TROTTA et al v. BOROUGH OF BOGOTA et al
OPINION. Signed by Judge Kevin McNulty on 6/6/16. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TINA P. TROTTA, CASEY GUERRA,
and BELINDA GUERRA,
No. 12-cv-2654 (KM)(MAH)
BOROUGH OF BOGOTA and PATRICK
McHALE (in his official capacity as Mayor
of the Borough of Bogota); LEONARD
NICOLOSI (in his official capacity as
Business Administrator of the Borough of
Bogota); JOHN DOES 1-10 (names being
KEVIN MCNULTY, U.S.D.J.:
The plaintiffs, Tina P. Trotta, Casey Guerra, and Belinda Guerra
homeowners and residents of the Borough of Bogota, a town of
persons in Bergen County, New Jersey. The rear of the plaintiffs’
borders Olsen Park, a public park owned by the defendant Borough.
2011, an area of trees and vegetation provided a buffer between
properties and the park. In 2011, the Borough used County grant
remove the trees and vegetation and build a nine-space parking
aggrieved by the process and the result, filed this Section 1983 action
the Borough; Patrick McHale, the Borough’s mayor; and Leonard
Borough’s business administrator.
The destruction of trees is regrettable, and the plaintiffs feel that
Borough acted underhandedly and shabbily. They are distressed
disappointed to find that the portion of Olsen Park adjacent to their
is no longer as wooded or as quiet as before. Nevertheless, even a
is not an unconstitutional one. The Borough’s decision to build
a small parking
lot in a public park did not violate the legal rights of the
plaintiffs. In short, this
is an issue for the local political process.
Now before the Court is the defendants’ motion for summa
under Federal Rule of Civil Procedure 56. For the reason
s stated below, I will
grant the motion.
I here recite the essential chronology. Further facts are
referred to in the
Citations to the record will be abbreviated as follows:
Complaint (ECF No. 1).
“Def. Ex.”— Defendants’ Exhibits (ECF Nos. 25—5 to 25—16),
attached to the
Certification of Christopher C. Botta (ECF No 25—4)
Plaintiffs’ Exhibits (ECF No. 33—4 to 33—25), attached to the
Certification of Lawrence P. Cohen (ECF No. 33—3).
Brief in Support of Defendants’ Motion for Summary Judgm
(ECF No. 25—1).
Plaintiffs’ Brief in Opposition to Defendants’ Motion for Summ
Judgment (ECF No. 33).
Defendants’ Reply Brief to P1 Br. (ECF No. 35).
Defendants’ Statement of Material Facts (ECF No. 2 5—2) I have
relied on statements in the Def Facts to the extent that plainti
ffs admitted them or did
not offer substantive evidence in response.
Plaintiffs’ Response to Def Facts (ECF No. 33—1).
Plaintiffs’ Counterstatement of Material Facts (ECF No. 33—2)
“Def Reply Facts”
Defendants’ Response to P1 Response Facts and P1 Facts
(ECF No. 35—].).
(ECF No. 25—8)).
Transcript of the Deposition of Tina Trotta (Def Ex. B (ECF
Transcript of the Deposition of Patrick McHale (Def Ex. D
Ex. G (ECF No. 25-11)).
Transcript of the Deposition of Robert Abbatomarco (Def
A. The Properties and the Park
The plaintiffs’ houses face the west side of River Road, a north-s
artery in the Borough of Bogota. To access their driveways, which
are in the
rear of their properties, the plaintiffs use Bogert Lane, which runs
River Road. Perpendicular to Bogert (i.e., running north-south
properties and parallel to River Road), there is a gravel-road easeme
1—3) Beyond that gravel road, on its west side, lies the bulk of Olsen
Park. Until 2011, the portion of the park adjacent to the gravelroad easement
contained trees and other vegetation that provided a buffer betwee
n the park’s
fields and the plaintiffs’ properties. (P1 Facts
¶J 4, 7, 88—9 0) (A diagram of the
area is attached to this opinion as an appendix.)
B. The Project
In 2008, the Borough applied for a grant from the Bergen County Open
Space Trust Fund to install a picnic grove and bocce court in Olsen
well as to improve drainage. (P1 Facts
¶J 8, 10) In the application, the Borough
answered “no” to this question: “Will the project scope include any
disturbance to surrounding area, i.e., felling of trees, clearing of vegeta
etc.” (P1 Ex. A at 3 (ECF No. 33—4); P1 Facts 12) In June 2008 the
approved a resolution matching the County grant award. In March
Borough entered into a contract with the County, which listed as objecti
“Installation of bocc[e] court, bike racks, tables, benches and footpa
Ex. F at 12 (ECF No. 25—10); P1 Facts
Construction did not commence until the latter part of 2011. By then,
the project’s objectives had shifted somewhat. (Def Reply Facts at 12
¶ 18) That
shift had its genesis in May 2011, when Mayor McHale had the idea
construct a parking lot as part of the project. (Def Reply Facts at 13
Transcript of the Deposition of Jorge Nunez (P1 Ex. G (ECF
24) In .July 2011, the Borough Council passed a resolution to authorize
the commencement of bidding “for the purpose of drainage improvements at
Olsen Park and ditch cleaning.” (Def Ex. I (ECF No. 25—13))
The project in its final form was first revealed in August 2011, when a
notice requested bids for “Olsen Park drainage and parking improvements,”
which would include “the removal of large trees, the installation of drainage
construction of a new asphalt parking area and any incidental
construction.” (Def Ex. J (ECF No. 25—14)) In September 2011, the Borough
Council passed a resolution awarding the “Olsen Park Drainage & Parking
Improvements Project.” (Def Ex. K (ECF No. 25—15)) This resolution was on the
“Consent Agenda.” Accordingly, it was not formally slated for discussion, but
any individual council member could initiate discussion or ask for a separate
vote. (Def Facts ¶ 35) Apparently no one did.
Certain facts about the process by which the project evolved to include a
parking lot are disputed. Mayor McHale testified that he discussed changing
the scope of the project with all the council members. (McHale Dep. 53:14—20)
Councilman Nunez denied that he ever had such a discussion with McHale.
(Nunez Dep. 54:14—22) Nevertheless, Nunez voted in favor of both the July and
September resolutions. (Def Exs. K—J)
McHale testified that safety was one consideration in building the
parking lot. Park patrons, including children, were crossing a dangerous street
to access the fields, and the area in question had been “full of half dead trees
[andj poison ivy.” (Def Facts
21) Another consideration had to do with the
playing fields. Mayor McHale had a keen interest in baseball, and had been
involved with the Bogota Baseball Organization for twenty years. (P1 Facts 66)
McHale favored the project because it would provide easier access to the
baseball fields, and would eliminate vegetation where baseballs were getting
lost. (P1 Facts ¶ 41, 65) Apparently this was not the only possible site for a
parking lot in the park, although according to McHale the alternative location
was narrower and less suitable. (P1 Facts ¶J 69—70; Def Reply Facts at 18 70)
Robert Abbatomarco, the executive director of the Bergen County Open
Space Trust Fund, testified that Nicolosi told him of the need for a parkin
on that side of the park. Nicolosi, he said, cited safety concerns based
increased traffic caused by the closure of a nearby bridge. (Def Facts
Abbatomarco replied that “the parking lot would be considered an eligibl
of the grant money as part of the park project.” (Abbatomarco Dep. 128:9—
see Def Facts
The construction plan for the parking lot included the removal of fifteen
trees. (P1 Facts ¶ 35; Def Facts ¶ 50) McHale testified that he authorized
removal of an additional fifteen trees after the contractor advised him that
were “leaning” and “weren’t that stable.” (McHale Dep. 66:5—12, 69:13—
72:1—14) Those additional fifteen trees were removed without the approval
the Borough Council. (P1 Facts ¶ 42) One of those extra fifteen trees was
removed from Borough property behind the home of the plaintiffs’ neighb
Ken O’Donnell, at O’Donnell’s request. (P1 Facts ¶j 53—56); Def Reply Facts at
Plaintiffs say they first learned of the project when construction began.
(P1 Facts ¶J 57—58) On October 20, 2011, they attended the Bogota Mayor and
Council meeting to voice their opposition. (P1 Facts 62; Def Facts 53) Trotta
testified that at this meeting McHale told plaintiffs, in essence, that the project
was a done deal. (Trotta Dep. 43:8—25)3
The plaintiffs testified that the removal of the trees as a buffer and
construction of a parking lot have increased noise, traffic, and safety concer
on their properties and decreased their privacy and enjoyment of their homes.
(P1 Facts ¶j 91—107) For example, plaintiffs’ sleeping, eating, and TV watching
Another neighbor’s fence was damaged by the contractor. The contractor
repaired it and installed slats in the fence for additional privacy. (P1 Facts 73)
The Guerra plaintiffs did not speak at this meeting. (Def Facts
have been disturbed (P1 Facts
¶f 93—97) The parking lot’s nine spaces are
constantly full, and overflow cars block their driveways. (P1
Facts ¶ 100)
Trespassers walk across their properties or use their driveways
to turn cars
around. (P1 Facts ¶J 104—05) Individuals sometimes gather in
the parking lot to
consume alcoholic beverages or play loud music. (P1 Facts
¶J 106—07)4 As a
result, plaintiffs allege, the market values of their properties
reduced. (P1 Facts
¶ 91; but see Def Reply Facts at 20 ¶ 91 (citing competing
Plaintiffs’ complaint contains seven claims for relief:
Count 1: equal protection claim pursuant to the Fifth and Fourte
Amendments under 42 U.S.C. § 1983 (Compl. ¶J67—71);
Count 2 (mislabeled Count 3): substantive due process claim pursua
the Fifth and Fourteenth Amendments under 42 U.S.C. 1983
Count 3: procedural due process claim pursuant to the Fifth and
Fourteenth Amendments under 42 U.S.C. § 1983 (Compi.
Count 4: state law nuisance (Compl. ¶J75—82);
Count 5: state law inverse condemnation (Compi. ¶j83—87);
Count 6: state law diminution of property value (Compi.
Count 7: state law breach of contract (Compl. ¶1190—
Plaintiffs seek damages and attorney’s fees for all claims. For the federal
and nuisance claims they seek the return of the area to its prior conditi
(Compl. ¶J 67—93)
There is no evidence that plaintiffs have adopted measures (construction
fence, for example) as a substitute for the screening function once served
by the trees
and vegetation. At times, plaintiffs seem to imply that the lot is not big
that because it has only nine spaces, people park on their street. (See P1. Br.
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary
should be granted “if the movant shows that there is no genuin
e dispute as to
any material fact and the movant is entitled to judgment as
a matter of law.”
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477
248, 106 S. Ct. 2505 (1986); Kreschollek v. S. Stevedoring Co., 223
204 (3d Cir. 2000).
In deciding a motion for summary judgment, a court must constru
facts and inferences in the light most favorable to the nonmoving
Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d
The moving party bears the burden of establishing that no genuine
material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317,
S. Ct. 2548 (1986). “[Wjith respect to an issue on which the nonmoving
bears the burden of proof
the burden on the moving party may be
discharged by ‘showing’—that is, pointing out to the district court—
is an absence of evidence to support the nonmoving party’s case.” Celote
U.S. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
U.S. 574, 586, 106 S. Ct. 1348 (1986). The opposing party must present
evidence that creates a genuine issue as to a material fact for trial.
477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth types of
which nonmoving party must rely to support its assertion that genuin
of material fact exist). “[U]nsupported allegations
and pleadings are
insufficient to repel summary judgment.” Schoch v. First Fid. Banco
912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg.
, Inc., 243
F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuin
of material fact if it has provided sufficient evidence to allow a jury
to find in its
favor at trial.”). If the nonmoving party has failed “to
make a showing sufficient
to establish the existence of an element essential to that
party’s case, and on
which that party will bear the burden of proof at trial,
there can be ‘flO
genuine issue of material fact,’ since a complete failure
of proof concerning an
essential element of the nonmoving party’s case necessarily
renders all other
facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d
53, 55 (3d Cir. 1992)
(quoting Celotex, 477 U.S. at 322—23).
B. Federal Section 1983 Claims
Plaintiffs allege three causes of action under Section 1983,
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdi
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
injured in an action at law, suit in equity, or other proper
proceeding for redress....
42 U.S.C. § 1983.
“Section 1983 provides remedies for deprivations of rights establi
the Constitution or federal laws.” Kaucher v. Cnty. of Bucks
, 455 F.3d 418, 423
(3d Cir. 2006) To state a claim under Section 1983, a plaintiff
must allege facts
sufficient to show (1) a deprivation of a federal constitutional
right or a federal
statutory right, and (2) that the conduct at issue occurred
“under color of state
law.” Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908
(1981); accord Nicini
v. Mon-a, 212 F.3d 798, 806 (3d Cir. 2000). Accordingly, the Court
“identify the exact contours of the underlying right said to
have been violated’
and [j determine ‘whether the plaintiff has alleged a deprivation
constitutional right at all. “ Nicini, 212 F.3d at 806 (quoting
Cnty. of Sacramento
v. Lewis, 523 U.S. 833, 841 n.5, 118 5. Ct. 1708 (1998)) accord
Street, 523 F.3d 200, 219 (3d Cir. 2008).
Plaintiffs allege that the defendants violated their rights to equal
protection, substantive due process, and procedural due process. There is no
dispute that the Borough acted under color of state law.
1. Equal Protection (Count 1)
“The Equal Protection Clause of the Fourteenth Amendment commands
that no State shall ‘deny to any person within its jurisdiction the equal
protection of the laws,’ which is essentially a direction that all persons similarly
situated should be treated alike.” City of Clebume, Tex. v. Clebume Living Ctr.,
473 U.S. 432, 439, 105 5. Ct. 3249, 3254 (1985) (quoting U.S. Const. amend.
XIV); accord Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 133 (3d Cir.
2002). To state an equal protection claim under Section 1983, a plaintiff must
allege facts showing the existence of purposeful discrimination. Chambers ex
rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 196 (3d Cir.
2009) (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir.
1990)). The plaintiff must have received different treatment from that received
by other individuals similarly situated. Id.
A class-based equal protection claim may rest on allegations that a state
actor intentionally discriminated because of the plaintiff’s membership in a
protected class. Lande v. City of Bethlehem, 457 F. App’x 188, 192 (3d Cir.
5 To state what has largely gone unsaid,
the plaintiffs do not allege a claim
under the takings clause of the Fifth Amendment. See Lingle v. Chevron US.A. Inc.,
544 U.S. 528, 538, 125 S. Ct. 2074 (2005) (describing the per se takings categories of
permanent physical invasion and total regulatory takings and the Penn Central factors
for evaluating other regulatory takings claims). Plaintiffs’ alternative constitutional
theories are, in many ways, an awkward attempt to circumvent that problematic case
law. See generally Stop the Beach Renourishment, Inc. v. Florida Dept of Envtl. Prot.,
560 U.S. 702, 721, 130 S. Ct. 2592, 2606 (2010) (plurality opinion of Scalia, J.)
(warning against “using Substantive Due Process to do the work of the Takings
Clause,” an explicit textual source of constitutional protection designed for this
2012) (citing Chambers, 587 F.3d at 196). Classically, but not exclus
a protected class may be a racial, ethnic or religious minority. No such
Alternatively, however, a plaintiff (like plaintiffs here) may assert a “class
of one” theory: i.e., that plaintiff has been intentionally treated differently
other similarly situated persons without a rational basis. Viii. of Wiilow
Olech, 528 U.s. 562, 564, 120 S. Ct. 1073 (2000) (citing Sioux City
Bridge Co. v.
Dakota Cnty., 260 U.S. 441, 43 S. Ct. 190 (1923); Allegheny Pittsburgh
v. Comm’n of Webster County, 488 U.S. 336, 109 S. Ct. 633 (1989)). The Third
Circuit has held that, in order to make out such a claim, a plaintiff must
establish that: “(1) the defendant treated him differently from others similar
situated, (2) the defendant did so intentionally, and (3) there was no rationa
basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d
225, 239 (3d Cir. 2006). “No rational basis” is a very forgiving standard, from
defendant’s point of view; the claim is a difficult one to allege, let alone prove.
See Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 287 (3d Cir. 2004) (citing
Wiiiowbrook, 528 U.S. at 565—66 (Breyer, J., concurring)).
Plaintiffs assert a “class of one” equal protection claim, but fail to show
that there are genuine issues of material fact as to any of its three elements.
True, plaintiffs cite facts from which it could be inferred that a neighbor, unlike
plaintiffs, received notice of the parking lot construction ahead of time. (See Def
Reply Facts at 16—17 ¶J 54, 56; P1 Facts ¶ 56) That fact is not material
because, as a matter of law, a procedural claim cannot be bootstrapped into an
equal protection claim. “[A]s a matter of logic and law a plaintiff may not
convert a procedural due process claim into an equal protection claim by
expediently alleging that he was denied procedural rights by an official who has
6 “Class of one” should
not be taken to signify there can be one and only one
plaintiff or injured party. The term is used to differentiate such a claim from a claim
discrimination brought on the basis of the plaintiff’s membership in a protected class.
accorded such rights to others in the past.” Stop-Save Twp. Open
Places, Inc. v.
Bd. of Sup’rs of Montgomery Twp., No. CIV. 96—7325, 1996 WL 66387
5, at *3
(E.D. Pa. Nov. 15, 1996); accord Highway Materials, Inc. v. Whitemarsh
Montgomery County, Pa., No. CIV 02—32 12, 2004 WL 2220974, at *23
(E.D. Pa. Oct. 4, 2004), affd, 386 F. App’x 251 (3d Cir. 2010);
Cf Riukin v.
Dover Twp. Rent Leveling Bd., 671 A.2d 567, 582 (N.J. 1996) (admo
against “relabeling procedural due process claims as equal protection
in a different context).
There is no other evidence to suggest that the defendants treated
plaintiffs disparately from their neighbors or any other similarly situate
individuals. Of course, the building of a parking lot most directly affects
whose property is nearby. And anyone may argue that a public facility
property should not be built at all, or could be built somewhere else. Dispar
treatment, however, does not encompass a claim in this unavoidable
rather, equal protection requires that the challenged action treat plainti
distinctly vis-à-vis some other:, similarly situated person, and that the
distinction satisfy the test of rationality. There is no evidence at all that
site was chosen in order to favor the interests of some other similarly situate
property owner. The parking lot, which by hypothesis was intended to serve
ball field, was placed near the ball field.
Without sufficient evidence of element 1—a relevant disparity in
treatment—the other elements become merely theoretical. In any event,
however, they are not met.
As to element 2, there is no evidence that the Borough, McHale, or
Nicolosi had the required intent. When considering their actions, they
Such a claim, of course, often leaves officials with a conundrum. That
somewhere else is usually near someone else. And that someone else, as proper
owner, will inevitably voice a similar complaint.
seemingly had no intention whatsoever to treat plaintiffs differe
As to element 3, several rational and plausible reasons were given
building the parking lot at this site and cutting down the trees.
(Def Facts ¶ 21)
One such reason, obviously, is the provision of parking. Plainti
acknowledge to their chagrin that the lot is extensively used by park
confirming that there was and is a demand for parking in that
Another stated and plausible justification is safety; visitors were
required to cross a busy street to enter the park.
Plaintiffs allege that Mayor McHale’s judgment was warped by
his friends’ personal enthusiasm for amateur baseball. (P1 Facts
¶ 41, 65—66)
A playing field, however, is widely accepted as a permissible public
use. By extension, the provision of parking or the clearing of vegeta
provide access to a playing field is rationally viewed as an acceptable
improvement. Such improvements must be sited near the ball
fields they serve.
To the extent they impact on plaintiffs, the rational basis for that
impact is that
plaintiffs’ properties, too, happen to be situated near the ball fields.
Improving access to the park was not on its face an irrational exercis
the Borough’s power, which is properly exercised on behalf of all residen
just a few. Whether the Borough exercised its power wisely is a questio
Court is not equipped to consider. Ultimately, it is one for the voters.
Plaintiffs fail to show that there are genuine issues of material fact
any of the elements of the “class of one” equal protection claim. Theref
ore, I will
grant defendants’ motion for summary judgment as to Count 1.
McHale testified that he did not consider the impact the parking lot might
have on plaintiffs until they brought it up at the Mayor and Council Meetin
October 20. (McHale Dep. 125:19—127:9) While this may not be a paradig
m example of
local governance, it is evidence that there was no discriminatory intent directe
plaintiffs. Plaintiffs provide no counter evidence and simply write “denie
d” in response
to defendants’ citation in their statement of facts to this part of McHale’s deposi
transcript. (See Def Facts ¶ 22; P1. Response 22; Def Reply Facts at 4
2. Substantive Due Process (Count 2)
“To establish a substantive due process claim, a plaintiff must prove the
particular interest at issue is protected by the substantive due process clause
and the governments deprivation of that protected interest shocks the
conscience.” Chainey, 523 F.3d at 219 (3d Cir. 2008) (citing United Artists
Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392, 400—02 (3d Cir.
Real property “ownership is a property interest worthy of substantive due
process protection,” DeBlasio v. Zoning Bd. Of Adjustment, 53 F.3d 592, 600 (3d
Cir. 1995), abrogated on other grounds by United Artists, 316 F.3d 392, as it “is
unquestionably ‘a fundamental property interest dating back to the foundation
of the American colonies.” Nicholas v. Pa. State Univ., 227 F.3d 133, 141 (3d
Cir. 2000) (internal quotations and citations omitted). To say that real property
ownership is the interest at stake here, however, is to paint with too broad a
brush. “Although land ownership might initially appear to present a
straightforward example of a protected property interest, it is far from clear
that every impact on landownership caused by zoning regulations creates a
right to process.” Tri-Cty. Concerned Citizens Ass’n v. Carr, No. CIV. A. 98-CV4 184, 2001 WL 1132227, at *3 (E.D. Pa. Sept. 18, 2001), affd, 47 F. Appx 149
(3d Cir. 2002) (quoting MacNamara v. Cnty. Council of Sussex Cnty., 738 F.
Supp. 134, 141 (D. Del.), aff’d, 922 F.2d 832 (3d Cir. 1990)).
There is no contention that plaintiffs have been deprived of any
ownership interest in land. Rather, they make the narrower contention that
neighboring conditions have impaired the market value of their properties.
The Third Circuit has not yet stated whether substantive due process
protection extends to a diminution of property value, as opposed to a
deprivation of property. See Kriss v. Fayette Cnty., 827 F. Supp. 2d 477, 493
(W.D. Pa. 2011), aff’d, 504 F. App’x 182 (3d Cir. 2012). The Second Circuit,
however, has held that “[g]overnmental action allegedly causing a decline in
property values has never been held to deprive a person of property within the
meaning of the Fourteenth Amendment.” Fusco v. State of Connecticut, 815
F.2d 201, 206 (2d Cir. 1987) (internal brackets and quotation marks omitted)
(quoting BAM Historic Dist. Ass’n v. Koch, 723 F.2d 233, 237 (2d Cir. 1983) (a
homeless shelter in the neighborhood)). District courts in the Third Circuit
have followed suit. See Kriss, 827 F. Supp. 2d at 493 (collecting cases);
MacNamara, 738 F. Supp. at 142 (electric power substation); see also
Bellocchio v. New Jersey Dep’t of Envtl. Prot., 16 F. Supp. 3d 367, 378 (D.N.J.
20 14), aff’d, 602 F. App’x 876 (3d Cir. 2015) (noise and air pollution from
turnpike and airport); Smith & Morris Holdings, LLC v. Smith, No. CIV 14—803,
2014 WL 4660095, at *6 (M.D. Pa. Sept. 17, 2014). I agree, and will do the
I conclude that the indirect property right asserted by plaintiffs in this
case is not one that is protected by substantive due process. “There is no
fundamental right in modern society to be free from increased traffic, noise or
an incursion on open space. One does not have a protected property interest in
the use of neighboring property because that use may adversely affect the
value of his property.” Stop-Save, 1996 WL 663875, at *4 (citing Mehta v.
Surles, 905 F.2d 595, 598 (2d Cir.1990)); accord Ti-i-County, 2001 WL 1132227,
There is a second problem. Even as to fundamental property rights, only
State conduct that “shocks the conscience” violates substantive due process
standards. United Artists, 316 F.3d at 402. That, too, is lacking here.
Overruling prior cases applying a lesser standard, United Artists held that an
“improper motive” is not sufficient to transform a municipal land-use dispute
into a substantive due process claim. Id. The “shocks the conscience” standard,
generally applicable to substantive due process claims, limits liability to the
most egregious conduct and prevents the federal court from becoming a
“zoning board of appeals.” Id. at 401—02; see Eichenlaub, 385 F.3d at 286
(holding that allegations that township “maligned and muzzled” plaintiffs,
applied standards not applied to similar properties, delayed permits and
approvals, improperly increased tax assessments, and purs
and unnecessary enforcement actions in denying zoning requ
ests failed to
“shock the conscience”).
The Third Circuit has provided examples of wrongdoing in the
context that might rise to the level of shocking the conscience.
corruption, self-dealing, and bias against an ethnic group. See
F.3d at 220 (discussing Eichenlaub, supra). Nothing in this record
that threshold. Adding a parking lot to a public park—even if
done for the sake
of improving access to a baseball field, and at the behest of a hypoth
baseball-crazed mayor—is hardly conscience-shocking. The Mayor
preferences notwithstanding, this remains an action to open
up Olsen Park to
those who wish to use it for recreation. That is a legitimate
public purpose. See
Skiles v. City of Reading, 449 F. App’x 153, 158 (3d Cir. 2011)
legitimate governmental interest belied substantive due proces
s claim). The
benefit of the project is public and diffuse; even assuming for
argument that the Mayor’s motives were somehow irregular,
they were not
corrupt. I therefore do not believe this is the sort of “self-dealing”
concerned the Third Circuit in Chainey and Eichenlaub.
The interest at issue is not one that is protected by substantive
process. Even if it were, there is no showing of conduct that shocks
conscience. I therefore grant the defendants’ motion for summa
to Count 2 (mislabeled as Count 3), the substantive due process
3. Procedural Due Process (Count 3)
To state a procedural due process claim, a plaintiff must establi
that it was deprived of an individual interest that is encompassed
Fourteenth Amendment’s protection of life, liberty and proper
ty, and (2) that
9 The plaintiffs
also refer to political animus between themselves and the Mayor.
The events cited, however, date from after the construction of the
parking lot. The
animus is an artifact, not a cause, of the parking lot issue.
the procedures available to it did not provide due process of law.”
Amusements Inc. v. Borough of Palmyra, 716 F.3d 57, 62 (3d Cir.
Schmidt v. Creedon, 639 F.3d 587, 595 (3d Cir. 2011)).
A procedural due process analysis can be triggered by a range of proper
rights, including those created by state law.’° See DeBlasio, 53 F.3d
Where a plaintiff can point to a personal entitlement to some benefit
plaintiff may have a right to an individualized hearing before he or
she can be
deprived of it. See Bd. of Regents of State Colleges v. Roth, 408 U.S.
92 S. Ct. 2701 (1972) (absent tenure or other entitlement, no hearing require
before deciding not to rehire professor); see also, e.g., Goldberg v.
U.S. 254, 26 1—62, 90 S. Ct. 0]. 1 (1970) (deprivation of statutory entitle
welfare benefits triggers due process); San Filippo v. Bongiovanni, 961 F.2d
1125, 1134 (3d Cir. 1992) (deprivation of tenured faculty position trigger
Real property ownership is obviously a protected property interest, and
the Borough may not deprive a person of such property without due proces
(and just compensation). See U.S. Const. amends. XIV, V. The plaintiffs
however, do not assert a taking claim; they are not being deprived of the
their properties, or of the properties themselves. (See n.5, supra.) Rather
plaintiffs assert a more elusive entitlement to have the market value of
properties remain undiminished by official action. Now a homeowner can
plausibly tie virtually any local political issue to the value of his or her
property. Almost any condition in a small New Jersey town—traffic, school
transit schedules—affects property values. But each citizen is not
constitutionally entitled to a hearing in advance of every change in traffic
patterns, curricula, or bus schedules. In short, lines must be drawn. Case
10 In this respect
it is broader than substantive due process, where the property
interest must be fundamental. See Section II.B.2, immediately preceding.
has not extended procedural due process protections to a person’s derivative or
indirect economic interest in the condition of neighboring (public) properties
they affect the value of that person’s own property.
In BAM Historic Dist. Ass’n v. Koch, 723 F.2d 233, 237 (2d Cir. 1983), for
example, residents brought a procedural due process challenge against New
York City for failing to hold a hearing before opening a homeless shelter in their
neighborhood. The residents contended that the shelter would cause a decline
in their own property values. 723 F.2d 233. The Second Circuit held that
government action that causes a decline in property values (short of a Fifth
Amendment taking or a near-total destruction of value) “has never been held to
‘deprive’ a person of property within the meaning of the Fourteenth
Amendment.” Id. at 237.
At least one court in this district has adopted the Second Circuit’s
reasoning in BAM. See Twp. of W. Orange v. Whitman, 8 F. Supp. 2d 408, 416
(D.N.J. 1998) (procedural due process claim against establishment of group
homes for the mentally ill). I adopt it as well. The U.S. Constitution does not
protect us from fluctuations in the value of our property based on changes,
even government-initiated changes, to the neighborhood. It therefore does not
confer an individual entitlement to any particular level of process before such
changes can occur.
It is only human to feel entitled to the status quo, in this case a
fortuitous private benefit: a wooded preserve, maintained at public expense,
sheltering plaintiffs’ property. But “[t]o have a property interest in a benefit, a
must have more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.” Bd. of Regents of State Colleges v.
Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972).
Plaintiffs clearly had a subjective expectation that the configuration of
uses in the park adjoining their property would always remain the same. They
do not, however, point to any legal basis for elevating that expectation to a
protectable property interest. Changes to facilities and parking on public land
do not implicate a personal right or entitlement belonging to any plainti
follows that plaintiffs were not entitled to, e.g., an individualized hearing
the Borough could take the action it did.
Even assuming arguendo that some protected interest is involved,
plaintiffs cite no authority for the proposition that they are entitled
to a pre
deprivation hearing before implementation of a government decisio
construction of a parking lot on public land—that might affect the value
their real estate. Plaintiffs cite only very general procedural due proces
precedent, involving personal property, rights, and entitlements, such
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S. Ct.
(civil service employment requiring cause for termination); Parratt, 451
536—44, 101 S. Ct. at 19 13—17 (hobby kit ordered by prisoner); and Mullan
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 307, 70 S. Ct. 652 (1950)
(notice to known beneficiaries of trust).
Plaintiffs have much to say about the creeping process by which the
proposal came to include a parking lot. It must be said that the Borou
not exactly solicit citizen input. It did, however, obtain authorization from
County, put the project out for public bid, and enact the necessary resolut
via the Borough Council’s Consent Agenda. Whether or not this fully complied
with State law is not the issue as such. State-mandated procedures are
federally required: “Whether notice and hearing procedures should be
instituted to broaden public participation in governmental decisions of the
challenged in this case remains a matter for consideration by state and local
legislative bodies.” BAM 723 F.2d at 237. State-mandated procedures can,
however, satisfy federal standards and thereby defeat a procedural due proces
claim. Cf Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 679—8
Defendants argue in the alternative that adequate post-deprivation
hearings or remedies can satisfy due process requirements. In the somew
analogous context of zoning, it is an element of plaintiff’s claim “that the state
procedure for challenging the deprivation does not satisfy the requirements of
procedural due process.” DeBlasio, 53 F.3d at
[A] state provides constitutionally adequate procedural due process
when it provides reasonable remedies to rectify a legal error by a
local administrative body. 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, whether or not the plaintiff avails him or herself of the
provided appeal mechanism.
Id. (internal quotation marks and citations omitted). In DeBlasio, the Third
Circuit recognized that New Jersey provides adequate process, in part because,
pursuant to N.J. Ct. R. 4:69—1 to —7, a plaintiff can file a complaint “in lieu of
prerogative writs” to challenge official action within 45 days of receiving notice
of it. 53 F.3d at 598; see Hartman u. Twp. of Readington, No. CIV 02—2017,
2006 WL 3485995, at *12 (D.N.J. Nov. 30, 2006) (“the Third Circuit has
determined that the availability in New Jersey of prerogative writ litigation is
constitutionally sufficient to meet the requirements of procedural due process.”
(citing DeBlasio)); John E. Long, Inc. v. Borough of Ringwood, 61 F. Supp. 2d
273, 279 (D.N.J. 1998), aff’d, 213 F.3d 628 (3d Cir. 2000) (same); see also
Rivkin, 671 A.2d at 580—8 1 (citing N.J. Const. art. VI, § 5, 4).
Plaintiffs contend that New Jersey’s action in lieu of prerogative writs is
inadequate because there was no opportunity to file it; it does not enable
plaintiffs to recover monetary damages, attorney’s fees, and costs; and
“because the park cannot be returned to its previous state through that legal
action.” (P1 Br. 24) It is black letter law, however, that “[ajithough the state
remedies may not provide the respondent with all the relief which may have
been available if he could have proceeded under § 1983, that does not mean
that the state remedies are not adequate to satisfy the requirements of due
11 The overruling of DeBlasio,
noted above, pertained to the substantive due
process shocks-the-conscience standard, a separate issue.
process.” Parratt, 451 U.S. at 544; see also Rivkin, 671 A.2d at
in lieu of prerogative writs not inadequate simply because it does
allow recovery of attorney’s fees); Wessie Corp. v. Sea Isle City
Zoning Bd. of
Adjustment, No. CIV 06—589, 2007 WL 1892473, at *7 (D.N.J. June
No legal action (including this one) can return the park to its previo
but New Jersey’s action in lieu of prerogative writs was likely plainti
chance for prospective injunctive relief, or, failing that, for redress
plaintiffs fail to take advantage of an adequate process available
to them they
cannot claim constitutional injury. Elsmere Park Club, L.P. v. Town
542 F.3d 412, 423 (3d Cir. 2008).
Neither requirement of a procedural due process claim is met
Plaintiffs have not been deprived of property. In the alternative,
they have not
been denied procedures required by the Constitution or federal
judgment is therefore granted on Count 3, the procedural due
C. State Law Claims
1. Supplemental Jurisdiction
I have granted summary judgment to defendants on all federal law
claims. “The district courts may decline to exercise supplemental
over a [state law] claim under subsection (a) if
(3) the district court has
dismissed all claims over which it has original jurisdiction.” 28
1367(c). I therefore consider whether I should exercise my discretion
supplemental jurisdiction over the associated state law claims: nuisan
inverse condemnation, diminution of property value, and breach
As to the limits of discretion to retain state law claims after federal
claims have been dismissed, the United States Court of Appeals for
Circuit has given the district courts some guidance:
[W]here the claim over which the district court has original
jurisdiction is dismissed before trial, the district court must decline
to decide the pendent state claims unless considerations of judicial
economy, convenience and fairness to the parties provide an
affirmative justification for doing so.
Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borou
gh of West
Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)). In short, the
rule is that the state claims shall be dismissed, unless reasons
of economy and
fairness dictate otherwise.
Where a case has been substantially litigated for some time, it may
proper exercise of discretion to retain it. See Growth Horizons, Inc.
County, Pa., 983 F.2d 1277, 1284-85 (3d Cir. 1993) (remanding for
discretion as to whether to retain pendent claim, noting that where
court already heard all evidence necessary to decide the state contrac
t claim, it
might retain jurisdiction). Where, on the other hand, time and
effort will not be
wasted and the case is nowhere close to trial, remand may be the
course. See Freund v. Florio, 795 F. Supp. 702, 710 (D.N.J. 1992)
early stage in the litigation, dismissal of the pendent state claims
in a federal
forum will result in neither a waste of judicial resources nor prejud
ice to the
This case, filed in 2012, has been substantially litigated. The state
claims are alternative theories applied to the same facts. The parties
conducted significant discovery and it would be unfair and wasteful
that the action be recommenced in State court. I therefore exercis my
discretion to retain jurisdiction over the state claims.
2. Nuisance (Count 4)
The plaintiffs assert a state-law tort claim for nuisance. There is a
threshold bar to such a claim, in that plaintiffs have not demonstrated
compliance with the New Jersey Tort Claims Act (“TeA”). Setting that
plaintiffs and defendants argue over whether the parking lot amounts
public nuisance, a private nuisance, both, or neither. (Def Br.
§ VI; P1 Br. § VI)
Compliance with the TCA
In New Jersey, “public entity liability for nuisance is recognized under
the Tort Claims Act.” Birchwood Lakes Colony Club, Inc. v. Borough
Lakes, 449 A.2d 472, 478 (N.J. 1982). “Public entity’ includes the State,
§ 59:1-3. “Under N.J.S.A. 59:8—8 of the Tort
Claims Act, the claims will be barred if suit is not
filed within two years after
accrual, or if notice of claim is not given within nine
ty days.” Russo Farms, Inc.
v. Vineland Bd. of Educ., 675 A.2d 1077, 1083 (N.J
Plaintiffs have provided no evidence (or even alleg
ed) that they ever
complied with the notice requirement of the TCA.
Thus, I will grant the
defendants’ motion for summary judgment and dism
iss Count 4, the nuis
Out of caution, I authorize a motion for reconsid
eration if within
fourteen days, plaintiffs can provide proof of com
pliance with the TCA. For the
parties’ guidance in the event this is done, I brief
ly state the legal standards
that would govern a nuisance claim.
“The essence of a private nuisance is an unreason
able interference with
the use and enjoyment of land.” Sans v. Ramsey Gof&
Country Club, Inc., 149
A.2d 599, 605 (N.J. 1959). The Supreme Court of New
Jersey has held that the
TCA at N.J. Stat. Ann. § 59:4—2 “imposes liability upon
a municipality in its
status as property owner for nuisance where its actio
ns can be found to be
‘palpably unreasonable.” Birchwood Lakes, 449 A.2d
at 478. Further, N.J.S.A.
59:2—2 “makes the public entity liable for the acts
and omissions of public
employees to the same extent and in the same man
ner as a private individual
under like circumstances.” Id. A private nuisance claim
, then, permits a
neighboring property owner to sue the municipality
qua property owner.
These requirements are heightened in the context of
the TCA where
“[pjlaintiff[s] bear the burden of proving that [defe
ndants] acted in a palpably
unreasonable manner.” Muhammad v. New Jersey
Transit, 821 A.2d 1148,
1154 (N.J. 2003). Palpably unreasonable behavior is
that which is “patently
unabceptable under any given circumstance....
[Flor a public entity to have
acted or failed to act in a manner that is palpably unre
asonable, it must be
manifest and obvious that no prudent person wou
ld approve of its course of
action or inaction.” Ogbome v. Mercer Cemetery Corp., 963 A.2d 828,
2009) (alterations in original) (quoting Kolitch v. Lindedahi, 497 A.2d 183,
(N.J. 1985)). “Although the question of palpable unreasonableness is
one for the jury, it may be decided by the court as a matter of law in
appropriate cases.” Garrison u. Twp. of Middletown, 712 A.2d 1101, 1116
1998) (Stein, J., concurring) (citing Wooley v. Bd. of Chosen Freeholders
Monmouth Cty., 526 A.2d 1116, 1119 (N.J. Super. Ct. App. Div. 1987)
(“it is a
jury question of whether or not the States actions were ‘palpably unreas
except in cases where reasonable men could not differ.” (internal quotat
marks and citations omitted))); accord Maslo v. City of Jersey City, 787
963, 965 (N.J. Super. Ct. App. Div. 2002); see also Muhammad, 821 A.2d
1156—57 (deciding whether action was palpably unreasonable on summa
One strand of the claim appears to be that the Borough is guilty of
nuisance because it failed to maintain the park in its former condition. Anoth
might be more narrowly directed at the Borough’s failure to control annoyi
activities in and around the parking lot. Where, for example, a nuisance claim
is based on noise, “a plaintiff must show ‘(1) injury to the health or comfort of
ordinary people to an unreasonable extent, and (2) unreasonableness under
the circumstances, particularly after balancing the needs of the maker to the
needs of the listeners.” Traetto v. Palazzo, 91 A.3d 29, 33 (N.J. Super. Ct. App.
Div. 2014) (quoting Maihame v. Borough of Demarest, 162 248, 261, 392 A.2d
652, 658 (N.J. Super. Ct. Law Div. 1978)).
With regard to the first element, “[tjhe interruption of normal
conversation, the drowning out of TV sound, an occasional
disturbance during sleeping hours, and like complaints, may all
fall within the area of mere annoyance.” Malhame, supra, 162
N.J.Super. at 261, 392 A.2d 652. However, occasional noisy
disturbances concomitant with residential living can rise to the
level of nuisance if, based on proximity, magnitude, frequency, and
time of day, they cause some residents “more than mere
temporary physical pain[,] and more than usual
anxiety and fright.” Id. at 263, 392 A.2d 652
Id. at 33—34 (alterations in original).
iii. Public nuisance
The Restatement (Second) of Torts defines a public nuisance
unreasonable interference with a right common to the genera
l public.” § 82 lB
(1979). The New Jersey Supreme Court adopted the Restatement
held that “the right with which the actor has interfered mus
t be a public right,
in the sense of a right ‘common to all members of the genera
l public,’ rather
than a right merely enjoyed by a number, even a large numbe
r, of people.” In re
Lead Paint Litig., 924 A.2d 484, 497 (N.J. 2007) (quoting Restat
of Torts § 821B cmt g.) The Restatement (Second) offers the
[P]ollution of a stream that merely deprives fifty or a hund
riparian owners of the use of the water for purposes connec
with their land does not for that reason alone become a public
nuisance. If, however, the pollution prevents the use of a public
bathing beach or kills the fish in a navigable stream and so
deprives all members of the community of the right to fish, it
becomes a public nuisance.
Restatement (Second) of Torts § 821B cmt g; accord In re Lead
Paint, 924 A.2d
Plaintiffs do not complain of anything approaching an interfe
common to the general public. The presence of the parking
lot interferes with
them and possibly a few other neighbors. (See P1 Facts 59)
that defendants interfered with “the public’s right to the preserv
ation of trees
and green spaces in the Borough’s parks.” (P1 Br. 34) The asser
ted right to the
preservation of every tree or slice of green space would rule
out all change or
development; indeed, the park itself, or perhaps even plaintiffs’
could not have been built in the first place. Count 4, assumi
ng it is viable
under the TCA, does not state a claim for public nuisance.
Summary judgment is granted as to Count 4 for failure to comply
the TCA. Assuming arguendo that compliance is demonstrated,
consider the merits of the private nuisance claim at that time.
I would dismiss
the public nuisance claim as a matter of law in any event.
3. Inverse Condemnation (Count 5)
Defendants correctly argue that plaintiffs cannot
succeed on a state-law
inverse condemnation claim.’ Plaintiffs do not
defend this count in their
“The concept of inverse condemnation recognizes
that the landowner may
initiate the action to compel compensation from
government; one need not wait
in vain for government compensation.” Klumpp
v. Borough of Avalon, 997 A.2d
967, 976 (N.J. 2010).
In an inverse condemnation action, a landown
er is seeking
compensation for a defacto taking of his or her prop
property owner is barred from any claim to a right
condemnation unless deprived of all or substanti
ally all of the
beneficial use of the totality of his property as the
excessive police power regulation. [N]ot every impa
irment of value
establishes a taking. To constitute a compensable
taking, the land
owner must be deprived of all reasonably beneficia
l use of the
Greenway, 750 A.2d at 767 (alterations in original)
(internal quotation marks
and citations omitted). “Diminution of land value itsel
f does not constitute a
taking.” Gardner v. N.J. Pinelands Comm’n, 593 A.2d
251, 259 (N.J. 1991);
accord Pheasant Bridge Corp. u. Twp. of Warren, 298,
777 A.2d 334, 344 (N.J.
2001). Further, “incidental inconveniences or anno
yances” do not amount to a
taking in New Jersey. Klein v. N.J. Dep’t of Transp.,
624 A.2d 618, 623 (N.J.
Super. Ct. App. Div. 1993).
Plaintiffs provide no facts to suggest that they have
been deprived all or
substantially all of the beneficial use of the totality
of their property, as
required by inverse condemnation precedent. At mos
t they allege disruptions to
their daily life and some impairment of the value
and enjoyment of their
property. (P1 Facts ¶J 9 1—107) I grant summary judg
ment as to Count 5, the
inverse condemnation claim.
The requirements of the TCA do not apply to an actio for
condemnation. Greenway Deu. Co. v. Borough of Para
mus, 750 A.2d 764 (N.J. 2000).
4. Diminution of Property Value (Count 6)
“Diminution of property value” is not a recognized
cause of action in New
Jersey. Plaintiffs do not defend this count in their oppo
sition brief. I grant
summary judgment as to Count 6.
5. Breach of Contract (Count 7)
Plaintiffs allege that they are third-party beneficiaries
of a contract
between the Borough and the County, and that the Boro
ugh has breached that
contract. (Compi. ¶J 91—92) Plaintiffs do not defend
this count in their
“it is a fundamental premise of contract law that a third
party is deemed
to be a beneficiary of a contract only if the contracti
ng parties so intended
when they entered into their agreement.” Ross v. Lowitz
, 120 A.3d 178, 190-9 1
(N.J. 2015) (citing Broadway Maint. Corp. v. Rutgers,
State Univ., 447 A.2d 906,
909 (N.J. 1982)). No facts suggest that the Borough and
County intended the
plaintiffs to be third-party beneficiaries of their cont
ract. See id. (stating upon
affirming a grant of summary judgment that “there is
no suggestion in the
record that the parties... had any intention to make plain
tiffs.., a third-party
beneficiary of their agreements”). The contract itself
explicitly mentions third
parties only in the wholly unrelated context of subcontra
ctors. (See Def. Ex. F
at 10 ¶ 22)
The obvious and overriding purpose of the Contract is
to improve a park
established for the recreational use of the general publ
ic. There is no indication
that the parties, in entering into this contract, inten
ded to confer upon these
plaintiffs any particularized benefit beyond that accru
ing to the public as a
whole. Seeing no express provision for third-party right
s, and lacking any facts
implying that the contracting parties intended such
benefits, I grant summary
judgment on Count 7, the breach of contract claim
Defendants’ motion for summary judgment is GRA
NTED as to all counts.
An appropriate order accompanies this Opin
Dated: June 6, 2016
Hon. Kevin McNulty
United States District
NEW 2 AREA
NEW ADA SIGN
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