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JODECO, INC. v. HANN

December 2, 1987

Jodeco, Inc., a Corporation of the State of New Jersey, Plaintiff,
v.
Joseph Hann, individually and as Planning Board Vice-Chairman, Albert Spinelli, individually and as Planning Board Chairman, Robert Earl, individually and as member of the Planning Board, James Curran, individually and as member of the Planning Board, Jane Ciminera, individually and as member of the Planning Board, Roberta Acampora, individually and as member of the Planning Board, Robert Flynn, individually and as member of the Zoning Board, Russell Dusewicz, individually and as member of the Zoning Board, Robert Patterson, individually and as member of the Zoning Board, the Planning Board of the Township Voorhees, Zoning Board of the Township of Voorhees, Mayor and Council of the Township of Voorhees and Township of Voorhees, Defendants



The opinion of the court was delivered by: BROTMAN

 I. INTRODUCTION

 This dispute arises out of the rezoning by the Township of Voorhees, New Jersey, of an area encompassing a portion of plaintiff's property. Plaintiff alleges that such a rezoning plan and the municipality's denying him a use variance constitute, inter alia, a denial of its due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. This matter is currently before the court on defendants' motion and plaintiff's cross-motion for summary judgment. For the reasons stated below, this court denies plaintiff's motion for summary judgment, and grants partial summary judgment in favor of defendants Mayor of Voorhees Township and all members of the Planning and Zoning Boards.

 II. FACTS AND PROCEDURE

 Plaintiff, Jodeco, Inc., a New Jersey corporation, owns in excess of eleven acres of highly developable land located at the entrance to the Township of Voorhees fronting State Highway 73 and County Highways 671 and 685. Situated on this tract of land is a sizable natural body of water, Mill Pond, and a scenic wooded area studded with matured trees and impressive foliage. Plaintiff planned to enhance the natural beauty of its eleven-acre plot through the construction of two pedestrian foot bridges traversing Mill Pond and the beautification of the wooded areas through the creation of outdoor animated holiday displays. At the core of plaintiff's development plan was the construction of a commercial center which included a retail food court, restaurant and garden center.

 At the time of plaintiff's initial development plan, the tract of land was situated in an area zoned partly for Commercial-Recreational (hereinafter "CR") use and partly for Highway-Business (hereinafter "HB") use. All proposed uses of the property conformed with the applicable zoning ordinances, except for a structure housing retail stores which extended approximately 120 feet into a district zoned for non-commercial uses.

 Plaintiff first presented its proposed plan of development to the Voorhees Township Planning Board (hereinafter the "Planning Board") at an informal hearing on October 24, 1984. At this hearing, the Planning Board responded favorably to plaintiff's proposal and instructed plaintiff to obtain the necessary use permits from the New Jersey Department of Environmental Protection (hereinafter the "DEP") and then return to the Planning Board, at which time it intended to make recommendations to plaintiff as to how to proceed with the project. During this interim period, the Planning Board granted plaintiff's request for a temporary use permit to operate only its garden center.

 On December 19, 1985, the Planning Board sent a letter to the Mayor and Town Council of Voorhees recommending that (1) the existing Highway-Business zone be extended in conformity with plaintiff's proposal and (2) the plaintiff's development plan be excluded from the Township's current investigation into the possible rezoning of property along State Highway 73. The Township had recently engaged the services of the Ragan Design Group to conduct a "Route 73 Corridor Study" regarding the rezoning of property along State Highway 73. Pursuant to this "Master Plan," plaintiff's eleven-acre plot would be zoned as "02" property, which permitted the construction of offices, restaurants, hotels and warehouses, but prohibited all retail uses. Thus, plaintiff interpreted the Planning Board's exclusion of his project from the Corridor Study as a sign of approval, since inclusion in the Study would have precluded a significant part of plaintiff's proposed development.

 On January 1, 1986, as a result of changes in the elected officials in the Township of Voorhees, new members of both the Planning and Zoning Boards were appointed. One such new member appointed to the Planning Board was defendant Joseph Hann, who at the time of his appointment was the owner of the Green Leas Garden Center on Route 73, an establishment in direct proximity to the plaintiff's own proposed garden center. One week after the change in composition of the two Boards, plaintiff applied for a full site approval for the entire development project together with a use variance for the portion of the building overlapping the zoning line. The application was scheduled to be heard by the Zoning Board on February 6, 1986.

 On that date, the Zoning Board purportedly received a letter from Planning Board Secretary Larry Ragone expressing the concern of a "majority" of Planning Board members regarding the adverse impact that plaintiff's application might have on the on-going Corridor Study, and recommending that the Zoning Board "postpone any final decision on th[e] application until the study is adopted by the Planning Board." (See Plaintiff's Brief in Opposition to Summary Judgment Motion and in Support of Plaintiff's Cross Motion for Summary Judgment, Exhibit 7). Due to conflicting factual submissions by the parties, it is unclear on what particular date the Planning Board decided to include plaintiff's project in the Corridor Study and when the Planning Board formally adopted the Study's rezoning recommendations. However, it appears that at some point during the month of February 1986, the Planning Board concluded that plaintiff's project should not be exempted from the rezoning of Highway 73.

 On March 6, 1986, at a public meeting of the Zoning Board, plaintiff's motion for a zoning variance from the portion of his property zoned for Highway-Business fell one vote short of passing. However, the seven-member Zoning Board unanimously granted plaintiff's second motion for a one-year extension of the temporary use permit. On April 14, 1986, a public meeting of the Town Council of Voorhees was held at which the plaintiff was present, and the proposal to rezone the Highway 73 area was formally adopted by a vote of the Township Committee and the Mayor of Voorhees. The matter was finally put to rest on June 5, 1986, at which time plaintiff's second application for a use variance was denied, once again, by a single vote. *fn1"

  On July 11, 1986, plaintiff brought suit in this court against the Planning Board and six of its members, both individually and in their official capacities; the Zoning Board and three of its members, both individually and in their official capacities; the Mayor and the Voorhees Town Council; and the Township of Voorhees, itself. The complaint alleges a violation of plaintiff's civil rights under 42 U.S.C. ยงยง 1983 and 1985, breach of state and federal antitrust laws and deprivation of plaintiff's due process rights pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, the Municipal Land Use Law and the New Jersey Open Public Meetings Act. In its prayer for relief, plaintiff seeks a declaratory judgment voiding the rezoning of plaintiff's property and the Zoning Board's decision to deny it a use variance, as well as a declaration that Planning Board member Joseph Hann violated the conflict of interest provision of the New Jersey Municipal Land Use Law by voting on plaintiff's development plan while in possession of an ownership interest in direct competition with plaintiff's garden center. In addition, plaintiff asks this court to compel the defendants to grant the necessary approvals and permits to allow its project to proceed. Finally, plaintiff seeks $ 250,000 in compensatory damages against each individual defendant, $ 250,000 in consequential damages against each individual defendant and punitive damages against defendant Hann in the amount of $ 1.5 million, as well as $ 50,000 against all of the other named defendants.

 III. DISCUSSION

 A. Immunities Defense

 As a threshold matter, all individual members of the Zoning and Planning Boards, the Mayor and the members of the Voorhees Township Committee *fn2" move for summary judgment asserting that they are entitled to absolute immunity because, in adopting the rezoning recommendations of the Corridor Study and denying plaintiff a use variance therefrom, they acted in a legislative capacity. In the alternative, defendants argue that they are entitled to qualified good-faith immunity because their conduct did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).

 Defendants Mayor, Planning and Zoning Board members (hereinafter "Individual Defendants") premise their entitlement to absolute immunity solely on the legislative character of their conduct. This court agrees that the actions taken by the Mayor and the Planning Board members pursuant to the rezoning of property surrounding plaintiff's land were legislative in nature. However, this court cannot reach a similar conclusion regarding the actions of the Zoning Board members. Rather, on the facts submitted, this court believes that their conduct was of a quasi-judicial nature, thus also absolutely immunizing them from civil damages. Therefore, for the reasons stated below, this court grants Individual Defendants' motion for summary judgment.

 1. Legislative Immunity

 This court commences its analysis with the well-recognized principle that state legislators are entitled to absolute immunity for acts performed in their legislative capacity. Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783 (1951). In reaching its holding in Tenney, the Supreme Court stressed the need to ensure unfettered decision-making by those who are ...


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