Failure to Exhaust Administrative Remedies Torpedos Case

A New Jersey appellate court recently affirmed a lower court’s dismissal of a civil rights/due process claim by a Somerset County property owner who alleged that it was denied the right to develop its acreage in Millstone Borough over the course of several years where efforts to develop the property were stalled.  Rezem Family Associates v. Borough of Millstone involved a suit by a property owner against the Borough of Millstone that was filed after the property owner sold its 67 acre tract of vacant land to the County of Somerset for open space preservation for $6,850,000.  The property owner alleged that it was forced to sell the property at a substantial loss due to the improper conduct of municipal officials that frustrated development and/or sale of the property over the course of almost a decade prior to the ultimate sale.

The property owner proffered evidence of municipal conduct that the trial court found was sufficient to submit to a jury to decide whether it “shocked the conscience”, but the trial court ultimately dismissed the property owners’ 42 USCA 1983 claim for failure to exhaust available remedies.  The dismissal was affirmed on appeal given the “absence of any attempt to make use of available procedures and remedies, Rezem’s complaint improperly converts a zoning case into civil rights litigation.”   The property owner never filed an application for a development approval or an application for a zoning change, or any other type of formal submission to be acted upon by the municipality.  Such failure was ultimately fatal to the case as the courts found that the claim was not yet ripe for judicial review.

The property owner’s attorneys have indicated that their client is considering whether to appeal to the NJ Supreme Court.

A copy of the appellate court’s opinion is available here.

Also check out Michael Booth’s article on this case in the New Jersey Law Journal.