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Walz v. Beran

A-0673-99T3 (N.J. Super. App. Div. 2001) (Unpublished)

ZONING; DUE PROCESS—An objector suffers no deprivation of due process rights by reason of delay in a review of its objections by a land use board if the objector is ultimately able to present a vigorous case and the board considers those arguments in reaching its decision.

The owner of a commercial property alleged that the municipality and related officials had violated her substantive and procedural due process rights with respect to the manner in which the municipality dealt with an adjacent property. The adjacent property was leased by the municipality’s zoning board attorney. The attorney obtained construction, plumbing, and electrical permits from the municipality’s construction and zoning official to make non-structural alterations to the interior of the building. Shortly thereafter, fire from the complainant’s property spread and virtually destroyed the zoning board attorney’s project. The attorney then purchased the property and commenced alterations without obtaining any additional demolition or construction permits. According to the attorney, he did not obtain the necessary permits because he relied on the earlier construction permits. In a deposition, the construction official testified that it was the municipality’s “policy” that if a property owner wished to undertake construction without necessary site plan approval, commencement of the construction was done at the owner’s risk. In such cases, the construction official conducted the normal inspections and made a log of all events while the owner took his or her “chances with the board to get ... approval.” The zoning board attorney filed a site plan application within the planning board and the construction official did not cite the attorney or enter a cease and desist order because the application was pending. The planning board granted site plan approval and a construction permit was then issued. The Court rejected the neighbor’s section 1983 claims because “[i]t is settled that: substantive due process is reserved for the most egregious governmental abuses against liberty or property rights, abuses that ‘shock the conscience or otherwise offend ... judicial notions of fairness ... [and that are] offensive to human dignity.’ Here, the Court believed that “at the very worst, plaintiff was delayed in having complaints about [the zoning board’s attorney’s] actions reviewed by the Planning Board or a court of law as a result of his failure to make a timely site plan application.” The complaining property owner, “represented by able counsel before the Planning Board” presented a vigorous opposition to the site plan application. The Court felt that if it were to allow the section 1983 action to continue, it would render a nullity meaningful separation between federal and state jurisdictions “since virtually every claim of arbitrary conduct by a planning board could be made in federal court on the theory of a taking of property without due process.” As to the construction official, his failure to cite the attorney “for his premature commencement of construction may have been erroneous, but there [was] absolutely no evidence in this record suggesting corrupt motive or an intention to aid and abet [the attorney] in an unlawful scheme to circumvent the [municipality’s] zoning regulations, or to deprive plaintiff of her property rights.” Further, the Court held that there was no procedural due process violation. “Post-deprivation remedies are ordinarily deemed satisfactory substitutes for pre-deprivation process when ‘a meaningful pre-determination hearing is impractical, and property rather than a life or liberty is at stake.’ Here, the complaining property owner was given the opportunity to present an aggressive opposition to the site plan application. Moreover, she invoked her state law remedy challenging the planning board’s determination. The claim against the zoning board attorney also failed as a matter of law because he was acting as a private citizen, not as a zoning board attorney. Consequently, he was not acting under color of state law. Although there is authority for the proposition that a private person may be held accountable for the due process violation if he or she conspires with public officials, the Court could find no conspiracy.

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