United States District Court, D. New Jersey
September 9, 2005.
NEW HORIZON INVESTMENT CORP. and AZAN INTERNATIONAL, INC., Plaintiffs,
MAYOR AND MUNICIPAL COUNCIL OF BELLEVILLE, PLANNING BOARD OF THE TOWNSHIP OF BELLEVILLE, TOWNSHIP OF BELLEVILLE, and ESSEX COUNTY IMPROVEMENT AUTHORITY, Defendants.
The opinion of the court was delivered by: KATHARINE HAYDEN, District Judge
Plaintiffs New Horizon Investment Corp. ("New Horizon") and
Azan International, Inc. ("Azan") brought this civil rights
action against the Mayor and Municipal Council of Belleville, the
Planning Board of the Township of Belleville, the Township of
Belleville, and the Essex County Improvement Authority
(collectively "defendants") alleging that defendants perpetrated
an unconstitutional taking of plaintiffs' real property. Before
the Court is defendants' motion to dismiss or stay the complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief may be granted. For the reasons
that follow, defendants' motion is denied.
I. BACKGROUND All the facts are taken from the complaint and they will be
deemed true for purposes of this Rule 12(b)(6) motion.
New Horizon and Azan are New Jersey corporations. (Compl. ¶¶
2-3.) The principals of both corporations are Lal and Kaiser
Pathan, who are American citizens of Indian descent. (Compl. ¶
4.) In 1999, New Horizon and Azan acquired two pieces of property
from Essex County for investment purposes. (Compl. ¶ 33.)
Specifically, New Horizon acquired 6.53 acres of land ("New
Horizon property") and Azan acquired 1.38 acres of land ("Azan
property"). (Compl. ¶¶ 2, 3.) These properties were formerly part
of the Essex County Geriatrics Center site owned by Essex County.
(Compl. ¶ 10.) Since plaintiffs acquired the properties they have
been taxed as though the properties were residential. (Compl. ¶
Defendants Mayor and Municipal Council of the Township of
Belleville (the "Town Council") are elected officials of the
Township of Belleville ("Belleville"), a municipal corporation of
the State of New Jersey, County of Essex. (Compl. ¶¶ 5, 7.) The
Town Council enacts zoning ordinances for Belleville pursuant to
New Jersey's Municipal Land Use Law of 1975 ("MLUL"). (Compl. ¶
5.) Defendant Planning Board of the Township of Belleville (the
"Planning Board") is a municipal agency as defined in the MLUL.
(Compl. ¶ 6.) The Essex County Improvement Authority ("ECIA") is
a governmental agency for the County of Essex. (Compl. ¶ 8.)
Before they bought the properties, plaintiffs received a copy
of the Belleville zoning map and ordinance book from Belleville
officials. These documents indicated that the properties were
part of the RA-2 zone permitting single-family residential use
with up to eight units per acre. (Compl. ¶ 34.) Plaintiffs met
with Belleville officials, including the acting township manager, the tax assessor and the secretary of planning and zoning boards,
to discuss development of the properties. (Compl. ¶ 37.)
Plaintiffs were encouraged to purchase the properties, were told
that the Township would welcome development of the properties,
and were assured that residential townhouses could be built on
the properties rather. They were not advised about "open space"
restrictions on the properties. (Compl. ¶ 37.)
The zoning map and zoning ordinance book provided to plaintiffs
prior to their purchase of the properties did not reference the
existence of a Redevelopment Plan. (Compl. ¶ 35.) But according
to the complaint, and unbeknownst to plaintiffs, in 1993
Belleville had classified a portion of the former Essex County
Geriatrics Center site as an area in need of development
("Redevelopment Plan") pursuant to the New Jersey Redevelopment
Law. (Compl. ¶ 13.) The Redevelopment Plan divided the
redevelopment area into three parcels. (Compl. ¶ 15.) Parcel 3,
which includes what is now the New Horizon and Azan properties,
called for open space, passive recreation and playgrounds on the
property. (Compl. ¶ 15.) The Redevelopment Plan stated that no
property would be acquired by Belleville because Essex County
owned the property and intended to sell parcel 1 and lease parcel
2 to the same redeveloper to be used and operated as a single
development. (Compl. ¶ 16.)
Plaintiffs point out that the Redevelopment Plan has never been
implemented. (Compl. ¶ 19.) Plaintiffs maintain that Belleville
has never properly amended its zoning ordinance establishing zone
use classifications or bulk standards for a redevelopment zone.
(Compl. ¶ 23.) And plaintiffs point out that the zoning map was
not revised to depict any redevelopment zone until June 2001,
eight years after the Redevelopment Plan was approved and after
plaintiffs brought the properties. (Compl. ¶ 24.) The 2001
revisions to the zoning map indicated a redevelopment zone for the first time but the zoning ordinance
still did not provide use classifications or bulk standards.
(Compl. ¶ 24.) The amended zoning map also failed to identify any
ordinances that authorized the amendment and the map failed to
reflect any reference to parcel 1, 2 or 3 within the
redevelopment zone. (Compl. ¶ 24.) Neither the 1993 Redevelopment
Plan nor the municipal ordinance were ever filed with the Essex
County Planning Board. (Compl. ¶ 25.)
Plaintiffs maintain that starting in 1995, defendants acted in
direct contravention of the 1993 Redevelopment Plan, acted as
though there were no "open space" restrictions on plaintiffs'
properties and recommended that the former Geriatric Center site
be developed for various commercial uses. (Compl. ¶¶ 26-31.)
Belleville recommended in 1995 and in 1998 that the area be used
for significant future development, including an office research
park. (Compl. ¶¶ 29-30.) Inconsistent with the Redevelopment
Plan, in 1998, the former Geriatric Center site was subdivided
into eight parcels in contemplation of the sale of the remaining
seven parcels by Essex County. (Compl. ¶ 32.) Plaintiffs assert
that Belleville's subdivision approval and sale without regard to
the Redevelopment Plan is absolutely inconsistent with the "open
space" restrictions that it now asserts.
In 1998, plaintiffs were the successful bidders on the New
Horizon and Azan properties and in 1999, they took title to the
properties. Around this time, Essex County sold five other
parcels of the former Geriatrics Center site to non-parties
Kessler Development Corporation and Wellington Partners, L.L.C.
and Rainmaker Capital, L.L.C ("Rainmaker Parties"), all of whom
seek to develop these parcels. (Compl. ¶ 32.)
Belleville has taxed the plaintiffs' properties as residential,
with assessed values consistent with residential zoning and it has accepted tax
payment based on the residential assessments. Plaintiffs assert
this is inconsistent with properties having permitted uses
limited to "open spaces". (Compl. ¶ 38.)
On August 14, 2001, the Town Council adopted Ordinance No.
2906, amending the zoning ordinance and zoning map to create a
commercial shopping center district (B-SC) consisting of portions
of the former Geriatric Center site. (Compl. ¶ 42.) The new
district did not include the New Horizon and Azan properties but
included almost every other parcel of the former Geriatric Center
site. (Compl. ¶ 42.) This new B-SC zone permitted large
single-occupant retail establishments, shopping centers, malls
and retail warehouse establishments, office buildings, research
facilities and restaurants, and contemplated a gated community
style development. (Compl. ¶ 43.)
In response to the new zoning ordinance, a complaint in lieu of
prerogative writs was filed in September 2001 by a group of
Belleville citizens, captioned Citizens Organizations for
Responsible Redevelopment, et al. v. Council of the Township of
Belleville, et al., No. ESX-L-9243-01 (the "CORR action").
(Compl. ¶ 44.) The CORR action named as defendants the Mayor and
Council, the Planning board and various parties with purported
interest in the former Essex County property, including the
Rainmaker Parties, New Horizon, Azan and Essex County. (Compl. ¶
45.) The CORR action sought to invalidate the B-SC ordinance and
compel Belleville to enforce the "open space" treatment
contemplated by the 1993 Redevelopment Plan. (Compl. ¶ 46.)
In 2003, plaintiffs learned that the CORR plaintiffs, the
Rainmaker Parties and the Belleville defendants had been
negotiating a settlement in which the Rainmaker Parties' property would be rezoned for high-density residential development, but
plaintiffs' properties would be relegated to "open space."
(Compl. ¶ 47.) Plaintiffs were excluded from the CORR action
negotiations, which were ultimately successful and incorporated
into a settlement agreement. (Compl. ¶ 48.)
Plaintiffs formally voiced their objections to the settlement
agreement but their objections were ignored. (Compl. ¶¶ 50, 51.)
The settling parties stated that nothing in the settlement
prevented plaintiffs from pursuing whatever rights they had in
the zoning of their property. (Compl. ¶ 52.) But counsel for the
Town Council and Mayor made clear that Belleville and all parties
intended to restrict the plaintiffs' properties as "open space."
(Compl. ¶ 52.) The state court signed an order entering the
Stipulation of Settlement but noted that it was not endorsing the
terms of the settlement agreement. (Compl. ¶ 53.)
As contemplated by the settlement agreement, the Town Council
adopted Ordinance Nos. 3025 and 3026, which created a Planned
Residential Development (PRD) zone with a residential density of
25 units per acre applying only to the Rainmaker Parties. (Compl.
¶ 55.) The Ordinances were passed on March 23, 2004 and published
on April 1, 2004. (Compl. ¶ 59.) On information and belief,
plaintiffs state in their complaint that the Belleville Zoning
Board of Adjustment has granted the owner of Lot 1.01, SOHO
Property, a variance allowing enhanced development of its
property for senior citizen housing. (Compl. ¶ 50.) Based on
this, plaintiffs argue that they are the only owners of property
formerly part of the Geriatrics Center site who have been denied
the right to develop their property. (Compl. ¶ 61.)
In response to the settlement agreement and new zoning
ordinance, plaintiffs filed a complaint in lieu of prerogative
writs in Superior Court, Essex County in 2004, challenging the open space restrictions and the zoning ordinances under state
law. (Compl. ¶ 62.) That action is currently pending and does not
allege any federal constitutional claims. (Compl. ¶ 62.)
On August 18, 2004, plaintiffs filed the witin action in
II. STANDARD OF REVIEW
A motion to dismiss is premised upon a "failure to state a
claim upon which relief can be granted." Fed.R.Civ.P.
12(b)(6). For purposes of such a motion, the Court must accept
all well-pleaded allegations of the complaint as true, give the
plaintiff the benefit of all reasonable inferences that could be
drawn therefrom, and grant the motion only if it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claims that would entitle him to relief. Worldcom, Inc. v.
Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003).
Defendants argue that the Court should dismiss or stay this
matter under the abstention doctrine articulated in Younger v.
Harris, 401 U.S. 37 (1971). Even if the Court does not abstain
under Younger, defendants urge the Court to dismiss the
complaint for failure to state a claim upon which relief may be
In Younger the Supreme Court ruled that a federal district
court has discretion to abstain from exercising jurisdiction over
a particular claim where resolving the claim in federal court
would offend principles of comity by interfering with an ongoing
state criminal proceeding. Id. Subsequently the Court extended
Younger abstention into the civil context. Ankenbrandt v.
Richards, 504 U.S. 689, 705 (1992). But it has warned that
"abstention rarely should be invoked." Id. In this Circuit, abstention is limited to "a few carefully
defined situations" where the following three requirements are
satisfied: (1) there are ongoing state proceedings that are
judicial in nature; (2) the state proceedings implicate important
state interests; and (3) the state proceedings afford an adequate
opportunity to raise the federal claims. Gwynedd Properties,
Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1199-1200 (3d
Cir. 1992) (citing Middlesex County Ethics Comm. v. Garden State
Bar Ass'n, 457 U.S. 423, 432 (1982); Schall v. Joyce,
885 F.2d 101, 106 (3d Cir. 1989)). All three prongs must be satisfied, and
in determining this, the Third Circuit has emphasized that "the
mere existence of a pending state proceeding between the parties
that parallels the facts of the federal action is not in itself
sufficient." Addiction Specialists, Inc. v. Township of
Hampton, 411 F.3d 399, 408 (3d Cir. 2005) (citing Gwynedd
Properties, 970 F.2d at 1201).
Plaintiffs agree the first prong of the Younger analysis has
been satisfied in that there are pending state proceedings that
are judicial in nature. They have opposed this motion on the
basis that the second prong is not satisfied, and consequently
the third prong need not be reached.
A very recent Third Circuit opinion provides guidance. In
Addiction Specialists, Inc. v. Township of Hampton,
411 F.3d 399, 408 (3d Cir. 2005), the plaintiff, an operator of a
methadone clinic, sought a zoning change from the defendant
township for leased property. The township denied the plaintiff's
application and the plaintiff appealed to the state court. While
the state action was pending, the plaintiff filed a federal
action alleging constitutional and federal statutory violations
and challenging the legality of Pennsylvania's land use policies.
The district court abstained under Younger and dismissed the
entire complaint. Id. at 404.
In discussing the second prong of the Younger analysis, i.e.,
whether the ongoing state case implicated important state interests, the court found that
"zoning and land use issues are of traditional significance to
states." But the court went on to hold that "the mere fact that
the factual background of a case arose out of a land use dispute
is not enough to say that the federal proceeding would interfere
with state proceedings that involve important state interests for
Younger abstention purposes." Id. at 409 (citations omitted).
Drawing on the 1992 decision in Gwynedd Properties,
970 F.2d at 1202-03, where the court had rejected abstention under Younger,
Addiction Specialists held that "a federal claim alleging
discriminatory actions by township officials in making land use
decisions, as opposed to a claim challenging the validity of the
state's land use policies and laws, did not implicate important
state interests for Younger abstention purposes." Addiction
Specialists, 411 F.3d at 409 (citing Gwynedd Properties,
970 F.2d at 1202-03) (emphasis in original).
The importance of the Addiction Specialists opinion to the case
before this Court is that it distinguishes between claims
relating to alleged federal constitutional and statutory right
violations and claims challenging the validity of the state law
and the township zoning ordinance. The latter, the Third Circuit
found, did implicate important state interests. Id. at 410-11.
Thus where the plaintiff sought to enjoin the enforcement of an
ordinance based on the township's alleged discriminatory
motivations in passing the ordinance, the Addiction Specialist
opinion found that abstention is proper, because "any challenge
of the Township's actions and motivations in passing the
ordinance are inextricably intertwined with the facial validity
challenge." Id. at 411 & n. 11. But where the complaint alleged
that the defendant township acted unconstitutionally in applying
land use policies, Addiction Specialists held that important
state interests were not implicated, because "[i]n order to
decide whether the Township has engaged in willful and malicious application of the state and
local land use policies, the District Court need not touch on the
zoning policies themselves." Id. at 411.
In their motion, defendants argue that in order to afford
plaintiffs the relief they request, "the Court would need to
invalidate the Township's redevelopment plan and ordinances,
which would, in turn, interfere with the state court's ability to
provide any future relief or remedy in the lawsuit pending in
state court." (Def. Supp. Br. at 3.) The Court disagrees. It does
not appear that the federal complaint involves a facial validity
challenge to Belleville Ordinances No. 3025 and 2026, nor does
the federal complaint challenge Belleville's actions and motions
in passing the land use ordinances. Plaintiffs are not asking
this Court to invalidate the Redevelopment Plan or other zoning
laws. Those issues are raised in plaintiffs' state case, where
they challenge the open space restrictions and the zoning
ordinances under state law. As indicated above, the state court
action is currently pending and does not allege any federal
constitutional claims. (Compl. ¶ 62.)
In this Court, Count 1 of the complaint asserts that
defendants' actions constitute an unconstitutional taking of
plaintiffs' properties. And Counts 2 and 3 assert that
defendants' actions and application of the land use policies
violated plaintiffs' Fourteenth Amendment rights to Substantive
Due Process and Equal Protection. Applying the precedent of this
Circuit discussed above, the Court is persuaded that it may not
abstain because the issues in this case do not implicate
important state interests for purposes of Younger abstention.
Defendants argue that even if the Court chooses not to abstain
under Younger, it must dismiss the complaint for failure to
state a claim upon which relief can be granted.
Taking Count 1 of plaintiffs' complaint alleges that the land use
restrictions imposed on plaintiffs' property by defendants have
effected a taking of plaintiffs' property, violating the Fifth
and Fourteenth Amendments. Plaintiffs assert that defendants'
actions were improperly motivated, deliberately taken in defiance
of proper land use planning considerations, and not undertaken
for the public good. (Pl. Oppos. Br. at 16; Compl. ¶¶ 88, 89, 90,
104, 105, 106.) Applying the standard of review for motions to
dismiss, the Court must accept all allegations and their
reasonable inferences as true. Lubrizol Corp. v. Exxon Corp.,
929 F.2d 960, 962 (3d Cir. 1991).
Under its police power, a township may, within limitations,
regulate the uses of property within its jurisdiction to promote
the public good. The Third Circuit has directed that "[t]he
initial step in any taking analysis . . . is whether the
challenged governmental action advances a legitimate public
interest," and "[i]n this step, the governmental action is
entitled to a presumption that it does advance the public
interest." Pace Resources, Inc. v. Shrewsbury Township,
808 F.2d 1023, 1030 (3d Cir. 1987) (citing Penn Central
Transportation Co. v. New York City, 438 U.S. 104, 125 (1978)).
Even if the Court assumes that defendants have advanced a
legitimate government interest, "[a] legitimate exercise of
police power and in particular, a general land use regulation,
may nevertheless offend the Fifth and Fourteenth Amendments if
its impact `denies [a landowner] the `justice and fairness'
guaranteed by' those Amendments." Pace Resources,
808 F.2d at 1030 (citations omitted). The Third Circuit has noted that "no
precise formula for identifying a taking exists," but there are
several factors that have proven relevant, including (1) the type
of governmental interference; (2) the diminution in property
value; and (3) the extent of interference with `reasonable, distinct, investment-backed
expectations.'" Id. (citing Keystone Bituminous Coal Ass'n v.
Duncan, 771 F.2d 707, 713 (3d Cir. 1985)). In this context,
"courts will invoke the taking clause of the Fifth Amendment only
when zoning regulation interferes drastically with a property's
possible uses." Pace Resources, 808 F.2d at 1031.
Here, albeit there was no physical invasion of plaintiffs'
property, plaintiffs claim that their "land has been rezoned into
complete inutility without just compensation, the primary
characteristic of an unconstitutional taking." (Pl. Oppos. Br. at
16.) The complaint pleads that plaintiffs had "distinct,
investment-based expectations in their property" and "defendants'
actions, in deliberately changing the designation of plaintiffs'
property to worthless open space, `deprived Plaintiffs of any all
economic or beneficial use of the properties.'" (Pl. Oppos. Br.
at 15; Compl. ¶¶ 69, 73.) Assuming the facts in the complaint are
true, plaintiffs have pled an interference with reasonable,
distinct, investment-backed expectations. Moreover, they have
sufficiently pled a diminution in value sufficient to support a
finding that the application of the zoning laws constitutes a
taking. Accordingly, plaintiffs are entitled to proceed on the
merits of their claim for an unlawful taking.
Count 2 alleges a violation of plaintiffs' equal protection
rights under the Fifth and Fourteenth Amendments.
The complaint points out that the principals of New Horizon and
Azan are American citizens of Indian descent, (Compl. ¶ 4), but
does not allege membership in a suspect class or interference
with a fundamental right. Rather, the complaint alleges that
"[d]efendants' actions in `reaffirming" an over ten (10) year old
Redevelopment Plan which was never adopted in the first instance and attempting to relegate Plaintiffs'
properties to `open space' are a pretextual response to the
opinions of certain self-interested property owners and a
capitulation to the demands of community activist plaintiffs
(CORR)." (Compl. ¶ 86.) Plaintiffs assert that "[d]efendants'
actions expressly sought to: (i) improperly prevent any
development on the New Horizon and Azan properties; (ii)
improperly favor the Rainmaker Properties with high density
zoning found nowhere else in the Township of Belleville; and
(iii) capitulate to the demands of the CORR plaintiffs at the
expense of Plaintiffs' property rights in order to resolve
expensive and politically unpopular litigation." (Compl. ¶ 87.)
Plaintiffs contend that defendants' actions "were undertaken in a
blatant desire to benefit a favored group the Rainmaker Parties
and CORR plaintiffs at the expense of New Horizon and Azan,"
and "were undertaken without regard to the fundamental principles
of zoning, the substantive and procedural requirements of the
MLUL, or Plaintiffs' constitutionally protected property
interests." (Compl. ¶¶ 88-89.) Plaintiffs maintain that
defendants' actions shock the conscience and bear no rational
relationship to any legitimate state interest. (Compl. ¶ 89.)
Essentially, plaintiffs' equal protection claim is based on an
impermissible application of a zoning law. As the Third Circuit
has stated, "[l]ike other economic and social legislation, land
use ordinances that do not classify by race, alienage, or
national origin, will survive an attack based on the Equal
Protection Clause if the law is `reasonable, not arbitrary' and
bears `a rational relationship to a (permissible) state
objective.'" Congregation Kol Ami v. Abington Twp.,
309 F.3d 120, 133 (3d Cir. 2002) (quoting Village of Belle Terre v.
Boraas, 416 U.S. 1, 8 (1974)). "[L]and use regulations must
possess a legitimate interest in promoting the public health,
safety, morals, and the general welfare of its citizens in order
to pass scrutiny." Congregation Kol Ami, 309 F.3d at 133 (citing Village of Euclid v. Ambler Realty Co.,
272 U.S. 365, 395 (1926)). Noting that a classification may be
upheld so long as "there is any reasonably conceivable state of
facts that could provide a rational basis for the
classification," defendants argue that there was a rational basis
for their actions the maintenance of open space. (Def. Reply
Br. at 7, citing Highway Materials, Inc. v. Whitermarsh
Township, No. 02-3212, 2004 U.S. Dist. LEXIS 19905 (E.D.P.A.
Oct. 4, 2004)).
"Land use ordinances will be deemed `irrational' when a
plaintiff demonstrates either that the state interest is
illegitimate (an ends-focus) or that the chosen classification is
not rationally related to the interest (a means-focus)."
Congregation Kol Ami, 309 F.3d at 133. Here, plaintiffs have
asserted facts establishing that they are similarly situated to
the Rainmaker Parties and the owners of the SOHO Property.
(Compl. ¶¶ 60, 61, 87, 88.) They contend that there was no
rational basis for the differential treatment that the defendants
afforded the Rainmaker Parties and owners of the SOHO Property.
(Compl. ¶¶ 86-91.) They specifically maintain that "the
defendants' motives were irrational: to perpetrate a deception on
the plaintiffs, and to acquiesce to certain favored interests,
all the while collecting taxes based on a classification the
defendants continue to disavow." (Pl. Oppos. Br. at 17.) The
complaint, then, is asserting that defendants have pursued an
ends-focused, illegitimate state interest. See Congregation
Kol Ami, 309 F.3d at 133.
Based on its scrutiny of the complaint, the Court cannot say as
a matter of law that plaintiffs can prove no set of facts in
support of their equal protection claim. Defendants' motion to
dismiss the claim is denied.
Substantive Due Process Count 3 of plaintiffs' complaint alleges that defendants have
violated plaintiffs' rights to substantive due process under the
The Third Circuit has held that "whether a zoning official's
actions or inactions violate due process is determined by
utilizing a `shocks the conscience' test." Eichenlaub v. Township
of Indiana, 385 F.3d 274, 285 (3d Cir. 2004); see also United
Artists Theatre Circuit, Inc. v. Township of Warrington,
316 F.3d 392, 400 (3d Cir. 2003). This test is "designed to avoid
converting federal courts into super zoning tribunals," and
"[w]hat shocks the conscience is only the most egregious official
conduct." Eichenlaub, 385 F.3d at 285 (internal quotations and
citations omitted). Eichenlaub and United Artists Theatre
Circuit address substantive due process claims arising out of
zoning disputes, but the opinions are both reviewing summary
judgment determinations, and the Circuit accordingly had the
benefit of full discovery. Here the Court must rely on the
pleadings and accept all well-pleaded allegations of the
complaint as true. The Court can only grant defendants' motion if
it appears beyond doubt that plaintiffs can prove no set of facts
in support of their substantive due process claim that would
entitle them to relief.
Plaintiffs urge that they possess protected interests in their
properties and defendants have not just acted with an improper
motive, but have acted so egregiously as to shock the conscience.
(Compl. ¶¶ 109-111.) They maintain that defendants "deliberately
acted to cheat the plaintiffs out of all economically beneficial
use of their properties, after affirmatively promising the
plaintiffs they could actively develop these parcels and
concealing any reference to the very `open space' restrictions
that they now espouse," and that defendants "now shamelessly tax
plaintiffs while declaring their property public open space."
(Pl. Oppos. Br. at 18.) On those allegations and with the
recognition that at this point, the Court's role is limited to
determining merely whether the complaint alleges that a violation of
substantive due process occurred and alleges facts in support,
the Court concludes that plaintiffs have pleaded substantive due
process sufficiently to withstand a motion to dismiss.
For the foregoing reasons, defendants' motion to dismiss
plaintiffs' complaint is denied.
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