint.
“The essence of the standing question, in its
constitutional dimension, is whether the plaintiff has alleged
such a personal stake in the outcome of the controversy (as) to
warrant his invocation of federal-court jurisdiction and to
justify exercise of the court's remedial powers on his behalf.”
Village of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 260–61 (1977) (internal quotations and
citations omitted).

“The plaintiff must show that he himself is

injured by the challenged action of the defendant.”

Id.

“The

injury may be indirect, but the complaint must indicate that the
injury is indeed fairly traceable to the defendant's acts or
omissions.”

Id. (citation omitted).

The Arlington Heights case is on point with the one here.
Metropolitan Housing Development Corporation (MHDC) applied to
the Village of Arlington Heights for the rezoning of a 15-acre
parcel from single-family to multiple-family classification.
MHDC planned to build 190 townhouse units for low- and moderateincome tenants using federal financial assistance.

The Village

denied the rezoning request, and MHDC brought suit in federal
court alleging that the denial was racially discriminatory and
that it violated, inter alia, the Fourteenth Amendment and the
Fair Housing Act.

Village of Arlington Heights, 429 U.S. at
14

254.
The Village argued that MHDC lacked standing because it
could not suffer any economic injury since it was not the owner
of the property, its contract of purchase was contingent upon
securing rezoning, and MHDC owed the owners nothing if rezoning
was denied.

Id.

The Supreme Court rejected that argument:

[I]t is inaccurate to say that MHDC suffers no economic
injury from a refusal to rezone, despite the contingency
provisions in its contract. MHDC has expended thousands of
dollars on the plans for Lincoln Green and on the studies
submitted to the Village in support of the petition for
rezoning. Unless rezoning is granted, many of these plans
and studies will be worthless even if MHDC finds another
site at an equally attractive price.
Id.
Moreover, the Supreme Court noted that economic injury is
not the only kind of injury that can support a plaintiff's
standing.

Id. at 262-63.

MHDC was a nonprofit corporation with

an interest in making suitable low-cost housing available in
areas where such housing is scarce, which “is not mere abstract
concern about a problem of general interest.”
(citation omitted).

Id. at 263

“The specific project MHDC intends to

build, whether or not it will generate profits, provides that
essential dimension of specificity that informs judicial
decisionmaking.”

Id.

The Supreme Court found that MHDC had

standing to assert its own rights, “[f]oremost among them is
MHDC's right to be free of arbitrary or irrational zoning

15

actions.”

Id. (citations omitted).

OPCO has alleged the same injuries in its complaint.

Even

though OPCO does not aver that it has an ownership interest in
the property, as the operator of the facility, it claims that it
has expended, along with 1840 P. Cheeseman Road LLC, almost $9
million for the project, including almost $2 million in design
and preconstruction activities separate from the $6.7 to
purchase the property.

OPCO’s investment in the project would

become worthless, just as MHDC’s investment in Arlington
Heights, if Defendants’ alleged discriminatory actions prevented
the project to go forward.

OPCO’s alleged injuries incurred

from a violation of its right to be free of arbitrary or
irrational zoning actions is as concrete as property-owner 1840
P. Cheeseman Road LLC’s. 4

Accordingly, OPCO meets the

4

Defendants argue that Arlington Heights is distinguishable
because MHDC entered into a 99-year lease with the property
owner, thus establishing its ties to the property to confer
standing. The Court does not find that the Supreme Court’s
analysis of MHDC’s standing to have hinged on – or was even in
minor consideration of - that fact, especially because MHDC
would be absolved of its lease and contract to purchase the
property if the zoning board denied its application. See
Village of Arlington Heights, 429 U.S. at 256 (“MHDC and the
Order entered into a 99-year lease and an accompanying agreement
of sale covering a 15-acre site in the southeast corner of the
Viatorian property. MHDC became the lessee immediately, but the
sale agreement was contingent upon MHDC's securing zoning
clearances from the Village and s 236 housing assistance from
the Federal Government. If MHDC proved unsuccessful in securing
either, both the lease and the contract of sale would lapse.”).
Indeed, it was because of the lack of property interest that the
Village argued MDHC lacked standing, which proposition the
16

constitutional standing requirements to permit its claims to
proceed. 5
3.
Whether Plaintiffs have failed to properly allege
a viable Fourteenth Amendment procedural due process
claim in Count Four
Defendants argue that Plaintiffs’ count brought pursuant to
42 U.S.C. § 1983 for violations of their procedural due process
rights under the Fourteenth Amendment must be dismissed because
adequate post-deprivation remedies for Plaintiffs’ claims are
provided under New Jersey law.
To plead a violation of procedural due process rights under
the Fourteenth Amendment, a plaintiff “must establish that the
state procedure for challenging the deprivation does not satisfy
the requirements of procedural due process.”

DeBlasio v. Zoning

Bd. of Adjustment for Tp. of West Amwell, 53 F.3d 592, 597 (3d
Cir. 1995) abrogated on other grounds by United Artists Theatre

Supreme Court squarely rejected.
5

The prudential requirement of standing is in contrast to a
constitutional substantive due process violation claim, which
requires that a plaintiff must establish a property interest in
order to proceed with such a claim. See Selig v. North
Whitehall Township Zoning Hearing Board, 653 Fed. Appx. 155, 157
(3d Cir. 2016) (citing DeBlasio v. Zoning Bd. of Adjustment for
Tp. of West Amwell, 53 F.3d 592, 597 (3d Cir. 1995) abrogated on
other grounds by United Artists Theatre Circuit, Inc. v.
Township of Warrington, 316 F.3d 392, 401 (3d Cir. 2003)) (“We
are not aware of any case in which we have found that something
other than full property ownership warrants substantive due
process protection.”). Thus, only 1840 P. Cheeseman Road, LLC
would have standing to assert a substantive due process claim if
it chose to lodge such a claim.
17

Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 401 (3d
Cir. 2003).

A state furnishes constitutionally adequate

procedural due process when it provides reasonable remedies to
correct a legal error by a local administrative body.

John E.

Long, Inc. v. Borough of Ringwood, 61 F. Supp. 2d 273, 278–79
(D.N.J. 1998), aff’d 213 F.3d 628 (3d Cir. 2000) (citations
omitted).
The State of New Jersey provides a full judicial mechanism
for challenging adverse zoning decisions:
New Jersey statutes provide that a Zoning Board of
Adjustment (“ZBA”) has the power to decide appeals of the
zoning officer's enforcement of a municipality's zoning
ordinance and to decide requests for an interpretation of
the zoning law. N.J.S.A. 40:55D–70(a) and (b).
Additionally, the ZBA has the power to grant a request for
a variance or other relief so long as it is not a
substantial detriment to the public good and it will not
substantially impair the intent and purpose of the zoning
ordinance. Id. 40:55D–70(c) and (d). Moreover, New Jersey
allows any interested party affected by any decision of an
administrative officer of the municipality based upon or
made in the enforcement of the zoning ordinances or
official map to make an appeal to the ZBA. Id. 40:55D–
72(a). Finally, pursuant to Rule 4:69–1 et seq. of the New
Jersey Court Rules, [a plaintiff is] entitled to a review,
a hearing, and relief by filing a complaint in the New
Jersey Superior Court, Law Division, before the expiration
of forty-five days from the time [the plaintiff] receive[s]
notice that [its] application for rezoning ha[s] been
denied. R. 4:69–1 et seq.
Id. (citing DeBlasio, 53 F.3d at 597).
These procedures repeatedly have been found to be
constitutionally adequate, and require the dismissal of a
plaintiff’s procedural due process claim, even if a plaintiff
18

fails to take advantage of the adequate process available to it.
See id.; see also Trotta v. Borough of Bogota, 2016 WL 3265689,
at *9–10 (D.N.J. 2016) (same) (citing DeBlasio and other cases);
Strategic Environmental Partners, LLC v. Bucco, 2016 WL 2348608,
at *12 (D.N.J. 2016) (citing DeBlasio for the proposition that
when a party has access to full judicial process in which it may
challenge the administrative decision in question, the state has
provided adequate procedural due process).
Therefore, because the procedures set forth by N.J. Ct. R.
4:59–1 to –7 were and are available to Plaintiffs, their
procedural due process claim must be dismissed.
CONCLUSION
For the reasons expressed above, Plaintiffs’ request for
punitive damages for their federal claims and Plaintiffs’ count
for procedural due process violations must be dismissed.

All

other claims may proceed against both Defendants.
An appropriate Order will be entered.

Date:
December 16, 2016
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

19