JOHN A. CORTESE v. JOHN STROTHERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3046-08T13046-08T1

JOHN A. CORTESE, SALLY CORTESE,

and JOHN A. CORTESE, JR.,

Plaintiffs-Appellants,

v.

JOHN STROTHERS and THE CITY

OF NORTH WILDWOOD,

Defendants-Respondents.

____________________________________

 

Argued February 3, 2010 - Decided

Before Judges Wefing and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Cape May County, No. L-612-07.

Brian M. Puricelli argued the cause for

appellants (Law Office of Brian M. Puricelli,

attorney; Annette M. Oakley, on the brief).

Louis C. Dwyer, Jr., argued the cause for

respondent John Strothers (Corino & Dwyer,

attorneys; Mr. Dwyer, on the brief).

Joseph M. Scott argued the cause for

respondent City of North Wildwood (Barker,

Scott & Gelfand, attorneys; Mr. Scott,

on the brief).

PER CURIAM

Plaintiffs appeal from a trial court order granting summary judgment to defendants. After reviewing the record in light of the contentions advanced on appeal, we have concluded that we are constrained to affirm.

Plaintiffs John Cortese, Sally Cortese and their son John A. Cortese, Jr. are the owners of property located in North Wildwood, New Jersey. The Cortese property is not their principal residence; they use it during the summer months. Defendant John Strothers owns the adjoining property. Strothers is a full-time resident. The parties have been engaged in an extended dispute as a result of two factors: Strothers' construction of an addition to his house that was significantly larger than what he had proposed to build and did not conform to the approvals he had been granted; and the apparent inability of the North Wildwood officials to compel Strothers to comply with the municipality's zoning laws.

This is the second time the parties have been to this court. In the earlier appeal we affirmed the trial court's decision which set aside a Planning Board resolution granting defendant Strothers, in effect, a retroactive variance for this construction. Cortese v. Strothers, No. A-4610-05 (App. Div. July 6, 2007). We noted in our opinion that defendant Strothers had built a second story addition that, contrary to his earlier representations to plaintiffs and to the Board, occupied the entire footprint of the building and had included an entire third story of which he had made no mention and had received no approval. We noted that the Board's resolution was "entirely bereft of any reasons" for granting Strothers this relief. Slip op. at 3.

Following this decision, plaintiffs renewed their efforts to have the municipality enforce its land use laws against defendant, but their efforts were unavailing. The municipality issued several summonses to Strothers, but the municipal court did not provide effective relief to plaintiffs, staying any penalty as defendant said he was trying to bring the structure into conformity.

Plaintiffs ultimately filed a second action in lieu of prerogative writs. Their complaint in its final form contained three counts: an allegation that the City had violated the Municipal Land Use Law by not enforcing its own ordinances; an allegation that the City had a policy of having its officers violate the First, Fourth and Fifth Amendment rights of interested parties, in violation of 42 U.S.C. 1983; and an allegation that the City's intentional failure to enforce its zoning ordinance violated plaintiffs' rights to the equal protection of law and was thus a violation of 42 U.S.C. 1983. Defendants thereafter moved for summary judgment. Plaintiffs have appealed from the trial court order granting that relief.

We note first the standard governing our review. We employ the same standard as did the trial court in determining whether summary judgment should be granted. We first look to see if there was an outstanding issue of material fact; if we are satisfied that none existed, we then consider whether the trial court correctly applied the relevant legal principles. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

I

N.J.S.A. 40:55D-18 provides in pertinent part:

In case any building or structure is erected [or] constructed . . . in violation of this act [The Municipal Land Use Law] or of any ordinance or other regulation made under authority conferred hereby, the proper local authorities of the municipality or an interested party . . . may institute any appropriate action or proceedings to prevent such unlawful erection [or] construction . . . to restrain, correct or abate such violation . . . .

In the first count of their complaint, plaintiffs sought an order compelling the municipality to enforce its land use regulations against defendant Strothers. Notably, they did not seek an order on their own behalf seeking to enforce those provisions. In such a posture, we agree with the trial court that the municipality was entitled to summary judgment.

Shortly after receipt of our opinion affirming the trial court's decision which set aside the retroactive variance relief granted to Strothers, the municipality issued citations to Strothers, returnable in municipal court, for his violations. Plaintiffs are, in essence, dissatisfied with the manner in which the municipal court judge handled those citations. The municipality, however, did not control those judicial actions and it is not responsible for them. K.D. v. Bozarth, 313 N.J. Super. 561, 571 (App. Div.), certif. denied, 156 N.J. 425 (1998). As the trial court noted, plaintiffs were free under N.J.S.A. 40:55D-18 to file their own enforcement action. They did not do so, seeking instead to compel the municipality to take action.

II

We turn now to plaintiffs' claims under 1983, which provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

In Monell v. Department of Social Services of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the United States Supreme Court held that a municipality is considered a "person" for the purposes of 1983 and may be sued directly for damages. Id. at 690, 98 S. Ct. at 2035, 56 L. Ed. 2d at 635. To prevail on such a claim, however, a plaintiff must establish that the municipality had a policy or custom to violate that party's constitutional rights. A municipality may not be sued under 1983 for the actions of its employees on the theory of respondeat superior. Id. at 694, 98 S. Ct. at 2037, 56 L. Ed. 2d at 638.

At oral argument before the trial court, plaintiffs focused their argument on two claims: the fact that Strothers' house remained, to the date of argument, in nonconformity with zoning ordinances due to the City's insufficient enforcement efforts, deprived plaintiffs of both due process and equal protection of the law. We shall similarly focus our remarks to these claims of due process and equal protection.

There are two aspects to due process, substantive due process and procedural due process. Plaintiffs contend that the City violated their substantive due process rights by its inaction in the face of this zoning violation. Whether a zoning official's actions violate due process is measured by whether those actions can be deemed shocking to the conscience. Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004). It is only the "most egregious" official action which will satisfy that rigorous standard. Ibid. In Eichenlaub, the court cited as examples of such conduct an improper taking that had the effect of destroying an ongoing business to the benefit of favored parties, ibid. (citing Conroe Creosoting Co. v. Montgomery County, 249 F.3d 336 (5th Cir. 2001)), and actions which suppressed constitutionally-protected activities. Ibid. (citing Assocs. in Obstetrics & Gynecology v. Upper Merion Twp., 270 F. Supp. 2d 633 (E.D. Pa. 2003)). We agree with the trial court that the City's actions here do not rise to that level. The trial court here correctly dismissed plaintiffs' claim of a substantive due process violation.

We are also satisfied that plaintiffs' claims of a violation of procedural due process are similarly unavailing.

Establishing a claim for a violation of procedural due process requires establishing a deprivation of a protected property interest "and that the local and state procedures for challenging that deprivation were inadequate." Plemmons v. Blue Chip Ins. Servs., Inc., 387 N.J. Super. 551, 566 (App. Div. 2006).

A state provides constitutionally adequate procedural due process when it provides reasonable remedies to rectify a legal error by a local administrative body. To assert a claim for a deprivation of property without procedural due process, the claimant must either avail himself of the remedies provided by state law or prove that the available remedies are inadequate. Consequently a state cannot be held to have violated due process requirements when it has made procedural protections available and the plaintiff has simply refused to avail himself of them.

[Id. at 566-67 (citations and internal quotation marks omitted).]

Because there were reasonable avenues available to plaintiffs to challenge the zoning violations, they were not deprived of procedural due process.

The remaining claim is that plaintiffs were in some manner deprived of the equal protection of the law. To prevail on this claim, plaintiffs would have to establish that they were treated differently than others similarly situated, that the difference in treatment was intentional, and was not supported by a rational basis. Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074, 145 L. Ed. 2d 1060, 1063 (2000)). Here, there is absolutely no evidence that plaintiffs were treated differently than any other citizen who complained of a zoning violation. Nor is there any showing of intent on the part of municipal officials or that discovery could lead to evidence of intent. The trial court correctly granted summary judgment on plaintiffs' equal protection claim.

The trial court commented in the course of its opinion, with evident sympathy, upon plaintiffs' understandable frustration at the situation which has developed. The trial court was obligated, as are we, not to permit that sympathy to cloud its legal analysis of the claims that were pled in plaintiffs' complaint.

 
Finally, we note for the sake of completeness that there was a suggestion at argument by defendant Strothers that plaintiffs' complaints had been mooted because he obtained a permit from the Department of Environmental Protection and had moved his house in a way to alleviate the violations. Plaintiffs disputed this, asserting the house had not been relocated at all. We are not in a position to address this factual dispute or to consider whether relocation to correct a side yard violation obviates the harm flowing from construction that exceeded what was approved.

Affirmed.

The trial court's opinion in the instant matter says that Strothers had received approval for a third floor addition but that the size of what was actually constructed exceeded what had been approved. We are unable to account for this disparity.

(continued)

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A-3046-08T1

August 9, 2010