This motion for summary judgment is made by the individual defendants, members of the Medford Township Planning Board, Board of Adjustment and Township Committee, respectively, who have been sued in their individual capacities by plaintiff development corporation. The facts, although detailed and complex, may be summarized for purposes of this motion as follows:
In 1970 plaintiff's predecessor in title applied to the Planning Board of Medford Township for subdivision approval for a certain parcel situate within the township's boundaries, which property was acquired by plaintiffs in January 1971. After several hearings at which revised proposals were considered, the planning board adopted a resolution granting approval to plaintiff but conditioning it on acquisition of a variance from the zoning board of adjustment.
Thereafter, plaintiff appeared before the zoning board of adjustment on two separate occasions and the board denied the variance application on the ground that it lacked jurisdiction to so act, in the alternative, that the requisite showing for a variance had not been made. At a subsequent hearing before the township committee it was ruled that the planning board had acted properly in exercising its discretion. No appeal was taken from the board of adjustment's determination.
In August 1978 plaintiff filed suit in this court against the Township of Medford, the township committee, planning board, Board of Adjustment and all the individual members of the respective boards, claiming violations of 42 U.S.C.A. § 1983 and of their rights under the Fifth and Fourteenth Amendments to the United States Constitution, U.S. Const. Amends. V and XIV, and seeking damages, compensatory
and punitive, and injunctive relief therefor.*fn1 The individual members of the respective boards and Township Committee now seek summary judgment dismissing the complaint as to them on the ground that they are absolutely immune from liability under federal law. There existing no genuine issue as to a material fact, the legal issue of whether local zoning officials acting in a quasi -judicial capacity are entitled to an immunity and, if so, whether that immunity be qualified or absolute is ripe for determination. R. 4:46-2. Judson v. Peoples Bank, etc. , 17 N.J. 67 (1955).
This court begins its analysis with the proposition:
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government from the highest to the least, are creatures of the law, and are bound to obey it. United States v. Lee , 106 U.S. 196, 220, 1 S. Ct. 240, 260, 27 L. Ed. 171 (1882).
Thus, public officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope. Butz v. Economou , U.S. , 98 S. Ct. 2894, 2911, 57 L. Ed. 2d 895 (1978).
As detailed in T&M Homes, Inc. v. Mansfield Tp. , 162 N.J. Super. 497 (Law Div. 1978), the procedure for determining whether a particular public official is entitled to a defense of immunity involves a consideration of public policy and common law tradition. If after examination of these sources, it is determined that an immunity defense exists, it must then be resolved whether the immunity should be absolute or qualified. This decision focuses on the function that particular official serves, his location in our constitutional system and the safeguards surrounding the fulfillment of his duties. Cf. Economou, supra.
Essential to a clear understanding of the issues involved are the roles of officials here sought to be charged with personal liability. Under New Jersey law one of the principal tasks of the planning board is to exercise discretion in evaluating and deciding proposed subdivision or site plan applications. N.J.S.A. 40:55D-37(a). Before the issuance of any permit authorizing such development, a hearing must be held resulting in approval of such action. N.J.S.A. 40:55D-10(a). Among other responsibilities, the board of adjustment must hear and either grant or deny variance applications. N.J.S.A. 40:55D-70(c) & (d). Applicants before these bodies are entitled to a plenary hearing, including notice, examination and cross-examination of witnesses and a determination grounded on competent and credible proofs and represented by appropriate findings thereon. Tomko v. Vissers , 21 N.J. 226, 238-241 (1956). The township committee is assigned the duty of an appellate body in which appeals from the planning board and board of adjustment are taken. N.J.S.A. 40:55D-17(a). In light of their respective responsibilities and the law of New Jersey, these tribunals are clearly not agencies of the local governing body but rather are independent statutory creations performing quasi-judicial, not ministerial, functions. Kotlorich v. Ramsey , 51 N.J. Super. 520 (App. Div. 1958); Kurowski v. Bayonne Board of Adj. , 11 N.J. Super. 433 (App. Div. 1951); Robinson v. Cape May Bd. of Adj. , 131 N.J. Super. 236 (Law Div. 1974); Yellow Cab Corp. v. Passaic City Council , 124 N.J. Super. 570 (Law Div. 1973).
The immunity of a judge for acts within his jurisdiction has roots extending to the earliest days of common law. See Floyd v. Barker , 12 Coke 23, 77 Eng. Rep. 1305 (1608); Yates v. Lansing , 5 Johns 282 (N.Y. 1810). This exemption was first the subject of judicial scrutiny by the United States Supreme Court in Bradley v. Fisher , 13 Wall. (80 U.S.), 335, 20 L. Ed. 646 (1872), where it was held (at 347) that judges acting "in the exercise of their judicial functions" should be granted immunity in order to maintain "that
independence without which no judiciary could either be respectable or useful." Thereafter, in Pierson v. Ray , 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967), the court ruled that 42 U.S.C.A. § 1983 was not meant to abrogate the common law immunity theretofore existing, and thus state judges sued thereunder were entitled to the same immunity pronounced in Bradley.
Since Bradley , a progression of cases has documented the expansion of the immunity doctrine. In Yaselli v. Goff , 275 U.S. 503, 48 S. Ct. 155, 72 L. Ed. 395 (1927), aff'g mem., 12 F.2d 396 (3 Cir. 1926), the court summarily affirmed the Court of Appeal's grant of immunity to federal prosecutors. See also, Imbler v. Pachtman , 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976). The common law history discussed by the Court of Appeals provided an adequate basis for the further enlargement of the protective shield of immunity to ...