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South Salem Street Associates, LLC v. Planning Board of the Township of Montville

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 21, 2008

SOUTH SALEM STREET ASSOCIATES, LLC, DELAWARE HUDSON MANAGEMENT, INC., RONALD SOUSSA AND DELAWARE HUDSON REALTY, INC., PLAINTIFFS-APPELLANTS,
v.
THE PLANNING BOARD OF THE TOWNSHIP OF MONTVILLE AND THE TOWNSHIP OF MONTVILLE, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-3369-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 11, 2008

Before Judges Winkelstein, Fuentes and Gilroy.

Plaintiffs own land in Montville. In an attempt to construct an office building on the property and lease it as a child care center, they applied to the Township Planning Board (the Board) for preliminary and final site plan approval. The Board initially approved plaintiffs' application, but later denied plaintiffs' amended site plan application. The Law Division overturned the latter decision.

Plaintiffs subsequently filed suit, claiming that the Board and the Township deprived them of their property rights pursuant to 42 U.S.C. § 1983, and maliciously prosecuted them in a separate municipal court action, charging plaintiffs with a violation of a Township ordinance. Plaintiffs appeal from the trial court's grant of summary judgment dismissing their claims, as well as from the court's refusal to permit them to amend their complaint to add an additional claim and add the former mayor as a defendant. We reverse the dismissal of plaintiffs' section 1983 cause of action, affirm the dismissal of plaintiffs' malicious prosecution claim, and remand to permit plaintiffs to amend their complaint and for further proceedings.

I.

Due to the fact-sensitive nature of plaintiffs' claims, we recite the record in some detail.

A. Plaintiff's Site Plan Approval

South Salem and Delaware Hudson are the owners of a 6.6-acre tract of land at 330 Changebridge Road in Montville (the property). Plaintiff Ronald Soussa owns Delaware Hudson.*fn1 In February 2000, plaintiffs applied to the Board for preliminary and final site plan approval to construct a 48,000-square-foot office building on the property. Plaintiffs claim that their application complied with all municipal ordinances in the R-27D zone in which the property is located.

At the time of the application, John Rosellini was the Township Mayor. As such, he served on the Planning Board. Deborah Nielson, a member of the Township Committee and a member of the Board until 2004, testified that Rosellini opposed plaintiffs' application because it was a two-story building, and he was concerned with the view and the impact on the neighbors; he thought the project was too large.

On October 26, 2000, Soussa met with the Township Design Review Committee, which is comprised of non-Board members who make recommendations to the Board. Rosellini attended that meeting, even though he was not a member of the Committee. Soussa alleges that at the meeting, Rosellini threatened the project. Soussa testified at his deposition: "[Rosellini] said the building is too large for this site and that he would never allow it to be built in his town, that he had more money and more lawyers and he intended to tie me up in litigation if I tried to build that building." Soussa also claimed that Rosellini threatened to have the property rezoned to eliminate office buildings as a permitted conditional use in the R-27D zone. In fact, on November 13, 2000, the Township Committee introduced Ordinance No. 2000-61; if enacted, the ordinance would have eliminated office buildings as a permitted conditional use in the R-27D zone.

Neilson testified that plaintiffs' application conformed to the zoning and site plan ordinances. Committeeman Robert Purnell also acknowledged that the application conformed to all zoning laws; and, in a letter to fellow committee members and residents of the Township, revealed that: "the developer was told that if he didn't make his building smaller, then the [T]ownship would delay him in the courts, as long as possible, therefore causing financial hardships."

Plaintiffs and the Township later reached an agreement that implied that in return for plaintiffs' selling the Township a portion of its property, the Township would not introduce an ordinance that would preclude the construction of plaintiffs' proposed office building. The agreement was memorialized in a letter of intent dated December 12, 2000. Soussa testified that during discussions relating to the agreement, he told Rosellini that he intended to use the building for a child care facility, and that Rosellini represented to him that child care was a permitted use in the zone.

The letter of intent called for the Township to purchase two acres of wetlands from plaintiffs, to be used as a conservation easement, and for plaintiffs to reduce the size of the proposed office building from 48,000 square feet to 24,000 square feet. The Township Committee agreed to hold in abeyance "the adoption of an ordinance eliminating the office use as a conditional use" in the zone.

Plaintiff and the Township executed a land sale contract on September 25, 2001. Pursuant to its terms, plaintiffs sold 2.2 acres of its property to the Township for $525,000. The sale required plaintiffs to substantially reduce the size of the proposed building, from a two-story 48,000-square-foot building to a one-story 27,000-square-foot building. Soussa claimed he agreed to the sale under duress and coercion because of Rosellini's alleged threats to rezone the property to remove the conditional use for office buildings.

As to the purchase price, Soussa had asked for the appraised value, $720,000. Although the Township's appraisal was $648,000, the mayor and other Township officials offered him $400,000. The parties ultimately agreed to $525,000. The Township also agreed to install a sewer line and water line to plaintiffs' building by June 1, 2002, and to obtain "any and all required permits or approvals" for the sewer line.

On January 10, 2002, the Board approved plaintiffs' preliminary and final site plan application, authorizing the construction of two single-story, 13,075-square-foot office buildings.*fn2 The sale of the property from plaintiffs to the Township closed on January 22, 2002.

B. Site Clearing and Municipal Prosecution

Plaintiffs were required to secure a construction permit before conducting site work. The Township had a policy, however, that permitted certain site preparation work to proceed in advance of the construction permit if the developer posted a restoration bond that could be used to restore the area in the event the developer did not obtain a construction permit. Although plaintiffs did not have a construction permit, they wanted to begin clearing the site. Soussa met with Assistant Township Engineer Mark Mantyla and provided him with a copy of the landscaping map included with plaintiffs' subdivision proposal. Based on that map, Mantyla calculated a restoration bond of $10,688, which plaintiffs would have to post to begin clearing the property before obtaining a construction permit. Plaintiffs posted the bond on February 7, 2002, and the Township granted their request to begin clearing within the area designated on the map.

Soon after plaintiffs began site clearing in June 2004, Mantyla informed Soussa that plaintiffs had cleared an area larger than permitted under the terms of the restoration bond. The Township then prohibited plaintiffs from performing future site work without a construction permit.

Due to the excess site clearing, the Township instituted a municipal court action against Delaware Hudson. On August 27, 2004, the Montville Municipal Court issued a summons against "Delaware Hudson Realty Group, Inc. c/o Ron Soussa," charging Delaware Hudson with "deviat[ing] from an approved lot grading plan expanding beyond limits," in violation of a Township ordinance. Mantyla signed the summons, but he did not prepare the complaint, which had been prepared by the Township land use department. When Mantyla signed it, he was not sure if either Soussa or the corporate plaintiffs had violated a Township ordinance. He was aware, however, that the clearing violated the restoration bond as to the limits of clearing on the site before plaintiffs were issued a building permit.

The municipal court case was tried on October 8, 2004. Evidence in the record suggests that the municipal court judge had been Rosellini's attorney in connection with the development of 323 Changebridge Road (the 323 property), a property across the street from plaintiffs' that Rosellini owned and operated as a child care center. The record contains a letter outlining an engineering proposal for building renovations to accommodate The Learning Experience Nursery and Preschool at the 323 property; the letter was addressed to the judge, apparently in his capacity as Rosellini's attorney. Also, during this time, Soussa was actively opposing Rosellini in the 2004 Republican primary campaign.

On November 22, 2004, the court found Soussa and Delaware Hudson guilty of violating a municipal ordinance. The court imposed a fine of $9778, plus court costs, and an additional fine of $250 per day until the clearance was in conformity with the site plan.

On January 4, 2005, the municipal court entered a judgment of conviction against "Ronald Soussa" personally. Delaware Hudson was not named on the judgment, despite having been named on the summons. Sherry Pressman, the municipal court administrator, certified that she erroneously listed Soussa as an individual defendant on the judgment of conviction, which should have listed "Delaware Hudson Realty Group, Inc., c/o Ronald Soussa, as the actual defendant."

Soussa appealed, and the Law Division vacated the judgment of conviction and remanded the case for a new trial in the municipal court. The court's decision was based on certain procedural deficiencies, specifically, that the judgment of conviction was entered against Soussa, who was not a named defendant; and that the record on appeal was not clear as to the relationship between Soussa, South Salem, and Delaware Hudson.

On remand to the municipal court, Delaware Hudson moved to dismiss the complaint, arguing that the ordinance upon which the court had previously relied did not apply to a restoration bond sketch. On September 26, 2005, the municipal court judge, who was the same judge who heard the case the first time, granted plaintiffs' motion to dismiss the complaint.

The transcript of the judge's dismissal has not been produced. The judge indicated, by letter dated May 15, 2006, that the transcription service he used to record his decision, which he had placed on the record in a telephone conference call, had already deleted the file. Consequently, on May 22, 2006, the judge recorded a "reconstruction of the court's decision." The judge found that "the municipality in issuing this summons had probable cause, because [it] believed, based upon [its] granting of the permit, that [Delaware Hudson] went far beyond that which they should have, under the grant of that permit, and therefore violated the essence of that permit." Nevertheless, the judge dismissed the complaint against plaintiffs because the ordinance they were charged with violating was "too vague" to warrant penalties. Plaintiffs' counsel objected to the probable cause finding in the reconstructed record, alleging that probable cause was not part of the court's September 26, 2005 decision.

C. Child Care Center Leases

On December 17, 2001, one month prior to plaintiffs' site plan approval, Group W Holdings, L.L.C. sent a letter of intent, signed by Richard Weissman, to plaintiffs, agreeing to lease 10,000 square feet of plaintiffs' proposed building to operate a child care facility.

In July 2002, Rosellini entered into a contract to purchase the 323 property, which his corporation, of which he was the sole stockholder, had been leasing to operate his metalworking company. The following month he began receiving proposals from Kiddie Academy International to lease space at the 323 property to operate a child care center.

Rosellini, through a corporation known as Olympic Properties, L.L.C., took title to the 323 property in September 2002.*fn3 He never entered into a lease with Kiddie Academy; subsequently, however, Small Towne, LLC, of which Rosellini was "the managing member," agreed to lease the 323 property to The Learning Experience for use as a child care center. On July 24, 2003, Richard Weissman, who had previously sent the letter of intent to plaintiffs to lease their property as a child care center, signed the lease on behalf of The Learning Experience.

D. Plaintiffs' Amended Site Plan Application

Shortly after obtaining site plan approval in 2002, plaintiffs, while undertaking soil borings, discovered rock close to the surface, which would require blasting to remove. Removal was necessary because the approved building plans called for the buildings and parking lot to be 2.5 to 7 feet below the surface. To avoid blasting, plaintiffs applied for amended site plan approval to increase the buildings' height by 2.5 feet. Although the proposed increase was within the permitted height limitations in the zone, with no variances or exceptions required, the Board denied plaintiffs' application on August 14, 2003. According to Nielson, Rosellini was not in favor of the amended site plan.

Plaintiffs challenged the decision in the Law Division, where on June 4, 2004, the trial court reversed the Board's decision, finding that "[t]he Board simply did not have a basis to do what they did." Plaintiffs submitted a proposed form of order to the court in June, which the court executed on November 17, 2004. Plaintiffs claim that the delay in the execution of the order was caused by the Board's refusal to approve the form of order or to deal with plaintiffs in good faith.

E. The Sewer Line Permit Fee

Meanwhile, the Township had obtained the necessary permits for installation of the sewer line. The permits were valid for two years, and when they were about to lapse, the Township applied to extend them, but refused to pay the application fee, requiring plaintiffs to do so. Believing that payment of the application fee was the Township's obligation under the contract, plaintiffs filed a Special Civil Part complaint against the Township in September 2004, seeking $654.19 it had paid for sewer permit fees. The Township filed responsive pleadings alleging, among other things, that the proposed increase in the buildings' height was a breach of the parties' contract, and sought to enjoin construction of the building at the increased height. The parties later agreed to dismiss those latter claims.

The sewer line was completed sometime in April or May 2005. Soussa testified that the delay in the Township's installation of the sewer line was a reason for the delay in plaintiffs' construction of the office buildings. Defendants, however, suggest that other factors delayed construction, including plaintiffs' site plan modification.

F. The Section 1983 Complaint

On December 14, 2004, plaintiffs filed a three-count complaint in the Law Division against the Board and the Township. The complaint alleged a violation of 42 U.S.C.A. § 1983, sought a declaratory judgment that the increased building height on the property was not a breach of the contract between plaintiffs and the Township, and sought specific performance of the terms of the contract.

The trial court consolidated the Special Civil Part action, relating to the reimbursement for the sewer line connection, with the Law Division action. Plaintiffs subsequently filed an amended complaint, adding a count for malicious prosecution, and adding Ronald Soussa as a plaintiff. The amended complaint also recast the specific performance count as a breach of contract claim.

On May 24, 2006, the court granted defendants summary judgment on the section 1983 count. The court ruled that plaintiffs failed to file that claim within the two-year statute of limitations period. The court considered significant dates that could have started the running of the statute of limitations, and concluded that all of those dates were more than two years before plaintiffs filed their complaint. The court declined to apply the continuing violations doctrine to toll the statute of limitations.

On May 25, 2006, the court ruled on three remaining motions, including plaintiffs' motion to stay the proceedings, their motion to compel the deposition of Rosellini, and their motion to amend the complaint. The court denied the request for a stay; ordered Rosellini's deposition; and denied the application to amend the complaint to add two additional counts, for fraud and tortious interference with prospective business relations, as well as to add Rosellini as a defendant.

The court subsequently denied plaintiffs' motion for reconsideration of the order dismissing the section 1983 claim and denying the motion to file an amended complaint. The court reasoned that plaintiffs' section 1983 claim for deprivation of substantive due process rights was properly dismissed because plaintiffs' amended site plan application was approved by the court, and the Board's earlier denial of the amended site plan did not rise to the level of "'conscience shocking' government action." The court denied plaintiffs' request to amend the complaint because it would unduly protract the litigation, as the litigation began in 2004, an arbitration was scheduled for September 2006, and trial was scheduled for that same month.

On November 30, 2006, the court granted defendants' summary judgment on plaintiffs' malicious prosecution claim. The court found probable cause for the municipal court prosecution, that "there was confusion as to whether the ordinance applied or not," and that "the land use department and Mr. Mantyla reasonably and in good faith determined that the site was being cleared beyond the bounds of the restoration bond and violated the ordinance."

The court denied defendants' summary judgment motion with regard to counts two and three of plaintiffs' complaint, finding that there were genuine issues of material fact on the contract claim as to why the sewer installation was delayed. The court memorialized its decision in an order dated January 4, 2007.

On May 7, 2007, the parties entered into a consent order to dismiss counts two and three of plaintiffs' complaint with prejudice. The consent order provided that the dismissal would be with prejudice, subject to reinstatement in the event plaintiffs successfully appealed the trial court orders dated May 24, 2006 and January 4, 2007, dismissing counts one and four of the complaint.*fn4

II.

Against this factual and procedural background, we begin with plaintiffs' argument that the court improperly dismissed their 42 U.S.C. § 1983 claim. Plaintiffs assert that the actions of the Board and the Township deprived them of a property interest. They argue that summary judgment was not warranted because material issues of fact exist regarding the mayor's "manipulation of government offices to thwart construction on South Salem's property so that he could lease his neighboring property to a child care tenant without competition from South Salem." Defendants submit that the trial court properly determined that the acts as alleged by plaintiffs, even if true, do not "shock the conscience" so as to support a section 1983 claim.

We review the grant of summary judgment by the trial court de novo; we apply the same legal standard, and accord no deference to the court's legal conclusions. Manalapan Realty L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995). Summary judgment is only warranted when there exists no genuine issue of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2. A trial court should grant summary judgment only when the evidence is "so one-sided that one party must prevail as a matter of law." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)). Applying these criteria, we conclude that plaintiffs' section 1983 claim survives summary judgment.

Plaintiffs seek to establish a claim for civil rights violations under section 1983. The statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

[42 U.S.C.A. § 1983.]

In section 1983 actions, a court must first identify the state actor, or "person acting under color of law," causing the alleged deprivation. Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 363 (1996). Then, a court must "identify a 'right, privilege or immunity' secured to the claimant by the Constitution or other federal laws of the United States." Ibid. In this case, the state actors are the Board and the Township, who plaintiffs allege deprived them of their property; a deprivation of a substantive due process right guaranteed in the Fourteenth Amendment.

The Fourteenth Amendment provides that "no State shall 'deprive any person of life, liberty, or property, without due process of law.'" Am. Marine Rail NJ, LLC v. City of Bayonne, 289 F. Supp. 2d 569, 581 (D.N.J. 2003) (quoting U.S. Const. amend XIV). To prevail on a substantive due process claim arising from a municipal land use decision, a plaintiff must first prove that he or she has a property interest protected by due process. Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000), overruled on other grounds, United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir. 2003); DeBlasio v. Zoning Bd. of Adjustment, Twp. of W. Amwell, 53 F.3d 592, 600 (3d Cir.), cert. denied, 516 U.S. 937, 116 S.Ct. 352, 133 L.Ed. 2d 247 (1995); Am. Marine Rail, supra, 289 F. Supp. 2d at 581; Cherry Hill Towers, L.L.C. v. Twp. of Cherry Hill, 407 F. Supp. 2d 648, 654 (D.N.J. 2006). Second, a plaintiff must establish that "the government's deprivation of that property interest 'shocks the conscience.'" Cherry Hill Towers, supra, 407 F. Supp. 2d at 654; Rivkin, supra, 143 N.J. at 366; Plemmons v. Blue Chip Ins. Servs., Inc., 387 N.J. Super. 551, 568 (App. Div. 2006).

"[C]ases involving 'zoning decisions, building permits, or other governmental permission required for some intended use of land owned by the plaintiff' implicate the fundamental property interest in the ownership of land." Cherry Hill Towers, supra, 407 F. Supp. 2d at 654 (quoting DeBlasio, supra, 53 F.3d at 600). "[O]wnership is a property interest worthy of substantive due process protection," and "where the governmental decision in question impinges upon a landowner's use and enjoyment of property, a land-owning plaintiff states a substantive due process claim where he or she alleges that the decision limiting the intended land use was arbitrarily or irrationally reached." DeBlasio, supra, 53 F.3d at 600-01.

Here, given this legal framework, plaintiffs held a protected property interest. And a jury could find that defendants intended to deprive, and in fact did deprive, plaintiffs of that interest. We find no support for the trial court's conclusion that simply because plaintiffs ultimately received a favorable ruling by the Law Division as to their amended site plan application, that they did not have a property interest protected by substantive due process. Although the site plan approval was conditionally approved, that factor alone is not dispositive. A jury could find that defendants substantially delayed plaintiffs' project, and forced plaintiffs' to reduce the size of their project in return for site plan approval. A plaintiff need not establish "a particular value of its property interest to demonstrate a protected interest in the property's use and enjoyment." See Am. Marine Rail, supra, 289 F. Supp. 2d at 583. Whether the proposed project would have generated profits is relevant to determination of damages. Ibid. Put simply, plaintiffs' ownership of the property, as well as their entitlement to lawful development of the property, are interests to which substantive due process protections apply.

The next question, then, is whether defendant's actions could be construed to "shock the conscience" so as to survive summary judgment. We conclude that genuine issues of material fact are in dispute upon which this determination is grounded.

"Substantive due process is reserved for the most egregious governmental abuses against liberty or property rights, abuses that 'shock the conscience or otherwise offend . . . judicial notions of fairness . . . [and that are] offensive to human dignity.'" Rivkin, supra, 143 N.J. at 366. This standard of conduct is more severe than "conduct that is 'arbitrary or irrational' under state law." Id. at 371 (quoting Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989)). "[I]mproper motives, particularly personal animus toward a plaintiff, do not shock the conscience for constitutional purposes. . . .

[C]onscience shocking conduct demands more than an improper motive or a government decision that is unrelated to the merits." Am. Marine Rail, supra, 289 F. Supp. 2d at 584.

Government action rejecting building projects does not often rise to the level of a denial of substantive due process. Rivkin, supra, 143 N.J. at 366; Plemmons, supra, 387 N.J. Super. at 569. Nevertheless, although courts are circumspect in permitting section 1983 claims by dissatisfied land owners to reach the jury, whether State action shocks the conscience depends on the factual context. United Artists Theater Circuit, supra, 316 F.3d at 399-400.

Here, the allegation is that the mayor deliberately manipulated actions by the Board and the Township, slowing development of, and reducing the size of, the development, for personal financial gain. Plaintiffs allege that the mayor threatened to have the property rezoned to eliminate office buildings as a permitted conditional use, and participated in having an ordinance introduced that would have made good that threat.

Furthermore, after plaintiffs had been negotiating to lease their building for use as a child care center, had obtained site plan approval, and Soussa had advised Rosellini of his intent to operate the building as a child care center, the mayor signed a contract to purchase a property he had been renting across the street from plaintiffs' property and began negotiating to lease that property for use as a child care center. Plaintiffs further allege that the mayor executed a fifteen-year lease with a company in which Richard Weissman was involved, the same individual who, on behalf of another company, first sent a letter of intent to plaintiffs to lease their building as a child care center. On July 24, 2003, the same day the mayor executed the lease, he opposed plaintiffs' amended site plan application, which allegedly resulted in the Board's denial of that application. These facts are sufficient for a jury to infer that defendants, either jointly or individually, deliberately acted to stall or obstruct plaintiffs' proposed project for the mayor's personal gain. If the jury were to so conclude, those actions would be sufficiently egregious to shock the conscience and support a section 1983 action.

III.

We next turn to whether plaintiffs' section 1983 claim survives dismissal based upon the statute of limitations. Plaintiffs argue that the court erred by refusing to apply the continuing violations doctrine. They claim that defendants' actions within the two-year limitation period, including the Board's denial of their amended site plan, the Township's filing a frivolous counterclaim to the small claims suit related to the sewer line, and the filing of a quasi-criminal complaint against plaintiffs in municipal court, must be considered in context with defendants' actions prior to 2002. Those prior actions include the mayor's alleged threats to stop the project, and the Township's introduction of the proposed ordinance to rezone plaintiffs' property to do just that. Plaintiffs assert that when all of these events are considered as one continuing effort by defendants to impede or halt plaintiffs' development, they constitute a continuing violation that would defeat defendants' statute of limitations defense.

The statute of limitations in New Jersey for section 1983 claims is two years. Cowell v. Palmer Twp., 263 F.3d 286, 291 (3d Cir. 2001). The continuing violations doctrine is an "'equitable exception to the timely filing requirement.'" Id. at 292 (quoting West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995)). It provides that "when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred." Brenner v. Local 514, United Bd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991).

To establish a continuing violations exception to the statute of limitations, a plaintiff must first demonstrate that "at least one act occurred within the filing period"; that is, whether a present violation exists. West, supra, 45 F.3d at 754-55. Then, the plaintiff must establish that the defendant's conduct is "'more than the occurrence of isolated or sporadic acts of intentional discrimination.'" Ibid. (quoting Jewett v. International Tel. Corp., 653 F.2d 89, 91 (3d Cir. 1989)). "The focus of the continuing violations doctrine is on affirmative acts of the defendants." Cowell, supra, 203 F.3d at 293. "A continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation." Ibid.

To evaluate a continuing violations claim, courts consider three factors:

(1) subject matter - whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency - whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence - whether the act had a degree of permanence which should trigger the plaintiff's awareness of and duty to assert his/her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.

[Id. at 292.]

Consideration of the degree of permanence factor is the most important. Ibid. The purpose of that factor is to assure that "the continuing violations doctrine [does] not provide a means for relieving plaintiffs from their duty to exercise reasonable diligence in pursuing their claims." Id. at 295.

The trial court here determined that plaintiffs met both the subject matter and the frequency prongs of the test, but rejected their continuing violation theory on their failure to meet the "degree of permanence" factor. We disagree with the latter conclusion.

It is undisputed that the alleged threats by the mayor, the mayor's failure to recuse himself from the Board proceedings, the introduction of the ordinance to eliminate office buildings as a permitted conditional use in the zone, and the alleged forced sale of a portion of plaintiff's property to the Township, occurred more than two years before plaintiffs filed their section 1983 complaint. Yet, defendants' obstructive conduct continued, and plaintiffs had no way of anticipating, either at the time the Board initially approved their site plan application or when they closed on the property with the Township, both occurring in January 2002, that defendants would continue to delay and impede the construction of their project.

One such delay was the Board's August 2003 denial of plaintiffs' amended site plan, even though it fully conformed to the zoning code. That event occurred within two years of when plaintiffs filed their section 1983 complaint in December 2004. And, what is more, while generally, delaying the execution of a court order cannot necessarily be attributed to a particular party, the allegations here are that the delay between June 4, 2004, and November 17, 2004, when the court reversed the Board decision and when it finally signed the order memorializing that decision, was attributable to defendants' intentional delays in approving the form of order. If proven true, that conduct also occurred less than two years before plaintiffs filed their section 1983 complaint.

Thus, defendants' actions prior to 2002 did not have the necessary degree of permanence to trigger plaintiffs' awareness of and duty to assert their rights within two years of those actions. Consequently, the continuing violations exception to the statute of limitations is applicable and we reverse the court's order dismissing plaintiffs' section 1983 action based on the statute of limitations.

IV.

We next turn to the court's dismissal of plaintiffs' malicious prosecution claim. This claim is based upon the municipal court complaint the Township filed against Delaware Hudson charging it with a violation of a Montville ordinance as a result of overclearing the site. Because plaintiffs are required to prove a special grievance to succeed on their malicious prosecution claim, which they have failed to do, we affirm the trial judge's order dismissing that claim.

To sustain an action for malicious criminal prosecution, a plaintiff must prove four elements: "the defendant instituted a criminal action against the plaintiff; the defendant was motivated by malice; probable cause did not support the filing of the complaint; and the complaint terminated favorably to the plaintiff." Campione v. Adamar of N.J., Inc., 155 N.J. 245, 268 (1998). When the underlying proceeding alleged to be a malicious prosecution is civil rather than criminal, a plaintiff must prove an additional element: that he has suffered a "special grievance," which consists of "interference with one's liberty or property." Penwag Prop. Co. v. Landau, 76 N.J. 595, 598 (1978); Giri v. Rutgers Cas. Ins. Co., 273 N.J. Super. 340, 348-49 (App. Div.), certif. denied, 139 N.J. 185 (1994).

Generally, proceedings in municipal courts for violations of ordinances such as a zoning ordinance are governed by criminal procedural rules. City of Newark v. Pulverman, 12 N.J. 105, 114 (1953). Quasi-criminal municipal complaints, however, are treated as civil in the malicious prosecution context. See Vickey v. Nessler, 230 N.J. Super. 141, 149-50 (App. Div.), certif. denied, 117 N.J. 74 (1989). For example, a malicious prosecution claim based on the prosecution of a traffic offense "must adhere to the civil standard," which requires a plaintiff to show a special grievance. Id. at 150. There, we observed that even though a traffic summons may lead to an arrest and prison sentence if the defendant was found guilty, that did "not transform the traffic offense into a criminal case." Id. at 149. We held that "for purposes of a malicious prosecution suit following termination of prosecution of a traffic complaint, the litmus test is what happened to the defendant in the prior prosecution of the traffic offense and not what could have happened." Id. at 149-50.

In Vickey, the plaintiff was neither arrested nor deprived of a property right. Id. at 150. Thus, we observed that this was different from a typical criminal case, where "a defendant is usually arrested and held to bail, fingerprinted, photographed and suffers all the humiliation attendant to an arrest." Id. at 147; see also Wozniak v. Pennella, 373 N.J. Super. 445, 460 (App. Div. 2004) (while actual arrest not required, "suffering through the humiliation of being fingerprinted and photographed for a mug shot like a common criminal is a sufficient grievance"; essential inquiry is "whether proceeding could have adversely affected legally protected interests"), certif. denied, 183 N.J. 212 (2005); Klesh v. Coddington, 295 N.J. Super. 1, 3-4 (App. Div. 1996), (quasi-criminal disorderly persons offenses require a showing of a special grievance; "the determinant of the special-grievance requirement is the 'reality' of what happened in the underlying action rather than the 'potentiality'"), certif. denied, 147 N.J. 530 (1997).

Examples of how an interference with property might constitute a special grievance include: where an injunction prevents a party from "conducting its business in a particular area and from using, enjoying and dealing with its property"; "the appointment of a receiver, obtaining a writ of replevin, [or] filing a lis pendens"; and "[w]here the malicious lawsuit actually puts the targeted defendant out of business for a period of time." Giri, supra, 273 N.J. Super. at 349 (internal quotation omitted).

Applying these criteria here, plaintiffs must demonstrate a special grievance, which they have failed to do. Violation of a land use ordinance is essentially a quasi-criminal matter, much like traffic offenses or disorderly persons offenses. Although imprisonment was a potential sentence upon conviction of violating the Montville ordinance, Soussa was not fingerprinted, photographed, arrested or imprisoned; and the focus is on what actually happened to him, not what could have happened. Vickey, supra, 230 N.J. Super. at 149-50.

Significantly, the stop work order for excessive site clearing was proper even had there been no prosecution, given that plaintiffs had no construction permit at the time and were clearing land in excess of the scope of their restoration bond. In short, plaintiffs have not met their burden of proving the special grievance element of a malicious prosecution claim.

V.

Finally, we turn to the court's denial of plaintiffs' motion to amend their complaint. In light of our reversal of the summary judgment dismissing plaintiffs' section 1983 claim, we will permit plaintiffs to amend their complaint to include Rosellini as a defendant, and to include the additional causes of action. To eliminate any potential undue prejudice to defendants, the trial court shall provide all parties with the appropriate time necessary to file responsive pleadings and conduct additional discovery required by the amendments.

In sum, we reverse the trial court's dismissal of plaintiffs' section 1983 claim, and affirm the trial court's dismissal of plaintiffs' malicious prosecution claim. We remand for further proceedings consistent with this opinion.


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