[197 NJSuper Page 459] This case stems from an action brought by plaintiffs against defendants, Planning Board of the Town of West Orange, Joseph Brennan, Jr., Joseph Brennan, Sr. (since deceased), Joseph Antonucci, Mary Lannon, Mary Anderson, Alton Williamson and Samuel Spina, alleging violations of the Civil Rights Act, 42 U.S.C.A. § 1983, and the New Jersey Municipal Land Use Act, N.J.S.A. 40:55D-1 et seq.
The events giving rise to this suit are detailed in an opinion of this court. The trial court is concerned with a period of time commencing May 1979 until the present.
It is plaintiffs' contention that the above named defendants not only deliberately and maliciously delayed hearing plaintiffs' site plan applications, but also did not conduct the hearings in good faith.
The Honorable John A. Marzulli, pursuant to a complaint in lieu of a prerogative writs, entered an order in October 1982 and held that defendants' denial of plaintiffs' site plan was arbitrary and capricious and ordered defendant planning board to grant the site plan approval. The count for damages was severed and is the subject of this action. No appeal was ever filed and on November 3, 1982, the planning board pursuant to the court's order did grant site plan approval. However, it was not officially approved until 13 months subsequent to the approval.
Defendants raised defenses of absolute and qualified immunity and under the order of this court referred to on June 1, 1984, it was held that these defenses were affirmative and had to be proved by the parties asserting such defenses.
Defendants thereafter proceeded with their proofs and all defendants, with the exception of the late Joseph Brennan, Sr., testified.
A review of the applicable principles of law is necessary. Plaintiffs' allegation of deprivation of constitutional rights in violation of 42 U.S.C.A. § 1983 is derived from the Civil Rights Act of 1871.
Every person, who, under the color of any statute, ordinance, regulation, custom or usage of any State or territory, subjects or causes to be subjected, any citizen of the U.S. 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 any action at law, suit in equity or other proper proceeding for redress. [42 U.S.C.A. § 1983]
In order for the plaintiffs to state a claim under § 1983, there must be an allegation of a deprivation of a constitutional right done under color of state law.
It is undisputed that the defendants were acting under color of state law. The Planning Board of West Orange is a public entity established pursuant to the Municipal Land Use Law (M.L.U.L.), N.J.S.A. 40:55D-23. The members of the planning board and the town planner are appointed by the mayor for terms of from one to four years and may not be removed from office except for cause after a public hearing. N.J.S.A. 40:55D-23, -69. The board is required to hold hearings on development proposals, with the minutes of all regular or special meetings recorded. These hearings are subject to the Open Public Meetings Act which directs that decisions are to be made in open sessions of which the public has advance notice. After a determination on an application the board must issue a written decision including findings of fact and conclusions of law. A copy of the decision must be mailed within ten days to the applicant or his/her attorney with the requirement that there be a publication in an official newspaper. An adverse determination may be challenged in the Superior Court of New Jersey, R. 4:69-6(b)(3), and nothing in the M.L.U.L. may be constituted to affect that right. Plaintiffs undertook to appeal the board's decision which resulted in Judge Marzulli's order. Plaintiffs are entitled to have the federal question heard in state court, as state courts possess concurrent jurisdiction with federal courts concerning civil rights action. Endress v. Brookdale Community College, 144 N.J. Super. 109, 132 (App.Div.1976); T & M Homes Inc. v. Township of Mansfield, 162 N.J. Super. 497, 503 (Law Div.1978).
Since the trial court at the motion to dismiss the complaint had held that the affirmative defense of qualified immunity was available, the next issue to confront the court is the one dealing with qualified immunity. The United States Supreme Court in Pearson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18
L. Ed. 2d 288 (1967) held that traditional tort law immunities were available as defenses to suits under § 1983. The scope of immunity available to any part is a matter of federal law. Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978).
In a subsequent case, Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), the Court decided that state officials had a qualified immunity for acts conducted within the scope of their discretionary duties. It then became the task of the Supreme Court to set guidelines for defining the scope of qualified immunity. The guidelines for the scope of qualified immunity were established in the case of Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975).
The Court held that the appropriate standards for qualified immunity must take into context the "objective" and "subjective" tests of ...