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TRINITY RESOURCES v. TWP. OF DELANCO

February 10, 1994

TRINITY RESOURCES, INC.; TRINITY FELLOWSHIP CHURCH OF SOUTH JERSEY; REV. ABRAHAM E. FENTON; EVE LYNNE E. FENTON; REV. RICHARD W. MINUS; Plaintiffs,
v.
TWP. OF DELANCO; ROBERT BELLAN; TWP. OF DELANCO COMMITTEE; EDWARD SCHAEFER; CLARENCE HUBBS; TWP. OF DELANCO PLANNING BOARD; TWP. OF DELANCO ZONING BOARD; TWP. OF DELANCO TAX ASSESSOR AND COLLECTOR; Defendants.



The opinion of the court was delivered by: MARY LITTLE PARELL

 PARELL, District Judge

 I. THE PROCEEDINGS

 Plaintiffs are Trinity Resources, Inc., ("the Corporation"), a New Jersey for-profit corporation having its principal place of business in Delanco Township, New Jersey; Trinity Fellowship Church ("the Church"), a New Jersey non-profit corporation [IRS § 501(c)(3)]; Rev. Abraham E. Fenton who is President of the Corporation and Senior Minister of the Church; Eve Lynne R. Fenton, who is Vice-President of the Corporation and Administrator of the Church; and Richard W. Minus who is Minister of Pastoral Care for the Church.

 Defendants are the Township of Delanco, New Jersey ("the Township"); the Township Committee; Robert Bellan who is the Mayor of the Township; Township Committee members Joan Hinkle and Linda Lewis; the Planning Board of the Township; the Zoning Board of the Township; Owen Brennan who is the Township Zoning Officer; and Edward Schaefer and Clarence Hubbs, who are respectively the current and former Construction Code Official for the Township; the Township Tax Collection Department; and Donn Lamon, who is the Township Tax Collector. *fn1"

 Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1985, asserting deprivation of their rights under the First, Ninth and Fourteenth Amendments to the U.S. Constitution arising out of official actions taken by defendants with respect to plaintiffs' use of property owned by the Corporation which is located partially within the Township and which is known as Holiday Lakes. By Verified Complaint filed on November 22, 1993, plaintiffs seek damages, declaratory judgment and related relief under various constitutional principles. *fn2" Their basic grievance is that they have been and are being deprived of their religious rights by defendants, acting under color of state and local laws.

 The Verified Complaint was filed with an application for temporary restraining order or preliminary injunction. *fn3" By Order entered November 24, 1993, Hon. Anne E. Thompson [temporarily assigned] denied the motion for temporary restraints and set the matter down for preliminary injunction hearing. That hearing was conducted before the undersigned on December 8, 15, 28, 1993 and January 4, 1994. The record consisted of the exhibits attached to the Verified Complaint; ("Complaint Exhibits") the exhibits attached to a Certification of defense counsel Nicholas J. Costa dated December 2, 1993 ("Costa Certification Exhibits"); exhibits received in evidence for purposes of the injunctive application ("Hearing Exhibits"); and the testimony of witnesses presented by the respective parties. *fn4"

 The Court hereby issues its findings of fact and conclusions of law, as required under Fed. R. Civ. P. 52(a). For the reasons stated, the application for preliminary injunction is denied at this time, and the action is administratively stayed on motion of the Court sua sponte.

 II. FINDINGS OF FACT

 A. BACKGROUND

 The Township of Delanco ("the Township") is an incorporated municipality of approximately 2 square miles with a population of 3,300, located in Burlington County, New Jersey. In November, 1987, the plaintiff Corporation purchased a property of approximately 60 acres ("the property") lying partially within the Township and partially within two neighboring municipalities. The property, known as Holiday Lakes, is located in the C Commercial District zone of the Township, and for many years had been operated by the previous owners as an outdoor recreational facility available to the paying public pursuant to an annually-renewed mercantile license issued by the Township.

 At the time of purchase by plaintiffs, the property had two lakes, some cabanas and other small structures, two golf courses, a retail shop selling ice cream, a larger building variously referred to as a snack bar or concession facility, and large areas available for parking and outdoor activities such as picnics. *fn5" It had typically been made available for a fee to groups such as families, clubs and churches holding reunions and other recreational outings which sometimes included religious services. After plaintiffs purchased the property in late 1987, they applied for and received from the Township Committee in June 1988 an annual mercantile license similar to the ones previously issued (Hearing Exhibit P-1). That license, containing certain limitations and conditions, was reissued in the following two years of 1989 and 1990 (Hearing Exhibit P-2). Testimony was presented that during the summers of 1988 and 1989, and until July of 1990, plaintiffs operated the property as a recreational facility open to the public in essentially the same manner as it had been operated under the previous owners (Hearing Exhibit P-14). Extensive storm damage to outdoor electrical equipment occurred in July, 1990 and plaintiffs discontinued their fee-charging activities rather than undergo the expense of repairing that equipment. Nevertheless, according to plaintiffs, since that time some of the same types of activities have continued to be conducted on the property, at a lower level of frequency and without any fees being charged to the visiting groups.

 The condition of the snack bar/concession stand building was in extreme disrepair at the time of plaintiffs' purchase in 1987. During 1988 and 1989 plaintiffs made some fairly extensive repair and remodeling changes to that building, including removing the broken-down flat roof [which had in earlier years been used for rooftop dancing] and replacing it with an A-frame gabled roof; enclosing the center portion of the building which had previously been an open breezeway, thus creating a large assembly room inside; moving certain wall partitions inside to create additional small rooms for office use and the like; enlarging and upgrading the restrooms; and installing new lighting and ceiling systems. The former concession stand then came to be called the multi-purpose building.

 Plaintiffs' non-profit religious organization, Trinity Fellowship Church ("the Church"), had a congregation which in 1987 was conducting its meetings and services in a high school building in a neighboring municipality. In June of 1989 they were notified that they would have to find a new location because of asbestos problems in the school building. As of July, 1989 they began holding their regular Sunday services, as well as other evening and weekend services and meetings, in the renovated multi-purpose building ("the building"). Offices of staff for both the Church and the Corporation were also established in the building at about that time. Those religious meetings and services have been conducted in the building, year-round, continuously since that time through the present, with one interruption on Sunday, October 17, 1993 as more particularly described below.

 The Church, according to the testimony of plaintiffs Rev. Abraham Fenton and his wife Mrs. Eve Fenton, both of whom are ordained ministers, adheres to the Christian religious tradition and beliefs. Its services include prayer, singing, taking of a collection, preaching and fellowship. The services are conducted in the large assembly room of the building, which room is also used by other groups for non-religious purposes such as seminars and dinners at various times. There are no architectural or design features of the exterior or interior of the building which would denote the building as a church structure, such as a steeple, stained glass windows, statues, crucifixes or altar. Rev. Fenton described in his testimony that he has founded several church organizations, and that although none of them during his tenure enjoyed the advantage of having its own church building, in his perspective as a Christian minister, a "church" is created when faithful persons gather to pray and worship, wherever they may be located at the time. *fn6"

 It is undisputed that the zoning ordinance of the Township does not permit a "church" in the C Commercial District zone, although it is a permitted use in the R-2 Residential District zone. (Compl. Ex. O: Chapter 102 of Delanco Code; Compl. Ex. E: Township Zoning Map). The term "church" is not specifically defined in that zoning ordinance.

 B. PERMIT AND CITATION HISTORY

 It is necessary to summarize here the history of the official actions taken by plaintiffs and various of the defendants pertaining to the property.

 Holiday Lakes was purchased by the Corporation in November, 1987. The Church is the majority shareholder of the Corporation, which Rev. Fenton testified was formed for the purpose of acquiring the property. On May 25, 1988, the Corporation applied to the Planning Board and on or about that date was granted a "site plan waiver" (Compl. Ex. D) which stated that the use of the property would be as a recreational facility (as it had been under the prior owners). Shortly thereafter, plaintiffs or their contractors obtained a series of construction permits for the anticipated repairs and renovations to the building. These construction permits dated between approximately 1988 and 1989 and were issued by the Township Construction Official at the time, defendant Clarence Hubbs. *fn7" Additional permits were obtained from Construction Official Hubbs at later times, for additional changes or repairs to the property or the building.

 The operation of Holiday Lakes by the Corporation as a recreational facility open to the public was terminated in July, 1990, and the property continued to be used and occupied by plaintiffs for various purposes, including worship services, as noted above. During the summer of 1990 some commercial activities in the nature of flea markets were also conducted on the property. In or about August of 1990, the Township Attorney, Mr. Nicholas Costa [who is counsel of record for defendants for the injunctive phase of the present case], was directed by the governing body, the Township Committee ("the Committee") to contact plaintiffs and invite them to the next Committee meeting to discuss those matters. The meeting, which was held on September 5, 1990 was attended by Rev. Fenton and William J. Begley, Esq. on behalf of plaintiffs. The official minutes of that meeting, indicate that there was discussion concerning the improvements to the building and its use for worship services, as well as the flea markets. *fn8" (Costa Certif. Ex. D: Official Minutes of meeting held September 5, 1990). At that meeting, Mr. Costa stated on the record the Township's position that "the imposed conditions [for the mercantile license] had been agreed upon in May for the recreational facility and that use as a church is a [prohibited] use and that they would have to get a use variance. The changes made to the building to make a meeting room should have been subject to site plan review due to the change of use. If there is no change of use it would be a site plan waiver." Id. Another Township Committee member (McKelvie) expressed concern "that the facility may not have been designed as a meeting facility and there could be safety problems. This is another reason to go through the process of having a specific use for a specific building approved." Id. Messrs. Fenton and Begley stated, among other things, that the church services were not the main use of the building and that the meeting room was not set up as a church, but that they were interested in maintaining the good relationship of the Corporation and the Township, and that they would apply to the Zoning Board for an interpretation as to whether a use variance was needed, and if they needed site plan approval they would do that. Id. There was also discussion as to whether they were seeking a tax exempt property, and they stated that at the present time they were not seeking tax exempt status. *fn9" Id.

 Mr. Costa followed up the Township Committee meeting of September 5, 1990 with a letter to Mr. Begley dated September 11, 1990. (Costa Certif. Ex. C). That letter reiterated the points discussed at the prior meeting, and invited Mr. Begley and his clients to the next regular Committee meeting on October 1, 1990 "in order to prevent further violations to occur and to attempt to contain the situation." No one appeared on behalf of plaintiffs at the October 1 meeting, and as the minutes reflect, the matter was discussed in open session, and various alternatives were explored by the Township Committee. (Hearing Ex. D-2). The record before this Court does not clearly indicate what occurred next, except that the Committee heard nothing further from plaintiffs or Mr. Begley following that meeting.

 The Township Committee had no further contact with plaintiffs until the summer of 1991. At that time, having heard nothing from plaintiffs or Mr. Teraschi concerning the matters raised the previous fall and winter, the Committee caused summonses to be issued in the Municipal Court against the Corporation and Rev. Fenton returnable September 4, 1991 for two types of alleged violations of the Delanco Code: first, under the Site Plan Approval Ordinance (§ 81-1 et seq.) for "failure to obtain a site plan"; and second, under the Zoning Ordinance (§ 102-93) for "failure to obtain permission to operate a church in a commercial zone" (Hearing Exs. P-8 to 11). *fn11" Representing plaintiffs in response to those summonses was E. Hunter Taylor, Esq., who entered into a dialogue with the Township Attorney which resulted on December 4, 1991 in an agreement whereby the Corporation pled guilty to failure to obtain a site plan, and the other asserted violations were dismissed. *fn12" Rev. Fenton testified in the present injunctive proceeding that he did not appear in the Municipal Court on that date and that he did not recall what Mr. Taylor advised him had transpired other than that the plea had been entered, or what if anything Mr. Taylor had told him the Corporation should do next. At any rate, the Corporation thereafter took no steps to apply for a site plan. Rev. Fenton testified that it was his view at the time that no site plan application was needed because of the existing waiver which had been obtained in May, 1988.

 During the period while the municipal summonses were pending and Mr. Taylor was representing plaintiffs, a construction permit was issued to the Corporation by Mr. Hubbs, the Construction Official, which stated that the description of the work was "change of use from "M" to "A-4". That permit, No. 91-131, was issued on October 22, 1991 (Hearing Ex. D-10). Mr. Schaefer, the subsequent Construction Official, testified regarding that type of permit, how it could be used as one step toward obtaining a certificate of occupancy, and why in Mr. Schaefer's subsequent review he concluded that the permit had been issued erroneously by Mr. Hubbs. See this part, infra.

 From the date of the plea on December 4, 1991 until October 1993, plaintiffs filed no applications with either the Planning or Zoning Board, and the Township initiated no further communications with plaintiffs on that subject. Also, no application for a certificate of occupancy for the building was filed by plaintiffs.

 Early in October or late September, 1993, the telephone company was repairing some lines on the property which had been damaged in a storm, when it discovered and advised plaintiffs that there was a problem with the electrical grounding system for the building. Plaintiffs, acting through Richard Roberts who was a part-time employee of both the Church and the Corporation, promptly began contacting various electrical contractors. Several of them came to the property from approximately October 6 through 11, but none could specify what the problem was or how to correct it. While this effort was still in progress, on the morning of Thursday, October 14, 1993, one of the electricians who had visited the property telephoned the Township offices and reported to Township Administrator Lameiris that there was a serious electrical problem in the building. *fn13" Ms. Lameiris immediately conveyed this information by telephone to Mr. Schaefer, who was working at his other part-time job as Construction Official of Cinnaminson that day. Mr. Schaefer immediately called the Corporation offices at the property, and that same afternoon he met with Mr. Roberts and a representative of the electric company (P.S.E.&G. Co.) at the property and performed tests of the electrical system serving the building.

 Mr. Schaefer's tests indicated to him that there was a serious electrical problem involving high voltage running into the ground from the building's transformer. He testified that this created a safety hazard within the building and for a large area beyond the building, which could cause very severe bodily harm. The cause of the problem was not discernable at that time, but according to Mr. Schaefer, its effects were evident in his test readings. Upon obtaining those test readings, Mr. Schaefer shut off the power to the building and issued a handwritten Notice of Violation (Hearing Ex. P-15) which referred to the electrical readings and declared the property to be an unsafe structure pursuant to N.J.A.C. 5:23-2.32. He gave this Notice to Mr. Roberts, informing Mr. Roberts in words to the effect that he was going to have to "shut you down". *fn14" In his testimony Mr. Schaefer did provide Code-related reasons why the building itself was not supposed to be used once it had no power, but those were apparently not discussed between Schaefer and Mr. Roberts. Mr. Schaefer then left the property.

 On Friday, October 15, 1993, Mr. Schaefer followed up his handwritten Notice of the previous day with a typed Notice of Unsafe Structure/Notice of Imminent Hazard, dated October 14, 1993, directing the Corporation to immediately vacate the structure (Hearing Ex. P-3). He testified that this was customary, to clean up the handwritten paperwork from the previous day. Also that day, Mr. Schaefer reviewed the entire file pertaining to the property and issued three other Notices of Violation and a letter notification, all dated October 15, 1993 (Hearing Exs. P-4 through P-7). The latter items are discussed below. Mr. Schaefer testified that he issued those documents pursuant to his duty to issue notices at the time violations came to his attention. Mr. Schaefer gave all of those notices to the Township staff that day to mail to the Corporation. Also on that day (Friday), he tried two or three times to deliver the Notice of Immanent Hazard to plaintiffs, but the gates to the property were locked. Mr. Schaefer did not attempt to reach Rev. Fenton by telephone; however, according to Rev. Fenton's testimony he may have been out of town at least in part, that Thursday and Friday.

 Officer Secalis testified that at approximately 4:30 P.M. on Friday, October 15, 1993, he was dispatched to meet with the Mayor who explained that a violation notice concerning a serious electrical problem had been issued the previous day by Mr. Schaefer and delivered to plaintiffs, and that four other notices had been issued and mailed that Friday, but that the Mayor was concerned that the building not be used for services during the weekend for safety reasons. In consultation with the Mayor and Township Attorney Costa, Officer Secalis was instructed to make sure that the typed Notice of Imminent Hazard (Hearing Ex. P-3) was personally delivered to plaintiffs so that they understood that the building was not to be used; but not to interfere with any activities within the building. Officer Secalis was also informed that before he was called into the matter, Police Chief Parsons had tried several times to reach Rev. Fenton by telephone but no one had answered.

 On Saturday, October 16, 1993, Officer Secalis tried several times during the day to contact plaintiffs without success, both by calling Rev. Fenton's telephone number and by going to the property, where he found the gates closed, which in his experience indicated that no one was in the building. *fn15" Finally, at approximately 5:10 P.M., Officer Secalis discovered the gates open, and he entered the property and found Mr. Roberts and another person at the building. He then informed Mr. Roberts that he was there to make sure that they were aware of the electrical hazard notice and that they were not permitted to use the building pending repairs. He delivered to Mr. Roberts a copy of the typewritten Notice of Unsafe Structure (Hearing Ex. P-3), as well as copies of the other notices issued on October 15, 1993 by Mr. Schaefer. At that point, Mr. Roberts contacted Rev. and Mrs. Fenton by telephone, and Officer Secalis repeated the same information to them and advised them that he would be at the property in the morning to speak with Rev. Fenton. The Fentons expressed their dismay at the short notice that they were receiving and their concern about the services scheduled the next morning.

 On Sunday, October 17, 1993, Officer Secalis did go to the property, arriving at approximately 9:00 A.M. He observed that no one was in the building and that chairs had been set up in the outdoor pavilion nearby. He spoke with Ms. Raymond, who was keeping watch from her car near the building. She advised that Rev. Fenton would arrive shortly, and assured him that no one would be in the building. Officer Secalis then left and did not return again that day. The testimony of Rev. and Mrs. Fenton, and Mrs. Raymond, stated that services were held outside in the cold weather that morning, and that it was a most unpleasant and traumatic experience for the congregation, many of whom were families with young children. Since that time, according to their testimony, attendance and collections have been diminished, and members have expressed concern about whether they are going to be permitted by the Township to continue to worship in the building. Nevertheless, the regular services in the building were restored by the following week, and have continued uninterrupted to the present.

 On or about Monday, October 18, 1993, electrical contractor John Grandowicz responded to Mr. Roberts' earlier calls and came to the property, where the electrical power remained shut off. He activated the power to make tests, and determined that in his opinion a bonding wire was missing from the transformer, which could produce a hazard of low-level shocks within the building if an appliance was faulty. He installed the bonding wire and turned on the power to the building. Worship services resumed in the building as of that Sunday, October 24, 1993. When Mr. Schaefer inspected the repairs on Friday, October 29, 1993, he continued to obtain high voltage readings from the transformer to the ground, so he did not lift the Notice of Unsafe Structure. Mr. Grandowicz then contacted the manufacturer of the transformer (which had been installed only approximately one year earlier), and they analyzed the test readings and advised that the transformer had become faulty and needed to be replaced. Mr. Grandowicz then immediately obtained and installed a new transformer. Mr. Schaefer returned the very next day, Saturday, October 30, 1993, and approved the repairs. Thus, the two electrical notices both dated October 14, 1993 were resolved as of October 30, 1993.

 There was some difference in opinion expressed in the testimony of Mr. Schaefer and Mr. Grandowicz regarding the nature and severity of the electrical problems. Mr. Grandowicz testified that in his experience, the missing bonding wire could create a condition called a "floating neutral" which could, in the presence of a faulty appliance in the building, produce low-voltage shocks to people in the building, including in the restrooms. He also confirmed that the presence of a faulty transformer was a significant safety hazard which, once detected, required immediate replacement. Thus, although the technical testimony of Messrs. Schaefer and Grandowicz did not entirely agree, there is substantial evidence that as of Thursday, October 14, 1993 when Mr. Schaefer turned off the power, a significant electrical safety hazard existed in the building. It is also undisputed that once the power was off, that hazard was eliminated. However, according to Mr. Schaefer's testimony, he concluded that with the power off, other subcode violations were created with respect to adequate light and fire protection, which required that the building not be used by people until the electrical problem could be corrected.

 The four notices which Mr. Schaefer issued on Friday, October 15, 1993 (in addition to the electrical hazard notices issued as of the previous day) were as follows:

 
a. Notice of Violation: bath houses by pool area were open at door or window, creating a fire hazard;
 
b. Notice of Violation: "Construct a sign without a permit";
 
c. Notice of Violation: "A building altered shall not be used or occupied until certificate of occupancy has been issued"; and
 
d. Letter advising that Permit #91-131 [the Change of Use permit issued by Mr. Hubbs on October 22, 1991] had been issued without the required Planning Board or Zoning Board approval and therefore was invalid and Was being revoked.

 (Hearing Exs. P-4 through P-7).

 Each of those Violation Notices carried fine provisions, and advised of a right to appeal within 20 days to the Construction Board of Appeals for the county.

 Mr. Schaefer testified that as to the first Notice, the matter was resolved when plaintiffs boarded up the open structures. As to the second Notice, Mr. Schaefer later determined that the sign [which was not in fact recently constructed but had appeared so to him] was not located on the Delanco portion of the property, and accordingly that Notice was withdrawn. *fn16" As to the third Notice, Mr. Schaefer testified that it is still accurate in that the building has not received a certificate of occupancy since it was remodeled, but this Notice was resolved by the filing on December 7, 1993 of plaintiffs' application for a certificate of occupancy, which application is presently pending. *fn17" Thus, according to Mr. Schaefer's testimony, all of the Notices issued on October 14 and 15, 1993 have been resolved, and there are currently no unresolved permits in the Construction Code files for the property, except the lack of a certificate of occupancy for the building, which is being addressed through the pending applications for site plan approval and certificate of occupancy.

 An exchange of correspondence took place between current counsel for plaintiffs, Alicia E. Fenton, Esq., and Mr. Costa as Township Attorney, immediately after the events leading up to Sunday, October 17, 1993. (Compl. Exs. K and L.) Those letters reviewed some of the history and set forth the positions of the writers on the various issues which were then outstanding. In Mr. Costa's letter he advised inter alia that in his view a site plan application did need to be filed, and also an application for a certificate of occupancy. Plaintiffs did file a site plan application on or about November 22, 1993, and, as ...


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