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Threaston Warren, Jr., et al v. Albert Fisher

March 19, 2013

THREASTON WARREN, JR., ET AL., PLAINTIFFS,
v.
ALBERT FISHER, III, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, Chief Judge:

OPINION

I. INTRODUCTION

Before the Court is a motion for judgment on the pleadings and a motion for partial summary judgment brought by Defendants Albert W. Fisher, III, Joseph J. Hannagan, Jr., and Robert Howell. [Docket Item 85.] This matter arises out of a complex dispute between Plaintiffs Threaston E. Warren, Jr., and Marjorie K. Warren, who own land in Quinton, New Jersey, and Plaintiff Continental Aggregate Corp., LLC, which operates a sand mining operation on the Warrens' land, and Defendants Fisher, Hannagan and Howell ("Township Defendants"), who each held different positions of authority with the Township of Quinton. Defendant Michael Gibson is a private citizen who allegedly conspired with the Township Defendants to drive Continental out of business or out of Quinton. Plaintiffs allege that the Defendants conspired to drive Continental out of business by denying Plaintiffs' land-use application and attempting to change local ordinances to disrupt Continental's expansion plans, among other actions.

Plaintiffs bring equal protection and substantive due process claims under Fourteenth Amendment to the U.S. Constitution, via 42 U.S.C. § 1983 (Counts I & II); a First Amendment retaliation claim, under § 1983 (Count III); a claim for conspiracy to interfere with civil rights, under § 1983 (Count IV); state-law tort claims (Count V, trade libel/commercial disparagement; Count VI, assault and battery*fn1 ;

Count VII, trespass to land*fn2 ); and a restatement of claims against John Doe defendants (Count VIII).

The Township Defendants now move for judgment on the pleadings, pursuant to Rule 12(c), Fed. R. Civ. P., as well as summary judgment on certain counts, pursuant to Rule 56(a), Fed. R. Civ. P. The key inquiries for the Court are: (1) whether the Plaintiffs sufficiently pled that they were treated differently than similarly situated mining operations in Quinton Township,

(2) whether the Defendants' conduct shocks the conscience, and

(3) whether Plaintiffs have pled a causal connection between protected First Amendment activity and alleged retaliation. Because the Court answers these questions in the negative, the Court need not reach issues of absolute or qualified immunity to enter judgment for the Defendants. Plaintiffs will be afforded one final opportunity to file a motion to amend the Complaint, to cure the pleading deficiencies as to the Equal Protection claim and civil conspiracy claim detailed below.

II. Background

A. Facts

Plaintiffs Threaston "Ed" Warren and Marjorie Warren own approximately 170 acres of land in Quinton, New Jersey, and hold a soil removal permit for the property.*fn3 [Second Am. Compl. ¶¶ 14, 16.] The Warrens lease portions of the property to Plaintiff Continental, which conducts a sand mining operation using the Warrens' permit. [Id. ¶¶ 15-18.] Trouble arose in July 2007 when Plaintiffs applied to the Quinton planning board for permission to expand their existing soil removal activities on the property and to install screening and washing equipment, known as a "wash plant." [Id. ¶ 29.]

Plaintiffs allege that the Township Defendants, with the help of Defendant Gibson, conspired to use their positions of power in the Township of Quinton to interfere with Continental's business in an effort to drive them out of business or, at least, out of Quinton. The Township Defendants, with Mr. Gibson, allegedly called themselves the "Cool Run Gang" and met privately to discuss Plaintiffs' mining operations. [Id. ¶ 21.] Plaintiffs allege that Defendants Fisher and Howell, as members of the town's planning board, denied Plaintiffs' land use application arbitrarily and appointed Defendant Hannagan to the position of "Official Pit Inspector" to harass Plaintiffs and conduct "an inordinate number of inspections" of the property and Continental's operations. [Id. ¶¶ 25-27.] Plaintiffs also allege the Defendants Fisher and Howell attempted to change town ordinances "to legislate Plaintiffs out of business," and that Defendant Fisher, as mayor, "packed" the planning board with individuals unsympathetic to Continental's interests. [Id. ¶ 2.] Plaintiffs allege that Defendant Gibson made multiple false, written and oral allegations of wrongdoing against Plaintiffs to lay the groundwork for the Township Defendants to take official action against Plaintiffs. [Id. ¶ 24.]

On July 16, 2007, Plaintiffs submitted their land-use application to the Quinton planning board, requesting "preliminary site plan approval and conditional use approval to allow Plaintiffs to expand existing soil removal activities" and to install a wash plant to process the extracted soil prior to shipping the soil off of the premises. [Id. ¶ 29.] Plaintiffs assert that processing the soil in a wash plant is a "usual and customary -- and, indeed, a necessary -- part of a sand mining operation." [Id.] Plaintiffs appeared before the planning board in support of their application on a handful of occasions, and presented "uncontested testimony" from a soil mining expert and a geologist in support of their plans.*fn4 The board determined that a wash plant was a "principal use" of the property as opposed to an "accessory use" to the existing soil removal operations, and denied the application for the wash plant. [Id. ¶ 32.] At a later hearing, the board denied Plaintiff's application, without considering its merits, because Plaintiffs did not have a mining license for the property. [Id. ¶ 35.] Plaintiffs assert that the lack of a mining license is "not a legally cognizable reason for the Planning Board to deny Plaintiffs' Application." [Id. ¶ 39.]

Plaintiffs assert that the denial of their application was part of a larger conspiracy against them and assert facts relating to Defendants' alleged hostility toward them. For example, Plaintiffs assert that Defendant Howell, at a Township Committee meeting, told a representative of Continental: "I'll never shake your hand. I don't want you around here. I don't like you or what you are doing in this town." [Id. ¶ 41.] Plaintiffs also assert that Defendant Howell telephoned Mr. Warren at home, "screaming profanities and vulgarities at him." [Id. ¶ 45.] Plaintiffs allege that Defendant Gibson punched Mr. Warren in the face after a planning board meeting on April 14, 2009, and screamed profanities at him. [Id. ¶ 92.]

Plaintiffs filed a Complaint in Lieu of Prerogative Writ in New Jersey Superior Court, seeking review of the planning board decision. [Id. ¶ 44.] On December 22, 2008, the court ruled that the planning board's decision was "arbitrary and capricious" and that there was no factual support for the contention that a wash plant was a "principal use." [Id. ¶¶ 48-49.] Plaintiffs assert that Defendants were "emboldened" by the adverse court decision and "continue[d] implementing their unlawful agreement." [Id. ¶ 54.]

Defendant Gibson began writing letters and other correspondence to various town and county officials alleging that Plaintiffs were not in compliance with their soil removal permit or town ordinances. [Id. ¶¶ 59-61.] Plaintiffs assert that all of these statements were demonstrably false and were "made intentionally, maliciously, and/or negligently" in furtherance of "Defendants' conspiracy." [Id. ¶ 59.] Plaintiffs assert that the Township Defendants used Mr. Gibson's allegations as the pretext to take actions against Plaintiffs, including appointing Defendant Hannagan to be an "Official Township Pit Inspector," a position that Plaintiffs allege did not exist previously in Quinton and for which Mr. Hannagan had no experience or training.*fn5 [Id. ¶¶ 62, 66-69.] From April 4, 2006, to November 6, 2009, Plaintiffs claim they were subject to approximately 40 site inspections by the town. They assert that site inspections in Quinton typically occurred on a biannual basis and that two other mining operations in Quinton did not receive "nearly the same number of inspections or scrutiny." [Id. ¶¶ 64, 86, 88.] Plaintiffs assert the inspections cost Continental "tens of thousands of dollars." [Id. ¶ 63.]

Plaintiffs also claim that Defendant Fisher introduced an amendment to a Quinton zoning ordinance to "delete soil removal as a conditionally permitted use" in an effort to drive Continental out of business. [Id. ¶¶ 77-78] Defendant Fisher proposed the amendment on three separate occasions in 2008 and 2009, but the amendment never passed. [Id. ¶¶ 78-80.] Plaintiffs assert that Defendant Howell admitted during a planning board hearing that he had "previously proposed an ordinance specifically to target Continental and detrimentally affect its mining operations." [Id. ¶ 81.] No such ordinance passed.

When vacancies opened up on the planning board, Defendant Fisher appointed individuals who allegedly were unsympathetic to Continental's interests. [Id. ¶¶ 95-97.] To fill one vacancy, after Defendant Howell resigned, Mr. Fisher appointed Defendant Hannagan to the board. [Id. ¶¶ 97-98.] Mr. Fisher also appointed two other individuals, Jane Turner and Joanne Macucchio, to the planning board, "both of whom were known outspoken critics of Continental and mining operations in Quinton . . . ." [Id. ¶ 99.]

Plaintiffs assert that Defendant Hannagan, on October 7, 2009, entered onto a portion of the Warrens' property not covered under the soil removal permit, and without consent, stuffed a soil sample in a plastic bag and removed it from the premises. [Id. ¶ 101.] Mr. Hannagan allegedly told representatives of Continental that "they" - purportedly referring to Defendants Fisher and Howell - "want me to do it now; I don't need any authorization since I am an official and if Ed Warren doesn't like it he can sue me." [Id. ¶ 102.] Plaintiffs suggest that the purpose of taking soil was for Defendants to show, somehow, that Continental was mining the soil illegally. [Id. ¶ 103.] Mr. Warren filed a criminal complaint against Mr. Hannagan, but agreed to withdraw the complaint if the town removed Mr. Hannagan as the official pit inspector. [Id. ¶ 105.] The Township Defendants agreed. [Id.]

B. Procedural history

Plaintiffs initiated this action in the Superior Court of New Jersey, Salem County, and Defendants removed the action, pursuant to 28 U.S.C. ยง 1446, as the Complaint alleged violations of federal law. [Docket Item 1.] Plaintiffs amended their complaint, whereupon Defendants Gibson and Fox filed motions to dismiss. [Docket Items 28 & 31.] The Court dismissed without prejudice all claims against Ms. Fox and five counts against Mr. Gibson, because Plaintiffs failed to state a claim for conspiracy against the two moving Defendants. [Docket Item 47 at 19-20.] Plaintiffs moved to file a Second Amended Complaint against the Township Defendants and Defendant Gibson [Docket ...


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