DeBlasio v. Zoning Board of Adjustment

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

5-1-1995

DeBlasio v Zoning Board
Precedential or Non-Precedential:

Docket 93-5301

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

No. 93-5301
___________

ALFRED DEBLASIO,

Appellant,

vs.

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)

___________

ARGUED MARCH 10, 1994

BEFORE: MANSMANN and LEWIS, Circuit Judges,
and McKELVIE, District Judge.*

(Filed May 1 , 1995)

___________

*
Honorable Roderick R. McKelvie, United States District
Judge for the District of Delaware, sitting by designation.
Nicholas R. Perrella (ARGUED)
Smith & Laquercia
28 West State Street
Suite 1414
Trenton, NJ 08608

Attorney for Appellant

Mark L. First (ARGUED)
Fox, Rothschild, O'Brien & Frankel
Princeton Pike Corporate Center
997 Lenox Drive
Building 3
Lawrenceville, NJ 08648-2311

Attorney for Appellees, 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 and Joseph Helewa

Ivan C. Bash (ARGUED)
Brotman & Graziano
3685 Quakerbridge Road
Post Office Box 3333
Trenton, NJ 08619

Attorney for Appellees, James Lavan and Mrs.
James Lavan

___________

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.1 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

1
. A Quonset hut is a semicylindrical metal shelter with end
walls, usually serving as a barracks or storage shed. See The
Random House College Dictionary 1086 (Rev. Ed. 1982).
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.2

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
2
. According to DeBlasio, Hoff spoke privately with Venettone
some time between June 26 and August 7, 1990, and pressed
Venettone to issue the second notice of violation. In his brief,
DeBlasio cites to a portion of Venettone's deposition in support
of this contention, where Venettone describes a phone
conversation he had with Werner Hoff. The testimony reads:

[Venettone]: I called him on the phone about
business, and that's when the Interstate
Battery thing was being tossed around in the
papers, and I would, you know, ask him for
information about it, you know, only in his
capacity as secretary of the board.

Q: Did Mr. Hoff ever push you to issue a
notice of violation? When I say "push you,"
did he ever suggest or recommend to you that
you issue a notice of violation to Interstate
Battery?

A: Yes, that he thought they were in
violation, as did a lot of people.

(Appendix at 180).
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 file an amended complaint. We conclude that

these issues lack merit and do not require discussion.
 We now address whether the district court properly

granted summary judgment in favor of the defendants in connection

with DeBlasio's due process claims. DeBlasio asserts that the

defendants' actions violated his Fourteenth Amendment right to

both procedural and substantive due process. We will consider

each of these contentions in turn.

A. Procedural Due Process

Relying on our decisions in Bello v. Walker, 840 F.2d

1124 (3d Cir. 1988), and Midnight Sessions, Ltd. v. City of

Philadelphia, 945 F.2d 667 (3d Cir. 1991), the district court

concluded that DeBlasio's procedural due process claims failed

because New Jersey provides a constitutionally adequate process

for challenging wrongful zoning decisions. We agree that our

decisions in Bello and Midnight Sessions defeat DeBlasio's

procedural due process claims.

In order to establish a violation of his right to

procedural due process, DeBlasio, in addition to proving that a

person acting under color of state3 law deprived him of a

protected property interest,4 must establish that the state
3
. DeBlasio's violation of due process claims do not run afoul
of the "person acting under color of state law" requirement.
Clearly, in finding the zoning ordinance violation and in denying
the application for a variance, the defendants were acting under
color of state law.
4
. On occasion, we have refrained from conducting inquiry into
the question whether the plaintiff was deprived of a protected
property interest, and have proceeded directly to evaluate the
nature of the process the plaintiff received. See e.g., Bello,
840 F.2d at 1127-28. Following our example in Bello, among other
cases, the district court never explicitly considered whether
DeBlasio had a protected property interest before evaluating the
sufficiency of the process afforded DeBlasio.
procedure for challenging the deprivation does not satisfy the

requirements of procedural due process. Midnight Sessions, Ltd.

v. City of Philadelphia, 945 F.2d 667, 680 (3d Cir. 1991)

(citation omitted). As we observed in Bello, a state provides

constitutionally adequate procedural due process when it provides

reasonable remedies to rectify a legal error by a local

administrative body. Bello, 840 F.2d at 1128 (citations

omitted). In other words, when a state "affords a full judicial

mechanism with which to challenge the administrative decision" in

question, the state provides adequate procedural due process,

id., whether or not the plaintiff avails him or herself of the

provided appeal mechanism. Midnight Sessions, 945 F.2d at 682.

In Bello, a developer sued the Code Enforcement Officer

of Bethel Park, Pennsylvania, as well as the municipal council

and the municipality itself, for denying him a building permit.

Bello alleged that the Code Enforcement Officer denied him a

building permit as a result of pressure from members of the

council who were trying to hinder Bello's building project for

personal and political motives. We found that sufficient

evidence supported Bello's allegations to create a genuine issue

with respect to their truth. Thus, for reasons we will discuss

at greater length below, we reversed the district court's grant

of summary judgment in favor of the defendants on Bello's

substantive due process claim. However, as for procedural due

process, we stated:
Pennsylvania affords a full judicial
mechanism with which to challenge the
administrative decision to deny an
 application for a building permit. Indeed,
the plaintiffs utilized that mechanism and
obtained a building permit. While the
Pennsylvania courts have ruled that the
initial decision to deny the permit was
wrong, the plaintiffs have not and cannot
show that the decision was made pursuant to a
constitutionally defective procedure . . . .

It is the law in this Circuit that a
state provides adequate due process when it
provides "reasonable remedies to rectify
legal error by a local administrative body."
Pennsylvania clearly provides such remedies,
as this case exemplifies, and therefore
plaintiffs have no justifiable [procedural]
due process claim.

Bello, 840 F.2d at 1128 (citations omitted).

New Jersey provides a full judicial process for

challenging adverse zoning decisions. As the district court

noted,
N.J.S.A. § 40:55D-70 (a) and (b) provide that
the ZBA shall have power to hear and decide
appeals of the zoning officer's enforcement
of a zoning ordinance and hear and decide
requests for an interpretation of a zoning
ordinance. Furthermore, pursuant to
subsections (c) and (d) of this statutory
section, the ZBA shall have the power to
grant a request for a variance or other
relief, so long as the variance or other
relief can be granted without substantial
detriment to the public good and will not
substantially impair the intent and purpose
of the zone plan and zone ordinance.

Also, pursuant to N.J.S.A. § 40:55D-72,
any interested party affected by any decision
of an administrative officer of the
municipality based on or made in the
enforcement of the zoning ordinances or
official map can appeal to the ZBA.

Last, pursuant to Rule 4:69-1, et seq.
of the New Jersey Court Rules, plaintiff is
entitled to a review, a hearing and relief by
 filing a complaint, before the expiration of
45 days from the time the plaintiff received
notice that his or her application was
denied, in the Superior Court, Law Division,
bearing the designation "In Lieu of
Prerogative Writs."

(Appendix 306-07).

DeBlasio has not alleged that this procedure is

inadequate, or that it is anything less than the procedure we

found constitutionally adequate in Bello. We conclude that the

procedures for challenging Venettone's citation as well as the

ZBA's denial of DeBlasio's variance application are

constitutionally sufficient.5

B. Substantive Due Process

Substantive due process is an area of the law "famous

for its controversy, and not known for its simplicity." Schaper

v. City of Huntsville, 813 F.2d 709, 716 (5th Cir. 1987). Our

substantive due process inquiry is rendered even more difficult

by the paucity of Supreme Court guidance.

The district court based it dismissal of DeBlasio's
substantive due process claim on its conclusion that DeBlasio had

failed to offer sufficient evidence to support the allegation

that the ZBA had employed unlawful criteria in denying DeBlasio's

application for a use variance and in determining that DeBlasio's

property was in violation of the West Amwell zoning ordinance.
5
. In Rogin v. Bensalem Tp., 616 F.2d 680 (3d Cir. 1980), we
upheld Pennsylvania's scheme for challenging zoning ordinances,
which scheme provided for a ministerial review of a proposed use
by a Zoning Officer, appeal to the Zoning Hearing Board, and
appeal of that decision to the Court of Common Pleas. Rogin, 616
F.2d at 694-95.
Before addressing the sufficiency of DeBlasio's evidence of

improper motive, we must first determine (1) whether a plaintiff

such as DeBlasio must, as a predicate to a substantive due

process claim, establish possession of a property interest worthy

of substantive due process protection; and (2) if so, whether

DeBlasio possesses a property interest worthy of protection under

substantive due process. See Ersek v. Township of Springfield,

Delaware County, 822 F. Supp. 218, 220 (E.D. Pa. 1993).

In Reich v. Beharry, 883 F.2d 239 (3d Cir. 1989), we

observed that the issue of whether and when state-created

property interests invoke substantive due process concerns has

not been decided by the Supreme Court. Reich, 883 F.2d at 243.

Without attempting to define the set of state-created property

interests protected by the concept of substantive due process, we

concluded in Reich: "[i]t is apparent . . . that, in this

circuit at least, not all property interests worthy of procedural

due process protection are protected by the concept of

substantive due process." Id. at 244.

In Reich, the plaintiff was hired by Washington County,

Pennsylvania, to investigate and prosecute the Washington County

controller. Reich carried out his assignment and then submitted

bills for payment to the county. Id. at 239. However, to

receive payment, Reich first had to secure the controller's

approval, which the controller refused to provide. Reich sued

the controller, claiming that she had deprived him of property

without due process of law in violation of the procedural and

substantive components of the Fourteenth Amendment's due process
clause. Id. at 240. The controller filed a motion to dismiss

for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The

district court granted the controller's motion. Id.

We affirmed the district court's dismissal of Reich's

complaint. We held that Reich had failed to state a substantive

due process claim. We relied on Ransom v. Marrazzo, 848 F.2d 398

(3d Cir. 1988), a case in which we held that an entitlement under

state law to water and sewer services does not constitute a

protectible property interest for purposes of substantive due

process. Id. at 244. We explained in Reich:
We believe it follows a fortiori from the
holding in Ransom that Reich's complaint
fails to state a substantive due process
claim. As we have noted, the only interest
that Reich had at stake before Beharry was
his interest in avoiding delay in the receipt
of payment of a bill for professional
services rendered. We can think of no basis
for according substantive due process
protection to this interest while denying it
to those who have had their utility service
terminated.

Id. at 244-45.

While we refrained in Reich from defining the set of

property interests protected by the concept of substantive due

process, we did suggest that only fundamental property interests

are worthy of such protection. We stated that:
[i]n Mauriello v. U. of Med. & Dentistry of
N.J., 781 F.2d 46 (3d Cir. 1986), this court
acknowledged that what constitutes a property
interest in the procedural due process
context might not constitute one in that of
substantive due process. In Mauriello, a
student [was] dismissed for academic reasons
from a doctoral program . . . .
 In discussing the student's substantive
due process claim, the Mauriello court
appeared to approve of Justice Powell's view
. . . that, while property rights for
procedural due process purposes are created
by state law, substantive due process rights
are created by the Constitution. The
Mauriello court also "share[d] Justice
Powell's doubt about the existence of . . . a
substantive due process right in the
circumstances here," noting that the
student's claim to continued enrollment in a
graduate program bore "`little resemblance to
the fundamental interests that previously had
been viewed as implicitly protected by the
Constitution.'"

Reich, 883 F.2d at 244 (quoting Mauriello, 781 F.2d at 50)

(quoting Regents of University of Michigan v. Ewing, 474 U.S. 214

(1985) (Powell, J., concurring)).

Though we have yet to clearly define the category of

property interests protected by the concept of substantive due

process, in Bello v. Walker we provided some guidance in the area

of land use regulation.

In Bello, the plaintiffs obtained municipality approval

for a five stage subdivision building plan. After obtaining

building permits for the first stage of the plan, and completing

the first stage of construction, the municipality's code

enforcement officer denied the plaintiffs' application for

building permits to allow the plaintiffs to commence construction

of the housing units which comprised the fifth stage of the

project. The code enforcement officer contended that he denied

the plaintiffs' building permit application because the

plaintiffs sought to construct the fifth stage of the project
before completing phases two through four. Bello, 840 F.2d at

1126. The plaintiffs, however, had never agreed to develop the

project in the order suggested by the numerical sequence of the

stages. Id.

The plaintiffs ultimately sought redress in the Court

of Common Pleas of Allegheny County, Pennsylvania. After a

hearing, the court ordered the municipality to issue the building

permits. Id. However, prior to obtaining relief in state court,

the plaintiffs filed a complaint under 42 U.S.C. § 1983 against

the municipality and the individual municipal officials in the

United States District Court for the Western District of

Pennsylvania. The plaintiffs alleged that a number of the

defendant officials had improperly influenced the decision to

deny the plaintiffs' building permit application, in violation,

inter alia, of the plaintiffs' constitutional rights to due

process. Id. at 1127.

The defendants moved for summary judgment, presenting

evidence that the building permit denial had issued solely

because the plaintiffs sought to undertake the fifth stage before

developing stages two through four. In opposition to the motion,

the plaintiffs presented evidence indicating that certain town

council members had personal animosity towards one of the

plaintiffs' employees, and that various defendant members of the

town council had pressured members of the council to hinder the

plaintiffs' building project so long as the plaintiffs employed

this particular employee. Id. The district court granted the

defendants' motion for summary judgment.
 We reversed the district court's grant of summary

judgment in connection with the plaintiffs' substantive due

process claims. We explained in this regard, after canvassing

the recent Supreme Court jurisprudence in the area, that "the

deliberate and arbitrary abuse of government power violates an

individual's right to substantive due process." Id. at 1129. We

found that the plaintiffs presented evidence from which a

fact-finder could reasonably conclude that certain council

members "improperly interfered with the process by which the

municipality issued building permits, and that they did so for

partisan political or personal reasons unrelated to the merits of

the application for the permits." Id. at 1129.
These actions can have no relationship to any
legitimate governmental objective, and if
proven, are sufficient to establish a
substantive due process violation actionable
under section 1983. While the defendants
claim that the building permit was denied
because of plaintiffs' failure to build in
numerical sequence, thus presenting an
arguably rational ground for the denial of
the permit, it is the factfinders' role to
resolve this factual dispute.

Id. at 1129-30.

In Bello we did not discuss whether the plaintiffs

possessed a property interest worthy of substantive due process

protection.6 In subsequent cases we have clarified that to state
6
. Similarly, in the cases of Pace Resources, Inc. v.
Shrewsbury Tp., 808 F.2d 1023, 1034-36 (3d Cir. 1987), and
Neiderhiser v. Borough of Berwick, 840 F.2d 213, 217-18 (3d Cir.
1988), in the context of land use regulation, we did not identify
a specific property interest at issue worthy of substantive due
process before addressing whether the zoning decision in question
violated substantive due process.
a substantive due process claim, a plaintiff must have been

deprived of a particular quality of property interest. Our most

recent restatement of this proposition is found in Acierno v.

Cloutier, 40 F.3d 597 (3d Cir. 1994).7 There we stated that when

complaining of a violation of substantive due process rights, a

plaintiff must prove that the governmental authority "acted to

`infringe [ ] a property interest encompassed by the Fourteenth

Amendment.'" Acierno, 40 F.3d at 616 (quoting Midnight Sessions,

945 F.2d at 679);8 accord Taylor Investment v. Upper Darby

Township, 983 F.2d 1285, 1292 (3d Cir. 1993) (stating, in dicta,

that to prevail on a substantive due process claim, a plaintiff

7
. Though one issue in Acierno was considered by the court
sitting in banc, the substantive due process issue was considered
by the panel only. Acierno, 40 F.3d at 600.
8
. We further explained in Acierno:

As the Supreme Court has previously stated:
Property interests, of course, are not
created by the Constitution. Rather, they
are created and their dimensions are
defined by existing rules or understandings
that stem from an independent source such
as state law -- rules or understandings
that secure certain benefits and that
support claims of entitlement to those
benefits. Board of Regents v. Roth, 408
U.S. 564, 577 (1972).

Thus . . . when analyzing substantive
due process claims courts are required to
turn to state and local law to determine
whether the plaintiff possessed a property
interest which was abrogated by the
governmental action.

Id. at 616.
"must demonstrate that an arbitrary and capricious act deprived

them of a protected property interest").

We think it consistent with Bello to conclude that

ownership is a property interest worthy of substantive due

process protection.9 See, e.g., Ersek v. Township of

Springfield, Delaware County, 822 F. Supp. 218, 221 n.3 (E.D. Pa.

1993) (offering a similar interpretation of Bello). Indeed, one

would be hard-pressed to find a property interest more worthy of

substantive due process protection than ownership. Thus, in the

context of land use regulation, that is, in situations where the

governmental decision in question impinges upon a landowner's use

and enjoyment of property, a land-owning plaintiff states a
9
. The dissent does not read Bello as "standing for the
proposition that mere ownership is a sufficient substantive due
process property interest." Dis. Op. Typescript at 5. Instead,
the dissent would hold that "legitimate claim[s] of entitlement"
determine the set of property interests worthy of substantive due
process. Our understanding of Bello's impact upon this case
leads us to a different conclusion.

First, we note that in Bello, we did not undertake an
entitlement analysis before finding that the plaintiff's asserted
substantive due process claim survived summary judgment. See
Bello v. Walker, 840 F.2d 1124, 1128-1130. Second, we are less
certain that the "legitimate claim of entitlement" approach is
mandated by Supreme Court jurisprudence. As we have previously
noted, the Supreme Court has yet to articulate a standard for
determining which state-created property interests merit
substantive due process protection. See Reich v. Beharry, 883
F.2d 239, 243 (3d Cir. 1989). As for Board of Regents v. Roth,
408 U.S. 564 (1972), a decision the dissent relies upon, we agree
with the observation of the Court of Appeals for the Second
Circuit: in Roth, the Court announced that a property interest
within the meaning of the Fourteenth Amendment "includes not only
what is owned but also, in some limited circumstances, what is
sought." RRI Realty Corp. v. Inc. Village of Southampton, 870
F.2d 911, 915 (2d Cir. 1989) (emphasis supplied) (citing Roth,
408 U.S. at 577).
substantive due process claim where he or she alleges that the

decision limiting the intended land use was arbitrarily or

irrationally reached.10 Where the plaintiff so alleges, the

plaintiff has, as a matter of law, impliedly established

possession of a property interest worthy of substantive due

process protection.11
C. Sufficiency of Evidence of
Substantive Due Process Violation

We now turn our attention to the question of the

sufficiency of DeBlasio's evidence of improper motive.

As explained above, in Bello, we reversed the district

court's grant of summary judgment, concluding that the plaintiffs

10
. In Neiderhiser v. Borough of Berwick, 840 F.2d 213 (3d Cir.
1988), we held that a lessor who had been denied an exemption
from a zoning ordinance stated a substantive due process claim by
alleging that the exemption application was arbitrarily and
irrationally denied. See Neiderhiser, 849 F.2d at 218 (citing
Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988). Having implied in
Neiderhiser that a lessor possesses a property interest worthy of
substantive due process protection against arbitrary and
irrational governmental deprivation, an actual property owner, a
fortiori, possesses such an interest.
11
. We do not share the dissent's legitimate concern that this
standard "will invite land owner into any federal court to
challenge even the most mundane and routine zoning decisions[.]"
Dis. Op. Typescript at 7. The standard we articulate today is
implicit in Bello, and Bello has not over-burdened the federal
courts by inviting meritless landowner suits. Moreover, we note
by way of analogy that persons denied licenses required for the
practice of certain occupations are not required to demonstrate
entitlement to the license sought in order to state a substantive
due process claim. To state a substantive due process claim,
such persons need only assert that the license sought was
arbitrarily denied. See RRI Realty Corp., 870 F.2d at 917-18 n.4
(citing Wilkerson v. Johnson, 699 F.2d 325 (6th Cir. 1983)).
This rule has not invited abuse of the federal courts by persons
denied licenses to pursue particular occupations.
had presented evidence from which a fact-finder could reasonably

conclude that certain council members, for partisan political or

personal reasons, improperly interfered with the process by which

the municipality issued building permits. Bello, 840 F.2d at

1129-130. DeBlasio has made allegations that, if proven, would

establish a similar violation of his right to be free from

arbitrary and capricious government action affecting his interest

in use and enjoyment of property. The question is whether

DeBlasio has come forward with enough evidence in support of

those allegations to survive a motion for summary judgment.

The district court did not think so. The court

down-played the significance of Werner Hoff, Sr.'s 1988

unscheduled encounter with Holmes, stating:
The only possible "illegal conduct" which
plaintiff might be referring to appears in
Holmes's affidavit and recites that Hoff
participated in the hearings in light of the
five-minute conversation which took place
between the two individuals. This evidence
is not sufficient to enable a jury to
establish bias, bad faith, improper motive,
racial animus, or the existence of partisan
political or personal reasons and, therefore,
to return a verdict in plaintiff's favor.

(Appendix at 309).

We disagree with the district court. We conclude that

a genuine issue of material fact must be resolved to determine

whether or not Werner Hoff, for personal reasons, improperly

interfered with the process by which the Township of Amwell

rendered zoning decisions, and that summary judgment should not

have been entered in favor of the defendants. Werner Hoff had
decided to abstain from participating in the ZBA hearings in May

or June of 1990. By September, however, he believed that his

apparent conflict had been resolved. We do not understand why he

believed this to be so. One of his sons still owned the West

Amwell property, and the property remained unoccupied. In fact,

Werner Hoff, Sr. continued to hold a mortgage on it. On the

other hand, and contrary to DeBlasio's assertions, the record

does not show that Hoff ever "pressured" Holmes to abandon the

DeBlasio property in favor of his own. Still, Werner Hoff did

state, both to Holmes and later to Venettone, that he believed

his family's property would be a good place for Holmes' business.

In addition, in his conversation with Holmes, Hoff specifically

mentioned that one advantage of the Hoff property was its more

favorable zoning status.

Hoff never approached Holmes after 1988, and the ZBA

hearings did not begin until May of 1991. Additionally, even if

Holmes were forced to leave the DeBlasio property, he never

indicated that he would want to relocate on Hoff's land. To the

contrary, in his conversation with Hoff, Holmes stated that he

was not interested in the Hoff property, because the Quonset hut

was not large enough to suit his needs. We conclude,

nonetheless, that a genuine issue of material fact exists as to

whether the ZBA's decisions were, in some part, influenced by

Werner Hoff, Sr.'s personal, financial interest in the resolution

of DeBlasio's zoning problems. Under Bello, DeBlasio thus

presented sufficient evidence to withstand the defendants' motion
for summary judgment in relation to DeBlasio's substantive due

process claim.12

IV.

For the reasons stated above, we will reverse the

district court's grant of summary judgment in relation to

DeBlasio's substantive due process claim and New Jersey tort

claims against the ZBA defendants and remand for proceedings

consistent with this opinion. We will affirm the district

court's dismissal of DeBlasio's procedural due process claim,

claim for taking of property without just compensation, section

1985(3) claim, commerce clause claim, and state tort claims

against the Lavans. We will also affirm the district court's

denial of DeBlasio's motion for leave to file an amended

complaint, as well as the district court's affirmance of the

magistrate judge's discovery order.

12
. In Count III of his complaint, DeBlasio stated claims under
New jersey tort law for intentional interference with contractual
relations and economic opportunity. The district court granted
summary judgment on those claims in favor of the ZBA defendants
because DeBlasio failed to comply with the notice provisions of
the New Jersey Tort Claims Act ("NJTCA"). Because DeBlasio has
asserted intentional tort claims, the notice provisions of the
NJTCA do not apply and it was error for the district court to
apply them. See Fuchilla v. Layman, 210 N.J.Super. 574
(N.J.Super. A.D. 1986).

Although it offered no explanation for having done so, the
district court also appears to have granted summary judgment in
favor of the Lavans in relation to DeBlasio's tort claim against
them. We will affirm the district court's grant of summary
judgment in favor of the Lavans as there is no evidence to
support DeBlasio's tort claim against them.
McKELVIE, District Judge (sitting by designation), dissenting.

I agree with the majority that this court should affirm

the district court’s grant of summary judgment in favor of the

defendants with respect to DeBlasio’s 42 U.S.C. § 1983 procedural

due process claim, unlawful taking claim, § 1985(3) claim,

commerce clause claim, and state tort claims against the Lavans.

I further agree that we should reverse the grant of summary

judgment in favor of the ZBA defendants with respect to the New

Jersey tort claims. However, because I believe this court should

affirm the grant of summary judgment as to DeBlasio’s substantive

due process claim, I must dissent from parts III.B & C of the

majority’s opinion.

I. Introduction and Factual Background

DeBlasio claims the ZBA defendants violated his rights

to substantive due process in determining that his property was

not in compliance with the West Amwell zoning ordinances and in

denying his application for a use variance. I agree with the

majority that this case raises important questions about what

property interests substantive due process will protect and that

searching for the proper standard is a complicated matter. The

majority correctly determines that in order to establish a

violation of substantive due process, a plaintiff such as

DeBlasio must demonstrate that he possesses a property interest

worthy of substantive due process protection. However, I believe

the majority’s next conclusion, that a plaintiff need only be a

property owner to raise a substantive due process violation, is

unwarranted and unwise. This standard opens the doors to the
federal courts far wider than the Constitution contemplates, and

surely will require the federal courts to sit as “zoning boards

of appeals.” See RRI Realty Corp. v. Incorporated Village of

Southampton, 870 F.2d 911, 918 (2d Cir. 1989). Furthermore, even

under the majority’s definition of what constitutes a sufficient

property interest, I believe DeBlasio has failed to demonstrate

the existence of a genuine issue of material fact and thus, the

district court’s grant of summary judgment must be affirmed.

The facts of this case are simple and straightforward.

Indeed, the parties do not disagree as to the following central

facts. This case begins with the only two quonset huts existing

in West Amwell Township, each located on a different piece of

property. Plaintiff is the owner of one of these pieces of

property, which he began renting in 1979 to Peter Holmes for his

lead acid battery distribution business.13 The other parcel of

land is owned by the son of defendant Werner Hoff, a member of

the ZBA. On February 8, 1989, Zoning Officer Venettone issued a

first notice to DeBlasio that his property was in violation of

West Amwell zoning ordinances. At around the same time, Hoff

encountered Holmes in a diner and suggested that Holmes consider

renting Hoff’s son’s quonset hut property. Holmes told Hoff that

he was not interested because the hut was too small for his use.

13
. I would note that the record is devoid of any explanation as
to why it is pertinent that the structure on each piece of
property is a quonset hut, or why it was crucial that Holmes’s
business be located in a quonset hut.
On June 26, 1990, the ZBA conducted a hearing on DeBlasio’s first

notice of violation, and decided that since Venettone’s letter to

DeBlasio failed to specifically identify the zoning ordinance

violated, it was therefore inappropriate to make a determination

on the violation. Some time after this hearing, Venettone called

Hoff concerning zoning business, at which time they discussed the

DeBlasio matter and Hoff gave Venettone his opinion that

DeBlasio’s property was in violation of the zoning laws. On

August 7, 1990, Venettone issued a second notice of violation to

DeBlasio, stating that his use of the property was an expansion

of a pre-existing, nonconforming use exception to the zoning

ordinances. DeBlasio appealed the decision and applied for a use

variance. On October 23, 1990, the ZBA voted to uphold

Venettone’s determination of noncompliance. In addition, on May

28, 1991, the ZBA adopted a motion to deny DeBlasio’s application

for a variance, and on June 25, 1991, they adopted a resolution

memorializing that decision.

Thus, the parties are not in dispute as to the events

that occurred leading up to the ZBA’s determination that

DeBlasio’s property was in violation of West Amwell’s zoning

ordinances and its decision to deny DeBlasio a use variance. The

only dispute, therefore, is as to what inferences may reasonably

be drawn from those facts. The district court determined that,

after the close of lengthy discovery, DeBlasio failed to offer

evidence sufficient to allow a reasonable jury to draw the
inference that the ZBA’s zoning decisions were based on bias,

improper motive, or some other unlawful criteria. As such, the

case was ripe for the grant of a summary judgment. However, the

majority disagrees, concluding that “a genuine issue of material

fact must be resolved to determine whether or not Werner Hoff,

for personal reasons, improperly interfered with the process by

which the Township of Amwell rendered zoning decisions.” Slip

op. at 25.

II. DeBlasio’s Property Interest

The majority correctly begins its analysis with the

property interest DeBlasio must possess in order to make out a

claim under substantive due process, and focuses on Bello v.

Walker, 840 F.2d 1124 (3d Cir. 1988). In Bello, we did not

discuss whether the plaintiffs possessed a requisite property

interest; however, we examined the district court’s grant of

summary judgment assuming that plaintiffs had a sufficient

property interest in obtaining a municipal building permit.

Thus, the majority notes that one can read Bello as requiring a

plaintiff to possess “a particular quality of property interest”

before he or she may bring a claim for a substantive due process

violation. This court recently reaffirmed this position in

Acierno, holding that a plaintiff “complaining of a violation of
substantive due process rights . . . must prove that the

governmental authority acted to ‘infringe[] a property interest

encompassed by the Fourteenth Amendment.’” Acierno v. Cloutier,
40 F.3d 597, 616 (3d Cir. 1994) (quoting Midnight Sessions, Ltd.

v. City of Philadelphia, 945 F.2d 667, 679 (3d Cir. 1991), cert.

denied, 112 S. Ct. 1668 (1992)); see also Reich v. Beharry, 883

F.2d 239, 245 (3d Cir. 1989) (finding plaintiff “possesses no

property interest that entitles him to substantive due process

protection”).

The majority falters, however, when it turns to the

determination of exactly what property interests will qualify for

substantive due process protection. The majority finds “it

consistent with Bello” to hold that mere ownership is “a property

interest worthy of substantive due process protection.” Slip op.

at 22. Thus, in order to establish a violation of substantive

due process, a plaintiff need only allege that a decision

limiting the use of land he or she owns was “arbitrarily or

irrationally reached.” I believe this rule of law is incorrect

for two reasons.

First, I believe that the majority’s standard

represents a departure from the legal precedent of the Supreme

Court and of this Circuit. The majority relies on Bello and

Neiderhiser v. Borough of Berwick, 840 F.2d 213 (3d Cir. 1988),
to support its conclusions. However, I do not read Bello to

stand for the proposition that mere ownership is a sufficient

substantive due process property interest. As stated above, the

property interest at issue in Bello was the apparent right to a

municipal building permit. Similarly, Neiderhiser does not
support such a broad standard. In Neiderhiser, as in Bello, we

skipped the necessary determination of what property interest

plaintiffs possessed. However, in that case, the plaintiffs were

lessors who asserted a right to a special zoning exemption “based

on the fact that the property had been operated on a commercial

basis for the past 30 years and that the proposed use was

consistent with prior non-conforming . . . use.” Neiderhiser,

840 F.2d at 214. Thus, it was this interest in the right to a

zoning exemption which we assumed was sufficient to allege a

viable due process violation.

To answer the question of what “particular qualities”

of property interests are protected by substantive due process, I

believe our analysis is dictated by our recent decision in

Acierno, which follows the Supreme Court’s teachings in Board of

Regents v. Roth, 408 U.S. 564 (1972). In Acierno, we adopted the

Court’s position that property interests are not created by the

Constitution, but instead “stem from an independent source such

as state law--rules or understandings that secure certain

benefits and that support claims of entitlement to those

benefits.” Acierno, 40 F.3d at 616 (quoting Roth, 408 U.S. at
577). In so doing, we held that “when analyzing substantive due

process claims courts are required to turn to state and local law

to determine whether the plaintiff possessed a property interest

which was abrogated by the governmental action.” Id.
 In Roth, the Supreme Court focused its definition of a

property interest under the Fourteenth Amendment on “what is

sought.” RRI Realty Corp. v. Incorporated Village of

Southampton, 870 F.2d 911, 915 (2d Cir. 1989). In its test, the

Court rejected the supposition that a property interest in a

certain benefit could stem from a mere “abstract need or desire

for it” or “unilateral expectation of it.” Instead, there must

be a “legitimate claim of entitlement.” Roth, 408 U.S. at 576;

accord RRI, 870 F.2d at 915. As we recognized in Acierno, this

claim of entitlement must be found in state law.

In footnote 9 of its opinion, the majority displays its

uncertainty that Roth’s “legitimate claim of entitlement

approach” is mandated by the Supreme Court, restating its belief

that the Court has “yet to articulate a standard for determining

which state-created property interests merit substantive due

process protection.” Slip op. at 22. Whether or not the Roth

approach is required by the Supreme Court, it would appear that

this court has already indicated its approval of the “claim of

entitlement” standard by holding in Acierno that property

interests are created by “rules and understandings that secure

certain benefits and support claims of entitlement to those
benefits.” Acierno, 40 F.3d at 616 (emphasis added).

In addition, the “claim of entitlement” standard should

be applied in this case not only because it follows from the

Supreme Court’s and Third Circuit’s prior jurisprudence, but also
because it represents the approach to substantive due process

zoning cases adopted by many other circuits as well. See Gardner

v. Baltimore Mayor and City Council, 969 F.2d 63, 68 (4th Cir.

1992) (holding that existence of a property interest turns on

whether there is a “legitimate claim of entitlement” under state

law); Spence v. Zimmerman, 873 F.2d 256, 258 (11th Cir. 1989)

(same); RRI Realty Corp. v. Incorporated Village of Southampton,

870 F.2d 911, 917 (2d Cir. 1989) (same); Carolan v. City of

Kansas City, 813 F.2d 178, 181 (8th Cir. 1987) (same); Yale Auto

Parts, Inc. v. Johnson, 758 F.2d 54, 58-59 (2d Cir. 1985) (same).

Second, and perhaps equally as important, I believe the

majority's new standard of “mere ownership” is erroneous because

essentially it is tantamount to no standard at all. It is

difficult to imagine that a plaintiff would argue his or her

substantive due process rights had been violated as to property

he or she did not even own (or at least possess a significant

financial interest in). The majority's conclusion establishes a

precedent whereby a plaintiff states a substantive due process

claim merely by alleging deliberate and arbitrary abuse of

government power. It invites any land owner into federal court

to challenge even the most mundane and routine zoning decisions,

ignoring the oft-cited admonition that the role of the federal

courts “is not and should not be to sit as a zoning board of

appeals.” Village of Belle Terre v. Boraas, 416 U.S. 1, 13
(1974) (Marshal, J., dissenting). As Judge Posner wrote for the
Seventh Circuit: “[I]t is tempting to view every zoning decision

that is adverse to the landowner . . . as a deprivation of

property. . . . [However, n]o one thinks substantive due process

should be interpreted so broadly as to protect landowners against

erroneous zoning decisions.” Coniston Corp. v. Village of

Hoffman Estates, 844 F.2d 461, 465-66 (7th Cir. 1988).

I believe the majority misunderstands the concern I

have articulated above when it states in footnote 11 that “Bello

has not over-burdened the federal courts by inviting meritless

landowner suits.” Slip op. at 24. My objection to the

challenges to routine zoning decisions that could be brought,

under the majority’s standard, by anyone who owns land is not

that the courts will now be flooded by claims that are meritless

per se. It is, rather, that claims brought under this standard

do not raise the issues of constitutional significance

appropriately addressed by the federal courts. As the First

Circuit has consistently held, “the due process clause may not

ordinarily be used to involve federal courts in the rights and

wrongs of local planning disputes. In the vast majority of

instances, local and state agencies and courts are closer to the

situation and better equipped to provide relief.” Nestor Colon

Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir.

1992). Every zoning decision seemingly “impinges upon a

landowner’s use and enjoyment of property.” See slip. op. at 23.

Thus, confining the category of property interests a plaintiff
must possess simply to ownership subjects every zoning decision

to potential federal review.

I believe, as Judge Posner wrote in Coniston,

“[p]roperty is not a thing, but a bundle of rights.” 844 F.2d at

465. Hence, we must look to what particular rights and uses a

person is entitled by the state through the ownership of a parcel

of land in order to determine whether he or she possesses a

property interest that merits due process protection. While I

can appreciate the majority's frustration at the perceived lack

of guidance in its search for what constitutes such a sufficient

property interest, the difficulty of the task does not grant us

license to set the threshold so low as to eradicate all utility

it was intended to possess.

With that preface, I now turn to the evaluation of

DeBlasio’s claims. DeBlasio alleges his substantive due process

rights were violated by two actions of the ZBA--the affirmance of

Venettone’s determination that DeBlasio's property was not in

compliance with a previously granted exception to the West Amwell

zoning code and the denial of DeBlasio’s application for a use

variance. The first step in analyzing DeBlasio’s claims is to

determine whether he possesses a property interest that is

cognizable under the Fourteenth Amendment. See Gardner, 969 F.2d

at 68. In order to make this determination, we must look to what

“claims of entitlement” can be found in state law.
 DeBlasio’s claims raise two possible property

interests: his right to the continued nonconforming use of his

property and his right to obtain a use variance. As to the

first, the question of whether a claim of entitlement exists

“should depend on whether, absent the alleged denial of due

process, there is either a certainty or a very strong likelihood”

that DeBlasio’s property would have been found to comply with the

pre-existing, nonconforming use exception granted to the first

owner. See Yale Auto Parts, 758 F.2d at 59. It is true that

under the New Jersey Municipal Land Use Act, “[a]ny nonconforming

use or structure existing at the time of the passage of an

ordinance may be continued.” N.J. Stat. Ann. § 40:55D-68 (1991).

However, the New Jersey Supreme Court has recognized the general

policy in the law to restrict and disfavor a nonconforming use:

“Because nonconforming uses are inconsistent with the objectives

of uniform zoning, the courts have required that consistent with

the property rights of those affected and with substantial

justice, they should be reduced to conformity as quickly as is

compatible with justice.” Town of Belleville v. Parrillo’s,
Inc., 416 A.2d 388, 391 (N.J. 1980). Thus, an existing

nonconforming use may not be enlarged or changed as of right and

will be allowed to persist only “if it is a continuance of

substantially the same kind of use as that to which the premises

were devoted at the time of the passage of the zoning ordinance.”

Id. Furthermore, “[w]here there is doubt as to the
substantiality of the extension, it should be disapproved.”

Hartman v. Township of Randolph, 155 A.2d 554, 558 (N.J. Super.

Ct. App. Div. 1959).

The previous owners of DeBlasio's property were

operating a one-man automobile repair shop when West Amwell

adopted its first zoning ordinance, and it was this use that was

permitted to continue as a pre-existing nonconforming exception

to the zoning restrictions. Holmes’s interstate battery

distributorship clearly represents a departure from this prior

use, and there would appear to be some doubt as to whether this

battery business is “substantially the same kind of use” as the

previous single person car repair shop. Thus it cannot be said

that there is a “certainty or a very strong likelihood” that

DeBlasio would have been permitted to continue the present use of

his property indefinitely, and that he would never have been

deemed to have expanded the pre-existing nonconforming use

exception granted to the prior owners. Consequently, DeBlasio

possesses no claim of entitlement under state law to the

continued nonconforming use of his property, and thus does not

possess this first category of property interest which he

asserts.

As to the second possible property interest, that is,

whether DeBlasio had a right to approval of his application for a

use variance, many courts have held that “whether a property-

holder possesses a legitimate claim of entitlement to a permit or
approval turns on whether, under state and municipal law, the

local agency lacks all discretion to deny issuance of the permit

or approval. Any significant discretion conferred upon the local

agency defeats the claim of a property interest.” Gardner, 969

F.2d at 68; accord New Burnham Prairie Homes v. Village of

Burnham, 910 F.2d 1474, 1480 (7th Cir. 1990); Spence, 873 F.2d at

258; RRI, 870 F.2d at 918; Carolan, 813 F.2d at 181; Michigan

Environmental Resources Associates, Inc. v. City of Macomb, 669

F. Supp. 158, 160 (E.D. Mich. 1987). Thus, a cognizable property

interest exists “only when the discretion of the issuing agency

is so narrowly circumscribed that approval of a proper

application is virtually assured.” RRI, 870 F.2d at 918. This

standard “balances the need for local autonomy in a matter of

paramount local concern” (such as zoning regulations) with the

need for constitutional protection from governmental abuses of

power. See Gardner, 969 F.2d at 69.

New Jersey zoning law authorizes a zoning board of

adjustment to grant a variance in “particular cases and for

special reasons” to permit “(1) a use or principal structure in a

district restricted against such use or principal structure, [or]

(2) an expansion of a nonconforming use.” N.J. Stat. Ann. §

40:55D-70(d). However, no variance may be granted unless it can

be done “without substantial detriment to the public good and

will not substantially impair the intent and the purpose of the

zone plan and zoning ordinance.” Id. These provisions include
no mandatory language but instead appear to create a flexible

standard which assigns boards of adjustment the power to grant a

variance in special cases at their discretion. Moreover, the New

Jersey courts have recognized that the legislature “has vested

discretionary authority in boards of adjustment to grant or deny

variance applications.” Eagle Group v. Zoning Bd. of Adjustment,

644 A.2d 1115, 1120 (N.J. Super. Ct. App. Div. 1994). It

follows, then, that state law has given DeBlasio no claim of

entitlement to a use variance, and thus no property interest in

the approval of his application.

Therefore, since DeBlasio has failed to demonstrate he

possesses any property interests cognizable under the Fourteenth

Amendment that could have been abrogated by the ZBA, the district

court was correct in granting summary judgment in favor of the

defendants on this issue, and I believe this court should affirm

that decision.

III. Evidence of Personal Bias or Improper Motive

After determining that “a land-owning plaintiff” who

alleges that any governmental decision affecting the use of his

or her land was arbitrarily or irrationally reached has, “as a

matter of law, impliedly established possession of a property

interest worthy of substantive due process protection,” the

majority goes on to examine “whether DeBlasio has come forward

with enough evidence in support of [his] allegations to survive a

motion for summary judgment.” Slip op. at 23-25. Even if I were
to adopt the majority’s position that mere ownership constitutes

a property interest sufficient to invoke constitutional

protection, I do not agree with the majority’s conclusion that

DeBlasio has presented sufficient evidence from which a fact-

finder could reasonably conclude that the government action was

taken based on improper motives or unlawful criteria.

The Supreme Court has stated, “the mere existence of

some alleged factual dispute between the parties will not defeat

an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A

genuine issue of material fact arises only if a reasonable jury

could find for the nonmoving party on that fact. Id. at 248.

The nonmovant is not given the benefit of every inference or

possibility, but only of every reasonable inference. Spence, 873

F.2d at 257. The nonmoving party must offer sufficient evidence

such that a reasonable jury could return a verdict in favor of

that party. Anderson, 477 U.S. at 248. “If the evidence is

merely colorable, or is not significantly probative, summary

judgment may be granted.” Id. at 250-51 (citations omitted).
After convincing the court he possesses a cognizable

property interest, DeBlasio must demonstrate he was the victim of

arbitrary and capricious government action in order to establish

that his substantive due process rights were violated. The

district court correctly recognized that this determination turns
on whether the actions taken by the ZBA against DeBlasio were

based on unlawful criteria such as personal bias, bad faith, or

improper motive.

To support his allegations of personal bias and

improper motive, DeBlasio appears to allege the following facts:

1) At some point in early 1989, Hoff encountered Holmes in a

diner and suggested that Holmes consider renting Hoff’s son’s

quonset hut property. During the conversation, Hoff noted that

the zoning regulations were more beneficial for his business.

However, Holmes told Hoff that he was not interested because the

hut was too small for his use. 2) Some time after June 26, 1990,

Venettone called Hoff concerning zoning business, at which time

they discussed the DeBlasio matter and Hoff gave Venettone his

opinion that DeBlasio’s property was in violation of the zoning

laws. 3) Hoff participated in the 1990-91 zoning hearings

regarding DeBlasio’s property. As I stated above, defendants do

not dispute that these events occurred. The district court found

that this evidence was insufficient to enable a reasonable jury

to find bias or improper motive, and thus to return a verdict in

DeBlasio’s favor, and I agree.

As the majority recognized, “the record does not show

that Hoff ever ‘pressured’ Holmes to abandon the DeBlasio

property in favor of his [son’s].” Slip op. at 25-26. He had no

contact with Holmes regarding this suggestion after early 1989.

It is also undisputed that Holmes believed the other quonset hut
property was inadequate for his business, and there is no

evidence to suggest that Holmes would have relocated to that

property. Furthermore, Venettone’s own testimony shows that he

called Hoff in his capacity as secretary of the board of

adjustment and broached the subject of the DeBlasio zoning matter

to get information about it. None of the above evidence is

sufficient to support the inference that Hoff’s actions as a

member of the ZBA were influenced by personal bias or improper

motive; no reasonable jury could draw this inference, as it would

be based solely on mere speculation.

DeBlasio also contends that Hoff’s involvement in the

hearings reveals a conspiracy on the part of the ZBA to violate

his substantive due process rights. However, DeBlasio has

provided insufficient evidence to support this theory. It would

appear that discovery in this case lasted for twelve months, and

yet DeBlasio has been unable to present any facts to demonstrate

the existence of a conspiracy. While the district court

prohibited DeBlasio from deposing the members of the ZBA as to

the mental thought processes they employed in reaching the

decision to deny a use variance, DeBlasio remained free to

inquire into ex parte meetings, off-the-record communications, or

discussions between Hoff and other ZBA members, or other

manifestations of personal animus, and to probe for documentary

evidence of such events. But after the close of lengthy

discovery, DeBlasio has come forward with no evidence of any
discussions, arrangements, promises, or agreements between Hoff

and the other ZBA members to vote against DeBlasio. Furthermore,

he has not identified a single occasion of contact between Hoff

and any board member that would suggest improper conduct.

Similarly, DeBlasio has supplied no evidence that would show Hoff

was retaliating against Holmes because he did not wish to move to

Hoff’s son’s property. Thus, no reasonable jury could find that

a conspiracy existed within the ZBA to deprive DeBlasio of

substantive due process.

Finally, DeBlasio has failed to offer any facts to show

a causal link between Hoff’s alleged personal bias and membership

on the zoning board and the decisions affecting DeBlasio’s

property. First, the ZBA’s vote to affirm Venettone’s

determination that DeBlasio’s property was an expansion of the

pre-existing nonconforming use exception was unanimous. Second,

the vote to deny the application for a variance was four to

three, with Hoff voting against. However, the grant of a

variance requires five votes by law. See N.J. Stat. Ann. 40:55D-

70(d). Even if Hoff did not participate in the vote, DeBlasio

would have garnered only three votes in support of the variance,

still rendering his application unsuccessful. Again, no

reasonable jury could find that the ZBA’s decisions were based on

unlawful criteria. DeBlasio simply has been unable to provide

evidence that would support his allegations. Because DeBlasio

has, after adequate time for discovery, failed to make a showing
sufficient to establish essential elements of his case, upon

which he will bear the burden of proof, I would affirm the

district court’s grant of summary judgment. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

IV. Conclusion

The district court granted summary judgment in favor of

the ZBA defendants on DeBlasio's substantive due process claim.

The majority reverses this decision, finding that DeBlasio has

offered sufficient evidence to survive summary judgment. In so

doing, the majority holds that mere ownership is a sufficient

property interest worthy of substantive due process protection.

I disagree with that conclusion, and furthermore would affirm the

grant of summary judgment as DeBlasio has failed to demonstrate

he possesses a property interest cognizable under the Fourteenth

Amendment. However, even under the majority’s conclusion as to

the requisite level of property interest, I would affirm summary

judgment, as I believe DeBlasio has failed to present evidence

that would permit a reasonable jury to find the ZBA’s zoning

decisions with regard to DeBlasio were based on personal bias,

improper motive, or some other unlawful criteria.

I respectfully dissent.