CASSER v. TOWNSHIP OF KNOWLTON et al

Filing 65

MEMORANDUM and ORDER granting 61 Motion to Dismiss ***CIVIL CASE TERMINATED. Signed by Judge Peter G. Sheridan on 11/20/2018. (km)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CLAUDIA CASSER,
Civil Action No. 3:1 7-cv-O 11 74(PGS)
Plaintiff,
v.

MEMORANDUM
AND ORDER

TOWNSHIP OF KNOWLTON, et al.,
Defendants.

SHERIDAN, U.S.D.J.
This matter comes before the Court on a motion to dismiss for failure to state a claim upon
which relief may be granted, brought by Defendants Mayor and Committee for the Township of
Knowlton, Knowlton Township Planning Board, and Robert Greenbaum, Esq. who represents the
Township Officials as litigation attorney. (ECF No. 61).
In prior motions, the Court dismissed the other defendants, including Chief Justice Rabner
(ECF No. 51), Mark Hontz’ (Knowlton Township Planning Board Attorney), Ted Rodman
(Planning Board engineer), Joseph Layton and Maser Consulting (Knowlton Planners), and Robert
Greenbaum, Esq. (ECF No. 52). Putting aside Chief Justice Rabner’s dismissal, these previous
Defendants were dismissed based upon the Rooker-Feidman doctrine, the entire controversy
doctrine, and res judicata based upon a prior state lawsuit. (Id.) Since this motion is brought on a

Hontz also filed a motion for sanctions (ECF No. 18) which was denied.

motion to dismiss, the initial issue is whether the same rationale to dismiss the case applies to these
Defendants as it applied to the previous Defendants.
I
By way of background, Plaintiff Claudia Casser2 brought two actions in the Superior Court
of New Jersey, the first in 2010 and the second in 2013 primarily seeking two remedies

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(1) to

reverse or vacate the zoning resolution of Knowlton Township which authorized Casser to cluster
ten single family homes on her 100 acre farm and to set aside about 50 acres for agricultural
preservation; and (2) to award compensatory damages for taking her land without just
compensation (inverse condemnation). Casser v. Twp. OfKnowlton, 118 A. 3d 1071, 1074 (N.J.
Super. App. Div. 2015), cert. denied 129 A. 3d 329 (2016) (hereinafter “Prior State Lawsuit”).
The 2010 lawsuit challenged the land use approvals and sought damages, and the 2013 suit
challenged approvals that two other landowners obtained from Knowlton Township and the
validity of the zoning ordinance. The suits were consolidated on appeal and is referred to as the
Prior State Lawsuit. Casser, 118 A.3d at 1072.
The Prior State Lawsuit held that Casser failed to timely prosecute the zoning resolution
adopted by the Planning Board, and therefore her claim for inverse condemnation was not ripe for
determination. As a result, the suit was dismissed. More specifically, in that case, the Court
reasoned that Casser did not file an action in lieu of prerogative writs within 45 days ofthe adoption

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Previously, plaintiff was proceeding pro Se, and her complaint was construed liberally. Erickson v. Pardus, 55 1
U.S. 891 (2007). That determination was in error for the following reasons. First, Ms. Casser is a retired attorney.
She worked as a corporate attorney, and has now retired from the practice of law. Second, from my observation, her
skills and knowledge of litigation are comparable to most practicing lawyers. Third, in one sense, Ms. Casser has an
ongoing practice since she has filed and pursued litigation before this Court and the New Jersey Superior Court in
three or four separate cases arising out of the same underlying facts. Finally, Ms. Casser has specialized knowledge
of planning and zoning board practices as she was a “former zoning board member.” See, Casser v. Knowlton, 118 A.
3d 1071, 1079 (N.J. App. Div. 2015). Obviously, Ms. Casser has sufficient experience and knowledge to be treated
as the other lawyers in this case.

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of the resolution, thus she failed to exhaust her administrative and/or judicial remedies, and
consequently, Casser was barred from filing a claim for inverse condemnation for damages
because the claim was not ripe. Casser, 118 A. 3d at 1079; N.J. Court R. 4:69-1. In sum, Judge
Reisner of the Appellate Division held that Casser’s complaint “improperly converts a zoning case
into a civil rights litigation.” Id. at 1079 (quoting Rezem Family Associates, L.P. v. Borough of
Millstone, 30 A. 3d 1061, cert. denied 29 A. 3d 740 (2011)). The Appellate Division also placed
Casser’s tardiness problem right on her doorstep, noting:
The problem plaintiff faces here is of her own making. She
is an attorney and a former zoning board member. If she wanted to
challenge the terms of the variance granted her by the Planning
Board, she had forty-five days in which to file an action in lieu of
prerogative writs.
She makes no claim here that she was unaware of the
deadline set by Rule 4:69-6(a). Instead she waited three years to file
this lawsuit, and her complaint would have been untimely even if
one or more of the counts were deemed as a prerogative writ
challenge. Her proposed amended complaint was even more
untimely.
Plaintiff may not circumvent the exhaustion requirement by
waiting until it is years too late to file a prerogative writ action, and
then claiming that she need not exhaust remedies because that action
is time-barred. Allowing her to proceed in that fashion would make
a mockery of the exhaustion doctrine, and would defeat ‘the
important policy of repose expressed in the forty five day” time limit
set by Rule 4:69-6(a). Rocky Hill Citizens for Responsible Growth
v. Planning Board of Rocky Hill, 406 N.J. Super. 384, 398, 967 A.
2d 929 (App. Div. 2009). (citation and internal quotation marks

omitted). Indeed, “[b]ecause of the importance of stability and
finality to public actions, courts do not routinely grant an
enlargement of time to file an action in lieu of prerogative writs,”
and “[tjhe longer a party waits to mount its challenge, the less it may
be entitled to an enlargement.” Tn-State Ship Repair & Diy Dock
Co. v City ofPerth Amboy, 349 N.J. Super. 418, 423-24, 793 A. 2d
834 (App. Div. ) (citations omitted), certif. denied, 174 N.J. 189,
803 A. 2d 1161.

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Id. at 1079-1080.
In this Court’s prior decision, Casser’s claims were dismissed for a number of reasons,
including based on the Rooker-Feidman doctrine. See Great Western Mining v. Fox Rothschild,
615 F. 3d 159, 166 (3d Cir. 2000). The Court found that Rooker-Feidman applied because Casser
was the losing party in the Prior State Lawsuit, her complaint in federal court was commenced
after dismissal of the Prior State Lawsuit, and she was asking this Court to reject the Prior State
Lawsuit’s decision. As such, Casser’s complaint was the “functional equivalent of an appeal from
a state court judgment.” Marran v. Marran, 376 F. 3d 143, 149 (3d Cir. 2004).
Presently, Plaintiffs amended complaint takes a different road and argues that she has been
denied access to the Court because her condemnation claim was dismissed based on the “judge
made” exhaustion requirement and concealment of documents by Township officials. See Gibson
v. Superintendent ofN.J Dep’t of Law & Pub. Safety-Division of State Police, 411 F.3d 427 (3d
Cir. 2005). These issues are addressed below.
With regard to the timeframe in which actions in lieu of prerogative writs must be brought,
Casser argues that it is a “judge-made” statute of limitations of 45 days:
Ms. Casser: Right, correct. So the [Appellate Division] took at sixyear statute of limitations for taking, and reduced it to 45 days by
saying that you may not bring a taking claim, you may not bring a
claim for compensation, unless you first go through an entire
prerogative writ proceeding that must be brought within 45 days of
the subdivision approval.

But in any event all I’m saying is the judge made statute of
limitations, it is not a legislative statute of limitations.
(T7:9-22). Casser contends her amended complaint alleges a denial of a right to access the Court
in violation of her due process rights based upon the imposition of the 45-day exhaustion

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requirement. Casser further asserts that since the denial of access has never been addressed, the
Rooker-Feidman doctrine does not apply. Casser argued:
But it is absolutely crucial under Rooker-Feidman that a plaintiff
request the court to review and reject a state court judgment. I am
not in any way asking you to review and reject those state court
judgments. I need to state court judgments as elements required for
my claims of taking, to make them ripe, and for my claims of denial
of effective access to the courts through spoliation
(T: 11- 9 to
16).
.

.

.

Casser’s argument lacks merit. The decision in the Prior State Lawsuit found that her claim for
damages was not ripe because she failed to file an action in lieu of prerogative writs suit within
45 days of the adoption of the resolution by the Planning Board. In order to understand that
ruling, one must recognize the purpose of the action in lieu of prerogative writs process.
An action in lieu of prerogative writs is different than other civil actions. See generally
N.J. Ct. R. 4:69-1 to -7. The cited Court Rule creates a mechanism to challenge municipal
decisions through a fast track procedure. It is filed in the Superior Court of New Jersey, and the
Law Division reviews the record and transcripts and determines whether the municipal body acted
in an arbitrary, capricious or unreasonable manner. See Pressler & Verniero, Current N.J. Court
Rules, cmt. 5.2 on R. 4:69-4 (2018). If the answer is yes, the decision may be “set aside.” Cell
S. of NJ v. Zoning Bd. ofAdjustment, 172 N.J. 75, 81, 796 A.2d 247, 251(2002).
In contrast, the Prior State Lawsuit sought many types of relief, including, but not limited
to: count one (exceeding the authority of the Municipal Land Use Law), count two (failure to
proceed under N.J.S.A. 40:55D-44), count three (equitable estoppel or injunction), count four
(request for declaratory judgment and reformation of Board resolution), count eight (improper
taking without just compensation), count nine (inverse condemnation), count eleven (reformation
of irregularly configured lot boundaries), and fraudulent concealment. Casser, 118 A. 3d at 1078,

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n.8. An action in lieu of prerogative writs is different because (1) it solely reviews the municipal
action; (2) it does not award damages; (3) it is based solely on the record before the municipal
zoning board; (4) there is no right to a jury; and (5) the goal is to expeditiously review the
reasonableness of the municipal action rather than awarding damages to the landowner. See
generally N.J. Ct. R. 4:69-1 to -7. The appeal of that decision cannot be before this Court, but
rather, may be appealed through the appeal process of the Prior State Lawsuit.
Casser additionally argues she should be relieved from complying with action in lieu of
prerogative writs procedure because the municipality fraudulently concealed records which, if
disclosed, would have demonstrated that the municipality treated other landowners more favorable
than her, and she would have appealed sooner. At oral argument, Casser stated:
But going back to what was concealed, it was in 2007, that was the
critical time was concealment. And in 2007, I made.. three OPRA
requests, and I asked the planning board, I asked the Township
attorney, I asked many people for documents relating to other land
owners who had agreed, you know, to accept this taking of half their
you know agricultural easements. And they told me that gave
me all these excuses as to why they couldn’t find them, blah blah,
and eventually you know because I needed to get the subdivision
done, I was completely out of money, at that point I agreed under
protest not knowing had I known and this is clearly in the
complaint, had I known that in fact the township planning board had
regularly granted to other applicants the relief that I requested in my
application, I would have never accepted it. (T14:1 to 16:8).
.

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This purported rationale is tenuous because the merits of the fraudulent concealment
arguments were decided in the Prior State Lawsuit. The Appellate Division explained that
the fraudulent concealment claim was addressed by a trial judge who ruled on its merits:
In a written statement of reasons, the third judge considered
and rejected plaintiffs argument that she could assert an
independent cause of action for the tort of fraudulent concealment
of evidence. Relying on Rosenblit v. Zimmerman, 166 N.J. 391,
406-07, 766 A.2d 749 (2001), the judge reasoned that plaintiff had
the documents before she filed the 2010 litigation. He found that
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she could not “show that she was damaged in the underlying
litigation by having to rely on an evidential record that did not
contain the evidence defendant concealed.” He also found that
plaintiff could not show that defendants acted with “intent to
withhold evidence” when they gave her “access to municipal vaults
that contained the entirety of Knowlton Township’s records.” The
judge further concluded that plaintiffs proposed amended complaint
would not cure the fundamental defects in her claim. The judge
denied plaintiffs reconsideration motion on November 12, 2014,
finding that her motion presented “no new evidence” and “no new
arguments.”
Judge Reisner noted that one trial judge granted summary judgment to the municipal
defendants because an expert, Charles McGroarty, found that Casser was treated similarly to
others, and on that motion Casser failed to file an expert report in opposition. Judge Reisner
penned:
The expert also reviewed and analyzed each of the land use
applications in which plaintiff claimed other landowners were
treated more favorably. McGroarty explained that, contrary to
plaintiffs assertions, in all but two or three cases the applicants in
fact set aside large amounts of their land for agricultural
preservation. Plaintiff opposed the summary judgment motion,
without filing an expert report. She also filed a motion to amend her
complaint, seeking to add a claim in lieu of prerogative writs, and to
re-plead the civil rights and RICO claims that the first judge had
dismissed without prejudice.
Casser, 118 A.3d at 1076. Despite these findings in the Prior State Lawsuit, Casser seeks to re
litigate here the decision on the McGroarty report in the prior case. (Am. Compl., ECF No. 58, at

¶J

130-141, 171).
Outside of the Prior State Lawsuit, Casser has filed other state court actions to compel

disclosure of records under the Open Public Meetings Act (OPMA). In those suits, Casser proved
that many records ordinarily maintained by the Township Clerk were not memorialized or were
lost. Most of the issues revolve around the negligence of the municipal clerk. Compare Casser v.
Knowlton, No. 151-13 (N.J. Sup. Ct. Law Div. 2018) (ECF No. 61-14), with Am. Compl. at ¶ 447

46, 68-91, 107). Thus, the fraudulent concealment cause of action was previously considered in
at least two state court lawsuits. The appeal of those cases is not before this Court, and should be
appealed through the underlying lawsuit.
Casser’s theory is that this suit should have moved forward because she was denied access
to the Court. Casser relies on Gibson v. Superintendent of N.J. Dep’t ofLaw & Pub. Safety-Div.
ofState Police, 411 F.3d 427 (3d Cir. 2005). Gibson is clearly distinguishable. Gibson concerned
the deferred accrual rule as set forth in Heck v. Humphrey, 512 U.S. 477 (1994). In Gibson, the
Court held the accrual of the action occurred at the time the conviction was declared invalid, as
opposed to the date of arrest. Gibson, 411 F. 3d at 435-37. Here, the lateness of the cause of
action was, as the Appellate Division explained, “of [Casser’s] own making.” The denial of access
theory is subterfuge for requesting a second bite at the apple. The Rooker-Feldman doctrine
applies. The suit is barred. The Court concludes it would be futile to review this complaint any
further because Casser cannot cure her problem
theories and causes of action will not prevail.

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Rooker-Feldman controls and other novel

ORDER
IT IS on this 20th day of November, 2018;
ORDERED that the motion to dismiss the Complaint against the Defendants Mayor and
Committee for the Township of Knowlton, Knowlton Township Planning Board and Robert
Greenbaum, Esq. (ECF No. 61); and it is further
ORDERED that all other Defendants are dismissed because it would be futile for the
reasons set forth above to consider the same arguments again.
The Clerk is directed to close the file.

PETER G. SHERIDAN, U.S.D.J.

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