On appeal from the Superior Court, Law Division, Atlantic County.
Approved for Publication December 27, 1995.
Before Judges Long, Muir, Jr., and Brochin. The opinion of the court was delivered by Muir, Jr., J.A.D.
The opinion of the court was delivered by: Muir
The opinion of the court was delivered by MUIR, JR., J.A.D.
This is an appeal from a $227,780 judgment entered against the defendants. The proceedings giving rise to the appeal are anomalous in that the trial court awarded damages without resolving a primary liability issue and then apparently based the damage award on a statute both parties agree is inapplicable.
In July 1989, plaintiffs filed a complaint in lieu of prerogative writs seeking both an order to compel issuance of a permit to construct a sanitary sewer system for their mobile home park and damages caused by the delays created by the refusal of the governing body *fn1 to issue the permit. Entitlement to proceed with construction of the sanitary sewer system centered on plaintiffs' need to secure site plan approval before proceeding with the upgrading of the mobile home park, which was a nonconforming use. In January 1990, the trial court, in a summary judgment setting, without resolving the site plan approval issue, directed the governing body to consider the permit application "based solely upon . . . engineering concerns and standards [specified in sewer ordinance]." In the course of its determination, the trial court characterized the governing body's refusal to issue the permit as "political demagoguery."
The need for site plan approval by the local Planning Board is not the only zoning issue relevant to plaintiffs' claim of entitlement to proceed with the upgrading of its nonconforming mobile home park. Plaintiffs rely on a Township Board of Adjustment resolution that determined they had a valid prior nonconforming use, see N.J.S.A. 40:55D-68, to claim entitlement to proceed with the improvements they proposed for the mobile home park. The trial court ruled the Board of Adjustment's determination immune from attack.
Notwithstanding the fact it had not resolved the need for site plan approval, the trial court proceeded in June 1993 with a damages only non-jury trial. The hearing resulted in the $227,780 judgment comprised of $177,780 in compensatory damages and $50,000 in attorney's fees. Not until it reached the issue of counsel fees, however, did the court identify any actionable basis for its damage award. At that point, the court stated:
To the extent that this would be regarded as a Section 1983 of 42 USC cause of action, there would be an entitlement to counsel fees under 42 USC 1988. The provision I rely on would be found in New Jersey Statutes 59:9-5. We're dealing with what amounts to a tort claim or tort action and as I alluded to before in 59:9-5, there is judicial discretion to award attorney's fees, . . . "in any action brought against a public entity" . . . .
So, 59:9-5 is the major legal reason on which I base my Conclusions. There is no real common law on which to rely, other than, perhaps, a malicious prosecution type of analogy.
Thus, it would appear the trial court considered plaintiffs' cause of action as one sounding In tort and covered by the Tort Claims Act.
On appeal, defendants raise several challenges. They assert trial court error in finding the Board of Adjustment's ruling impregnable from attack; they argue the need for site plan approval precluded a finding of liability; and they contend, since no notice of claim was ever filed pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, see N.J.S.A. 59:8-8, that Act could not serve as a basis for any liability requiring a vacation of the $227,780 judgment.
Plaintiffs' appellate contentions disavow any entitlement to rely on the Tort Claims Act; understandably so, given the failure to file any notice of claim under the Act. See N.J.S.A. 59:8-3. Instead, they contend the trial court's "political demagoguery" statement, when viewed against the essentially uncontested facts, supports a 42 U.S.C.A. § 1983 claim for denial of substantive due process based on egregious governmental conduct. That conduct they find in the governing body's refusal to issue a permit to construct the sanitary sewer system for their mobile home park. They cradle their entitlement to the permit in contentions that the applicable ordinances required no site plan approval and that the Board of Adjustment ruling afforded them protection to proceed with their upgrading of the mobile home park.
The appeal, therefore, requires us to determine whether plaintiffs presented sufficient proof of a cause of action for substantive due process denial. It also requires us to rule on an issue left unresolved by the trial court--the need for site plan approval. And, in a more conventional context, it requires us to rule on the impact the Township Board of Adjustment ruling had on plaintiffs' denial of substantive due process claim.
We conclude plaintiffs failed to present prima facie proof of a denial of substantive due process. Plaintiffs' claim required proof they had complied with the sanitary sewer system ordinance and all other applicable laws. They fell short of that proof. They were not entitled to a final sewer permit until they applied for preliminary site plan approval, which they never did. They could not claim compensatory damages suffered as a result of the delay in the issuance of the final sewer permit because there could be no construction without final site plan approval. Moreover, we conclude the Board of Adjustment ruling did not, as plaintiffs seem to suggest, clothe them with the entitlement to proceed with sewer or other improvements to the mobile home park. Accordingly, we reverse and remand for entry of judgment in favor of the defendants. By so ruling, we need not address plaintiffs' cross-claim on the insufficiency of the damages awarded.
The case had its genesis in March 1959 when plaintiffs' predecessors in title to the Shady Pines Camp Ground and Trailer Park, Grover and Doris Lambert, obtained subdivision approval for forty mobile home sites and one hundred campsites. The one hundred campsites are not relevant here. Both the Township Planning Board and governing body approved the subdivision.
The record evidence relevant to those approvals is sparse. Only a terse excerpt from governing body meeting minutes and a copy of the approved map are provided. The map appears as follows:
Thereafter, on July 31, 1961, according to the record, the governing body enacted a zoning ordinance which prohibited "trailer coach parks" within the Township. The ordinance defined trailer coaches and trailer coach parks (the latter as a "plot of ground upon which two or more trailer coaches occupied for dwelling . . . are located"). Then under Article VI, entitled "GENERAL REGULATIONS," the ordinance provided:
18. The following uses and activities are specifically prohibited in any and all zones in the Township of Galloway:
There is no dispute this ordinance made the mobile home park a nonconforming use.
Plaintiffs purchased Shady Pines in October 1985. They did so intending to give it a "general face lifting."
They encountered a temporary setback. The Township Director of Public Works questioned the legality of the forty lots serving as a mobile home park based ...