APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, D.C. Civil 03-cv-01445, District Judge: The Honorable Dennis M. Cavanaugh.
The opinion of the court was delivered by: Barry, Circuit Judge
Before: BARRY, AMBRO and ALDISERT, Circuit Judges.
For twelve years, County Concrete Corp., JCS&G, and John C. Crimi (collectively "appellants" or "County Concrete"), and the Township of Roxbury, its Planning Board, Town Council, and various individuals (collectively "appellees"), have been locked in a dispute over a 1994 application for subdivision and site plan approval for purposes of extending appellants' sand and gravel removal operations, and the Township's adoption, in 2001, of a Zoning Ordinance (the "Ordinance") which effectively prevented just that. In April, 2003, appellants filed a seven-count complaint charging appellees with (1) violations of substantive due process ("SDP") under 42 U.S.C. § 1983; (2) violations of the equal protection clause ("EPC") under § 1983; (3) a regulatory taking/inverse condemnation in violation of the Fifth and Fourteenth Amendments; (4) tortious interference with contractual rights and prospective economic advantage; (5) defamation; (6) breach of the implied covenant of good faith and fair dealing; and (7) civil conspiracy to deprive appellants of their aforementioned rights. The District Court dismissed most of the counts for failure to state a claim under F.R.Civ.P. 12(b)(6) and granted summary judgment on the remaining counts. We have jurisdiction over the appeal and cross-appeal under 28 U.S.C. § 1291, and exercise plenary review over the dismissals under Rule 12(b)(6) and the grants of summary judgment. See Gallas v. Supreme Court of Pa., 211 F.3d 760, 768 (3d Cir. 2000) (Rule 12(b)(6)); Pa. Prot. & Advocacy, Inc. v. Pa. Dep't of Pub. Welfare, 402 F.3d 374, 379 (3d Cir. 2005) (Rule 56). We will reverse in part and affirm in part and remand for further proceedings.
Appellants attack the Ordinance and appellees' conduct preceding the passing of that Ordinance with four federal claims: (1) a facial Fifth Amendment Just Compensation Takings claim, (2) a facial SDP claim against the Ordinance, (3) a SDP claim against appellees' pre-Ordinance conduct, and (4) a facial EPC claim against the Ordinance. The District Court only evaluated the ripeness of the Just Compensation Takings claim. Neither the parties nor the District Court questioned whether the SDP or EPC claims were ripe. We asked the parties to address this issue at oral argument because "considerations of ripeness are sufficiently important that we are required to raise the issue sua sponte even though the parties do not." Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535 (3d Cir. 1988).
"The ripeness doctrine serves 'to determine whether a party has brought an action prematurely and counsels abstention until such time as a dispute is sufficiently concrete to satisfy the constitutional and prudential requirements of the doctrine.'" Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir. 2004) (quoting Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir. 2003)). In Williamson County Regional Planning Com. v. Hamilton Bank, 473 U.S. 172, 186, 194-95 (1985), the Supreme Court held that an as-applied Fifth Amendment Just Compensation Takings claim against a municipality's enforcement of a zoning ordinance is not ripe until (1) "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue" (the "finality rule"), and (2) the plaintiff has unsuccessfully exhausted the state's procedures for seeking "just compensation," so long as the procedures provided by the state were adequate.
1. Williamson Prong One: The Finality Rule
We have said that Williamson's finality rule bars not only as-applied Just Compensation Takings claims, but also as-applied substantive due process and equal protection "claims by property owners or tenants who have challenged the denial of a permit by an initial decision-maker but failed to take advantage of available, subsequent procedures." Lauderbaugh v. Hopewell Twp., 319 F.3d 568, 574 (3d Cir. 2003); see also Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1292, 1295 (3d Cir. 1993) (barring plaintiff's as-applied SDP and EPC claims against municipal land use decision as unripe). Only once a "decision maker has arrived at a definitive position on the issue" has a property owner been inflicted with "an actual, concrete injury." Williamson, 473 U.S. at 192. This rule does not apply, however, to facial attacks on a zoning ordinance, i.e., a claim that the mere enactment of a regulation either constitutes a taking without just compensation, or a substantive violation of due process or equal protection. See, e.g., Taylor Inv., 983 F.3d at 1294 n.15 (final decision not necessary for facial SDP and EPC claims); Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 406 (9th Cir. 1996) (final decision not necessary for facial Takings claims). A "final decision" is not necessary in that context because "when a landowner makes a facial challenge, he or she argues that any application of the regulation is unconstitutional; for an as-applied challenge, the landowner is only attacking the decision that applied the regulation to his or her property, not the regulation in general." Eide v. Sarasota County, 908 F.2d 716, 724 n.14 (11th Cir. 1990). We will apply the finality rule to each of appellants' constitutional claims in turn.
a. Fifth Amendment Just Compensation Takings Claim
The Fifth Amendment, made applicable to the states by the Fourteenth Amendment, proscribes the taking of private property for public use without just compensation. U.S. Const. amend. V, XIV; Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d Cir. 2001). Count Three of the complaint alleges that "the Ordinance and other actions of the defendants" regulated appellants' property "into a state of economic inutility" without just compensation in violation of the Fifth and Fourteenth Amendments. The District Court dismissed this claim on ripeness grounds because appellants failed to comply with both prongs of the Williamson ripeness test.
Appellants correctly argue that the finality rule only applies to as-applied Takings claims, and that they only challenge the Ordinance on its face. In Williamson, the plaintiff landowner alleged that a local planning commission's rejection of its development plat under local regulations was a Fifth Amendment Taking without just compensation because the decision denied the plaintiff all economically viable uses of its property. 473 U.S. at 177-82, 185. In contrast here, appellants do not challenge any particular decision of the Township or Planning Board applying the Ordinance to their property; instead, they allege that the mere enactment of the Ordinance has denied them all economically viable use of their property, i.e., a facial attack on the Ordinance. Thus, their facial Fifth Amendment Just Compensation Takings claim need not comply with the finality rule. See Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 736 & 736 n.10 (1997) ("[F]acial challenges to regulation are generally ripe the moment the challenged regulation or ordinance is passed, but face an uphill battle, since it is difficult to demonstrate that mere enactment of a piece of legislation deprived [the owner] of economically viable use of [his] property." (internal citations and quotations omitted)).
The complaint also alleges that appellees' "other actions," in addition to the passage of the Ordinance, violated the Takings Clause. The District Court only addressed the Takings allegations with regard to a facial attack on the Ordinance, and this has not been challenged by appellants. Any argument they might make at this point has been waived.
b. Substantive Due Process Claims
The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV. "To prevail on a substantive due process claim, a plaintiff must demonstrate that an arbitrary and capricious act deprived them of a protected property interest." Taylor Inv., 983 F.2d at 1292. Although the District Court only recognized one SDP claim, we read the complaint as alleging two: the first addressed to the face of the Ordinance, and the second addressed to appellees' allegedly obstructive conduct during the time preceding the Ordinance's enactment.
i. SDP Claim as to the Ordinance
In Taylor Investment, we held that Williamson's finality rule applies to due process and equal protection challenges to the application of a land-use ordinance. 983 F.2d at 1292. In that case, the plaintiff landowner brought as-applied SDP and EPC challenges against a township and its officials after a township zoning officer revoked a tenant's use permit for allegedly supplying false or misleading information in his permit application. The plaintiff's claims were not ripe under the finality rule, we held, because plaintiff failed to appeal the zoning officer's decision to the zoning hearing board, which had the exclusive authority to render a final adjudication under the terms of the Pennsylvania Municipal Planning Code. Only a decision by the board could represent a final revocation of the plaintiff's permit and until then the "impact of the zoning ordinances on plaintiff's property" would not be clear. Id. at 1290.
Appellees claim that appellants were similarly required to seek a variance under N.J. Stat. Ann. § 40:55D-70d for their non-conforming use before their SDP and EPC claims would be ripe under Taylor Investment. Just as with their Just Compensation Takings claim, however, appellants attack the Ordinance facially, i.e., they allege that, in all of its possible applications the Ordinance "lack[s] any legitimate reason and [is] arbitrary, capricious, [and] not rationally related to any legitimate government interest." (App. 72.) We stated in Taylor Investment that Williamson's finality rule only applies to as-applied challenges, such as the one asserted in that case, and not to facial due process claims. 983 F.2d at 1294 n.15. Other courts have also held that seeking a variance (i.e., complying with Williamson's finality test) is not a prerequisite to a plaintiff's claim that the enactment of a zoning ordinance, in and of itself, violates the Due Process Clause. See, e.g., Pearson v. Grand Blanc, 961 F.2d 1211, 1215 (6th Cir. 1992); Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1541 (11th Cir. 1991); So. Pacific Transp. Co. v. Los Angeles, 922 F.2d 498, 507 (9th Cir. 1990); Eide v. Sarasota Cty., 908 F.2d 716, 724 n.14 (11th Cir. 1990); Smithfield Concerned Citizens v. Town of Smithfield, 907 F.2d 239, 242 (1st Cir. 1990).
Appellants seize upon Taylor Investment's asapplied/facial-challenge distinction, and argue that their attack on the Ordinance is a facial one only and that we should hold that a facial substantive due process challenge to a zoning ordinance -- asserted on the theory that the law as a whole is arbitrary, capricious and unreasonable -- is ripe even if the plaintiff did not seek a variance from the zoning ordinance. We so hold.
ii. SDP Claim as to Appellees' Conduct
Appellants argue that the District Court gave an unduly narrow construction to their SDP and EPC claims by interpreting them only as attacks on the Ordinance, because they have also "alleged that the defendants abused the zoning process in the Township of Roxbury to deprive the plaintiffs of lawful use of their property, out of impermissible personal and political animus." (Appellants' Letter Br. 3.) Appellants claim that this "other conduct" does not have to comply with Williamson's finality rule under our decision in Blanche Road Corp. v. Bensalem Twp., 57 F.3d 253 (3d Cir. 1995).
In Blanche Road, we held that a plaintiff landowner need not comply with the finality rule where, instead of "appealing from an adverse decision on a permit application," the plaintiff claimed that the defendant Township officers "deliberately and improperly interfered with the process by which the Township issued permits, in order to block or to delay the issuance of plaintiff's permits, and that defendants did so for reasons unrelated to the merits to the application for the permits." 57 F.3d at 267-68. It was asserted by the plaintiff that the Township "engaged in a campaign of harassment designed to force [it] to abandon its development of [an] industrial park." Id. at 258. We explained that this type of SDP claim is "substantively different" from "that presented in the ripeness cases" and that "[s]uch actions, if proven, are sufficient to establish a [SDP] violation, actionable ...