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Cortese v. Strothers

A-3046-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; ENFORCEMENT — A neighbor complaining about a zoning violation has no cause of action against the municipality for failure to enforce its zoning code because such a person can bring his or her own action to enforce the code and therefore the complaining person is not deprived of procedural due process.

A property owner was involved in a dispute with a neighbor regarding an extension to the neighbor’s house. The owner claimed that the neighbor’s addition was significantly larger than the one shown on the approved plans and did not conform to the planning board approvals. The planning board had granted the neighbor a retroactive variance for the as-build addition. However, after the owner sued, a lower court set aside the variance. The Appellate Division affirmed, noting that the planning board’s decision was “entirely bereft of any reasons” for granting the variance.

After the Court reversed the retroactive variance, the owner pushed to have the municipality enforce its zoning code with respect to the neighbor’s addition. The municipality issued several summonses to the neighbor, but the municipal court stayed all penalties based on the neighbor’s representation that he was trying to bring the house and addition into compliance. The owner then filed a second lawsuit claiming that the municipality had violated the Municipal Land Use Law by not enforcing its own zoning ordinances. The owner also claimed that the municipality 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. Lastly, the owner claimed that the municipality’s intentional failure to enforce its zoning code violated the owner’s right to equal protection under the law pursuant to 42 U.S.C. 1983. The lower court granted the neighbor’s motion for summary judgment.

The owner appealed, but the Appellate Division affirmed. The Court rejected the owner’s first claim that the municipality had violated the Municipal Land Use Law by not enforcing it against the neighbor. The Court noted that the statute, N.J.S.A. 40:55D-18, provides that when there is a violation of a zoning ordinance, the municipality or an interested party may institute an action to prevent such violation. In this case, the Court found that the neighbor was not entitled to relief because the statute gave the neighbor the right to file suit to enforce the zoning ordinance, but he did not do so.

The Court then rejected the property owner’s due process claims under 42 U.S.C. 1983. First, the owner claimed that his substantive due process rights were violated due to the municipality’s inaction with respect to the zoning violation. However, the Court noted that in order for the property owner to prevail, a municipality’s conduct must “shock the conscience.” The Court found that the municipality’s conduct with respect to the enforcement of the zoning ordinance against the neighbor did not rise to that standard needed for culpability. The Court also rejected the owner’s claim that his procedural due process rights were violated. In order to prevail, the owner needed to establish that the local and state procedures were inadequate to give him redress. The Court found that there were reasonable avenues available to the owner to challenge the zoning code violations, including the owner bringing its own action. Therefore, the owner was not deprived of procedural due process.

Lastly, the Court rejected the owner’s claim that he was deprived of equal protection under the law. If found that there was no evidence that the owner was treated differently than any other citizen who complained about zoning violations. The Court also noted that the owner did not show an intent by the municipal officers to treat him differently.

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