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Burlington Assembly of God Church v. Zoning Board of Adjustment

November 28, 1990

BURLINGTON ASSEMBLY OF GOD CHURCH, PLAINTIFF,
v.
ZONING BOARD OF ADJUSTMENT, TOWNSHIP OF FLORENCE; AND TOWNSHIP OF FLORENCE, DEFENDANTS



Wells, III, A.j.s.c.

Wells

By Order signed on February 24, 1988 Judge Haines reversed the Florence Township Zoning Board's decision to deny plaintiff a variance to erect a radio station including two transmission towers on its property. N.J.S.A. 40:55-70(d). On May 5, 1988, he declined to certify the decision as final for appeal purposes while at the same time granting the Township's request to stay his February Order temporarily pending resolution of a claim for damages by plaintiff. About a year later in a published decision, Judge Haines ruled that plaintiff had been deprived of its freedom of speech by virtue of the actions of the Zoning Board in denying the variance, and that it was entitled "to recover such damages as it may prove." Burlington Assembly of God Church v. Florence, 238 N.J. Super. 634, 570 A.2d 495 (Law Div.1989).

Judge Haines retired before reaching trial on the damages issue and the same was held before me. The plaintiff Church introduced evidence of loss of profits the proposed station would have made between September 24, 1985, the date of the Zoning Board's original denial, and July 27, 1989;*fn1 increased costs of erecting the station itself and certain other expenses largely attributable to prosecuting the zoning case, including an allocated portion of the salaries of Church staff in connection therewith. Total damages sought are between $700,000 and $800,000 plus counsel fees under 42 U.S.C. § 1988.

While Judge Haines' opinion is laden with language that the central injury to the Church was the deprivation of its First Amendment rights, I cannot conclude, reading it as a whole that he intended to award damages measured by the projected income and increased expenses elicited at the trial before me flowing from the Church's inability to broadcast during the zoning application process and ensuing litigation. Traditional analysis of damages where zoning regulation has been found to unconstitutionally prohibit or inhibit uses of property proceeds on the theory that property has been taken. Such claims are treated as actions for inverse condemnation and awards are based upon the value of the property affected.

Judge Haines himself clearly recognized that approach in several cases where the First Amendment concerns were not at stake but where claims under 42 U.S.C. § 1983 had been made. Sheerr v. Evesham Tp., 184 N.J. Super. 11, 56-59, 445 A.2d 46 (Law Div.1982); Woodsum v. Pemberton Tp., 172 N.J. Super. 489, 526-527, 412 A.2d 1064 (Law Div.1980).

In Sheerr he wrote:

The EP-1 ordinance has been shown to violate the Due Process and Equal Protection Clauses of the State and Federal Constitutions. It may therefore be invalidated. However, plaintiff seeks different relief, namely, damages under 42 U.S.C.A. Sec. 1983. May she recover?

This question, in a zoning context, is very troublesome. If the answer is yes, every invalid zoning regulation which depreciates the value of a property, no matter how little, will invite a suit for damages. Zoning regulations always affect property values, sometimes favorably, sometimes not. A right to collect damages under the Civil Rights Act for an unreasonable and unfavorable regulation, regardless of the amount of loss, would have vast economic consequences for every governmental body exercising regulatory powers. Its stifling effect upon innovative land use planning is obvious.

The logic of plaintiff's position is clear. However, that logic is one-sided; it ignores public consequences which invite a logical analysis running in a different direction. Some balancing of public and private interests must take place when remedies for invalid zoning legislation are addressed; if private remedies impose too heavy a burden upon the public, everyone loses. Some restriction of remedies is necessary. Sheerr, Id. [184 N.J. Super. at] 58 [445 A.2d 46].

In Woodsum he stated:

Plaintiffs here seek damages for the inconvenience, discomfort and expense caused by their forced move as well as an award ...


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