NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3461-21
BOROUGH OF HIGHLAND PARK,
Plaintiff-Respondent,
v.
MITCHELL S. CAPPELL,
Defendant-Appellant. ___________________________
Argued January 29, 2024 – Decided March 3, 2025
Before Judges Gilson, DeAlmeida and Bishop- Thompson.
On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-000195-16.
Daniel B. Tune argued the cause for appellant (Tune Law Group, attorneys; Mitchell S. Cappell, on the briefs).
Christopher K. Harriott argued the cause for respondent (Florio Kenny Raval, LLP, attorneys; Edward J. Florio, of counsel; Christopher K. Harriott, on the brief). The opinion of the court was delivered by
DeALMEIDA, J.A.D.
This matter returns to us after a remand. Defendant Mitchell S. Cappell
appeals from the February 18, 2022 order of the Chancery Division granting
summary judgment to plaintiff Borough of Highland Park (Borough) on
defendant's counterclaims alleging the Borough violated his substantive due
process rights when it issued stop construction orders and notices of penalty
based on alleged municipal code violations relating to a residential construction
project. We affirm.1
I.
Defendant owns residential real property in the Borough. On June 6,
2013, defendant applied for a permit to perform construction on, and add a floor
to, the home. The Borough alleged defendant was required to produce a copy
1 Defendant's case information statement indicates he is appealing from the March 11, 2022 order denying his motion for reconsideration of the February 18, 2022 order. He did not, however, address the March 11, 2022 order in his brief. Because defendant made no substantive argument with respect to the March 11, 2022 order, we consider his appeal from that order waived. "[A]n issue not briefed is deemed waived." Pressler and Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2025); Telebright Corp., Inc. v. Dir., N.J. Div. of Tax'n, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party failed to include any arguments supporting the contention in its brief). A-3461-21 2 of an approval from the Highland Park Zoning Board of Adjustment (Zoning
Board) for a height variance, as well as construction plans drawn to scale.
According to the Borough, defendant never produced these documents.
Despite defendant's alleged lack of production of those documents, in June
2013, the Borough's Construction Office issued to defendant a permit, which
indicates the work to be performed was the renovation of the second floor and
to "add a level" to the home. The permit also states, "[d]rawings to follow."
On November 22, 2015, almost two-and-a-half years after defendant
commenced construction and renovation of the home, Scott Brescher, the
Borough Construction Officer, issued a "stop construction" order to defendant.
The basis for the order appears to have been defendant's failure to produce the
Zoning Board approval and construction plans drawn to scale.
Because the roof was not complete, defendant sought permission from the
Borough to cover the house to prevent rain and snow from entering the structure.
On December 15, 2015, the Borough attorney contacted defendant's attorney and
advised that "work may continue to close the building." Defendant resumed
work to cover the top of the house.
On January 11, 2016, the Borough issued to defendant a notice and order
of penalty, imposing a $2,500 fine because he continued to work on the house
A-3461-21 3 after issuance of the November stop construction order. Defendant's attorney
contacted the Borough's attorney and explained defendant did the additional
work for the purpose of closing the roof of the home.
On January 22, 2016, the Borough's attorney sent defendant's attorney a
letter stating, "Highland Park agrees that your client can certainly secure the
property by installing immediately sheathing (the base plywood) on the existing
new frame of the roof." The next day there was a snowstorm and, because the
roof was not complete and the covering over the house was inadequate, snow
and ice entered the structure.
After the storm, defendant continued to work on the house. On February
18, 2016, the Borough issued another notice and order of penalty to defendant,
imposing a fine of $2,000 because defendant continued to work on the home.
When defendant's agent asked Brescher why the order was issued when the
Borough's attorney had given defendant permission to "close up the house,"
Brescher stated the permission pertained only to the days preceding the
snowstorm in January.
Defendant appealed the stop construction order and the two penalties to
the Middlesex County Construction Board of Appeals (Board). The Board
vacated the orders and penalties because there was a question whether defendant
A-3461-21 4 had been properly served with the stop construction order, as well as the two
notices and penalty orders.
On August 17, 2016, the Borough issued a new stop construction order
because defendant did not have at the construction site nor submit to the
Construction Office stamped, sealed plans for the construction he intended to
perform on his property in violation of N.J.A.C. 5:23-2.16(e) and failed to
provide "zoning documentation" pertaining to the addition to the home. The
order did not identify the specific zoning documentation the Borough believed
defendant was required to produce. The August 2016 order stated the failure to
comply with the order may result in the assessment of additional penalties of up
to $50 per day.
In November 2016, the Borough filed a verified complaint in the Chancery
Division, alleging, among other things, defendant was in violation of the August
2016 stop construction order because he failed to provide the Borough with
plans that were drawn to scale and did not obtain a resolution from the Zoning
Board approving a height variance. The Borough sought a judgment: (1)
enjoining defendant from using and occupying the addition to the home; (2)
ordering defendant to vacate the residence and restore the home to its pre-
construction condition; and (3) imposing fines on defendant.
A-3461-21 5 Defendant filed an answer and counterclaim. He alleged that, in reliance
on the Borough approving his permit in June 2013, he performed extensive work
on the house for approximately two-and-a-half years. Defendant alleged that
after issuance of the November 2015 stop construction order, he worked on the
house only for the purpose of protecting it from the weather, as permitted by the
Borough.
In his counterclaim, defendant alleged the Borough imposed penalties on
him despite having issued the June 2013 permit and given permission to close
the top of the property from the elements solely for the purpose of harassing him
and devaluing his property. The Borough's actions, defendant alleged, deprived
him of substantive due process in violation of 42 U.S.C. §§ 1983 and 1986, and
the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2. Defendant
alleged the Borough's acts caused him severe and permanent injuries, mental
pain and anguish, a loss of reputation, disruption of family relations, a loss of
past and future income, and other damages. Defendant sought monetary
damages, interest, and attorney's fees. 2
2 Defendant also asserted counterclaims alleging abuse of process, negligent infliction of emotional distress, and intentional infliction of emotional distress. Those claims ultimately were dismissed and are not before this court. A-3461-21 6 In the fall of 2017, the Borough moved and defendant cross-moved for
summary judgment. The principal relief sought by the Borough was an order
directing defendant to: (1) remove all construction equipment and debris from
the property; (2) restore the roof to its pre-construction height; and (3) cease
using the property until there has been a "complete remediation to address the
illegal construction." In addition, the Borough sought dismissal of defendant's
counterclaims, alleging the condition of the property was created by his
violation of the law.
In its motion, the Borough did not seek the $2,000 penalty noted in the
August 2016 order or argue defendant's plans were insufficient because they
were not stamped or sealed. Instead, the Borough argued it was entitled to relief
because defendant failed to submit plans drawn to scale in violation of N.J.A.C.
5:23-2.15(f)(1), making the permit issued to him invalid.
In response, defendant submitted a certification claiming he submitted
plans prepared by his son, who is not an architect, to the Borough and afterward,
Scott Luthman, the Borough's then-Construction Officer, told him he could "go
ahead with construction." According to defendant, Luthman never complained
about the construction defendant undertook at the house, even though Luthman
was "observing" the property every few weeks. Defendant further certified he
A-3461-21 7 saw a copy of a document in the Borough's Construction Office file indicating
the Borough approved the plans he had submitted.
In reply, the Borough submitted a certification by Luthman, who stated
defendant never submitted plans "as required." He stated because defendant did
not submit the required plans, he permitted defendant only to "begin demolition
and that was explained to him by me." It is not clear whether Luthman claims
defendant failed to submit plans that were drawn to scale, as required by
N.J.A.C. 5:23-2.15(f)(1), or whether defendant did not submit any plans at all.3
On November 20, 2017, the trial court entered an order granting the
Borough's motion for summary judgment and denying defendant's cross-motion
for summary judgment. The court determined defendant failed to submit to the
Borough "plans . . . consistent with the [C]ode that would allow [defendant] to
continue construction." The court essentially found the plans insufficient
because they were not drawn to scale and the deficiency invalidated defendant's
permit. Thus, the trial court found, defendant was not permitted to engage in
construction of the home.
3 It is undisputed the Borough lost its file on defendant's project. In response to discovery requests, defendant produced the handwritten plans he argues were submitted to the Borough in 2013. A-3461-21 8 The November 20, 2017 order directs defendant to fully restore the
exterior of the home to its pre-construction condition and remove all exterior
scaffolding, construction equipment, and construction debris within thirty days.
The order also directs defendant to restore the roof to its pre-construction height
and condition within sixty days.
We reversed the November 20, 2017 order. Borough of Highland Park v.
Cappell, No. A-1989-17 (App. Div. June 28, 2019). We concluded the trial
court's finding that defendant failed to submit a plan that was to scale as required
by N.J.A.C. 5:23-2.15(f)(1) was supported by the record. Id. at 10-11.
However, we concluded entry of summary judgment in favor of the Borough
was premature because discovery was not yet completed and issues of material
fact were genuinely in dispute. Id. at 11.
Specifically, we concluded "there are material questions of fact in dispute
on the issue whether the Borough should be estopped from disputing the validity
of the permit." Id. at 14. We noted a dispute existed with respect to whether
Luthman told defendant he could proceed with the planned construction . Id. at
11-12. Defendant argued he reasonably relied on Luthman's approval to proceed
with construction for more than two years and the Borough should be estopped
from taking action to invalidate the permit and stop construction. Id. at 12. "In
A-3461-21 9 addition," we continued, "defendant contends the Borough acted in bad faith
when it issued the stop construction orders and imposed penalties, which
defendant alleges was, among other things, an abuse of process." Id. at 14.
We also concluded the trial court had not adequately explained its reasons
for denying defendant's motion for summary judgment on his counterclaims. Id.
at 14-15 (citing R. 1:7-4). We, therefore, vacated the provision in the November
20, 2017 order denying defendant's motion for summary judgment on the
counterclaims and remanded for the trial court to "provide to the parties its
reasons for denying defendant's motion for summary judgment . . . ." Id. at 15.
On remand, the parties exchanged further discovery and settled the
Borough's claims against defendant. In addition, the Borough moved for
summary judgment on defendant's remaining counterclaims.
On February 18, 2022, the trial court granted the Borough's motion. In a
written decision, the trial court found, even when the evidence is viewed in the
light most favorable to defendant, he: (1) failed to establish the Borough's
conduct, through its officials, shocks the conscience and, therefore, is a denial
of substantive due process under § 1983; (2) did not produce evidence of a
conspiracy motivated by race- or class-based discriminatory animus under §
A-3461-21 10 1986; and (3) did not produce evidence establishing a violation of NJCRA. A
February 18, 2022 order memorialized the trial court's decision.
This appeal follows. Defendant argues: (1) the trial court applied the
incorrect standard to his § 1983 claims; (2) even if the shocks-the-conscience
standard is applicable to his claims, the trial court erred when it concluded he
did not produce evidence on which a jury could find he met that standard; (3)
the trial court erred when it concluded he did not establish a claim under the
NJCRA; and (4) the record supports entry of summary judgment in his favor on
a Fourteenth Amendment claim based on his § 1983 claim.
II.
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That
standard requires us to "determine whether 'the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law.'" Branch
v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)).
"Summary judgment should be granted . . . 'against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
A-3461-21 11 party's case, and on which that party will bear the burden of proof at trial.'"
Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the trial court's legal
analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).
A. Section 1983.
The Federal Civil Rights Act, 42 U.S.C. § 1983, establishes civil actions
for the deprivation of federal constitutional and statutory rights. The statute
provides:
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 . . . .
[42 U.S.C. § 1983.]
To prevail on a substantive due process claim under §1983 in the context
of municipal land use decisions, a party must first prove they held a
constitutionally protected property interest. DeBlasio v. Zoning Bd. of
Adjustment, 53 F.3d 592, 597 (3d Cir. 1995). Second, they must establish the
A-3461-21 12 government actor's deprivation of that property interest shocks the conscience.
Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 366 (1996).
"The Courts of Appeals have routinely utilized the 'shocks the conscience'
test in reviewing claims that the actions of officials responsible for passing upon
land use and other related applications were so egregiously arbitrary that they
violated a property owner's substantive due process rights." Plemmons v. Blue
Chip Ins. Servs., 387 N.J. Super. 551, 568-69 (App. Div. 2006) (citing United
Artists Theater Cir., Inc. v. Twp. of Warrington, 316 F.3d 392, 399-402 (3d Cir.
2003); PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31-32 (1st Cir. 1991), cert.
dis., 503 U.S. 257 (1992)). "Under this test, 'rejections of development projects
and refusals to issue building permits do not ordinarily implicate substantive due
process.'" Id. at 569 (quoting PFZ Props., 928 F.2d at 31); see also Chesterfield
Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104-05 (8th Cir. 1992)
(holding that municipality's alleged arbitrary enforcement of a zoning ordinance,
even in bad faith, would be insufficient to establish a substantive due process
violation).
We disagree with defendant's argument, not raised below, that the holding
in County of Sacramento v. Lewis, 523 U.S. 833 (1998), issued before our
decision in Plemmons and one of the courts of appeals decisions cited therein,
A-3461-21 13 rejects the shocks-the-conscience standard for substantive due process claims
under § 1983 in the land use context. To the contrary, Lewis reaffirms the
standard and rejects any lesser standard that might make "the Fourteenth
Amendment a font of tort law to be superimposed upon whatever systems may
already be administered by the States." Id. at 863-64 (Scalia, J., concurring).
Having carefully reviewed the record, we see no basis on which to reverse
the trial court's grant of summary judgment to the Borough. After having had
more than two years to complete the construction project on his property, in
November 2015, defendant received a stop construction order at a time when the
roof of the home was open to the elements. It is undisputed that on December
15, 2015, despite issuance of a stop construction order, the Borough gave
defendant permission to cover his property to protect it from the weather.
Nearly a month later, on January 11, 2016, defendant still had not covered
his home but was continuing construction on the property. The Borough issued
a second stop construction order. On January 22, 2016, when alerted to an
impending snowstorm, the Borough reiterated to defendant permission to cover
the home. Defendant's last-minute efforts to protect the home proved
inadequate.
A-3461-21 14 There is no evidence for a factfinder to conclude the Borough's actions
shock the conscience. The record establishes the Borough's Construction
Officer believed defendant had not filed the necessary documents to continue
construction on the home. He alerted defendant to his decision on November
22, 2015, and gave him permission to take the steps necessary to protect the
home from the elements. A month later, the official still believed the necessary
documents had not been filed. He issued a second stop construction order and
again gave defendant permission to cover the home. A construction official's
issuance of stop construction orders based on his determination a construction
project was not compliant with regulations is not behavior that shocks the
conscience. These acts are a routine exercise of municipal authority and, in this
case, included permission to defendant to take the steps necessary to prote ct his
property.
While defendant may have disagreed with the official's orders, it was
defendant's failure to adequately protect the home in the two months after the
November 22, 2015 order that resulted in damage to the property in the January
23, 2016 snowstorm. Defendant was free to challenge the notices, but it was
incumbent on him to protect his property from the elements while the dispute
over the orders was unresolved. Even assuming the stop construction orders
A-3461-21 15 were legally flawed, the record contains no evidence of deliberate behavior by
Borough officials to damage defendant's residence by issuing the orders.
B. NJCRA.
The NJCRA provides in relevant part:
Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with . . . by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.
[N.J.S.A. 10:6-2(c).]
The Legislature modeled the NJCRA on § 1983. Tumpson v. Farina, 218
N.J. 450, 474 (2014). The NJCRA "is intended to provide what Section 1983
does not: a remedy for the violation of substantive rights found in our State
Constitution and laws." Harz v. Borough of Spring Lake, 234 N.J. 317, 330
(2018) (quoting Tumpson, 218 N.J. at 474). See also Perez, 218 N.J. at 212
(holding that the NJCRA "was intended to address potential gaps in remedies
available under New Jersey law but not cognizable under the federal civil rights
law . . . ."). The NJCRA's "broad purpose" is to "assur[e] a state law cause of
A-3461-21 16 action for violations of state and federal constitutional rights and to fill any gaps
in state statutory anti-discrimination protection." Owens v. Feigin, 194 N.J. 607,
611 (2008).
Defendant has the burden of identifying both the substantive right of
which he has been deprived and the State actor that caused the deprivation.
Filgueiras v. Newark Pub. Schs., 426 N.J. Super. 449, 468 (App. Div. 2012).
Both NJCRA and § 1983 provide a "means of vindicating substantive rights"
created by State or federal Constitutions or laws, but they are "not a source of
rights [themselves]." Gormley v. Wood-El, 218 N.J. 72, 97-98 (2014). They
are not intended to create substantive rights, but rather to ensure a remedy for
violations of existing rights. Tumpson, 218 N.J. at 474-75; Perez, 218 N.J. at
212. Thus, the NJCRA does not list the substantive rights, the deprivation of
which may form the basis of a cause of action under the statute. Harz, 234 N.J.
at 330.
Defendant concedes his NJCRA claims are based on the same theory as
his § 1983 claims. Having found defendant cannot establish Borough officials
acted in a manner that shocks the conscience and, therefore, violated § 1983, we
agree with the trial court's conclusion the Borough was entitled to summary
judgment on defendant's NJCRA claims.
A-3461-21 17 To the extent we have not specifically addressed any of defendant's
remaining claims, we conclude they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).4
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
Clerk of the Appellate Division
4 In the February 18, 2022 order, the court granted summary judgment to the Borough on defendant's counterclaim based on § 1986. Defendant does not address § 1986 in his brief. We therefore deem any arguments with respect to that counterclaim waived. "[A]n issue not briefed is deemed waived." Pressler & Verniero cmt. 5 on R. 2:6-2 (2025); Telebright Corp., 424 N.J. Super. at 393. A-3461-21 18