[162 NJSuper Page 501] Plaintiffs, owners of 246 acres of undeveloped land in Mansfield Township, Burlington County, sue the township committee, its planning board, all of their individual members and the municipality itself. They claim that the township's zoning ordinance makes the development of this acreage economically impossible. Before commencing this suit plaintiffs, by informal request to the planning board, sought an amendment to the zoning ordinance as a solution to their problems. Plaintiffs were instructed to incorporate their proposals in an application for site plan approval. This was done. The board, after conducting a
hearing, denied approval but recommended further consideration of the application by the township committee, which refused to act.
Damages, compensatory and punitive, together with injunctive relief are sought on claims of due process and equal protection violations occurring as a result of the procedure employed by the planning board, the inaction of the municipal bodies and the effect of the present interim zoning ordinance upon plaintiffs' property. The constitutional arguments are based upon: (1) the federal Civil Rights Act, 42 U.S.C.A. § 1983 (1974) and (2) direct violations of the Federal Constitution, under Bivens v. Six Unknown Named Agents , 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).
Defendants move to dismiss and, in the alternative, for summary judgment as to the damage claims, on the ground that they are immune from suit as a matter of law, either under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (Cum. Supp. 1978), or because defendants were involved in legislative activity which entitles them to an absolute immunity under federal law. In addition, defendants move to dismiss plaintiffs' claim that the township's zoning scheme is invalid under the Municipal Land Use Law.
Issues involving questions of law, not reflecting any factual disputes, may be resolved without trial, on the basis of pleadings and affidavits. R. 4:46-1; Judson v. Peoples Bank, etc. , 17 N.J. 67 (1955). That relief has been sought by the defense motion.
The immunity issue meets the required test and is ripe for summary judgment.
Since this suit seeks the enforcement of federal rights in a state court, jurisdictional questions are raised. These
questions are answered by Endress v. Brookdale , 144 N.J. Super. 109 (App. Div. 1976), Sixth Camden Corp. v. Evesham , 420 F. Supp. 709 (D.N.J. 1976), and Brown v. Pitchess , 13 Cal. 3d 518, 119 Cal. Rptr. 204, 531 P. 2d 772 (Sup. Ct. 1975). See also, Travel Agents Malpractice v. Regal Cultural Society , 118 N.J. Super. 184, 195 (App. Div. 1972). It is clear from these cases that a state court has concurrent jurisdiction with federal courts over enforcement of the federal causes of action alleged.
The complaint in this action can fairly be construed as alleging a cause of action against both the individuals and the municipality under § 1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
This section has been available for suits against individuals, except federal officials, since its adoption. See Wood v. Strickland , 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975). However, the legislative history of the section was interpreted in Monroe v. Pape , 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), as precluding its use as a foundation for suits against municipalities and their agencies because they were not considered to be "persons." On June 6, 1978, in Monell v. New York , U.S. , 98 S. Ct. 2018, 56 L. Ed. 2d 611, the Supreme Court reversed this position.
Monell involved a suit by female employees of the Department of Social Services and the Board of Education of the City of New York for injunctive relief and backpay. Defendants were the Department and its Commissioner, the Board and its Chancellor, and the City of New York and
its Mayor. The suit was based upon § 1983 and claimed constitutional violations by reason of the official, written policy of defendants that compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. Consequently, legislative action, i.e. , policy, and its enforcement were involved, as underlined by the court's reference to policy made by the "lawmakers" of the local government. Id. at , 98 S. Ct. 2018.
The court reconsidered the legislative history first reviewed in Monroe and concluded that it did not support municipal immunity. Accordingly, it held that
Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person", by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. [at , 98 S. Ct. at 2036; footnotes omitted].
The Supreme Court stressed the necessity for finding an official government policy or custom , holding that municipalities are not liable for actions of its employees or agents on the basis of respondeat superior.
I conclude that all of the defendants may be sued under § 1983.
In Bivens plaintiff sued for damages allegedly resulting from a search in violation of the Fourth Amendment of the United States Constitution. The suit was under the Constitution, directly; § 1983 was not available to plaintiff since defendants were federal agents. The court held that
the complaint stated a cause of action, entitling plaintiff to recover damages for any injuries suffered from the claimed constitutional violation. However, Mr. Justice Brennan indicated that if "special factors counselling hesitation in the absence of affirmative action by Congress," Bivens, supra , 403 U.S. at 396, 91 S. Ct. at 2005, had been present, the remedy might not have been made available. Further, the court suggested that if Congress had provided a different remedy, thought by it to be equally effective in redressing the wrong, then the damage remedy would only be allowed if "necessary to enforce the Fourth Amendment." Id. at 397, 91 S. Ct. at 2005.
Several federal courts have utilized Bivens to recognize a cause of action against municipalities and other "nonpersons." See Gentile v. Wallen , 562 F.2d 193 (2 Cir. 1977); Cox v. Stanton , 529 F.2d 47 (4 Cir. 1975); Gray v. Union Cty. Intermediate Ed. Dist. , 520 F.2d 803 (9 Cir. 1975); Hanna v. Drobnick , 514 F.2d 393 (6 Cir. 1975); Donoghue v. Behler , 429 F. Supp. 403 (D.N.J. 1977). It has not been limited to suits under the Fourth Amendment. Jacobson v. Tahoe , 558 F.2d 928, 942 (9 Cir. 1977). The Supreme Court, after Monell, may differ as to its availability. Mr. Justice Powell, concurring in Monell , suggests that suits against municipalities should be limited to those brought under § 1983, since that statute is now available, leaving no reason to constitutionalize a cause of action. Monell, supra , U.S. at , 98 S. Ct. 2018. The point received additional emphasis in Butz v. Economou , U.S. , 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978), where the court said:
The presence or absence of congressional authorization for suits against federal officials is of course relevant to the question whether to infer a right of action for damages for a particular violation of the Constitution. In Bivens , the Court noted the "absence of affirmative action by Congress" and therefore, looked for special factors counselling hesitation. [at , 98 S. Ct. at 2909]
However, the actual decision to limit Bivens has not been made. Since it is not yet clear that § 1983 will be found
to be, in Bivens terminology, "another remedy, equally effective in the view of Congress," Bivens, supra at 397, 91 S. Ct. at 2005, I conclude that the municipal ...