Fernandes v. City of Jersey City

• Decision Date: 27 June 2017
• Docket Number: Civ. No. 2:16-cv-07789-KM-JBC
• Parties: CARLOS FERNANDES and JEAN NEIMILLER, Plaintiffs, v. CITY OF JERSEY CITY, JERSEY CITY OFFICE OF CONSTRUCTION CODE OFFICIAL, JERSEY CITY HISTORIC PRESERVATION COMMISSION, JERSEY CITY POLICE DEPARTMENT, STEVEN M. FULOP, ANTHONY B. LEWIS, JOHN AND JANE DOES (1-20), AND ABC CORPORATIONS (1-20) Defendants.
• Court: U.S. District Court — District of New Jersey

CARLOS FERNANDES and JEAN NEIMILLER, Plaintiffs, v. CITY OF JERSEY CITY, JERSEY CITY

OFFICE OF CONSTRUCTION CODE

OFFICIAL, JERSEY CITY HISTORIC

PRESERVATION COMMISSION,

JERSEY CITY POLICE DEPARTMENT,

STEVEN M. FULOP, ANTHONY B. LEWIS, JOHN AND JANE DOES

(1-20), AND ABC CORPORATIONS (1-20) Defendants.

Civ. No. 2:16-cv-07789-KM-JBC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

June 27, 2017

OPINION

KEVIN MCNULTY, U.S.D.J.

:

The plaintiffs, Carlos Fernandez and Jean Neimiller, bring this action against the City of Jersey City and various officials. The Complaint alleges that the plaintiffs obtained a construction permit and began remodeling work on their home, but that the City halted work, saying that they had not obtained a required approval from the Historic Preservation Commission. When work ceased, siding had already been removed from the home, resulting in weather damage. When Fernandes complained about the situation, City officials allegedly defamed and falsely arrested him.

Before the Court is the defendants' motion (ECF No. 6) to dismiss the complaint for failure to state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the motion to dismiss is granted in part and denied in part.

I. BACKGROUND

A. Plaintiffs' Interrupted Remodeling Efforts¹

Plaintiffs are a married couple who own and reside at a home (the "Property") located in the West Bergen-East Lincoln Park Historic District neighborhood of Jersey City, New Jersey. (Compl. ¶¶ 1, 14) Named as defendants are four municipal entities: the City of Jersey City ("Jersey City" or the "City"), the Jersey City Office of Construction Code Official (the "Building Department"), the Jersey City Historic Preservation Commission (the "HPC"), and the Jersey City Police Department (the "PD").² Also named as defendants are Jersey City Mayor Steven M. Fulopand Police Officer Anthony B. Lewis.

On July 20, 2015, Power Home Remodeling Group, Inc. ("Power HRG"), a remodeling contractor, applied to the Building Department for a permit to remove wood siding and install vinyl siding on the Plaintiffs' Property. (Id. ¶¶ 15-16) On August 11, 2015, the Building Department issued a construction permit. (Id. ¶ 17) On August 25, 2015, Power HRG commenced removing the wood siding from the Property.

On August 28, 2015, officials from the Building Department and HPC (including Brian Blaziak, Raymond Meyer, and Dan Wrieden, who are not named as defendants) arrived at the Property and directed Power HRG to stop working. Those officials claimed that Power HRG lacked authorization to perform the work. (Compl. ¶¶ 20-21) Jersey City Police officers also arrived at the Property that day and, unprovoked, threatened to arrest Fernandes. (Id. ¶ 22) The officials gave no explanation for their demands at the time.

Several days later, on September 3, 2015, the Building Department issued a formal "Stop Work Order." That Order cited Plaintiffs' failure to obtain the HPC's approval before renovating the Property. (Id. ¶ 23) Power HRG stopped its work, leaving three quarters of the Property without siding. Because the Building Department also prohibited the Plaintiffs from covering their home by other means, the walls remainedexposed. (Id. ¶¶ 24, 29)

Fernandes sought an explanation, but "Jersey City refused to provide any answers to the Plaintiffs and refused to acknowledge that a permit had been issued." (Compl. ¶¶ 25-26) In October 2015, through their counsel, Plaintiffs contacted Jeremey Farrell, Corporation Counsel for Jersey City (and counsel of record for all defendants in this action). Farrell recommended that Plaintiffs' counsel contact James LaBianca, counsel for the "Planning Board" and the HPC. (Id. ¶ 27) Plaintiffs' counsel did so, e-mailing LaBianca to ask whether Plaintiffs could cover their home to protect it against oncoming winter weather. (Id. ¶ 28) LaBianca responded by offering to meet with Plaintiffs' counsel, copying Building Department officials on his e-mail. (Id. ¶ 30) Days later, however, LaBianca wrote to Plaintiff's counsel stating "HP[C] has no objection to your client installing temporary but sufficient, long-lasting preservation measures to protect the property, including the installation of Tyvek or some other proper board material." (Id. ¶ 32) Thereafter, LaBianca did not respond to the requests of Plaintiffs' counsel to arrange a meeting, or to his requests for further clarification as to what types of preservation measures and board materials the HPC would allow. (Id. ¶¶ 33-34)

Plaintiffs covered the Property with a plastic tarp. (Compl. ¶ 35) "Despite those efforts, the Property suffered substantial damage, including but not limited to water damage . . . ." (Id. ¶ 36) Afterward, the Plaintiffs decided to take no further action until warmer weather arrived, so that the Property could dry out and the damage could be assessed. (Id. 38)

B. Alleged Disparate Treatment

The Plaintiffs allege that other property owners on their street have made alterations to their properties without obtaining permits or HPC authorization. These alterations have included disfavored ones, like vinylsiding, and prohibited ones, like metal frame windows. (Compl. ¶ 38) One couple on their street were allowed to alter their property without HPC approval, allegedly because they "were married by Mayor Fulop and . . . were significant supporters of Mayor Fulop's campaign." (Id.)

C. The Plaintiffs' Attendance at Public Meetings

In January 2016, Plaintiffs began attending City Council meetings, as well as public meetings that Mayor Fulop organized throughout Jersey City. (Compl. ¶ 40) Fernandes spoke at these meetings about the condition of his Property and "the intimidation and disrespectful treatment he and his wife suffered at the hands of" the defendants. (Id. ¶ 41) After one such meeting, Jersey City Council President Rolando Lavarro "accosted Mr. Fernandes and demanded Fernandes meet with him the next day." (Id. ¶ 42) On January 29, 2015, Fernandes and his counsel met with Lavarro, who promised to assist the Plaintiffs but never did so. (Id. ¶ 43)

During a February 3, 2016 public meeting, although Fernandes "was not causing any disturbance," PD officers in plain clothes "forcibly grabbed [him] by the arms, lifted him from his feet" and removed him from the meeting "at the behest of Mayor Fulop." One of the PD officers involved was defendant Lewis. (Compl. ¶¶ 44-46, 87)

A February 8, 2016 letter from Plaintiffs' counsel to Jeremey Farrell followed. In that letter, Plaintiffs' counsel included an Open Public Record Act ("OPRA") request for the names of the officers who had removed Fernandes and an explanation for the removal. (Id. ¶ 47) The letter reported that Fernandes had been physically injured and that both Plaintiffs had suffered emotional injury. Additionally, the letter stated:

Mayor Fulop made several untrue statements to the audience in attendance when asked why he had Mr. Fernandes removed. First, it is untrue that my client attended "every single one of these meetings"; as Mayor Fulop stated. It is untrue that my client made a "disruption for twenty tothirty minutes" or "five to ten minutes" at any meeting. The City never "cited for violations" his property. To date, Mr. Fernandes has not received any notice of any violations against his, his wife or their property. The Mayor should recant these slanderous. [sic]

. . . .

Mr. Fernandes has every right to attend any and every public meeting held by Mayor Fulop and he will continue do so. There is no basis in law or in fact to deny him his right to attend these meetings.

Obviously, this situation is extremely distressing to my clients. Not only has the City ignored their attempts to resolve this issue amicably, now it seems the City has an agenda to assassinate the character of Mr. Fernandes and prohibit him from exercising his rights as a citizen of Jersey City. The City has gone to the length of physically assaulting my client to achieve this agenda. Such behavior is unacceptable.

(Id. ¶ 47). The letter requested a meeting with Farrell, but Plaintiffs' counsel did not receive any response.

Plaintiffs eventually received a Use of Force Report, but it provided inadequate information. This prompted Plaintiffs' counsel, on March 25, 2016, to demand that that the City Clerk respond more fully to the OPRA request. (Compl. ¶ 51) That same day, Plaintiffs' counsel wrote to Jeremy Farrell seeking a further response to the February 8, 2016 letter; noting the city clerk's inadequate response to the OPRA request; and raising a new grievance.

That new grievance related to Mayor Fulop's alleged behavior towards Fernandes during a March 14, 2016 public meeting. (Id. ¶ 52) The letter stated:

On March 14, 2016, I attended a public meeting in Ward F at the Bethune Center with Carlos Fernandes. There, my client asked the Mayor a question, to which the Mayor again answered that my client is a disgruntled person becausehis property had been cited for numerous violations by the City, and that the matter is currently the subject of litigation. Again, to date, Mr. Fernandes has not received any notice of any violations against him, his wife or their property. The Mayor knows his statements are untrue. The Mayor must be aware of the true circumstances in this matter because after he made the untrue statements at the February 3, 2016 meeting in Ward A I wrote to you informing you that his statements were untrue.

The Mayor's behavior toward my client is unacceptable. Instead of seriously addressing legitimate issues my client has with the City's handling of abruptly halting construction at his home after the City issued a valid permit for the same construction (and the City's refusal to allow my client to go forward with construction resulting in significant damage to his property), the Mayor is waging a smear campaign against my client in an attempt to minimize his claims against the City.

(Id.)

D...