WOJAK v. BOROUGH OF GLEN RIDGE et al
Filing
54
OPINION. Signed by Judge Kevin McNulty on 2/15/2018. (JB, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOSEPH G. WOJAK,
Plaintiff,
Civ. No. 2:16-cv-1605-KM-JBC
vs.
BOROUGH OF GLEN RIDGE, GLEN
RIDGE BOARD OF EDUCATION,
GLEN RIDGE PUBLIC SCHOOLS,
STATE OF NEW JERSEY, TOWN OF
BLOOMFIELD, BLOOMFIELD BOARD
OF EDUCATION, JOHN DOES 1-10,
JANE DOES 1-10, and ABC
CORPORATIONS 1-10,
OPINION
Defendants.
CHARLES SANDERS, LEE ROTH,
and JOSEPH MAROflA,
Plaintiffs,
(consolidated with
16-cv-S 106-JLL-JAD)
2:
vs.
BOROUGH OF GLEN RIDGE, GLEN
RIDGE BOARD OF EDUCATION,
TOWN OF BLOOMflELD, and
BLOOMFIELD BOARD OF
EDUCATION,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
Plaintiffs Joseph G. Wojak, Charles Sanders, Lee Roth, and Joseph
Marotta allege that their properties straddle the border that separates the
1
towns of Bloomfield and Glen Ridge, New Jersey. Sanders, Roth, and Marotta
have school-aged children who have been assigned to attend the public schools
of Bloomfield. They believe they are entitled to send their children to the public
schools of Glen Ridge. Plaintiff Joseph G. Wojak does not have school-aged
children, but alleges that the school-assignment policy has decreased the value
of his property.
Defendants are the Borough of Glen Ridge, Glen Ridge Board of
Education (“Glen Ridge BOE”), Glen Ridge Public Schools, the State of New
Jersey, the Township of Bloomfield, and the Bloomfield Board of Education
(“Bloomfield BOE”). Plaintiffs allege that defendants’ actions constitute a
regulatory taking and a denial of due process rights.
Some preliminary observations:
First, the complaints allege that entitlement to attend the Glen Ridge
schools, rather than the Bloomfield schools, enhances the value of a property.
That proposition is far from self-evident. The Rule 12(b)(6) standard requires,
however, that I accept the allegations of the complaints as true for purposes of
this motion only.
Second, plaintiffs make no general claim that the inability to attend the
school of one’s choice in the town of one’s choice constitutes a constitutional
deprivation. If it did, then all the residents of a town would possess a claim
that they were deprived of the opportunity to attend the schools of another
town. Nor do plaintiffs claim that the State is not entitled to set up school
districts and assign schools based on the place of residence. Nor do I
understand the plaintiffs to be saying that the local authorities are not entitled
to promulgate a rule for dealing with “border” properties. The particular rule
here is tied to the “predominate assessed valuation” of the property, but
presumably the State or the towns had wide latitude to select a rule based on
square footage, mailing address, or any other relevant factor. Plaintiffs here are
making the narrower claim that the existing rule was applied erroneously, or
that the manner of its application violated their federal rights.
2
I.
BACKGROUND’
A. Allegations of Joseph G. Wojak
On or about January 1, 1929, the Township of Bloomfield and the
Borough of Glen Ridge passed resolutions concerning the assessment of taxes
for “border properties” that are not entirely within the boundaries of either
town. (Wojak AC
¶
2; Removal Ex. A). In the spring of 1968, plaintiff Joseph 0.
Wojak (“Wojak”) purchased real property commonly known as 26 Stonehouse
Road, Glen Ridge, New Jersey 07003 (the “Wojak Address”).2 (Wojak AC
¶
1).
The property at the Wojak Address is specifically mentioned in the January 1,
1929 resolutions. (Wojak AC
¶
3).
On or about February 15, 1968, Wojak received a letter from the then—
Superintendent of Glen Ridge Public Schools, James F. Gray. (Wojak AC
¶
4;
Removal Ex. B). This letter reads, “The residence at 26 Stonehouse Road,
Bloomfield, meets the residency requirement of being fifty percent or more
within the Borough of Glen Ridge and therefore entitles eligible occupants to
enroll in the Glen Ridge Public Schools.” (Wojak AC
¶
4; Removal Ex. B).
All facts and inferences are made in favor of the nonmoving party on a motion
to dismiss. Citations to the record are abbreviated as follows:
“Removal”
=
Notice of Removal to United States District Court (ECF No. 1)
“Consol.” = Glen Ridge Board of Education’s Notice of Motion to Consolidate
2:16-cv-1605-KM-JBC and 2:16-cv-8106-JLL-JAD (ECF No. 21)
“SRM Compl.” = Complaint for Declaratory Relief and Damages by Plaintiffs
Charles Sanders, Lee Roth, and Joseph Marotta (ECF No. 2 1-6)
“Wojak AC”
=
Joseph G. Wojak’s Amended Complaint (ECF No. 24)
“Bloomfield Twp. Br.” = Brief on Behalf of Defendant, Township of Bloomfield, in
Support of its Notice of Motion to Dismiss (ECF No. 37)
“Glen Ridge Borough Br.” = Memorandum of Law in Support of Defendant
Borough of Glen Ridge’s Motion to Dismiss Plaintiffs’ Complaint for
Failure to State a Claim or, in the Alternative, for Summary Judgment
(ECF No. 40)
Wojak and one of the plaintiffs in the consolidated case, Lee Roth, both allege
that they live at 26 Stonehouse Road, Glen Ridge, New Jersey 07003, i.e., the Wojak
Address. (Wojak AC ¶ 1; SRM Compl. ¶ 2). According to the Township of Bloomfield
and the Borough of Glen Ridge, Wojak sold this property to Lee Roth. (Bloomfield Twp.
Br. 3-4; Glen Ridge Borough Br. 7 & n.4).
2
3
Wojak’s two children attended the Glen Ridge schools and graduated from Glen
Ridge High School in
iso and
1984. (Wojak AC
¶
5).
In late 1977 or early 1978, the Borough of Glen Ridge adopted a
resolution which stated, in part, “(1) Henceforth the tuition policy of this
district shall be strictly enforced as to all non-domiciliary children including
those domiciled in residences on the municipal boundary, unless it appears as
to a boundary line property that the predominate portion of the assessed
valuation is located in this school district.” (Wojak AC
¶
6; Removal Ex. C).
On or about December 6, 1977, George H. Callahan, then—attorney for
the Borough of Glen Ridge, sent a letter to Peter N. Perr[e]tti, Jr., then—attorney
for the Glen Ridge BOE. (Wojak AC
¶
7; Removal Ex. D). Callahan addressed
the 1977 or 1978 resolution. (Wojak AC
¶
7; Removal Ex. D). He proposed that
notices should be sent to all residents whose children might be excluded from
Glen Ridge Schools; he mentioned that all objecting residents could appeal to
the county superintendent of education, in accordance with the procedures
outlined by the State BOE. (Wojak AC
8; Removal Ex. D).
¶
Wojak says he was never notified of any resolution or hearing proposal
affecting his property rights. (Wojak AC
¶
9, 12). At the time he filed the
original complaint in March 2016, Wojak was planning to sell his home. (Wojak
AC
¶
10; Removal
¶
2). It was then that he learned that the occupants of the
Wojak Address no longer had the right to send children living there to Glen
Ridge schools; any resident children would be assigned to the Bloomfield
schools. (Wojak AC
¶J
10-1 1). Wojak alleges that his property is worth
significantly less as a result of the change in school-district assignment. (Wojak
AC
¶
18).
This diminution in value, Wojak claims, amounts to an unconstitutional
taking and denial of due process. (Wojak AC
¶
17). He filed a civil action in
Essex County Superior Court, Law Division on or about March 1, 2016.
(Removal
¶
2). The Glen Ridge BOE then removed this case to the U.S. District
Court for the District of New Jersey. (Removal).
4
Count 1 of Wojak’s amended complaint claims a denial of due process
rights under the Fourteenth Amendment of the U.S. Constitution. (Wojak AC
1/fl 1-10). Count 2 alleges that the change in school district assignment
constitutes a regulatory taking under the Fourteenth Amendment. (Wojak AC
2/fl 1-7).
B. Allegations of Charles Sanders, Lee Roth, and Joseph Marotta
Wojak’s case has been consolidated with a related case brought by
plaintiffs Charles Sanders, Lee Roth, and Joseph Marotta. (Consol.). Plaintiff
Charles Sanders (“Sanders”) owns real property known as 16 Stonehouse Road,
Glen Ridge, New Jersey 07028. (SRM Compl.
¶
1). Plaintiff Lee Roth (“Roth”)
now owns real property known as 26 Stonehouse Road, Glen Ridge, New Jersey
07028 (i.e., the Wojak Address). (SRM Compl.
¶
2). Plaintiff Joseph Marotta
(“Marotta”) owns the real property known as 20 Stonehouse Road, Glen Ridge,
New Jersey 07028. (SRM Compl.
¶
3).
Sanders, Roth, and Marotta all own border properties and reside in
dwelling spaces which they say are primarily situated in the Borough of Glen
Ridge. (SRM Compl.
¶
4). However, they are required to pay taxes to Bloomfield
and enroll their children in Bloomfield schools. (SRM Compl.
¶
4). Sanders,
Roth, and Marotta—and the previous owners of the properties—allegedly were
not afforded an opportunity to address their “irregular situation” with
defendants. (SRM Compl.
¶1J
6-7). These plaintiffs seek to pay taxes to Glen
Ridge and enroll their children in Glen Ridge schools. (SRM Compi.
1 of their complaint alleges a due process violation. (SRM Compl.
Count 2 alleges a regulatory taking. (SRM Compl.
¶11
fi
¶
8). Count
12-16).
17-2 1). These plaintiffs
seek damages, a declaration that their property is situated in the Borough of
Each of the two causes of action in Wojak’s amended complaint is separately,
rather than sequentially numbered, For example, I will cite Count 1, ¶ 2 as “Wojak AC
1/1) 2.”
According to the Township of Bloomfield, Sanders, Roth, and Marotta all
necessarily purchased their properties with the knowledge that the assigned school
district was Bloomfield. (Bloomfield Twp. Br. 4).
5
Glen Ridge, and a declaration that the children residing with them are eligible
to enroll in Glen Ridge schools. (SRM Compl.).
Glen Ridge BOE moved to consolidate the Sanders, Lee, Marotta
litigation with the Wojak litigation on January 13, 2017. (Consol.). I granted
that unopposed motion on March 21, 2017. (ECF No. 26).
C. Cross Claims and Counterclaim
On April 5, 2016, Glen Ridge BOE filed cross claims against the other
defendants. (ECF No. 4). On May 11, 2016, the Borough of Glen Ridge filed
cross claims the other defendants, and also filed a counterclaim against Wojak
“for the value of the benefits conferred upon [Wojak} for [Wojak}’s use of the
Glen Ridge public schools without payment of taxes or tuition in lieu thereof.”5
(ECF No. 9). On March 27, 2017, the Bloomfield BOE filed cross claims against
all defendants for contribution and indemnification. (ECF No. 27).
U.
LEGAL STANDARDS
A. Rule 12(b)(6) Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a
complaint, in whole or in part, if it fails to state a claim upon which relief can
be granted. The defendant, as the moving party, bears the burden of showing
that no claim has been stated. Animal Sci. Prods., Inc. p. China Minmetals Corp.,
654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of a motion to dismiss,
the facts alleged in the complaint are accepted as true and all reasonable
inferences are drawn in favor of the plaintiff. New Jersey Carpenters & the Trs.
Thereof v. Tishman Constr. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir.
2014).
Federal Rule of Procedure 8(a) does not require that a complaint contain
detailed factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
Apparently the reference is to Wojak’s children having attended the Glen Ridge
schools over 30 years ago.
5
6
not do.” Bell At!. Corp.
ij’.
Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiffs right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also West Run Student Hous. Assocs., LLC v. Huntington Nat’! Bank,
712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
While “[t]he plausibility standard is not akin to a ‘probability requirement’
...
it
asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678.
B. Rule 12(b)(1) Standard
A motion to dismiss for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure Rule 12(b)(1) may be raised at any time.
Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 437-38 (D.N.J. 1999). Rule
12(b)(1) challenges are either facial or factual attacks. See 2 James Wm. Moore,
Moore’s Federal Practice
§
12.30[4j (3d ed. 2007). The defendant may facially
challenge subject matter jurisdiction by arguing that the complaint, on its face,
does not allege sufficient grounds to establish subject matter jurisdiction.
Iwanowa, 67 F. Supp. 2d at 438. Under the “facial” 12(b)(1) standard, as under
Rule 12(b)(6), the allegations of the complaint are assumed to be true. Id.
I construe the State of New Jersey’s arguments for dismissal based on
sovereign immunity as a facial challenge to the amended complaint’s
jurisdictional basis. Accordingly, for these purposes the Court will take the
allegations of the complaint as true. See Gould Elecs., Inc. a United States, 220
F.3d 169, 178 (3d Cir. 2000).
III.
DISCUSSION
Section I11.A discusses the regulatory takings claims. Section 111.2
discusses the due process claims.
A. Regulatory Takings
i.
Standards
7
The Takings Clause of the Fifth Amendment provides that private
property shall not “be taken for public use, without just compensation.” U.S.
Const. amend. V. This Clause is applicable to the States through the
Fourteenth Amendment. See Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226
(1897); see also Murr v. Wisconsin, 137 5. Ct. 1933, 1942 (2017). Under the
Takings Clause, it is clear that the government must provide compensation
when the government physically takes or permanently occupies property. See
Tahoe-Sierra A-es. Council, Inc. a Tahoe Reg’l Planning Agency, 535 U.S. 302,
321 (2002); Loretto u. Teleprompter Manhattan CATV Corp., 458 U.S. 419
(1982). The Takings Clause itself “does not address in specific terms the
imposition of regulatory burdens on private property.” Murr, 137 5. Ct. at 1942.
Nonetheless, the Supreme Court has held that regulations “can be so
burdensome as to become a taking.” Id. This area of the law has been
characterized by “ad hoc, factual inquiries, designed to allow careful
examination and weighing of all the relevant circumstances.” Tahoe-Sierra, 535
U.S. at 322 (internal citation and quotation marks omitted). Regulatory takings
jurisprudence seeks to balance two competing objectives. One objective is “the
individual’s right to retain the interests and exercise the freedoms at the core of
private property ownership.” Muir, 137 5. Ct. at 1943; see Lucas a S. Carolina
Coastal Council, 505 U.S. 1003, 1028 (1992). The other is “the government’s
well-established power to ‘adjus[t] rights for the public good.” Muir, 137 S. Ct.
at 1943 (citing Andnss a Allard, 444 U.S. 51, 65 (1979). In general, “while
property may be regulated to a certain extent, if the regulation goes too far it
will be recognized as a taking.” Pa. Coal Co. v. Mahon, 290 U.S. 393, 415
(1922).
Not every land-use regulation or zoning change that impacts property
value is considered a regulatory taking; in fact, most are not. “Land-use
regulations are ubiquitous and most of them impact property values in some
tangential way—often in completely unanticipated ways. Treating them all as
per se takings would transform government regulation into a luxury few
8
governments could afford.” Tahoe-Sierra, 535 U.S. at 324. As the Supreme
Court explained in Penn Central,
“Government hardly could go on if to some extent values incident
to property could not be diminished without paying for every such
change in the general law,” Pennsylvania Coal Co. v. Mahon, 260
U.S. [at 413], and this Court has accordingly recognized, in a wide
variety of contexts, that government may execute laws or programs
that adversely affect recognized economic values.
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). For
instance, in United States v. Willow River Power Co., the government erected a
dam that caused a three-foot increase in a river’s water level. 324 U.S. 499,
509-11(1945). The change in water level decreased the capacity of a power
plant. Id. The Supreme Court found that this did not constitute a “taking of
private property” under the Takings Clause. Id. Hadacheck v. Sebastian found
that a diminution in value from $800,000 to $60,000, caused by a prohibition
of brickmaking within a designated area, did not constitute a taking. 239 U.S.
394 (1915); see Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962). In
Tahoe-Sierra, a thirty-two-month moratorium on development in the Lake
Tahoe area was ordered by an environmental planning agency to maintain the
status quo while studying the impact of any development on the environment.
535 U.S. at 321. This did not constitute a compensable “taking” either. Id. Penn
Central held the New York City Landmarks Preservation Commission’s refusal
to approve plans for an approximately fifty-story office building over Grand
Central Terminal did not constitute a taking, even though an office building
would have yielded more profits. 438 U.S. at 116-117.
The Supreme Court’s Penn Central framework is used to evaluate
whether a regulatory burden constitutes a taking:
a regulation which denies all
First, with certain qualifications
economically beneficial or productive use of land will require
compensation under the Takings Clause. Second, when a
regulation impedes the use of property without depriving the owner
of all economically beneficial use, a taking still may be found based
...
9
on a complex of factors, including (1) the economic impact of the
regulation on the claimant; (2) the extent to which the regulation
has interfered with distinct investment-backed expectations; and
(3) the character of the governmental action.
Murr, 137 S. Ct. at 1942-43 (internal citations and quotation marks omitted);
see Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001); Lucas, 505 U.S. at
1015; Penn Cent., 438 U.S. at 124.
I will first address the regulatory takings claims of Sanders, Roth, and
Marotta. I will then turn to Wojak’s claim.
ii. Regulatory Takings: Sanders, Roth, and Marotta
The regulatory takings claims of Sanders, Roth, and Marotta are not ripe
for adjudication.
A takings claim may be “facial” or “as-applied.” A facial takings claim
challenges a regulation as constituting a taking by its plain language. See
Suitum u. Tahoe Reg’l Planning Agency, 520 U.S. 725, 736 n. 10 (1997); see
Keystone Bituminous Coal Ass’n a DeBenedictis, 480 U.S. 470, 495 (1987).
Thus a facial challenge may attack an enactment that, by its existence, “denies
an owner economically viable use of his land.” Hodel v. Va. Surface Mining &
Reclamation Ass’n, Inc., 452 U.S. 264, 295-96 (1981) (citing Agins v. Tiburon,
447 U.S. 255, 260 (1980)). Such a facial taking will succeed only if the
regulation does not “substantially advance” a “legitimate state interest” no
matter how it is applied. See Yee v. City of Escondido, 503 U.S. 519, 534
(1992). Facial challenges are immediately ripe. See Suitum, 520 U.S. at 736
n.10.
Far more common is an “as-applied” takings challenge. An owner
bringing such a challenge attacks the decision that applied the regulation to
his or her property—not the regulation in general. See
Cty.
Concrete Corp. z1’.
Twp. of Roxbury, 442 F.3d 159, 164 (3d Cir. 2006).
This case does not involve a facial challenge. Sanders, Roth, and Marotta
do not attack the school-assignment policy as a facially invalid exercise of state
10
power. That is, they do not seem to assert that the state could not permissibly
base school assignment on predominate property tax assessment. At any rate,
a takings claim based on the State’s having chosen that criterion, rather than
some other, would fail. These plaintiffs retain an economically viable use of
their property; they are able to reside in their homes, use their land, sell their
property, and send their children to public school.
Rather, Sanders, Roth, and Marotta challenge the determination that
their residences do not qualify them to send children to Glen Ridge schools.
They claim that their properties should be taxed by Glen Ridge and,
accordingly, their children should be assigned to Glen Ridge schools. That is
properly viewed as an “as-applied” challenge. See Winters ex rel. Stassan v.
*3 (N.D. Cal.
Lakeside Joint Sch. Dist., No. C 08-1511, 2008 WL 4937812, at
Nov. 17, 2008) (finding that an objection to an agreement changing where a
student attends school to he an as-applied taking).
“[A] claim that the application of government regulations effects a taking
of a property interest is not ripe” unless (1) “the government entity charged
with implementing the regulations has reached a final decision regarding the
application of the regulations to the property at issue” and (2) the plaintiffs
have sought “compensation through the procedures the State has provided for
doing so.” Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson
City, 473 U.S. 172, 186-87, 194 (1985); see also id. at 194 (“The Fifth
Amendment does not proscribe the taking of property; it proschbes taking
without just compensation.”); Hodel, 452 U.s. at 297 n.40 (“[A]n alleged taking
is not unconstitutional unless just compensation is unavailable.”). “The
ripeness doctrine serves ‘to determine whether a party has brought an action
prematurely and counsels abstention until such time as a dispute is
sufficiently concrete to satisfy the constitutional and prudential requirements
of the doctrine.tm Cty. Concrete Corp., 442 F.3d at 164 (citing Khodara Enuti.,
Inc. z’. Blakey, 376 F.3d 187, 196 (3d Cir. 2004) (quoting Peachlum a City of
York, 333 F.3d 429, 433 (3d Cir. 2003))).
11
The second requirement, in particular, ensures that the plaintiffs have
actually pled a takings claim. Suitum explained:
The second [ripeness requirement] stems from the Fifth
Amendment’s proviso that only takings without ‘just
compensation” infringe that Amendment; “if a State provides an
adequate procedure for seeking just compensation, the property
owner cannot claim a violation of the Just Compensation Clause
until it has used that procedure and been denied just
compensation.”
520 U.S. at 734 (quoting Williamson, 473 U.S. at 195). For instance, in Hodel,
the Supreme Court rejected a claim that the Surface Mining Control and
Reclamation Act constituted a taking because there was “no indication in the
record that the appellees have availed themselves of the opportunities provided
by the Act to obtain administrative relief’ such as a waiver or a variance. 452
U.S. at 297.
In this case, the State of New Jersey has in place appropriate procedures
for challenging a determination that a student is ineligible to attend a
particular public school. The applicable regulations provide for such a
challenge:
An applicant may appeal to the Commissioner [of Education] a
school district determination that a student is ineligible to attend
its schools. Appeals shall be initiated by petition, which shall be
filed in accordance with N.J.S.A. 18A:38-1 and N.J.A.C. 6A:3-8.1
and shall proceed as a contested case pursuant to N.J.A.C. 6A:3.
N.J. Admin. Code
§
6A:22-5.l (2016).
Sanders, Roth, and Marotta have not availed themselves of this
procedure. They have not pursued state appeals and remedies to either reverse
the decision or obtain just compensation for the alleged taking. They therefore
fail the Williamson test. These plaintiffs state that their representative has
contacted defendants “to discuss how or why this irregular situation exists.”
(SRM Compi. 6). But initiation of a discussion is not equivalent to the
¶
12
invocation of the appropriate procedures for appealing such a determination in
the State of New Jersey.
The state’s decision is therefore not “final,” or, viewed in the alternative,
is subject to state procedures in which relief may be awarded. See Williamson,
supra. Sanders, Roth, and Marotta have an avenue for an appeal, and possible
reversal, of the decision to exclude eligible school-aged children living at their
residences from Glen Ridge schools. An appeal may remedy the claims asserted
in the operative complaint. At the very least it may correct any error of state
law and thereby moot any takings claim. Until these plaintiffs have in hand an
adverse decision from the state authorities that is final, their takings claims are
*34
not ripe for adjudication. See Winters, 2008 WL 4937812, at
iii. Regulatory Takings: Wojak
Wojak’s takings claim stands on a somewhat different footing.
First, he states that he cannot seek reversal of a school assignment
under New Jersey Administrative Code section 6A:22-5. 1 because there are no
school-aged children at his residence. (Wojak AC
¶ 5). Second, Wojak appears
to have already sold his house.6 Even if he currently had standing to pursue
such an appeal, Wojak could not obtain meaningful relief, which would be
forward-looking and of no use to him. Taking the view of “finality” most
favorable to Wojak’s claim, Le., that he currently possesses at best a claim for
damages for a past injury, I will address the merits of whether defendants’
actions constituted a regulatory taking of Wojak’s property.
Wojak alleges that the defendants’ actions have “substantially
diminished [hisj Property value due to the fact that residents of the Property
Another plaintiff, Roth, reports the same address, and defendants (who would
have reason to be familiar with the public record) state that Wojak sold his property to
Roth. See supran.4; see also (WojakAC ¶ 1; SRM Compi. ¶ 2; BloomfieldTwp. Br. 34;
Glen Ridge Borough Br. 7 & n.4). Assuming Wojak has sold the property to Roth, his
claim would be that he has already suffered the effects of that diminution in value.
That might cast an interesting light on the claim of Roth, the purchaser (who by
hypothesis paid a diminished price for the property), but I need not consider that issue
here.
6
13
cannot attend [Glen Ridge] schools.” (Wojak AC
¶ 2/7). His property value
would be greater, he says, if children living at the Wojak Address were entitled
to attend the schools of Glen Ridge, as opposed to those of Bloomfield.
Standing alone, mere diminution in value because of a land-use or
zoning regulation does not constitute a taking. Penn Cent., 438 U.S. at 131. As
discussed above, “Government hardly could go on if to some extent values
incident to property could not be diminished without paying for every such
change in the general law.” Mahon, 260 U.S. at 413.
It is true, as established above, that a very drastic diminution of property
value may constitute a taking. For instance, in Pennsylvania Coal Co. v. Mahon,
the claimant sold the surface rights to land but expressly reserved the right to
remove the coal under the land. 260 U.S. at 412. Pennsylvania passed a
statute, however, that made it commercially impracticable to mine. Id. at
4 14-15. This was considered a taking without just compensation because the
statute completely destroyed the claimant’s property rights. Id.; see Armstrong
v. United States, 364 U.S. 40 (1960) (holding that the complete destruction of
all value of materialmen’s liens on hulls and manufacturing materials
constituted a taking).
When as a result of governmental actions the diminution in the
value of land reaches a “certain magnitude,” the LSupreme] Court
has held that compensation must be paid. Although it has never
attempted to delineate what constitutes a “certain magnitude,” the
Court has required compensation only in cases in which the value
of the property was reduced drastically. In Penn Central, for
example, the Court sustained the application of the Landmarks
Preservation Law despite the fact that the legislation denied the
claimants income that would have been generated by a fifty-five
story office building in midtown Manhattan. The Court also cited
approvingly cases in which the challenged law had reduced the
value of the land by as much as seventy-five and eighty-seven
percent.
Rogin v. Bensalem Twp., 616 F.2d 680, 69 1-92 (3d Cir. 1980) (footnotes
omitted).
14
In Rogin, the Third Circuit held that a diminution in value from three
million dollars to two million dollars, caused by the application of zoning
amendments, did not establish a regulatory takings claim. 616 F.2d at 692. In
Village of Euclid v. Ambler Realty Co., the Supreme Court found that a 75%
diminution in value did not constitute a taking. 272 U.S. 365 (1926). And in
Hadacheck v. Sebastian, the Supreme Court found that an 87.5% diminution
in value did not constitute a taking. 239 U.S. 394 (1915); see also Penn Cent.,
438
u.s.
at 127-28. The Supreme Court has also stated that the government
“may limit the height of buildings in a city, without compensation.... But if it
should attempt to limit the height so far as to make an ordinary building lot
wholly useless, the rights of property would prevail over the other public
interest, and the police power would fail.” Hudson Cty. Water Co. v. McCarter,
209 U.S. 349, 355 (1908). Therefore, any claim for a regulatory taking must
allege a drastic loss of property value.
Wojak’s complaint alleges only that, as a result of the switch in school
assignment, his property “is worth significantly less.” (Wojak AC
¶
15; see also
id. 2/f 7 (“substantially diminished” property value)). That is not, under the
standards of Twombly/Jqbal, a plausible allegation that the diminution in value
has reached that “certain magnitude”—a very drastic magnitude, depriving the
owner of the reasonable use of the property—that would rise to the level of a
compensable regulatory taking.
If I could read the factual allegations of the complaint in a commonsense
manner to support the necessary inference, I would not fault the complaint for
failure to use the magic words. I cannot assume or infer, however, that the
“significant” reduction in value alleged here is so great as to approach even the
drastic impacts on property values that the Supreme Court and Third Circuit
have found do not reach the level of takings.
Wojak’s regulatory takings claim is thus dismissed. This dismissal is
without prejudice, however, to submission of an amended complaint that
alleges a sufficiently drastic diminution in value with the requisite specificity.
15
B. Due Process Allegations
Plaintiffs allege that the defendants violated their due process rights. I
will first address the due process claims of Sanders, Roth, and Marotta, and
then those of Wojak.
1. Due Process: Sanders, Roth, and Marotta
Sanders, Roth, and Marotta allege that the Fourteenth Amendment
“entitle[s] Plaintiffs to due process, which would include procedural due
process in the event individuals such as Plaintiffs are excluded from a claim to
membership in a class of citizens receiving a government sponsored
education.” (SRM Compl. ¶ 13). The nature of the claim seems to be, not that
the existing school-assignment regulation is improper in itself, but that they
were arbitrarily and erroneously deprived of their entitlement under the
regulation to attend Glen Ridge schools. They claim a procedural due process
violation.
“[W]ithout a constitutionally recognized property or liberty interest, there
is no need for further inquiry on the due process question” and there is no
potential for relief under the provisions of 42 U.S.C. § 1983. Mullen, 31 F. App3c
at 79-80. The issue here is whether the plaintiffs’ interest in being assigned to
one school district, rather than another, gives rise to a constitutionally
protected property or liberty interest.
New Jersey is not obligated by the U.S. constitution to establish and
maintain a public school system. See Goss v. Lopez, 419 U.S. 565, 574 (1975).
But it does. New Jersey guarantees a free public education to all children in the
State. See N.J. Const. art VIII § IV, cl. 1 (“The Legislature shall provide for the
maintenance and support of a thorough and efficient system of free public
schools for the instruction of all the children in the State between the ages of
five and eighteen years.”); of Mullen v. Thompson, 31 F. App3c 77, 79 (3d Cir.
2002). That guarantee may give rise to a property interest protected by the Due
Process Clause. See fri.; of Rogowski v. New Hanford Cent 5th. Dist., 730 F.
Supp. 1202, 1206 (N.D.N.Y. 1990).
16
The entitlement to a free public education, however, has never been held
to encompass the right to attend a specific school. See Mullen, 31 F. App’x at
79; of Rogowski, 730 F. Supp. at 1206. “Plaintiffs have no constitutionally
cognizable property or liberty interest in attending the individual school of their
choice.” Mullen, 31 F. App’x at 79. That is generally a matter of state law.
Residency regulations determine where a New Jersey student will receive his or
her free public education.
First, students may enroll for free in the district in which they are
domiciled. N.J. Admin. Code
§
6A:22-3.1(a) (2016). That is not in dispute.
The dispute here arises from the regulations that govern “border” cases:
When a student’s dwelling is located within two or more school
districts, or bears a mailing address that does not reflect the
dwelling’s physical location within a municipality, the school
district of domicile for school attendance purposes shall be the
municipality to which the majority of the dwelling’s or unit’s
property tax is paid.
N.J. Admin. Code § 6A:22-3.1(b) (2016). If the property tax is paid in equal
amounts to two or more municipalities and there is no other established
assignment system for such situations, “the school district of domicile for
school attendance purposes shall be determined through assessment of
individual proofs of eligibility provided pursuant to N.J.A.C. 6A:22-3,4.” N.J.
Admin. Code
§
6A:22-3.1(b)(1) (2016).
If a parent disagrees with the school district’s determination, there is an
appeal process. In particular, an applicant who is dissatisfied with “a school
district determination that a student is ineligible to attend its schools” may
appeal to the Commissioner of Education. N.J. Admin. Code
§
6A:22-5. 1
(2016).
New Jersey, then, has rules to determine in which district each child will
receive an education, and has established regular procedures to adjudicate
disputes under those rules. If an error has been committed, there are
procedures for challenging school assignment decisions. Not every error of state
17
law gives rise to a constitutional claim, however. Some violation of due process
must be found. Where no procedural flaw has been identified, and where
parents have not availed themselves of the available procedures to correct any
error, there has been no deprivation without due process of law.
As the Supreme Court has provided,
a guarantee of fair
The Due Process Clause also encompasses
procedure. A § 1963 action may be brought for a violation of
procedural due process, but here the existence of state remedies is
relevant in a special sense. In procedural due process claims, the
deprivation by state action of a constitutionally protected interest
in “life, liberty, or property” is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without due
process of law. The constitutional violation actionable under
§ 1983 is not complete when the deprivation occurs; it is not
complete unless and until the State fails to provide due process.
...
Zinennon v. Burch, 494 U.S. 113, 125-26 (1990) (internal citations omitted).
Thus, there is no procedural due process cause of action under section 1983
when a post-deprivation state remedy exists, unless the plaintiff challenges the
adequacy or fundamental fairness of the state remedy. See Parratt ii. Taylor,
451 U.S. 527, 543-44 (1981), overruled on other grounds by Daniels v. Williams,
474 U.S. 327 (1986); see also Daniels, 474 U.S. at 339; Ragland v. Comm’rN.J.
Dep’t of Corr.,
—
F. Appx
—,
2017 WL 5900556, at *1 (3d Cir. Nov. 30, 2017);
Nicholson v. Carroll, 390 F. Supp. 2d 429, 435 (D. Del. 2005). Sanders, Roth,
and Marotta have not yet availed themselves of the available state remedy and
therefore do not state a claim under section 1983.
I will therefore grant the motion to dismiss the due process claims of
Sanders, Roth, and Marotta, without prejudice to a motion to amend their
complaint.
ft. Wojak’s Due Process Claims
Wojak alleges due process claims similar to those of the other plaintiffs.
He also alleges, however, that his property formerly carried with it the right to
attend Glen Ridge public schools, and alleges that the school assignment was
18
changed without due process protections, such as notice and a hearing. (Wojak
AC 1/11 1-10).
I first consider Wojak’s claims to the extent they overlap with those of the
ants
other plaintiffs. He does not have a regulatory takings claim against defend
i.
for the alleged diminution of his property value. See supra subsection IJI.A.i
He does not have a general property right to send school-aged children to the
79; cf
school of his choice. See supra subsection III.3.i; Mullen, 31 F. App’x at
Rogowski, 730 F. Supp. at 1206. For the same reasons stated above, Wojak
is
has not alleged a cognizable liberty or property interest and therefore there
no violation of due process or potential for relief under 42 U.S.C. § 1983. See
.
Mullen, 31 F. App5c at 79-80; see also Paul v. Davis, 424 U.S. at 711-12
in
Wojak’s situation does differ from that of the other plaintiffs, however,
one respect. He states that, as an occupant of the property at the Wojak
ls,
Address, he was formerly entitled to send children to the Glen Ridge Schoo
school
and attaches official correspondence to that effect. He alleges that the
1977-78
district assignment of the Wojak Property was changed pursuant to a
children
resolution of the Town of Glen Ridge. Nevertheless, in the 1980s his
notice of
graduated from the Glen Ridge Schools. He states that he received no
alleges,
any reclassification of his property, or the basis therefor. This, he
ous
deprived him of the opportunity to challenge what he says was an errone
decision. If, as alleged, that procedural opportunity was denied him, Wojak
unity.
might have a cause of action for deprivation of that procedural opport
things,
Such a claim faces some factual hurdles, to be sure. Among other
Wojak might have to demonstrate the level of notice required by the due
The
process clause, and prove that the authorities failed to provide notice.
remain to
damages that may have resulted from such a procedural deprivation
developed
be proven as well. These are matters of fact, however, which can be
in discovery.
’s due
The motion of the local governmental defendants to dismiss Wojak
process claim is therefore denied.
19
C. State of New Jersey
Because Wojak’s procedural due process claim survives as to the local
governmental defendants, I consider whether it also may be asserted against
defendant the State of New Jersey. I conclude that the due process claim,
insofar as it is asserted against the State, is barred by sovereign immunity.
Sovereign immunity provides that states are not amenable to suits from
individuals without their consent. Seminole Tribe of Florida v. Florida, 517 U.S.
44 (1996). This principle is based in the Eleventh Amendment of the U.S.
Constitution, which provides:
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. As explained in Seminole Tribe, the Eleventh
Amendment, despite its limited wording, embodies two more general principles
of immunity:
[F]irst, that each State is a sovereign entity in our federal system;
and second, that [i]t is inherent in the nature of sovereignty not to
be amenable to the suit of an individual without its consent. For
over a century we have reaffirmed that federal jurisdiction over
suits against unconsenting States was not contemplated by the
Constitution when establishing the judicial power of the United
States.
517 U.S. at 54 (internal citations and quotation marks omitted). The
underlying purpose of sovereign immunity “is to accord States the dignity that
is consistent with their status as sovereign entities.” Fed. Maritime Comm’n v.
S.C. State Ports. Auth., 535 U.S. 743, 760 (2002) (internal quotations omitted).
There are limits to state sovereign immunity. It can be abrogated by
must be obvious from ‘a clear
Congress, but “Congress’ intent to abrogate
...
legislative statement.”’ Seminole Tribe, 517 U.S. at 55 (citing Blatchford ii.
Native Village of Noatak & Circle Village, 501 U.S. 775, 786 (1991)). States can
also waive sovereign immunity by action or by law. See Lapides v. Bd. of
20
Regents of Univ. Sys. of Ga., 535 U.s. 613 (2002). An individual may also sue a
state official under Exparte Young “when that suit seeks only prospective
injunctive relief to ‘end a continuing violation of federal law.tm Seminole Tribe,
517 U.S. at 73 (citing Green v. Mansour, 474 U.S. 64, 68 (1985)); see Exparte
Young, 209 U.S. 123 (1908); see also Pennhurst State Sd-i. & Hasp. v.
Halderman, 465 U.s. 89 (1984).
Wojak’s procedural due process claim against the State of New Jersey is
barred by sovereign immunity.7 First, Congress did not abrogate state
sovereign immunity when it enacted Section 1983:
does not provide a federal forum for litigants who
Section 1983
seek a remedy against a State for alleged deprivation of civil
liberties. The Eleventh Amendment bars such suits unless the
State has waived its immunity, or unless Congress has exercised
to override that immunity.
its undoubted power
...
...
Will v. Mich. Dept. of State Police, 491 U.S. 58, 66 (1989); see also Quem v.
Jordan, 440 U.S. 332, 341 (1979) (holding that Section 1983 does not abrogate
state sovereign immunity). Second, New Jersey has not waived its sovereign
immunity by word or conduct in this case. Third, Wojak does not bring an Ex
pade Young action against an official for prospective relief; he brings an action
for damages, which is barred by sovereign immunity. See Green v. Mansour,
474 U.S. 64, 68-69 (1985).
For those reasons, Wojak’s procedural due process claim against the
State of New Jersey is dismissed because of sovereign immunity. The State of
New Jersey is thus dismissed from the case.
IV.
CONCLUSION
For the foregoing reasons, the complaints for the most part fail to state a
claim.
As for regulatory takings, the claims of Sanders, Roth, and Marotta are
not ripe because they have not availed themselves of state remedies and the
There is no need to address state sovereign immunity in the context of Wojak’s
takings claim, which was dismissed in subsection III.A.ii, supra.
7
21
decisions they challenge are not final. Wojak, too, fails to state a claim for a
regulatory taking.
As for due process, the claims of Sanders, Roth, and Marotta will be
dismissed for failure to allege the deprivation of an established liberty or
property interest. Wojak’s claim, too, is dismissed except for his due process
claim that he was deprived of notice and an opportunity to be heard in
connection with the change of his property’s school-district classification.
An appropriate order accompanies this opinion.
Dated: February 15, 2018
/%I
KEVIN MCNULTY
United States District Ju ge
22
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