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DeBlasio v. Zoning Bd. of Adjustment for Tp. of West Amwell

filed: May 1, 1995.

ALFRED DEBLASIO, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT FOR THE TOWNSHIP OF WEST AMWELL; HARRY K. RUSH; RAYMOND G. LINDBLAD; CHARLES A. BRITTON; GARY W. BLEACHER; DAVID L. DONDERO; STEWART PALILONIS; ROBERT FULPER, JR.; WERNER J. HOFF; EUGENE J. VENETTONE; BARBARA GILL; JOSEPH HELEWA; JAMES LAVAN; MRS. JAMES LAVAN, APPELLEES.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (D.C. Civil No. 92-00926).

Before: Mansmann and Lewis, Circuit Judges, and McKELVIE, District Judge.*fn*

Author: Lewis

Opinion OF THE COURT

LEWIS, Circuit Judge.

This case raises important questions regarding the extent to which the due process clause of the Fourteenth Amendment may serve to protect landowners against arbitrary governmental regulation of land use. We conclude that in the context of land use regulation, a property owner states a substantive due process claim where he or she alleges that the decision limiting the intended land use was arbitrarily or irrationally reached. Here, the plaintiff, Alfred DeBlasio, did so allege; however, the district court determined on summary judgment that he had failed to present sufficient evidence that the governmental decision in question was arbitrary or irrational. We conclude that DeBlasio has presented sufficient evidence to survive summary judgment in connection with his substantive due process claim.

Appellant Alfred DeBlasio brought suit against the Zoning Board of Adjustment for the Township of West Amwell ("ZBA"), its individual members, Eugene Venettone, the Building and Zoning Official for the Township of West Amwell, the ZBA attorney, and James and Virginia Lavan, Alfred DeBlasio's neighbors, claiming violations of 42 U.S.C. §§ 1983 and 1985(3) and the commerce clause, as well as tortious interference with contractual relations and prospective economic advantage under New Jersey common law. This is an appeal from the district court's granting of the defendants' motion for summary judgment. DeBlasio also appeals the district court's denial of his motion for leave to file a second amended complaint, and the district court's affirmance of the order of the magistrate Judge prohibiting DeBlasio from questioning the members of the ZBA concerning the mental processes used by each to rule on DeBlasio's variance application.

We will affirm the district court's grant of summary judgment with respect to DeBlasio's section 1983 procedural due process and unlawful taking claims, as well as DeBlasio's claims under section 1985(3) and the commerce clause. We will also affirm the district court's denial of DeBlasio's motion for leave to file a second amended complaint, as well as the district court's affirmance of the magistrate Judge's discovery order. Finally, we will affirm the district court's grant of summary judgment in favor of the Lavans. However, we will reverse the district court's grant of summary judgment with respect to DeBlasio's section 1983 substantive due process claim and state law tort claims against the ZBA defendants.

I.

DeBlasio owns property in West Amwell Township, New Jersey, upon which a Quonset hut had been constructed.*fn1 Previous owners had used the property, and the Quonset hut, as the site of an auto body repair business.

In the mid-1960s West Amwell enacted a zoning ordinance, pursuant to which the future DeBlasio property was designated R-3, which signifies 3-acre minimum residential use. Since the property was, at that time, being used as the site of an auto body repair business, it was not in compliance with the newly-enacted zoning restrictions. Its owners were permitted to continue their auto body repair business, however, because the property received an exemption as a pre-existing nonconforming use, specifically an auto body repair shop.

In 1967 a neighbor filed a complaint with the ZBA challenging the existence of the auto body repair shop, alleging that the pre-existing nonconforming use had been abandoned or unlawfully expanded. The ZBA conducted a hearing and determined that the use had been properly maintained.

DeBlasio purchased the property in 1974. In 1979, he leased the property to Interstate Battery Systems, a small, battery distribution business run by Peter Holmes. Holmes' business grew considerably over the next ten years. By the end of the 1980s, Holmes employed six full-time workers and two part-time workers. The business used five tractor-trailer trucks and distributed 30,000 batteries a year, many more than the 2,000 batteries Holmes distributed in 1979.

To understand the issues this appeal presents, we must add to this background information some additional facts concerning the Secretary of the ZBA, Werner Hoff, and his children.

Werner Hoff's son, John Hoff, also owned property in West Amwell which included a Quonset hut. John Hoff had used this property as the site of an excavation business.

Toward the end of 1988, John Hoff's business was failing. Werner Hoff believed that if John Hoff could secure some additional funds, he would be able to conduct an orderly and profitable liquidation of his assets. Consequently, in early 1989, Werner Hoff and his older son, Werner Hoff, Jr., loaned the younger Hoff a sum of money. In exchange, Werner Hoff and Werner Hoff, Jr. received a mortgage on John Hoff's property. Werner Hoff, Jr.'s investment company, W.E.H. Realty III, paid the monthly maintenance expenses on the property. Werner Hoff, Sr. acted as Werner Hoff, Jr.'s business agent and handled the day to day management tasks associated with the property.

At some point after 1989, Werner Hoff, Jr. decided to purchase John Hoff's property. According to Werner Hoff, Sr.'s affidavit, Werner Hoff, Jr. agreed to assume John Hoff's debts, and to take "de facto control" of the property. Although it is not clear when this "de facto control" occurred, it is clear from the record that the actual sale of the property to Werner Hoff, Jr. took place in December of 1991.

Toward the end of 1988, when John Hoff's business was experiencing financial difficulties, Werner Hoff, Sr. had a brief, unscheduled encounter with Peter Holmes. According to Holmes' affidavit, in the course of this conversation,

Mr. Hoff told me that I should consider purchasing or renting his property on Route 31 in West Amwell Township.

Mr. Hoff stated that he would sell the Route 31 property to me for $300,000 or, if I did not wish to purchase the property, I could rent it from him.

I told him that the Quonset Hut on that property was smaller than the Quonset Hut on the DeBlasio property, and was too small for my vehicles.

In response, Mr. Hoff represented that the zoning on the Route 31 property was such that I could legally park my vehicles outside. He told me that I wouldn't have the problems on the Route 31 property that I was having on the DeBlasio property. This was a clear reference to the complaints that the township officials had been receiving from the Lavans, who lived across Rock Road from the DeBlasio property.

(Appendix at 249-50). Holmes did not pursue Hoff's offer, and Hoff did not discuss the subject with Holmes at any time in the future.

In February of 1989, Virginia Lavan, who owned property near the DeBlasio property, filed a "citizen's complaint" regarding Interstate Battery. Eugene Venettone, the West Amwell Township zoning official, inspected the property and concluded that the Interstate battery operation constituted an expansion of the pre-existing nonconforming use and that the operation was, therefore, in violation of the West Amwell zoning ordinance.

In March, 1990, DeBlasio and Interstate Battery applied to the ZBA for an interpretation of the status of DeBlasio's property. They also requested a variance, in the event the ZBA decided that Holmes could not continue operating his business without one.

In June, 1990, the ZBA took up the DeBlasio/Interstate petition, among other matters. Secretary Hoff attended the meeting and recorded the minutes. However, when the DeBlasio matter came before the ZBA, Mr. Hoff announced that he would not participate in the ZBA's decision. The ZBA proceeded to find that in issuing the February 1989 citation, Venettone had not adequately identified the particular provision of the zoning ordinance that Interstate had purportedly violated. Consequently, the ZBA decided, it could not "make a determination" regarding the violation. (Appendix at 85). DeBlasio and Interstate then withdrew their request for a variance.

In August of 1990, zoning official Venettone issued a new citation to Holmes. The citation listed "Expansion of the pre-existing, non-conforming use . . ." as the zoning violation.*fn2 DeBlasio and Interstate filed another notice of appeal of Venettone's decision with the ZBA. They also requested that if their appeal were to fail, the ZBA consider their submission as a request for a variance.

The ZBA heard the appeal in September of 1990. Secretary Hoff participated in these proceedings, having determined that there was no longer an appearance of a conflict now that Werner Hoff, Sr.'s son Werner Hoff, Jr. had announced his decision to purchase John Hoff's West Amwell property. The ZBA voted unanimously to uphold Venettone's decision that Holmes' business operations constituted an unlawful expansion of the nonconforming use. The next month, the ZBA adopted a resolution to that effect.

The ZBA did not take up DeBlasio's request for a variance until the following March. After holding hearings, the ZBA voted against granting the request. Hoff participated fully in these hearings and voted against the variance. In June, 1991, the ZBA adopted a resolution of memorialization denying DeBlasio's request for a use variance. Holmes was given six months to relocate.

This law suit followed. DeBlasio's complaint set forth four counts: (1) violation of 42 U.S.C. § 1983, based on the deprivation of his Fourteenth Amendment rights to substantive and procedural due process and his Fifth Amendment right not to have his property taken without just compensation; (2) violation of 42 U.S.C. § 1985(3) (the civil rights conspiracy statute); (3) tortious interference with contractual relations and prospective economic advantage, under New Jersey common law; and (4) violation of the commerce clause.

The district court granted summary judgment in favor of the defendants. As to DeBlasio's claims under section 1983, the district court held that DeBlasio's allegations of violations of procedural due process, substantive due process and unlawful taking failed to rise to the level of constitutional violations. The district court further concluded that DeBlasio failed to allege that he was part of any protected class which would bring him under the protection of section 1985. With respect to DeBlasio's tort claims under New Jersey common law, the district court held that DeBlasio failed to comply with the notice provision contained in the New Jersey Tort Claims Act. Finally, with regard to DeBlasio's claims under the commerce clause, the district court held that DeBlasio failed to establish any evidence of a burden on interstate commerce.

II.

Subject matter jurisdiction in the district court was predicated on 28 U.S.C. §§ 1331, 1343 and 1367. We have jurisdiction over this appeal under 28 U.S.C. § 1291. Since this is an appeal from a district court's granting of summary judgment, we exercise plenary review. Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 142 (3d Cir. 1987).

III.

We have fully considered the issues raised in connection with the district court's dismissal of DeBlasio's taking of property without just compensation claim, his section 1985(3) claim, his claim under the commerce clause, as well as his claims that the district court erred in affirming the magistrate Judge's discovery order and in denying DeBlasio's motion for leave to ...


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