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Sandone v. Park

February 2, 2010

JOHN SANDONE, DANIEL AARON, WING PROPERTIES, LLC, SANTA FE BAR & GRILL, LLC, AND HADDON CENTER ASSOCIATES, LLC, PLAINTIFFS-APPELLANTS,
v.
WILLIAM PARK, INDIVIDUALLY IN HIS PRIVATE CAPACITY AND ALSO IN HIS OFFICIAL CAPACITY AS BOROUGH COMMISSIONER AND MAYOR OF THE TOWNSHIP OF HADDON, AND THE TOWNSHIP OF HADDON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS, AND DAVID CUNEO, INDIVIDUALLY IN HIS PRIVATE CAPACITY AND ALSO IN CONNECTION WITH HIS PRIOR OFFICIAL POSITION AS SOLICITOR (MUNICIPAL ATTORNEY) OF THE TOWNSHIP OF HADDON, AND FIELDSTONE ASSOCIATES A/K/A FIELDSTONE REDEVELOPMENT LP, A BUSINESS ENTITY OPERATING IN THE TOWNSHIP OF HADDON AND ELSEWHERE, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3659-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 5, 2009

Before Judges Cuff, Payne and C.L. Miniman.

Plaintiffs John Sandone, Daniel Aaron, Wing Properties, LLC (Wing), Santa Fe Bar & Grill, LLC (Santa Fe), and Haddon Center Associates, LLC (Haddon Center) owned property in an area of the Township of Haddon (Township) designated for redevelopment. They alleged that defendants William Park, the mayor during the relevant time period, and other Township officials, engaged in various acts during the redevelopment period that frustrated their business ventures, and this intrusion and frustration of their business goals violated their constitutional rights to substantive and procedural due process and equal protection. Judge Millenky granted summary judgment in favor of defendants and also rebuffed plaintiffs' motion to alter or amend the judgment based on newly discovered evidence. Plaintiffs appeal; we affirm.

On July 21, 1998, the governing body of the Township adopted a resolution to authorize investigation of redevelopment of various areas of the Township, including the former Dy-Dee Diaper Company (Dy-Dee). The Dy-Dee site was located on Haddon Avenue.

Plaintiffs, in various combinations and through various corporate legal entities, owned three lots bordering the Dy-Dee site: 207, 209, and 211 Haddon Avenue. Plaintiff Sandone purchased 211 Haddon Avenue in 2000 or 2001; plaintiff Aaron exercised an option to purchase 209 Haddon Avenue through plaintiff Wing in 2002. Plaintiff Santa Fe is the owner of the liquor license acquired for use at 209 Haddon Avenue. In 2003, plaintiff Haddon Center purchased 207 Haddon Avenue for use as a parking lot in conjunction with the contemplated use at 207-209 Haddon Avenue.

On May 2, 2002, the Planning Board of the Township held a public hearing to determine the proposed areas in need of redevelopment. After public comment, the Planning Board voted to recommend to the governing body redevelopment of various areas of the Township, including the Dy-Dee site and surrounding properties. On May 21, 2002, the governing body accepted the recommendation and officially declared the Dy-Dee site and surrounding properties in need of redevelopment. A redeveloper, Fieldstone Associates (Fieldstone), was appointed on July 15, 2003; an independent fee appraiser was appointed in Fall 2003.

Plaintiffs opposed the redevelopment and also sought to convince the governing body that their plans for the assembled properties should be included in the redevelopment plan and that they were capable of managing the redevelopment of their sites. In June 2004, plaintiffs and other affected owners in the redevelopment area filed a complaint in lieu of prerogative writs to challenge the redevelopment project. They alleged that defendants' decision to adopt and implement the redevelopment plan was arbitrary, capricious, unreasonable and contrary to law. They also asserted a claim pursuant to 42 U.S.C.A. § 1983.

Specifically, plaintiffs alleged that their actions to acquire the various Haddon Avenue parcels were done with the knowledge and support of the governing body, particularly the mayor. They further alleged that the governing body, and particularly the mayor, knew plaintiffs had commenced negotiations with a restaurateur to develop their assembled parcels, that the mayor interfered with those negotiations by informing the interested party that the Township planned to acquire these parcels, and that the restaurateur soon thereafter purchased a nearby but unaffected site from a close political ally of the mayor and a member of the Planning Board. Plaintiffs further alleged that the mayor and David Cuneo, the Township attorney, engaged in a pattern of threats, intimidation and harassment against plaintiffs Sandone and Aaron and their business interests to deter their opposition to the redevelopment plan.

Eventually, the matter settled in 2006. In accordance with the comprehensive settlement agreement, plaintiffs conveyed title to the 207, 209 and 211 Haddon Avenue sites and received $1,100,000. This sum substantially exceeds the price paid by plaintiffs for these sites.*fn1 In addition, the redeveloper paid plaintiffs $200,000 for the anticipated costs to activate a bar/restaurant at the site and to vacate and relocate to an alternate location. Plaintiffs received the right to exercise an option to use and occupy the site for $5,000 a month until the redeveloper required the site for construction of its project. Thereafter, plaintiffs received an option to acquire up to 4,000 square feet of commercial space in the redevelopment project at a price ten percent less than preconstruction pricing.

While the 2004 prerogative writs action proceeded, plaintiffs filed the current action on April 29, 2005. In this complaint, plaintiffs essentially restated the civil rights and constitutional claims addressed in their prerogative writs complaint filed in 2004. They alleged that defendants Park, the Township attorney, the redeveloper,*fn2 and various unknown parties conspired to and interfered with plaintiffs' prospective economic advantage, violated plaintiffs' civil and constitutional rights, and enforced the law in a discriminatory fashion. More specifically, plaintiffs asserted that the decision to take their properties in the name of redevelopment and to prevent them from pursuing their business plan for the assembled properties was not the product of a duly considered and adopted redevelopment plan but retribution for past slights.

Following discovery, defendants Park, Cuneo and the Township moved for summary judgment. In an oral decision, Judge Millenky dismissed plaintiffs' substantive due process, procedural due process, and equal protection claims. He also ruled that the balance of the claims were barred by legislative and qualified immunity. Plaintiffs' appeal of the August 17, 2007 order was dismissed as interlocutory because the counterclaim filed by the Township attorney had not been dismissed. Eventually, plaintiffs and the attorney agreed to dismiss their claims, and plaintiffs filed a motion to alter or amend the judgment based on an ethics claim filed against defendant Park. The judge noted that the animus of Park towards plaintiffs had been discussed in the prior motion and denied the motion.

On appeal, plaintiffs contend that the existence of genuine issues of material fact precluded summary judgment. They also argue that the motion judge ...


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