Franklin, would be subject to state regulation. Affidavit of Richard Deaney P 32. In fact, Richard Deaney, the city administrator, explains at one point that the City sought information from Franklin "as to how the medical needs of residents would be met." Id. P 27.
Also relevant to this determination are the statements of municipal officials. See Easter Seals Society of New Jersey, Inc. v. Township of North Bergen, 798 F. Supp. 228, 234 (D.N.J. 1992). Ocean City's Mayor, Henry "Bud" Knight, allegedly urged the Council to oppose the "resolution of need." Plaintiff's Reply Brief at 24.
Mayor Knight asserts that he has "no specific recollection," but was "generally opposed" to the Flanders Hotel Project because he felt "it was not in the best interest of the economic development of the City of Ocean City as a resort community." Affidavit of Henry F. Knight P 4.
Defendants contend that there is no admissible evidence in the record to support the conclusion that members of the Council discriminated on the basis of "perceived handicap" in failing to approve a resolution of need for the Flanders Hotel project. Defendants argue that the FHAA does not require a municipality to grant concessions to a builder whose proposed project serves the non-handicapped elderly. Defendant's Brief at 24-25 (citing Brandt v. Village of Chebanse, 82 F.3d 172 (7th Cir. 1996). It is true that nothing in the FHAA forbids a municipality from denying a zoning variance or any other accommodation to a builder based upon strictly neutral factors. Brandt, 82 F.3d at 173 (concern for possible flooding justifies refusal to approve builders proposal). Based upon the summary judgment record before this court, however, it is not possible to determine, as a matter of law, that Ocean City acted only out of a legally permissible concern for "economic development," untainted by any impermissible characterization, or invidious stereotyping of the potential residents of the Flanders Hotel project as "handicapped." Rather, this inquiry, like all inquiries into intent, is difficult to resolve on summary judgment. See id. ("The magistrate judge . . . could have found . . . that the Trustees' reasons were pretextual.").
For purposes of these motions, therefore, it cannot be said that Franklin has failed to make out a prima facie case of discrimination in violation of the Act. Accordingly, summary judgment in favor of defendants on plaintiffs' claims based upon the FHAA must be denied.
Franklin, however, cannot prevail on its motion for partial summary judgment on the strength of its prima facie case alone. In order to prevail on summary judgment, Franklin must show that there are no genuine issues of material fact. Franklin has failed to demonstrate that there are no genuine issues of material fact regarding the intent to discriminate, vel non, on the part of the Council. This is more than an issue of material fact, it is the single most important issue of material fact in this case. Absent a showing of an intent to discriminate on the basis of a "perceived handicap," plaintiff's prima facie case collapses. It is usually inappropriate to resolve matters of intent, which, by their nature, often involve credibility determinations, on a paper record. Accordingly, partial summary judgment in favor of plaintiff on defendants' liability under the FHAA must also be denied.
Mayor Knight and the individual defendants have moved for summary judgment on the basis of the immunity from civil liability enjoyed by certain public officials, or, alternatively, based upon First Amendment protection for speech related to matters of public interest.
A. Mayor Henry Knight
First, Mayor Knight asserts that he is not a member of the City Council and that he has no vote on matters before the City Council. Affidavit of Henry F. Knight at 1-3. Nor is the Mayor's signature required to implement any resolution of the Council. Id. The summary judgment record contains no evidence that any statement made by Mayor Knight was made other than in his capacity as Mayor; in which capacity, it is undisputed that he had no vote on the resolution, and therefore could not control the outcome of the Council meeting. See Proviso Ass'n of Retarded Citizens v. Village of Westchester, 914 F. Supp. 1555, 1565 (N.D. Ill. 1996). The plaintiffs cannot demonstrate that Mayor Knight is liable in his official capacity, for the obvious reason that he played no role in the challenged action of the Council. Furthermore, because plaintiffs have presented no evidence tending to show that Henry F. Knight, as an individual, acted to deny plaintiffs an opportunity to construct and live in the proposed Flanders Hotel project, summary judgment will be granted in favor of defendant, Henry Knight.
B. The Individual Council Members
The other individual defendants, members of the Council and the City Administrator, contend that they are entitled to legislative immunity and/or qualified immunity for the actions which form the basis of this suit.
(1) Legislative Immunity
Defendants contend that they are entitled to absolute immunity for legislative acts. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979); Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783 (1951). A defendant member of a federal, state or local governing body is cloaked in this immunity when the challenged action is both "substantively" and "procedurally" legislative. Acierno v. Cloutier, 40 F.3d 597, 610 (3d Cir. 1994). An action is "substantively" legislative, as opposed to administrative, executive or managerial, when it involves "a policy-making or line-drawing decision." Id. A governing body's decision is "procedurally" legislative, when it is "undertaken through established legislative procedures." Id.
In Acierno, the Third Circuit admitted that this two-prong test is not always easy to apply. Acierno, 40 F.3d at 611. Rejecting any "bright line" which would delineate administrative and legislative functions, the Acierno court held that an ordinance of a County Council that voided a previously approved record development plan was administrative in nature, whereas an ordinance passed by the same council that rezoned a certain parcel of property was "substantively" legislative. Id. at 612. The district court in Acierno had ruled that the latter ordinance was "administrative" in that it affected only a small number or a single individual. The Acierno court reversed, pointing out that this consideration was but a single factor in the analysis of whether an act is "legislative," and was never meant to be dispositive of the question. Id. The court distinguished cases in which the challenged decision involved a denial of a variance or building permit, and was declared administrative in nature, from a rezoning decision such as was before the court. Id. at 613.
The Appellate Division of the Superior Court of New Jersey has declared that it is "a recognized tenet of municipal law that the term 'ordinance' encompasses matters legislative in character while the term 'resolution' refers to matters administrative or procedural in nature." Albigese v. Jersey City, 129 N.J. Super. 567, 569, 324 A.2d 577 (App. Div. 1974). It is equally clear that N.J. Stat. Ann. § 55:14K-6 specifies a "resolution" of the municipality,
and, unlike some other New Jersey statutes, does not allow the municipality to choose to proceed either by an ordinance or by a resolution. However, I do not find the Appellate Division's general explanation of usage, or the statute's restrictive language, dispositive of the issue of legislative immunity. Rather, a district court must conduct "a specific inquiry into the type of resolution adopted to determine whether it was a legislative act." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 688 F. Supp. 1522, 1527 (S.D. Fla. 1988). If a resolution implicates broad policy or establishes guidelines for an entire group of persons, its consideration by a local governing body is "substantively" legislative. Rogin v. Bensalem Tp., 616 F.2d 680 (3d Cir. 1980), cert. denied sub nom. Mark-Garner Associates, Inc. v. Bensalem Township, 450 U.S. 1029, 68 L. Ed. 2d 223, 101 S. Ct. 1737 (1981). If, however, the governing body merely applies broad policy, previously established by legislative acts, to a specific instance, that body's act is administrative in nature.
In Three Rivers Cablevision, Inc. v. City of Pittsburgh, 502 F. Supp. 1118 (W.D. Pa. 1980), the district court addressed the immunity of legislative defendants in the context of a challenge by a disappointed bidder for a city cable television contract. The court held that the city council resolution authorizing the award of the contract was administrative in nature in that it turned on the application of existing legislation to a specific situation. Id. at 1135-36.
The application of the legislative immunity doctrine to the facts alleged by Franklin poses an exceedingly close and difficult question. On the one hand, whether there is a need for senior housing in Ocean City has the appearance of a public policy question. On the other hand, the statutory basis for a "resolution of need," N.J. Stat. Ann § 55:14K-6, provides no criteria for the municipality to use, as it arguably should if the question were one involving policy, but focuses instead on the applicant for NJHMFA-backed financing. This statutory focus on the individual project makes the municipality's decision to grant or deny a resolution of need appear to be an administrative act.
The absence of legal precedent, or statutory mandate relating to resolutions of need, makes it difficult to state with assurance that the adoption of a resolution of need merely requires a municipality to apply its existing policies to a given set of facts. See Three Rivers Cablevision, 502 F. Supp. at 1136. Indeed, in this instance the City Council of Ocean City appears to have set about collecting legislative facts as if it were being asked to set policy for the City. Nevertheless, I conclude that legislative immunity should not apply to the Council's failure to adopt a resolution of need. I am convinced that the decision to adopt a resolution of need, the sole purpose of which is to allow a single developer to seek state-guaranteed financing for a single project, does not implicate the allocation of city resources or affect broad questions of public policy. Indeed, even within the narrow confines of senior housing, the failure to approve the resolution of need sought by Franklin does not imply that Ocean City will not approve a resolution of need for the next developer who seeks one. Thus, the issue presented to a municipality in deciding whether to approve a resolution of need is analogous to the selection of one bidder over another, as in Three Rivers Cablevision, rather than to the adoption of a zoning ordinance of general application. Therefore, the members of the City Council of the City of Ocean City do not enjoy absolute legislative immunity from civil liability for their actions surrounding the failure to approve the resolution of need for the Flanders Hotel project.
Accordingly, I will proceed to address whether the council members benefit from the more limited, "qualified immunity" from civil liability granted to officials who act in good faith.
(2) Qualified Immunity
Notwithstanding my conclusion that absolute legislative immunity is unavailable to the Council members in this case, I cannot ignore the important policy goals served by the immunity doctrine. As the Third Circuit has noted:
When considering whether members of local legislative bodies are entitled to immunity from suit, we have recognized that there is a compelling need for such a protective doctrine because of the severe chilling effect numerous suits for damages would have on prospective officials. We also believe that adherence to the immunity doctrine is necessary in order to allow elected and appointed officials to make intelligent land use decisions without the constant fear of litigation infecting the decision-making process.
Acierno, 40 F.3d at 615.
Officials engaged in discretionary governmental functions are entitled to qualified immunity "insofar as their conduct does 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). This test is objective, and, on a motion for summary judgment, a district court must determine whether a similarly situated reasonable public official could have believed that his or her actions were lawful in light of clearly established precedent. Id.
In Anderson v. Creighton, 483 U.S. 635, 641, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987), the Supreme Court noted that the appropriate inquiry is particularized and fact-specific; the contours of the right allegedly violated "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. Thus, an official is immune from liability if the applicable law was unclear, or if a reasonable official could have believed that his or her conduct was lawful in light of precedent and the information he or she possessed. See, e.g., Lee v. Mihalich, 847 F.2d 66, 69 (3d Cir. 1988) (directing entry of summary judgment where governing law was unclear at the time defendants acted).
The Third Circuit recently summarized the difficulties a district court faces in deciding a question of qualified immunity; a decision which requires "a fact-intensive inquiry" and which, at the same time, must "be resolved as early in the litigation as possible." Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996) (citation omitted). Potentially adding to those difficulties, the Third Circuit, for the first time, declared that "courts are not barred from examining evidence of a defendant's state of mind in considering whether a plaintiff has adduced sufficient evidence to withstand summary judgment on the issue of qualified immunity, where such state of mind is an essential element of the . . . violation itself." Id. at 124. The alleged discrimination on the part of the council members involves their improper "perception" of handicap, a question concerning their state of mind which is central to this case. If it is shown that the council members did not act out of this improper "perception" of handicap, then there has been no violation of the FHAA.
Because Grant was decided after briefs were filed on these motions, and because the Third Circuit announced new principles affecting qualified immunity, the court ordered supplemental briefing of Grant's possible effect on the outcome of the City of Ocean City's motion. These briefs have now been submitted and reviewed by the court. Intriguingly, both parties take the position that Grant has no effect on the outcome of Ocean City's motion. Plaintiff reiterates its position that the council members violated "clearly established law," and has submitted virtually nothing to address the state of mind of the individual defendants. The City of Ocean City, not surprisingly, maintains that the council members cannot have violated the FHAA because the proposed residents of the Flanders Hotel project were not handicapped.
Grant clearly places upon the plaintiff seeking to defeat summary judgment on the qualified immunity issue the burden of producing evidence of illicit motive in cases where motive is an essential element of the alleged violation. Id. at 126. Franklin has not carried this burden. If this were not enough to support summary judgment for Ocean City, Grant further elaborates upon Anderson's requirement that, "to defeat qualified immunity it is not sufficient that the right at issue be clearly established as a general matter. Rather, the question is whether a reasonable public official would know that his or her specific conduct violated clearly established rights." Grant, 98 F.3d at 121. It cannot be said that a reasonable public official in the position of the council members in this case, even if acting out of an improper motive, would have known that his or her specific conduct violated "clearly established" law.
This case involves the proper scope of a municipality's duties under the FHAA when confronted with a request for a resolution of need pursuant to N.J. Stat. Ann. § 55:14K-6(c). Franklin contends that the resolution of need is not project-specific or site-specific. In other words, Franklin asserts that the Council's inquiry into whether the Flanders Hotel was a suitable location for age-restricted housing was unnecessary at best, and illegal at worst. In support of this assertion, Franklin points to statements made by its attorney in presenting the request for the resolution of need to the Council. DeBellis Certif., exhibit G, at 8. Franklin also submits a letter from the NJHMFA which states that such a resolution "need not be project specific." Id., exhibit A-1. The latter exhibit, however, is dated March 23, 1996, well after this suit was filed, and therefore cannot have played any part in the Council's deliberations. In any event, the resolution which the Council failed to approve was indeed, specific to the Flanders Hotel project. Id., exhibit A-3. Furthermore, this resolution was drafted by the City of Ocean City. Id. P 27.
Defendants apparently relied upon the advice of the city solicitor in deciding whether the resolution of need would be general or site specific. There are no reported decisions defining the scope of such a resolution. The governing statute calls for the adoption of a resolution "that there is a need for such housing project." N.J. Stat. Ann. § 55:14K-6(c) (emphasis added). As noted, the NJHMFA's letter expressing the opinion that the resolution need not be project specific was apparently solicited by the plaintiff only after this suit was filed. Moreover, there are no reported decisions applying the FHAA to a municipality's decision whether to approve a resolution of need. Although there are published cases under the FHAA involving local officials' decision-making with regard to proposed housing projects for the handicapped, there are none involving the improper "perception" of handicap.
Based upon all the available evidence, therefore, I conclude that, even if the actions of the City Council of the City of Ocean City in this case are ultimately found to be illegal, at the time of the Council's consideration of the issue, a reasonable council member could certainly have believed that his or her actions were lawful in light of existing legal precedent and the information he or she possessed. As the Third Circuit has stated, there is an important
distinction between the intention to act that forms the element of a . . . violation (race discrimination, for example) and the intention to violate the law. Not all . . . violations are . . . "clearly established" . . . . In instances of violations which are not clearly established, a showing of improper motive will not defeat a qualified immunity claim.
Grant, 98 F.3d at 125 n.6. This is one such case. Even if it could be shown that the individual council members acted out of an improper intent to discriminate on the basis of perceived handicap, and it must be stressed that no evidence to support this assertion as to the individual council members can be found in the summary judgment record, the completely untested state of the law regarding the effect of the FHAA on a municipality's consideration of a request for a resolution of need, makes it impossible to conclude that a reasonable public official in these circumstances would have known that he or she was violating "clearly established" law. Accordingly, I conclude that the individual defendants are insulated from liability in this case by the doctrine of qualified immunity. Summary judgment will be entered dismissing the complaint as against the individual defendants.
For the reasons set forth above, plaintiff's motion for partial summary judgment pursuant to Fed. R. Civ. P. 56(a) will be denied. Defendants' cross-motion for partial summary judgment will be granted in part, and denied in part. The Court will enter an appropriate order.
STEPHEN M. ORLOFSKY
United States District Judge
Dated: November 18, 1996
This matter having come before the Court on the motion of Plaintiff, Franklin Building Corporation, for partial summary judgment pursuant to Fed. R. Civ. P. 56(a), and on the cross-motion of Defendants, City of Ocean City, Henry Knight, Richard Deaney, Christopher Terrels, Andy Jernee, John Flood, Harry Vanderslide and the City Council of the City of Ocean City for partial summary judgment pursuant to Fed. R. Civ. P. 56(b), Donald R. Daines, Esq., appearing on behalf of the Plaintiff, Franklin Building Corporation, and Stephen Eisdorfer, Esq., of Hill Wallack, appearing on behalf of Defendants, and A. Michael Barker, Esq., of Horn, Goldberg, Gorny, Daniels, Plackter & Weiss, appearing on behalf of Defendants, and Frank Basile, Esq., of Basile & Testa, appearing on behalf of Defendant, Henry Knight; and,
The Court having considered the briefs in support of and in opposition to these motions, the supplemental briefs, the certifications, affidavits, and other exhibits on file, for the reasons set forth in this Court's OPINION, filed concurrently with this ORDER,
It is on this 18th day November, 1996, ORDERED that:
Plaintiff's Motion for partial summary judgment as to liability on the issue of defendants' alleged violation of the Fair Housing Amendments Act is DENIED; and,
IT IS FURTHER ORDERED that Defendants' cross-motion for partial summary judgment on the issue of the alleged violation of the Fair Housing Amendments Act is DENIED; and,
IT IS FURTHER ORDERED that Defendants' cross-motion to dismiss all claims against defendant, Henry Knight, both as Mayor and in his individual capacity, is GRANTED; and,
IT IS FURTHER ORDERED that Defendants' cross-motion to dismiss all claims against defendants, Richard Deaney, Christopher Terrels, Andy Jernee, John Flood, and Harry Vanderslide, in their individual capacities, is GRANTED.
STEPHEN M. ORLOFSKY
United States District Judge