Trotta v. Borough of Bogota & Patrick Mchale

• Decision Date: 06 June 2016
• Docket Number: No. 12-cv-2654 (KM)(MAH),12-cv-2654 (KM)(MAH)
• Parties: TINA P. TROTTA, CASEY GUERRA, and BELINDA GUERRA, Plaintiffs, v. BOROUGH OF BOGOTA and PATRICK McHALE (in his official capacity as Mayor of the Borough of Bogota); LEONARD NICOLOSI (in his official capacity as Business Administrator of the Borough of Bogota); JOHN DOES 1-10 (names being fictitious), Defendants.
• Court: U.S. District Court — District of New Jersey

TINA P. TROTTA, CASEY GUERRA, and BELINDA GUERRA, Plaintiffs, v. BOROUGH OF BOGOTA and PATRICK McHALE

(in his official capacity as Mayor of the Borough of Bogota);

LEONARD NICOLOSI (in his official capacity as Business Administrator of the Borough of Bogota);

JOHN DOES 1-10 (names being fictitious), Defendants.

No. 12-cv-2654 (KM)(MAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

June 6, 2016

OPINION

KEVIN MCNULTY, U.S.D.J.

:

The plaintiffs, Tina P. Trotta, Casey Guerra, and Belinda Guerra, are homeowners and residents of the Borough of Bogota, a town of some 8,000 persons in Bergen County, New Jersey. The rear of the plaintiffs' properties borders Olsen Park, a public park owned by the defendant Borough. Until 2011, an area of trees and vegetation provided a buffer between the plaintiffs' properties and the park. In 2011, the Borough used County grant money to remove the trees and vegetation and build a nine-space parking lot. Plaintiffs, aggrieved by the process and the result, filed this Section 1983 action against the Borough; Patrick McHale, the Borough's mayor; and Leonard Nicolosi, the Borough's business administrator.

The destruction of trees is regrettable, and the plaintiffs feel that the Borough acted underhandedly and shabbily. They are distressed and disappointed to find that the portion of Olsen Park adjacent to their properties is no longer as wooded or as quiet as before. Nevertheless, even a bad decision is not an unconstitutional one. The Borough's decision to build a small parking lot in a public park did not violate the legal rights of the plaintiffs. In short, this is an issue for the local political process.

Now before the Court is the defendants' motion for summary judgment under Federal Rule of Civil Procedure 56. For the reasons stated below, I will grant the motion.

I. BACKGROUND

I here recite the essential chronology. Further facts are referred to in the legal discussion.¹

A. The Properties and the Park

The plaintiffs' houses face the west side of River Road, a north-south artery in the Borough of Bogota. To access their driveways, which are in the rear of their properties, the plaintiffs use Bogert Lane, which runs west from River Road. Perpendicular to Bogert (i.e., running north-south behind the properties and parallel to River Road), there is a gravel-road easement. (Pl Facts ¶¶ 1-3) Beyond that gravel road, on its west side, lies the bulk of Olsen Park. Until 2011, the portion of the park adjacent to the gravel-road easement contained trees and other vegetation that provided a buffer between the park's fields and the plaintiffs' properties. (Pl Facts ¶¶ 4, 7, 88-90) (A diagram of the area is attached to this opinion as an appendix.)

B. The Project

In 2008, the Borough applied for a grant from the Bergen County Open Space Trust Fund to install a picnic grove and bocce court in Olsen Park, as well as to improve drainage. (Pl Facts ¶¶ 8, 10) In the application, the Borough answered "no" to this question: "Will the project scope include any major disturbance to surrounding area, i.e., felling of trees, clearing of vegetation, etc." (Pl Ex. A at 3 (ECF No. 33-4); Pl Facts ¶ 12) In June 2008 the Borough approved a resolution matching the County grant award. In March 2009 the Borough entered into a contract with the County, which listed as objectives: "Installation of bocc[e] court, bike racks, tables, benches and footpaths." (Def Ex. F at 12 (ECF No. 25-10); Pl Facts ¶¶ 14-17)

Construction did not commence until the latter part of 2011. By then, the project's objectives had shifted somewhat. (Def Reply Facts at 12 ¶ 18) That shift had its genesis in May 2011, when Mayor McHale had the idea to construct a parking lot as part of the project. (Def Reply Facts at 13 ¶ 24; PlFacts ¶ 24) In July 2011, the Borough Council passed a resolution to authorize the commencement of bidding "for the purpose of drainage improvements at Olsen Park and ditch cleaning." (Def Ex. I (ECF No. 25-13))

The project in its final form was first revealed in August 2011, when a notice requested bids for "Olsen Park drainage and parking improvements," which would include "the removal of large trees, the installation of drainage piping ... construction of a new asphalt parking area and any incidental construction." (Def Ex. J (ECF No. 25-14)) In September 2011, the Borough Council passed a resolution awarding the "Olsen Park Drainage & Parking Improvements Project." (Def Ex. K (ECF No. 25-15)) This resolution was on the "Consent Agenda." Accordingly, it was not formally slated for discussion, but any individual council member could initiate discussion or ask for a separate vote. (Def Facts ¶ 35) Apparently no one did.

Certain facts about the process by which the project evolved to include a parking lot are disputed. Mayor McHale testified that he discussed changing the scope of the project with all the council members. (McHale Dep. 53:14-20) Councilman Nunez denied that he ever had such a discussion with McHale. (Nunez Dep. 54:14-22) Nevertheless, Nunez voted in favor of both the July and September resolutions. (Def Exs. K-J)

McHale testified that safety was one consideration in building the parking lot. Park patrons, including children, were crossing a dangerous street to access the fields, and the area in question had been "full of half dead trees [and] poison ivy." (Def Facts ¶ 21) Another consideration had to do with the playing fields. Mayor McHale had a keen interest in baseball, and had been involved with the Bogota Baseball Organization for twenty years. (Pl Facts ¶ 66) McHale favored the project because it would provide easier access to the baseball fields, and would eliminate vegetation where baseballs were getting lost. (Pl Facts ¶¶ 41, 65) Apparently this was not the only possible site for a parking lot in the park, although according to McHale the alternative location was narrower and less suitable. (Pl Facts ¶¶ 69-70; Def Reply Facts at 18 ¶ 70)

Robert Abbatomarco, the executive director of the Bergen County Open Space Trust Fund, testified that Nicolosi told him of the need for a parking lot on that side of the park. Nicolosi, he said, cited safety concerns based on increased traffic caused by the closure of a nearby bridge. (Def Facts ¶ 38) Abbatomarco replied that "the parking lot would be considered an eligible use of the grant money as part of the park project." (Abbatomarco Dep. 128:9-11; see Def Facts ¶ 39)

The construction plan for the parking lot included the removal of fifteen trees. (Pl Facts ¶ 35; Def Facts ¶ 50) McHale testified that he authorized the removal of an additional fifteen trees after the contractor advised him that they were "leaning" and "weren't that stable." (McHale Dep. 66:5-12, 69:13-22, 72:1-14) Those additional fifteen trees were removed without the approval of the Borough Council. (Pl Facts ¶ 42) One of those extra fifteen trees was removed from Borough property behind the home of the plaintiffs' neighbor, Ken O'Donnell, at O'Donnell's request. (Pl Facts ¶¶ 53-56); Def Reply Facts at 16-17)²

C. Aftermath

Plaintiffs say they first learned of the project when construction began. (Pl Facts ¶¶ 57-58) On October 20, 2011, they attended the Bogota Mayor and Council meeting to voice their opposition. (Pl Facts ¶ 62; Def Facts ¶ 53) Trotta testified that at this meeting McHale told plaintiffs, in essence, that the project was a done deal. (Trotta Dep. 43:8-25) ³

The plaintiffs testified that the removal of the trees as a buffer and construction of a parking lot have increased noise, traffic, and safety concerns on their properties and decreased their privacy and enjoyment of their homes. (Pl Facts ¶¶ 91-107) For example, plaintiffs' sleeping, eating, and TV watchinghave been disturbed (Pl Facts ¶¶ 93-97) The parking lot's nine spaces are constantly full, and overflow cars block their driveways. (Pl Facts ¶ 100) Trespassers walk across their properties or use their driveways to turn cars around. (Pl Facts ¶¶ 104-05) Individuals sometimes gather in the parking lot to consume alcoholic beverages or play loud music. (Pl Facts ¶¶ 106-07)⁴ As a result, plaintiffs allege, the market values of their properties have been reduced. (Pl Facts ¶ 91; but see Def Reply Facts at 20 ¶ 91 (citing competing expert reports))

D. Claims

Plaintiffs' complaint contains seven claims for relief:

Count 1: equal protection claim pursuant to the Fifth and Fourteenth Amendments under 42 U.S.C § 1983 (Compl. ¶¶67-71);

Count 2 (mislabeled Count 3): substantive due process claim pursuant to the Fifth and Fourteenth Amendments under 42 U.S.C. § 1983 (Compl. ¶¶76-78);

Count 3: procedural due process claim pursuant to the Fifth and Fourteenth Amendments under 42 U.S.C. § 1983 (Compl. ¶¶72-75);

Count 4: state law nuisance (Compl. ¶¶75-82);

Count 5: state law inverse condemnation (Compl. ¶¶83-87);

Count 6: state law diminution of property value (Compl. ¶¶ 88-89);

Count 7: state law breach of contract (Compl. ¶¶90-93).

Plaintiffs seek damages and attorney's fees for all claims. For the federal and nuisance claims they seek the return of the area to its prior condition. (Compl. ¶¶ 67-93)

II. ANALYSIS

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000).

In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548 (1986)...