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Anastasio v. Planning Board of Township of West Orange

Decided: April 17, 1986.

PAUL ANASTASIO, MARVIN GREENMAN AND ORESTO ANASTASIO, INDIVIDUALLY, AND T/A BRIAR HILL VILLAS COMPANY, A PARTNERSHIP, PLAINTIFFS-RESPONDENTS,
v.
PLANNING BOARD OF THE TOWNSHIP OF WEST ORANGE, JOSEPH BRENNAN, JR., JOSEPH ANTONUCCI, MARY LANNON, MARY ANDERSON, ALTON WILLIAMSON AND SAMUEL SPINA, DEFENDANTS-APPELLANTS, AND FRED W. LA BASTILLE AND JOSEPH BRENNAN, SR., DEFENDANTS



On appeal from the Superior Court, Law Division, Essex County, whose decision is reported at 197 N.J. Super. 457.

Morton I. Greenberg, J. H. Coleman and Havey. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.

Greenberg

[209 NJSuper Page 503] This matter comes on before this court on appeal from a judgment for punitive damages in an action brought under the federal Civil Rights Act, 42 U.S.C.A. § 1983. The action was generated by difficulties plaintiff,*fn1 a partnership engaged in

real estate development, had in obtaining site plan approval for a project in West Orange. Because of the failure of the trial judge to make adequate findings of fact in this nonjury matter, thus leading us for the reasons we later explain to exercise original jurisdiction to make the necessary findings, we are compelled to set forth at length the procedural and factual background of this case.

This appeal is in the third related action brought by plaintiff. The original action was started in July 1980 when plaintiff filed a complaint in lieu of prerogative writs against the Planning Board of West Orange challenging its denial of plaintiff's 44 unit site plan application. That action was withdrawn when the board agreed to hold a conceptual hearing to consider the application. Following the hearing, plaintiff formally renewed its request for site plan approval but its application was denied by resolution of the board dated December 2, 1981.

Plaintiff then instituted a second action in lieu of prerogative writs again challenging the board's refusal to grant it site plan approval. Further, it appears that plaintiff asserted the board, by its inaction within the time constraints for approval or disapproval of plaintiff's application under the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., had approved the plan.*fn2 Finally, in the second action plaintiff sought compensatory and punitive damages for violation of its civil rights. The damage claims, however, were dismissed with the proviso that plaintiff could file a separate complaint for their recovery. Plaintiff filed that damage action under 42 U.S.C.A. § 1983 on August 16, 1982 against the board, all but one of its members and the West Orange municipal planner, Fred W. LaBastille. In the

damage action, now before us on this appeal, plaintiff asserted defendants had violated the Municipal Land Use Law. LaBastille was named as a defendant because as the municipal planner he was involved in the consideration of the application. Subsequently, on October 4, 1982 plaintiff obtained an order in the second action directing the board to approve its application for a 36 unit townhouse plan, a smaller project than plaintiff originally proposed.

The damage action was tried without a jury by Judge Feinberg who, in a written opinion dated September 10, 1984, held the board liable for compensatory damages of $66,300 with interest to be added. In addition he assessed punitive damages of $5,000 each against board members Samuel Spina, Alton Williamson and Joseph Brennan, Jr. However, he dismissed the action against board member Joseph Brennan, Sr. and against LaBastille.*fn3 The judge subsequently assessed attorney's fees and costs in plaintiff's favor.

The defendants held liable appealed and plaintiff separately appealed the order dismissing the action as to LaBastille and Joseph Brennan, Sr. These appeals were consolidated. Subsequently the Township of West Orange, which has never been a party to this case, reached an agreement with plaintiff settling the compensatory damages judgment, including the attorney's fees, for $55,000 but preserving plaintiff's three $5,000 punitive damages judgments, an action it undertook because of its perceived position as an indemnitor of the board and its members for compensatory damages. However, as there seems to have been some question as to its authority to make the settlement, it brought a separate case against the plaintiff herein and the board and obtained a summary judgment, from

which no appeal was taken, that it could settle the judgment for the compensatory damages and attorney's fees for the agreed-upon $55,000. The $55,000 has been paid and plaintiff has executed a release of all its claims except for the three punitive damages judgments and has abandoned its appeal. While the board and an amicus curiae have requested us to review the compensatory damages judgment, we think it would be inappropriate to do so, even though we are aware that our opinion may be taken as reflecting a view on the efficacy of the entire judgment and may be regarded as precedential in similar compensatory damages actions. Accordingly on March 25, 1986 we ordered a stipulation of dismissal of the appeals executed by plaintiff's attorney and the township attorney filed, reserving for review only the punitive damages judgments against Spina, Williamson and Joseph Brennan, Jr., whom we shall henceforth call, to the exclusion of the other defendants, appellants.

The facts in this case are complex. As we have indicated, plaintiff is a partnership involved in real estate development. It is highly experienced with at least one partner who has built residential units, multi-family housing, commercial and office buildings, shopping centers and, in his words, "a smattering of just about everything." Plaintiff acquired the property involved, an eight-acre parcel zoned for cluster development, on Herbert Terrace in West Orange near Livingston, in November 1978. This eight-acre tract was adjacent to a seven-acre parcel on Glenview Drive in West Orange on which plaintiff, after obtaining required municipal approvals, previously constructed a 42 unit townhouse development.

Plaintiff originally sought to build 44 townhouses on the eight-acre parcel, a development requiring site plan approval. Plaintiff submitted an application for the approval to LaBastille in May 1979 for consideration by a subcommittee of the board. The subcommittee met with plaintiff that month and advised it of its concern with the fact that the proposed plan involved "crossing over" a dedicated town street, Herbert Terrace. The subcommittee was also troubled by the possibility that plaintiff's

plan could "seal off" or landlock a property on Herbert Terrace to the rear of plaintiff's land. These concerns should not have been a surprise to plaintiff as it understood when it acquired the eight acres that Herbert Terrace could cause it a problem. Williamson suggested to plaintiff at the meeting that it might obtain a vacation of Herbert Terrace by the municipal governing body but plaintiff, though attempting to do so, could not arrange that.

After plaintiff failed in its efforts regarding the vacation, it revised the site plan. Then in October 1979 it submitted the revised plan together with a written reply to concerns expressed at the May 1979 meeting by LaBastille. In November 1979 plaintiff's application was considered at another subcommittee meeting. At that meeting LaBastille stated that the parcel did not satisfy the provisions of an ordinance requiring a developer to own five contiguous acres. Plaintiff disputed that assessment and sought to have its application placed on the board's November agenda. Williamson, the subcommittee chairman, wanted to accommodate plaintiff in this but could not do so as LaBastille indicated that the board's agenda was full for that meeting. Consequently Williamson said he would place the application on the board's December agenda. However, the application was not considered by the board in December as plaintiff had not supplied written responses which the board understood it would furnish to concerns raised at the November 1979 subcommittee meeting. Further, the board was under the mistaken impression that plaintiff had failed to submit a required environmental impact statement. Plaintiff had not supplied the written responses as it did not realize they had been requested. When plaintiff discovered the board would not consider its application in December, it met instead with the subcommittee. According to plaintiff's testimony, at this meeting LaBastille said plaintiff's application would go through over his dead body.

Following resolution of the misunderstanding regarding their necessity, the written responses were prepared. Plaintiff then

attended the January 1980 subcommittee meeting where it was advised by LaBastille that he wanted opinions on the legal issues raised by the application. The municipal attorney was present at the meeting but did not answer the questions at that time. Notwithstanding the lack of resolution of the legal issues, plaintiff attended the January 1980 board meeting. An attorney representing the board was present at the meeting but declined to resolve the legal questions. Nevertheless plaintiff wanted its application considered but Williamson objected to doing so without having the legal matters resolved. Williamson told plaintiff that if it wanted to force a decision in these circumstances it would be turned down. Plaintiff did not press the matter further and instead waived its rights under provisions of the Municipal Land Use Law providing for automatic approval of certain applications if not acted on by the board within 45 days. See N.J.S.A. 40:55D-46.1; N.J.S.A. 40:55D-50.

Subsequently a legal opinion was given that plaintiff's application could be heard and, after plaintiff attended another subcommittee meeting, the matter was taken up at the February 1980 board meeting. At this meeting neighbors from Livingston, described by plaintiff as "filibustering," objected to plaintiff's application as they were concerned about the impact of the project on traffic and they believed the construction would landlock certain Livingston residents. Indeed, because of these problems the Township of Livingston brought a suit to bar the board from considering plaintiff's application. In that case an injunction or restraining order was issued precluding the board from considering the application but it was ordered vacated on February 29, 1980, though the formal order was not entered until March 11, 1980.

Plaintiff next attended the regular April 1980 board meeting but determined it did not want its application considered then because LaBastille had erroneously informed certain objectors that it would not be taken up at that meeting and had failed to advertise the matter properly. Plaintiff was concerned that these defects could have resulted in the invalidation of any

approval granted by the board. Because of the delay, plaintiff again waived its rights under the 45 day rule.

The matter was, however, considered by the board at a special meeting on April 16, 1980. At that time the board adopted a resolution denying site plan approval for the following reasons recited in the resolution:

Plaintiff then filed the first of the three actions already described, the July 1980 complaint in lieu of prerogative writs. Notwithstanding the lawsuit, the parties continued to meet in an attempt to resolve the matter. Plaintiff worked with LaBastille to develop an acceptable plan and met with the board in February 1981 so the board could consider the plan on a nonbinding conceptual basis. According to plaintiff, at that meeting Joseph Brennan, Jr. expressed his dislike of the architecture of the project and compared plaintiff's project to a development in another municipality that was nice when constructed but became a slum.

There was another board meeting in March. Plaintiff claims that at this meeting Spina expressed his dislike in general for the cluster zoning ordinance and suggested that plaintiff meet with two adjoining landowners who were planning to develop in the area to attempt to formulate an overall plan rather than having piecemeal development. Plaintiff also testified that Spina stated he gave it an "A" for effort. Brennan and Spina both testified that they made the statements attributed to them

except Spina claimed he never expressed general dislike for cluster zoning.

As we have indicated, plaintiff's original action was dismissed when the parties agreed that plaintiff could again meet with the board so its plan could be considered on a conceptual basis. Prior to that meeting plaintiff's application was again considered at a subcommittee meeting where Williamson, who apparently was not aware of the agreement reached to terminate the case, declined to place the matter on the board's agenda. According to plaintiff, Williamson said he had been told by "higher ups" that plaintiff would never be put on the agenda, and that it could use the land "as a tomato patch." Williamson in his testimony denied having made these comments. Regardless of what may or may not have been said by Williamson, plaintiff's application, now reduced to 36 units with a resulting increase in open space, was placed on the board's agenda for the June 1981 meeting and was discussed at that time. Plaintiff considered that, except from Spina, it received a favorable reaction from the board. The parties are in disagreement as to whether any vote was taken at the June meeting, plaintiff claiming that its plan was approved conceptually but defendants asserting the project was simply generally discussed. In any event it is clear that there was no final approval at that time.

Following the June meeting, plaintiff prepared a formal application for site plan approval for 36 units. This was submitted and a public hearing on the application was scheduled by the board to consider it in September 1981. However the hearing was adjourned one month at the request of the Township of Livingston so Livingston could obtain a traffic report on the project. The board then held a hearing on the application on October 16, 1981. However, because of the length of the October meeting the matter was not resolved at that time. The application was again brought up at the November 1981 meeting when the board voted to deny it. The board subsequently

adopted a resolution dated December 2, 1981 including the following findings:

1. The development is not in the best interests of the Township of West Orange[.]

2. The proposed plan does not represent the true intent of the zoning ordinances as it ...


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