Heine v. Comm'r of the Dep't of Cmty. Affairs of N.J.

• Decision Date: 01 December 2016
• Docket Number: Civ. No. 2:11-5347 (KM)(JBC)
• Parties: ELLEN HEINE, et al. Plaintiffs, v. COMMISSIONER OF THE DEPARTMENT OF COMMUNITY AFFAIRS OF THE STATE OF NEW JERSEY et al., Defendants.
• Court: U.S. District Court — District of New Jersey

ELLEN HEINE, et al. Plaintiffs,
v.
COMMISSIONER OF THE DEPARTMENT
OF COMMUNITY AFFAIRS OF THE STATE OF
NEW JERSEY et al., Defendants.

Civ. No. 2:11-5347 (KM)(JBC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

December 1, 2016

OPINION

Now before the Court is the motion of the Department of Community Affairs of the State of New Jersey (the "DCA"), by its Commissioner, to dismiss the Seventh Amended Complaint ("7AC")¹ for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). This complaint, generally speaking, takes issue with the manner in which New Jersey regulates rooming and boarding houses. For the reasons set forth below, I will dismiss much of the Seventh Amended Complaint, preserving only certain claims for injunctive relief against the

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Commissioner. This Opinion is supplemental to prior opinions dismissing the Sixth Amended Complaint (6AC Opinion, ECF no. 50) and denying reconsideration (ECF no. 73), and should be read in conjunction with those earlier Opinions.²

Background

The plaintiffs, Ellen Heine, et al., identify themselves as "occupants and tenants and beneficiaries" of certain buildings in Garfield and New Brunswick, New Jersey; some of them are alleged to be members of a "Citizen's Homeowner's Association." (7AC ¶ 1) They allege that they have some relation to a dwelling or dwellings regulated as rooming houses by the DCA, and/or closed based on code violations and fire hazards. Plaintiffs filed the 7AC against the Commissioner in his official capacity, and have also named as defendants the Bureau of Rooming and Boarding House Standards ("BRBHS")³, the Bergen County Division of Youth and Family Services ("DYFS"), "other NJ state agencies and entities," J.P. Morgan Chase, N.A., and John Doe persons and entities.

Prior Court Decisions

As background, I cite three prior decisions, two in State court and one in federal court, which to some extent clarify the acts and transactions to which the 7AC is referring.⁴ The 7AC involves other plaintiffs and claims, but Plaintiff

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Heine's situation with respect to her building in Garfield appears to have been the genesis of this federal complaint.

The first decision is Heine's appeal from separate court orders which, after trial, fined her $1500 for refusing to allow warrantless inspections, and fined her $1750 for maintaining three hazardous conditions in and around her Garfield building. State v. Heine, 424 N.J. Super. 48, 35 A.3d 691 (N.J. Super. Ct. App. Div. 2012). The Appellate Division agreed with Heine that the local ordinance, as applied, was unconstitutional insofar as it punished Heine's refusal to permit a warrantless inspection. However, it rejected Heine's challenge to the Garfield property maintenance code as vague, and likewise rejected her claim of selective enforcement.

The second decision involves the DCA's determination that plaintiff Heine's Garfield building was an unlicensed rooming house:

Petitioner Ellen Heine appeals from the August 11, 2011 final decision of the Commissioner of the New Jersey Department of Community Affairs (Department). The Commissioner adopted the initial decision, dated July 14, 2011, of the Administrative Law Judge (ALJ), Barry E. Moscowitz.

This action concerns a property where petitioner and five or six other persons resided. The property, on Van Bussum Avenue in Garfield, had been cited for violations of the construction code and fire safety laws. In September 2010, the Commissioner notified petitioner that she was in violation of the Rooming and Boarding House Act of 1979, N.J.S.A. 55:13B-1 to -16. Petitioner requested and received a hearing, which took place before the ALJ on January 8, March 15, and May 17, 2011, followed by the submission of briefs.

In his initial decision, the ALJ determined that the property was a "rooming house" under N.J.S.A. 55:13B-3(h), and that petitioner was its primary owner under N.J.S.A. 55:13B-3(f), but that she did not have a valid license to operate a rooming house, and no licensed operator was available as required under N.J.S.A. 55:13B-8. Pursuant to that provision, the ALJ deemed petitioner to be the operator, found her responsible for the failure to comply, see N.J.S.A. 55:13B-10(a), and determined that a $5,000 civil penalty was appropriate under N.J.S.A. 55:13B-10(b).

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Heine v. Dep't of Cmty. Affairs, Bureau of Rooming & Boarding House Standards, No. A-2113-11T1, 2013 WL 1759919, at *1 (N.J. Super. Ct. App. Div. April 25, 2013). The Appellate Division affirmed DCA's final decision that Heine failed to comply with a state statute requiring a license to operate a rooming house and assessing a $5,000 civil penalty. It considered Heine's argument that the State's definition of a rooming house is discriminatory and unconstitutional, but found it lacked sufficient merit to require discussion in a written opinion.

The third decision was entered by now-retired District Judge Faith S. Hochberg of this Court. Schildknecht v. Township of Montclair, 2014 WL 835790 (D.N.J. March 4, 2014). There, Ann Schildknecht and Ellen Heine, both plaintiffs in this action, filed a complaint against the Township of Montclair for damages and injunctive relief. "[T]he Court denied Plaintiffs' request for a preliminary injunction on the basis that Plaintiffs did not show a likelihood of success on the merits—indeed, the Township's filings showed that Schildknecht's deplorable and dangerous living conditions necessitated emergency intervention by the police, the fire department, and animal control." Id. at *1. Judge Hochberg then considered the Township's motion to dismiss the second amended complaint, which asserted claims under § 1983 and the Fair Housing Act. It also stated that the Township discriminated against Schildknecht based on her disability. The Court found, inter alia, that none of these causes of action were supported by plausible factual allegations and granted the motion to dismiss.

Allegations of the 7AC

The following is a summary of the major allegations of the 7AC.

Count 1: The DCA definition of a rooming house relies on the presence of more than "two unrelated people living together." See N.J. Stat. Ann. § 55:13B-3. (The statutory and regulatory background is discussed at 6AC Op. pp. 2-4.) This, say Plaintiffs, is "discriminatory" against "individuals who live alone," and contrary to the "diversity of family living" as recognized in the Fair Housing Act.

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(Id. ¶¶ 7, 13) The DCA has allegedly "allowed" discriminatory local housing enforcement practices. (Id. ¶¶ 9-11) Count 1 contains a catalogue of possible injuries that might be suffered by various persons, depending on their individual situations, as a result of the DCA's approach. Local fire safety inspections are alleged to be performed pursuant to an agency relationship with the DCA's Division of Fire Safety.

These generalities aside, Count 1 alleges that two buildings—one owned by Plaintiff Heine, and the other by Plaintiff Unita Peri-Okonny—were closed or demolished. The sense of the allegations is that this would not have occurred but for the heightened level of oversight given to rooming houses by the DCA. The Commissioner's regulations and enforcement tactics allegedly resulted in discrimination and violation of Plaintiffs' constitutional and statutory rights, including "rights to and participation in the peaceful enjoyment of the property." (7AC at 5.)

Count 2: This count alleges that the inspection and assessment techniques of the DCA and BRBHS violate due process and the FHA. The allegations are difficult to follow, and they invoke multiple statutes, legal concepts, and provisions of the Constitution. The Count contains no factual allegations per se; rather, it characterizes the practices of the DCA as violative of rights.

Count 3: This count is confined to the Americans with Disabilities Act. It alleges that inspections (inspections by the DCA, apparently) have neglected to survey the residents' handicaps or discuss recommendations of "barrier free" accommodations; that DCA inspections include, or lead to, the application of fire code standards that apply to rooming houses, as opposed to individual homes; that the State has a "double standard" regarding the handicapped; and that it inspects rooming house properties simply to assess fines, instead of offering counseling and financing for handicapped access improvements.

Count 4: This count alleges that the DCA discriminates against individuals and their free expression of the family unit and family life. The

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reference is evidently to the rooming house standard, which refers to unrelated individuals. One plaintiff, Fabics, is alleged to have been told that sharing his apartment with more than one other unrelated person would lead to his home in New Brunswick being closed (again, apparently in reference to the rooming house standard). He elected to comply, however. Application of the rooming house regulation also resulted in the closing of Peri-Okonny's home, as well as that of Heine.

Count 5: This Count alleges that the State's promotion of the building of group homes discriminates against small property owners who do not run facilities for those with mental health needs. The allegations of discrimination against various forms of family units are repeated and elaborated on. The DCA's application of its definition of rooming house, both in regard to unrelated persons, and in other respects, is deemed fraudulent.

Count 6: This Count, too, attacks the definition of a rooming house. The DCA is alleged to perform a de facto "zoning change" which contradicts the common "one to four family rider" in home mortgages and jeopardizes mortgage status. The properties are alleged to be subject to foreclosure. Although local inspectors were involved, the DCA is alleged to be behind the closures of the properties. By denying access and leaving windows open, DCA is causing further damage to Heine's Garfield property.

Count 7: This...