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

Filing 49

OPINION. Signed by Judge Noel L. Hillman on 8/4/22017. (dmr)

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
WALTER KAWALEC III
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
Presently before the Court is the motion of the Defendants,
Township of Gloucester Board of Adjustment and Township of
Gloucester, for reconsideration of the Court’s Opinion granting
in part and denying part their motion to dismiss the complaint
of Plaintiffs, 1840 P. Cheeseman Road, LLC and 1840 P. Cheeseman
Road OPCO, LLC.

Plaintiffs allege Defendants have unlawfully

impeded their efforts to build and operate a substance abuse
treatment facility. 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

1

Plaintiffs seek compensatory 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").
2

directing them to issue the zoning approvals necessary to allow
Plaintiffs to commence construction of Phase One of the proposed
facility.

Defendants’ main objection to Plaintiffs’ request for

injunctive relief was that Plaintiffs failed to exhaust their
administrative remedies by returning to the Planning Board for
approval of what was described as Phase One of the project,
separate and apart from Phase Two.

Plaintiffs had presented a

single use variance application containing both phases, and it
was Defendants’ 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, and 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.)

At that

meeting, the Township of Gloucester Zoning Board of Adjustment
voted on (and unanimously approved) Plaintiffs’ application for
preliminary approval of Phase One of the project.

(Docket No.

37.)
Shortly thereafter, the Court considered Defendants’ motion
to dismiss.

The Court granted Defendants’ motion on Plaintiffs’

claims for procedural due process violations and punitive
damages, but denied the remaining arguments in Defendants’
3

motion.

Defendants seek reconsideration on several issues. 2

Each will be addressed in turn.
Defendants’ motion to dismiss argued 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.

The Court found that argument to be moot because

Plaintiffs submitted Phase One to the Zoning Board and the Board
approved that application.

2

Defendants do not cite to a particular Federal or Local Civil
Rule which governs a motion for reconsideration, but the Court
presumes Defendants intended to avail themselves of Local Civil
Rule 7.1(i) or Fed. R. Civ. P. 60(b). The purpose of a motion
for reconsideration “is to correct manifest errors of law or
fact or to present newly discovered evidence.” Max's Seafood
Cafe ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999). A judgment may be altered or amended only if the
party seeking reconsideration shows: (1) an intervening change
in the controlling law; (2) the availability of new evidence
that was not available when the court granted the motion; or (3)
the need to correct a clear error of law or fact or to prevent
manifest injustice. Id. A motion for reconsideration may not
be used to re-litigate old matters or argue new matters that
could have been raised before the original decision was reached,
P. Schoenfeld Asset Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp.
2d 349, 352 (D.N.J. 2001), and mere disagreement with the Court
will not suffice to show that the Court overlooked relevant
facts or controlling law, United States v. Compaction Sys.
Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999), and should be
dealt with through the normal appellate process, S.C. ex rel.
C.C. v. Deptford Twp Bd. of Educ., 248 F. Supp. 2d 368, 381
(D.N.J. 2003); U.S. v. Tuerk, 317 F. App’x 251, 253 (3d Cir.
2009) (quoting Mayberry v. Maroney, 529 F.2d 332, 336 (3d Cir.
1976)) (stating that “relief under Rule 60(b) is
‘extraordinary,’ and ‘may only be invoked upon a showing of
exceptional circumstances'”).
4

Defendants ask the Court to reconsider this finding because
they disagree that the issue was mooted by the Zoning Board’s
approval of Phase One of Plaintiffs’ project.

Defendants argue

that the Zoning Board did not have jurisdiction to consider
Phase One, as that proposed development did not require approval
of a variance, and the Zoning Board has ancillary jurisdiction
to consider a site plan only if it also contains a variance
request.
The Court is perplexed by the renewal of an argument that
was squarely addressed at the preliminary injunction hearing and
in the Opinion on the motion to dismiss.

The argument does not

meet the standard for a motion for reconsideration, and it also
does not make sense now that the Zoning Board has approved of
Phase One, despite the lack of variance with the site plan
approval request.

It seems that if the Township has an issue

with the exercise of authority by its own Zoning Board it should
take that up with them.

The Court’s decision on this issue

stands.
Defendants’ motion to dismiss argued 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, how the Township is “responsible”
for the purported wrongs by the Zoning Board.
5

The Court found

that Plaintiffs stated a claim against the Township separate
from the Zoning Board because the complaint alleged numerous
public statements by the Zoning Board’s solicitor that showed
discriminatory animus, and the Board solicitor was considered an
employee of the Township.
In their motion for reconsideration, Defendants argue that
the Court erred in considering the Zoning Board solicitor,
Anthony Costa, an employee of the Township.

Defendants further

argue that transcripts of the public meetings refute that Costa
made several of the statements attributed to him in the
complaint.

Moreover, Defendants argue that Plaintiffs’

characterization of Costa’s statements are misleading and that
his statements cannot be construed to have any discriminatory
animus.
The Court rejects both of Defendants’ arguments.

First,

Defendants’ disagreement with the Court’s interpretation of
Lehrhaupt v. Flynn, 356 A.2d 35, 45 (N.J. Super. Ct. App. 1976),
aff'd, 383 A.2d 428 (N.J. 1978), which served as the basis for
the Court’s finding that the Zoning Board attorney is an
employee of the Township, is mere disagreement with the Court’s
interpretation of that case.

In the context of deciding whether

a zoning board attorney is subject to financial disclosure
requirements, the New Jersey Appellate Division stated that “the
position of the board of adjustment attorney has no sacrosanct
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characteristic which exempts him from the rigors of the
legislation.

His appointment by the members of the board makes

him no less an officer or employee of the municipality which has
created his position and compensates him for his services.”
Lehrhaupt, 356 A.2d 35 at 45. 3

If Defendants have evidence to

support that the Township did not create Costa’s position or
does not compensate him for his services, then Defendants may
make the appropriate motion to bring that precise issue before
the Court. 4

Defendants’ disagreement with the Court’s

determination that Plaintiffs properly pleaded the Township’s

3

The Lehrhaupt court further explained:
Although the board of adjustment and the planning board are
authorized by state legislation and constitute entities
independent of the governing body of the municipality, they
are not exempt from supervision and regulation by the
municipality and its elected representatives. Appointments
to these boards are made by the council and they are
subject to general supervision and removal for cause by the
governing body pursuant to the enabling legislation.
N.J.S.A. 40:55—36; N.J.S.A. 40:55—1.4. As such they are
clearly within the purview of officials of the municipality
who may be subjected to the disclosure requirements of the
ordinance in question. In the absence of conflicting or
preemptive state legislation, the mere independent status
of their functions does not insulate them from regulatory
legislation aimed at their performance as officials of the
municipality.

Lehrhaupt, 356 A.2d at 45.
4

The Court’s Opinion referred to Costa as the “Township’s
solicitor.” It is clear from the context of that part of the
Opinion that the Court intended to refer to Costa as the
Township’s Zoning Board solicitor.
7

involvement in the alleged discrimination by way of Costa’s
alleged public statements does not warrant a reversal on that
decision. 5
Second, when assessing the viability of Plaintiffs’
complaint, the Court was not presented with the transcripts of
the hearings that purport to refute Plaintiffs’ allegations, and
therefore the Court is unable to consider them in the context of
a motion for reconsideration.

A court cannot reconsider what it

was not asked to consider in the first instance, particularly
when that evidence was available at the time. 6

As with

5

Defendants argued in their motion to dismiss that the Township
could not be held liable for the Zoning Board’s actions. The
Court agreed with that general proposition, and noted that “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.” (Docket No. 39 at 12.)
6

See K.S. o/b/o K.S. v. Hackensack Board of Education, 2017 WL
2692402, at *2 (D.N.J. June 21, 2017) (denying motion for
reconsideration based on “new evidence” because the plaintiff
provided no explanation as to why this evidence could not have
been discovered and submitted in connection with the prior
motion to dismiss) (citing Marracco v. Kuder, No. 08-713, 2009
WL 235469, at *1 (D.N.J. Jan. 30, 2009) (“A party seeking to
introduce new evidence on reconsideration bears the burden of
first demonstrating that evidence was unavailable or unknown at
the time of the original [decision].”); Tischio v. Bontex, Inc.,
16 F. Supp. 2d 511, 533 (D.N.J. 1998) (refusing to consider
alleged “new evidence” attached to motion for reconsideration
when “there [was] nothing to establish, much less suggest, such
new evidence was newly discovered which through the exercise of
due diligence could neither have been discovered nor submitted
in connection with the [prior motion].”)).

8

Defendants’ challenge to the Court’s determination that Costa is
an employee of the Township, Defendants may file the appropriate
motion to bring these transcripts and their import on
Plaintiffs’ claims properly before the Court for consideration.
Based on the Court’s finding that Costa is an employee of
the Township, and that Plaintiffs’ claims against the Township
survived Defendants’ motion to dismiss, Defendants ask this
Court to find that Plaintiffs’ substantive due process claims
must be dismissed against the Township because its liability
cannot be premised on the actions of Costa under Monell v. New
York City Dep't of Social Services, 436 U.S. 658, 690 (1978),
which prohibits § 1983 claims against a municipality based on
respondeat superior.

Again, this issue was not presented for

the Court’s consideration by Defendants’ motion to dismiss, and
Defendants must present this argument in a format other than a
motion for reconsideration if they wish the Court to consider
it.
CONCLUSION
For the reasons expressed above, Defendants’ motion for
reconsideration will be denied.

An appropriate Order will be

entered.

Date: August 4, 2017
At Camden, New Jersey

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

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