The opinion of the court was delivered by: Hon. Joseph H. Rodriguez
MEMORANDUM OPINION & ORDER
This matter is before the Court on motion of Defendant Franklin Township for summary judgment pursuant to Federal Rule of Civil Procedure 56. Upon considering the submissions of the parties, for the reasons set forth below, the motion will be denied without prejudice.
This action was filed in this Court on December 11, 2009 pursuant to the Fair Housing Act, 42 U.S.C. § 3601, and 42 U.S.C. § 1983. Plaintiff Marion Torres is an African-American woman who resides in an apartment in Turnersville, New Jersey with her husband, Plaintiff Jaime Torres, who is Hispanic. Mrs. Torres grew up in Franklin Township, still attends Church there, and would like to move back there, but she has found that she cannot afford to do so. Plaintiff Greenways of Franklin, LLC and New Greenways, LLC are real estate developers that together with their principal, Steven Shockett, own a number of lots in Franklin Township, approximately 329 acres. On these lots, Shockett had proposed to develop affordable housing in Franklin Township consistent with regulations adopted by New Jersey's Council on Affordable Housing ("COAH").
To that end, in February of 2007, Plaintiff Greenways of Franklin, LLC brought suit in the Superior Court, Gloucester County against the Township of Franklin and the Township of Franklin Planning Board seeking a "builder's remedy" to compel the Township to fulfill its obligations under the COAH regulations.*fn1 On August 14, 2008, the Superior Court granted Greenways' motion for judgment of non-compliance against the Township of Franklin and the Township of Franklin Planning Board, but left open the issue of the builder's remedy, to determine at a later date whether Greenways' proposed development project met the three requirements of South Burlington County N.A.A.C.P. v. Mount Laurel Twp., 92 N.J. 158, 279-80 (1983), and withstood any other defenses raised by the Township. Greenways contends that it substantially revised its development project to meet all of the Township's demands, but the Township has merely delayed and prolonged deliberations. Plaintiffs Greenways and New Greenways allege that they have spent hundreds of thousands of dollars pursuing the builder's remedy.
In the course of the State court litigation, Plaintiffs Greenways and New Greenways state that they learned that the reasons the Township failed to develop a COAH plan and approve the Greenways project are based on racial and anti-Semetic animus. (Compl. ¶ 25.) Accordingly, Plaintiffs seek injunctive and declaratory relief, as well as compensatory and punitive damages and attorney's fees and costs, for Defendant's violation of the Fair Housing Act (Count One) and Plaintiffs' rights under the Equal Protection and Due Process Clauses of the Constitution (Count Two).
A. Summary Judgment Standard
"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56 (c)(1)(A).
An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
The FHA makes it unlawful to "refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(a). "A dwelling can be made otherwise unavailable by, among other things, action that limits the availability of affordable housing." Mt. Holly Gardens Citizens in Action, Inc. v. Township of Mount Holly, 658 F.3d 375, 381 (3d Cir. 2011) (citing Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 928--29, 938--39 (2d Cir. 1988); Smith v. Town of Clarkton, 682 F.2d 1055, 1059, 1062--64 (4th Cir. 1982); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 130 (3d Cir. 1977)). The FHA can be violated by either intentional discrimination or if a practice has a disparate impact on a protected class. Cmty. Serv., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 176 (3d Cir. 2005); Doe v. City of Butler, Pennsylvania, 892 F.2d 315, 323 (3d Cir. 1989).
C. Testimony evidencing racial animus
In this case, Plaintiffs' theory is that intentional discrimination permeated the Franklin Township Committee and Planning Board, as evidenced by comments ...