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SIXTH CAMDEN CORP. v. TOWNSHIP OF EVESHAM

September 2, 1976

SIXTH CAMDEN CORP., Plaintiff,
v.
TOWNSHIP OF EVESHAM, COUNTY OF BURLINGTON, et al., Defendants



The opinion of the court was delivered by: BROTMAN

 Plaintiff, the Sixth Camden Corporation, is a land developer that sought to build a shopping center in Evesham Township, Burlington County, New Jersey. It brings this action under 42 U.S.C. §§ 1983, 1985(3), and 1986, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment, to redress asserted violations of its constitutional rights. Jurisdiction of the court is challenged, but plaintiff invokes 28 U.S.C. §§ 1331 and 1343(3).

 Although other acts and theories are alleged, the principal thrust of the complaint is that the defendants wrongfully denied plaintiff a zoning variance and site plan approval, and that these actions denied it due process of law and caused it injurious delay in construction. Plaintiff seeks compensatory and punitive damages, a declaration of its rights, and injunctive relief; however, it subsequently completed construction of the shopping center, rendering its request for injunctive relief moot and modifying its other demands. Named as defendants are the Township of Evesham (hereinafter the "Township"), the Council of the Township of Evesham ("Council"), the Planning Board of the Township of Evesham ("Planning Board"); the Mayor, members of the Council, and members of the Planning Board, named individually; and two private citizens, Alexander F. Antel and Estelle J. Allen (hereinafter the "individual defendants"). The Township, the Council, and the individual defendants now move to dismiss the complaint for lack of jurisdiction, for failure to state a claim upon which relief can be granted, and upon other grounds.

 I. The Background

 The facts set forth in the complaint are somewhat complicated.

 Since November, 1972, plaintiff has owned approximately 20 acres of land in Evesham Township. In July, 1955, the Township had platted the land and zoned it for general business use. In 1960, the Township had rezoned the land in such a way that approximately 17.9 acres of plaintiff's land fell within a general business zone, and approximately 2.1 acres fell within a residential zone. Plaintiff alleges that the zoning ordinance of 1960 rendered the 2.1 acres of land in the residential zone "sterile and useless," and was an unconstitutional taking of its property. (Complaint, paras. 18-23).

 In July 1973 plaintiff submitted to the Planning Board a site plan proposing the construction of a shopping center on its land; this original plan located a portion of the construction on the 2.1 acres which had been zoned for residential use. The Planning Board indicated that no action would be taken on the plan until plaintiff obtained a zoning variance for the residentially-zoned portion of the site. (Complaint, para. 25). In October, 1973, the Zoning Board of Adjustment held a public hearing on the request for a variance, and as required by law all land owners within 200 feet of the variance property were given prior notice of the hearing. In November, 1973, the Zoning Board of Adjustment unanimously recommended to the Township Council that the variance be granted. (Complaint, paras. 26-27).

 Plaintiff contends that, under the applicable state law and local ordinances, the Council must limit its review of the recommendation of the Zoning Board of Adjustment to consideration of the record made before that body; but that, knowing of this requirement, the Council opened the matter for public testimony and comment at its meeting of January 15, 1974. On January 30, 1974, the Township advised plaintiff that it would take no action on the recommendation unless and until plaintiff prepared a transcript of the January 15th meeting for the Council. By state law, if the Council fails to act on the recommendation within sixty days, the recommendation is deemed disapproved. N.J.S.A. 40:55-39.1. *fn1" (Complaint, paras. 29-31). The operation of the statute duly had that effect in February of 1974. Plaintiff contends that the Council's failure to act was "arbitrary, unreasonable, discriminatory . . . and unlawful." (Complaint, para. 32).

 In March 1974, plaintiff filed an action in prerogative writ in the Superior Court of New Jersey, Burlington County, Docket No. L-19938-73, seeking judicial review of the Council's denial of the variance. In April 1974, the Superior Court granted the plaintiff a summary judgment and declared the variance granted. In May 1974, the Council voted to appeal the trial court's ruling. Plaintiff contends that the Council filed the appeal knowing of its groundlessness and solely for the purpose of maliciously delaying plaintiff's construction. (Complaint, paras. 34-35, 38).

 Rather than suffer further delays pending appeal of its state court suit, plaintiff then resolved to resubmit another site plan ("site plan # 2"), locating all of the proposed construction on land zoned for business use. Plaintiff alleges that "[as] early as May 7, 1974, but in no event later than July 11, 1974," site plan # 2 had complied with all applicable federal, state and local laws. (Complaint, para. 39). Plaintiff contends that the Planning Board thus had a nondiscretionary duty to approve the plan, but instead arbitrarily and capriciously tabled it. (Complaint, paras. 39, 39.1, 42(d), (f)).

 Plaintiff finally contends that in June, 1974 the Council initiated procedures to rezone its land from general business to office district use. This rezoning, if passed, would have had the effect of blocking construction of plaintiff's shopping center. Plaintiff contends that since this rezoning would have been contrary to the Township Master Plan, state law required the Council to first refer the change to the Planning Board. According to the complaint, therefore, the Council acted illegally in proposing the rezoning ordinance without prior Planning Board approval. Plaintiff further alleges that at approximately the same time, the Council attempted to cure this defect by purporting to alter the Master Plan, without affording notice or a hearing to plaintiff, which action again contravened state law. However, in July 1974, when the rezoning ordinance came up for final approval, it failed of adoption by a single vote. (Complaint, para. 42(c), (e), (g)).

 Distilling the essence from the foregoing narrative, plaintiff complains of four acts on the part of the defendants:

 
1. that the Council committed substantive and procedural error in refusing to pass plaintiff's zoning variance;
 
2. that the Council groundlessly appealed the decision of the New Jersey Superior Court declaring the zoning variance granted;
 
3. that the Planning Board refused its nondiscretionary duty to approve site plan # 2;
 
4. that the Council initiated a procedurally defective attempt to rezone plaintiff's property, albeit unsuccessfully.

 Repeated reference to this summary will be made throughout this opinion.

 Turning to its legal theories, plaintiff alleges that the foregoing facts constitute a conspiracy by the defendants to deprive it of its civil rights under the Fifth and Fourteenth Amendments to the United States Constitution. Specifically, the conspiracy sought:

 
a. to take the 2.1 acres of plaintiff's land zoned for residential use without just compensation;
 
b. to take the same property without due process of law;
 
c. to deny plaintiff the equal protection of state and local laws by denying it the necessary zoning variance and site plan approval, when such were required by law.

 (Complaint, paras. 41(a), (b), 44). Plaintiff also alludes to unspecified pendent claims under state law. (Complaint, paras. 41(a), (d), 47.1, 47.2).

 As relief, plaintiff originally prayed for damages in the amount of the fair market value of its entire tract, supplemented by the additional value the land would have had with zoning and site plan approval for its shopping center, plus additional compensatory damages for the following harms: financing charges during the period construction was delayed; loss of rental income due to delayed completion of the project; increased interest charges for permanent financing; injury to reputation; and other consequential damages. Together these total in the millions of dollars. It also prayed for punitive damages in the amount of $1 million; for its legal fees and costs of suit; and for declaratory and injunctive relief securing its rights to a zoning variance and site plan approval. However, subsequent to the filing of the complaint, plaintiff obtained its zoning variance through its state-court litigation, and by now has succeeded in constructing its shopping center upon the site. Its demands for equitable relief are therefore moot, but its prayers for damages, while modified by events, continue to present a live controversy. E.g., Broderick v. Associated Hospital Service, 536 F.2d 1, 3 n. 9 (3rd Cir. 1976).

 II. The Township

 The cause of action against the Township will be analyzed first.

 A. Jurisdiction

 The Township first urges that the complaint against it should be dismissed because it is not a "person" within the contemplation of the Civil Rights Act. This position is incontrovertible. A township is not a "person" within the Civil Rights Act whether the relief sought is damages, Monroe v. Pape, 365 U.S. 167, 187-91, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), or equitable, City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S. Ct. 2222, 37 L. Ed. 2d 109 (1973). It follows inevitably that declaratory relief must also be unavailable against the Township under § 1983. *fn2"

 However, plaintiff also alleges that its action rests directly upon the Fourteenth Amendment, and that the court possesses jurisdiction over such an action by 28 U.S.C. § 1331. *fn3" In Bivens v. Six Unknown Named Agents, 403 U.S. 388, 390-97, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), the Supreme Court held that a cause of action for damages could be implied from the Fourth Amendment; the district court possessed jurisdiction over that action under § 1331 since more than $10,000 was in controversy. Id. at 398, 91 S. Ct. 1999 (Harlan, J., concurring). In City of Kenosha v. Bruno, supra, Justices Brennan and Marshall suggested in a concurring opinion that the Fourteenth Amendment and § 1331 would support an analogous cause of action against municipalities which could not be sued under § 1983. 412 U.S. at 516, 93 S. Ct. 2222. This result would be particularly dictated in the Third Circuit, where the Court of Appeals has held that the application of Bivens, supra, is not confined to the Fourth Amendment. United States ex rel. Moore v. Koelzer, 457 F.2d 892, 894 (3rd Cir. 1972) (Fifth Amendment); Paton v. La Prade, 524 F.2d 862, 869-70 (3rd Cir. 1975) (First Amendment). And recently, in a case in which one of the defendants was a state college, the Third Circuit held:

 
"Because the requisite jurisdictional amount for § 1331 is pleaded, the fact that the College is not a 'person' within the meaning of 42 U.S.C. § 1983 is not significant." Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 44 (3rd Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975).

 This holding accords with numerous decisions by the lower federal courts, since Kenosha, that have recognized Bivens - type actions and § 1331 jurisdiction over municipalities or other § 1983 non-"persons." *fn4" E.g., Roane v. Callisburg Independent School District, 511 F.2d 633, 635 n. 1 (5th Cir. 1975); Hostrop v. Board of Junior College District No. 515, 523 F.2d 569, 577 (7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976); Brault v. Town of Milton, 527 F.2d 730, rev'd on other grounds, id. at 736 (2nd Cir. 1975) (en banc); Construction Industry Association v. City of Petaluma, 522 F.2d 897, 903 (9th Cir. 1975), cert. denied, 424 U.S. 934, 96 S. Ct. 1148, 47 L. Ed. 2d 342 (1976); Cox v. Stanton, 529 F.2d 47, 50-51 (4th Cir. 1975); Panzarella v. Boyle, 406 F. Supp. 787, 791-93 & n. 7, 795-96 (D.R.I.1975); Dahl v. City of Palo Alto, 372 F. Supp. 647 (N.D.Cal.1974); DuPree v. City of Chattanooga, 362 F. Supp. 1136, 1139 (E.D.Tenn.1973); Patterson v. City of Chester, 389 F. Supp. 1093, 1095-96 (E.D.Pa.1975); see Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922, 928-29 (1976) [hereinafter cited as Damage Remedies ]; see generally, R. Hundt, Suing Municipalities Directly Under the Fourteenth Amendment, 70 Nw.U.L.Rev. 770 (1975) [hereinafter cited as Suing Municipalities ].

 Particularly persuasive is the well-reasoned opinion of Judge Renfrew in Dahl v. City of Palo Alto, supra. That decision acknowledges that allowing a Bivens action against municipalities reduces Monroe v. Pape to a pleading rule, with the result turning upon whether a $10,000 controversy can be alleged. 372 F. Supp. at 650. However, Judge Renfrew's scholarly examination of the legislative histories of §§ 1983 and 1331 indicates that the different policies motivating the passage of each statute support reaching such a result:

 
"Examination of the legislative histories of §§ 1983 and 1331 suggests that the bar against suing a municipality under § 1983 should not be read into § 1331. The legislative history of § 1983 reviewed by the Court in Monroe shows that the absence of a required amount in controversy was one of the concerns voiced by the act's opponents. . . . When the predecessor of § 1331 was passed four years later, however, it included the requirement of a stated amount in controversy. The passage of § 1331 was also motivated by very different considerations than those to which § 1983 was a response. § 1983 was an effort by the Congress to provide a forum and a remedy for those whose rights were being violated but who could get no relief in the courts or agencies of their states. Monroe, supra, at 180 [81 S. Ct. 473]. Amendments were offered extending liability specifically to include cities and counties, but many members of Congress were unwilling to extend liability to municipalities, '"the mere instrumentality for the administration of state law."' Monroe, supra, at 190 [81 S. Ct. at 485]. As finally passed, the act provided redress only against the persons who were depriving others of their rights. [The] predecessor of § 1331, on the other hand, was the culmination of efforts dating back to the first Congress to give general federal question jurisdiction to the federal judiciary. See Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639, 639-645 (1942). This revolutionary step in strengthening the federal government against the states was made with no substantive debate (Chadbourn & Levin, supra, at 643). The record is silent as to whether Congress meant to make municipalities liable for acts of their agents which violate federal law. While it may be argued that Congress assumed that suits in federal court against municipalities would be unconstitutional, as had recently been vigorously argued in the debates over the passage of § 1983 (See Moor v. County of Alameda, [411 U.S. 693, 708, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973)]), it is not the role of this Court to read in such a limitation in the absence of any legislative history. [In] view of . . . City of Kenosha v. Bruno, supra, . . . such jurisdiction depends only upon a clear showing of the requisite amount in controversy . . ." Id. at 650-51 (footnote omitted).

 Dahl illustrates the rationale for holdings which, as the cases cited above show, have by now become commonplace. See also Damage Remedies at 935-51. Accordingly, plaintiff may maintain its action against the Township under § 1331 and the Fourteenth Amendment. The Township's motion to dismiss for lack of subject-matter jurisdiction on this basis must therefore be rejected. This conclusion is subject to the court's comments about the amount in controversy in part II.G of this opinion, infra.

 Notwithstanding the conclusion that plaintiff's cause of action against the Township lies under the Fourteenth Amendment and § 1331, rather than under § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), the claim still ultimately derives from the same constitutional source. Therefore, to fill the doctrinal interstices of a Bivens - type action, a district court may correctly apply law developed in § 1983 litigation. See Brawer v. Horowitz, 535 F.2d 830, 834 (3rd Cir. 1976); Paton v. La Prade, supra, at 871, 872; cf. Dahl v. City of Palo Alto, supra, 372 F. Supp. at 649 n. 2; Damage Remedies at 952-55. Subsequent portions of this opinion which apply aspects of § 1983 law to the claim against the Township will note this point.

 B. The Eleventh Amendment

 The Township next argues that the Eleventh Amendment *fn5" divests this court of jurisdiction. This contention is without merit.

 It is, of course, true that

 
"even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment." Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 1355, 39 L. Ed. 2d 662 (1974).

 The Third Circuit has defined these situations:

 
"The conclusion that must be reached before the Eleventh Amendment may be interposed . . . is that the state is the real party in interest. [Citations omitted.]" Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250 (3rd Cir. 1969), cert. denied, 397 U.S. 948, 90 S. Ct. 967, 25 L. Ed. 2d 128 (1970).

 Although the court in Urbano v. Board of Managers, supra, comprehensively discussed the factors relevant in applying the Eleventh Amendment test, no useful purpose would be served by cataloguing their application here. "Where monetary damages are sought, the dominant factor is the impact of such relief on the State Treasury." S. J. Groves & Sons Co. v. New Jersey Turnpike Authority, 268 F. Supp. 568, 574 (D.N.J.1967). Here the Township of Evesham is a financial entity separate and distinct from the State of New Jersey. See, e.g., N.J.S.A. 40A:4-1 et seq. The court in Urbano, supra, at 251, cited with approval the conclusion reached in S. J. Groves & Sons Co., supra :

 
"Counties and municipalities do not partake of the Eleventh Amendment immunity enjoyed by the States. [Citations omitted.]" 268 F. Supp. at 574.

 See Note, A Practical View of the Eleventh Amendment -- Lower Court Interpretations and the Supreme Court's Reaction, 61 Geo.L.J. 1473, 1484 (1973). *fn6" The fact that cities are routinely suable in federal court diversity actions, Bullard v. City of Cisco, 290 U.S. 179, 54 S. Ct. 177, 78 L. Ed. 254 (1933); Illinois v. City of Milwaukee, 406 U.S. 91, 97, 92 S. Ct. 1385, 31 L. Ed. 2d 712 (1972); Moor v. County of Alameda, 411 U.S. 693, 717-18, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973), merely confirms that there is no general bar against suing municipalities in federal court.

 C. Rights Protected

 To establish a cause of action under § 1983, two elements must be proved: (1) that the defendants acted under color of state law; and (2) that a constitutional right has been denied. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Phillips v. Trello, 502 F.2d 1000, 1004 (3rd Cir. 1974). Identical elements apply to the Bivens - type action against the Township. Part II.A, supra; Damage Remedies at 952. No party denies that the Township acts under color of state law. The all-important heart of this case is whether the facts alleged, if proved, amount to a violation of any of plaintiff's constitutional rights.

 Both the Township and the individual defendants immediately contend that plaintiff alleges only violation of its property rights, which, in contrast to personal liberties, are not interests which the Fourteenth Amendment protects, citing Hague v. C.I.O., 307 U.S. 496, 531-32, 59 S. Ct. 954, 83 L. Ed. 1423 (1939) (Stone, J., concurring). However, the law today is otherwise. In Lynch v. Household Finance Corp., 405 U.S. 538, 543-52, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972), the Supreme Court firmly held that rights in property were no less protected than any other personal liberty or civil right. Accordingly, the post- Lynch lower court decisions regularly hold that violations of property rights are now cognizable violations of Fourteenth Amendment rights. E.g., Gaffney v. Silk, 488 F.2d 1248, 1250 (1st Cir. 1973); McClendon v. Rosetti, 460 F.2d 111, 112-13 (2nd Cir. 1972); Russell v. Bodner, 489 F.2d 280, 281-82 (3rd Cir. 1973); Turner v. Impala Motors, 503 F.2d 607, 611 n. 8 (6th Cir. 1974); Flood v. Margis, 461 F.2d 253, 255 (7th Cir. 1972); Gibson v. City of Seattle Police Department, 472 F.2d 1220, 1221 (9th Cir. 1973) (per curiam); Rios v. Cessna Finance Corp., 488 F.2d 25, 28 (10th Cir. 1973). The cases cited by the defendants for the contrary position either antedate Lynch or are inapposite.

 D. Abstention

 All moving defendants join in a request that the court abstain from hearing this case, citing the pendency of two related state-court suits. The first, Sixth Camden Corporation v. Township of Evesham, Docket No. L-19938, Superior Court of New Jersey, Law Division, Burlington County, is the action by the present plaintiff seeking the grant of its zoning variance by the Superior Court, and has been referred to previously in recounting the facts alleged in the complaint. The second, Allen v. Planning Board of the Township of Evesham, Docket No. L-662-74, Superior Court, Law Division, Burlington County, refers to an event which took place after the filing of the complaint in this suit: it challenges the validity of the Planning Board's approval of site plan # 2.

 The Supreme Court in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 1244-46, 47 L. Ed. 2d 483 (1976), identified three general categories of abstention. The first, Pullman - type abstention, takes its name from Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). A federal court should abstain when it appears that constitutional decisions may be obviated, id., or materially altered or reduced, Harrison v. NAACP, 360 U.S. 167, 79 S. Ct. 1025, 3 L. Ed. 2d 1152 (1959), by decisions of unsettled state law. Schenley Industries, Inc. v. New Jersey Wine & Spirit Wholesalers Ass'n, 272 F. Supp. 872, 882 (D.N.J.1967); Wright, Law of Federal Courts § 52 (2nd Ed. 1970). At the time the motion was argued, the validity of the Council's denial of the zoning variance was in litigation before the state courts in Sixth Camden Corp. v. Township of Evesham, supra. Since the state courts could conceivably have adjudicated the denial as valid, removing one of plaintiff's major constitutional claims, urging abstention at that time was eminently reasonable. See McLarty v. Borough of Ramsey, 270 F.2d 232, 234-35 (3rd Cir. 1959).

 During the pendency of this motion, however, the state-court Sixth Camden case has reached a final adjudication. The decision of the Superior Court of New Jersey was affirmed by the Appellate Division, Docket No. A-2478-73, June 30, 1975, and the Supreme Court of New Jersey denied a petition for certification by order of October 14, 1975. 69 N.J. 77, 351 A.2d 5 (1975). The impact of this decision will be treated in part II.F of this opinion, infra, but it suffices to say that its pendency no longer suggests abstention by this court.

 However, the continued pendency of the other state-court suit, Allen v. Planning Board of the Township of Evesham, supra, since it challenges the validity of the Planning Board's approval of site plan # 2, touches plaintiff's allegations that the Planning Board violated its constitutional rights by delaying that approval. See the factual summary in part I, supra. But an inspection of the issues in that case reveals that no matter how that case is resolved, it cannot eliminate or alter the necessity for a constitutional adjudication of the instant plaintiff's claim. In Allen v. Planning Board of the Township of Evesham, 137 N.J.Super. 359, 349 A.2d 99 (App.Div.1975), the Appellate Division of the Superior Court of New Jersey remanded the case for further findings on whether, as the plaintiffs in that suit alleged, the site plan approval had been granted under duress, *fn7" and on another matter not relevant here. But the question of duress would appear to cast no light upon the present plaintiff's contention that it had been entitled to its approval at an earlier time. Since the federal claim will survive any conceivable ruling in the state-court ...


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