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Bass v. Attardi

filed: February 14, 1989.

GERHARD BASS, APPELLANT
v.
SYLVESTER ATTARDI, INDIVIDUALLY AND AS A MEMBER OF THE SOUTH AMBOY PLANNING BOARD; H. THOMAS CARR, INDIVIDUALLY AND AS A CONSULTANT TO THE SOUTH AMBOY PLANNING BOARD; ALICE CHRISTINA, INDIVIDUALLY AND AS A CHAIRPERSON OF THE SOUTH AMBOY PLANNING BOARD; MAYOR J. THOMAS CROSS, INDIVIDUALLY AND AS MAYOR OF THE CITY OF SOUTH AMBOY AND AS A MEMBER OF THE SOUTH AMBOY PLANNING BOARD; GREGORY F. KUSIC, INDIVIDUALLY AND AS ATTORNEY FOR THE SOUTH AMBOY PLANNING BOARD; ROBERT LEVINS, INDIVIDUALLY AND AS A MEMBER OF THE SOUTH AMBOY PLANNING BOARD; ANDREW MARKOVICH, INDIVIDUALLY AND AS A MEMBER OF THE SOUTH AMBOY PLANNING BOARD; MICHAEL MARRONE, INDIVIDUALLY AND AS A MEMBER OF THE SOUTH AMBOY PLANNING BOARD; COUNCILMAN THOMAS O'BRIEN, INDIVIDUALLY AND AS A MEMBER OF THE SOUTH AMBOY PLANNING BOARD; EDWARD O'LEARY, AS CHIEF OF POLICE OF SOUTH AMBOY; MADELINE PURCELL, INDIVIDUALLY AND AS A MEMBER OF THE SOUTH AMBOY PLANNING BOARD; WILBUR SCHMIDT, INDIVIDUALLY AND AS A MEMBER OF THE SOUTH AMBOY PLANNING BOARD; AND FREDERICK H. KURTZ, INDIVIDUALLY AND AS A DIRECTOR OF THE DEPARTMENT OF ENGINEERING OF THE CITY OF SOUTH AMBOY AND AS CODE ENFORCEMENT OFFICER OF THE CITY OF SOUTH AMBOY



Appeal from the United States District Court For the District of New Jersey, D.C. Civil No. 83-4595.

Gibbons, Chief Judge, Hutchinson and Hunter,*fn* Circuit Judges.

Author: Per Curiam

Per Curiam:

1. Once again, we return to the much-litigated struggle between plaintiff-appellant Gerhard Bass ("Bass") and various defendant-appellee officials of the city of South Amboy, New Jersey, over the establishment of a methadone-maintenance treatment center in South Amboy. Bass contends that members of the South Amboy Planning Board ("Planning Board"),*fn1 their agents,*fn2 and the South Amboy Code Enforcement Officer*fn3 violated his rights to equal protection and freedom of speech by thwarting his efforts to establish a methadone-maintenance treatment center at 124 Broadway, South Amboy.*fn4

2. In this appeal, Bass asks us to vacate an order finding defendant-appellee members of the South Amboy Planning Board and their agents absolutely immune from Bass' action brought pursuant to 42 U.S.C. § 1983 (1982) and to vacate an order granting South Amboy Code Enforcement Officer Frederick Kurtz ("Kurtz") qualified immunity. As a procedural matter, Bass contends that the district court erroneously entered judgment for the defendants prior to the completion of his case, thus impinging on his right to due process. As a substantive matter, Bass contends that none of the defendants are entitled to any immunity. While we hesitate to affirm a judgment entered prior to the completion of a plaintiff's case, with regard to the Planning Board members and their agents in their individual capacities we will do so because they are absolutely immune as a matter of law. On the other hand, we will vacate the order to the extent it dismisses the complaint against the members of the Planning Board and their agents in their official capacity because the Planning Board itself has no immunity. We will also vacate the order in favor of Kurtz in light of the incomplete record to allow Bass to complete the presentation of his case and to allow both parties to complete the record.

I.

3. Bass began his efforts to secure permits necessary to establish a methadone-maintenance treatment center in South Amboy in May 1981. In November 1981, Bass sought a use variance for 124 Broadway from the South Amboy Board of Adjustment. The site in question was located in a B-1 zone for which business and professional offices were permitted uses under the South Amboy Zoning Code. The Board of Adjustment denied Bass' request on March 10, 1982. The Board of Adjustment relied on Amendment 1066 of the South Amboy Zoning Code adopted on July 16, 1981, which regulated the location of treatment facilities.

4. Bass appealed the decision of the Board of Adjustment to the New Jersey Superior Court. On June 17, 1983, Judge Stroumtsos of the Law Division ruled from the bench that Bass' proposed facility fell within the definition of a professional office and hence was a permitted use in the B-1 general business zone in which 124 Broadway is located. Judge Stroumtsos also held that Amendment 1066 was not applicable to Bass' project. Judge Stroumtsos did not, however, direct Kurtz to issue a certificate of occupancy. Instead, he held that the proposed methadone-maintenance treatment center must meet the same requirements any other business would have to meet in order to operate in a B-1 zone. On June 24, 1983, Judge Stroumtsos entered an order reflecting his decision from the bench.

5. On June 21, 1983, Bass applied to Code Enforcement Officer Kurtz for a certificate of occupancy. Near the end of June 1983, Bass advised Kurtz that he had secured parking for five cars within 1/2 block of 124 Broadway. As evidence, Bass submitted a copy of a money order evincing payment, although he did not include a copy of his lease.

6. On June 29, 1983, Kurtz refused Bass' request for a certificate of occupancy because he did not have a copy of Judge Stroumtsos' opinion and because Bass had not secured site plan approval. On July 14, 1983, Kurtz told Bass that sanitary, heating, and air conditioning facilities were "presently inadequate." On August 8, 1983, Kurtz rejected Bass' parking plan and raised the issue of Bass' failure to comply with New Jersey's Barrier Free Design Regulations. During the period May 1981 to March 1983, however, Kurtz issued three other certificates of occupancy to businesses in the immediate vicinity of 124 Broadway in the B-1 zone.

7. On August 15, 1983, Bass filed an application with the Planning Board requesting site plan approval and a parking variance. The Planning Board did not reach Bass' application at its September 1983 meeting. The Planning Board took up Bass' application at its October meeting where it claimed that it was not bound by Bass' suit against the Board of Adjustment. Bass, accordingly, initiated yet another suit in the New Jersey Superior Court. The same judge who had ruled against the Board of Adjustment held on November 16, 1983, that the Planning Board was bound by his prior ruling in the Board of Adjustment case. The Planning Board appealed. Notwithstanding the Superior Court's decision, however, the Planning Board voted to table Bass' application at its November 21, 1983 meeting.

8. On December 1, 1983, Bass filed this § 1983 suit in the District of New Jersey. His principal complaint was that the defendants were selectively enforcing municipal parking regulations, thus preventing him from securing a certificate of occupancy for the methadone-maintenance treatment center. Bass sought a preliminary injunction ordering the defendants to issue him a certificate of occupancy, as well as damages.

9. On February 16, 1984, the district court denied Bass' claim for immediate relief. Bass appealed to this court. On November 13, 1984, for reasons having no bearing on this appeal, we reversed and remanded in Bass v. Attardi, 751 F.2d 375 (3d Cir. 1984) (mem. op.).

10. Meanwhile, on January 25, 1984, February 20, 1984, and March 14, 1984, the Planning Board finally considered Bass' application of August 1983. On March 14, 1984, the Planning Board denied the application. Bass appealed that decision to the City Council which upheld the Planning Board on July 9, 1984. Bass then ...


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