County Concrete Corp. v. Town of Roxbury
| Decision Date | 31 March 2006 |
| Docket Number | No. 05-1865.,No. 05-1680.,05-1680.,05-1865. |
| Citation | 442 F.3d 159 |
| Court | U.S. Court of Appeals — Third Circuit |
| Parties | COUNTY CONCRETE CORPORATION; J.C. Soil & Gravel, LLC; John C. Crimi, Appellants/Cross-Appellees v. TOWNSHIP OF ROXBURY, a municipal corporation of the State of New Jersey; Sandy Urgo; Jim Rilee; Marshall Gates; Carol Scheneck; Richard Herzog; Fred Hall; Planning Board of the Township of Roxbury; Richard Zoschak; John Ciaramella; Barbara Dawson; Robert Badini; Lawrence Sweeney; Lisa Voyce; Ray Scanlon; Patricia Davenport; P. Scott Meyer; Russell Stern; Thomas J. Bolodsky; Mayor and Council of the Township of Roxbury Township of Roxbury; Sandy Urgo; Jim Rilee; Marshall Gates; Carol Scheneck; Fred Hall; Planning Board of the Township of Roxbury; Richard Zoschak; John Ciaramella; Barbara Dawson; Robert Badini; Lawrence Sweeney; Lisa Voyce; Ray Scanlon; Patricia Davenport; P. Scott Meyer; Russell Stern; Mayor and Council of the Township of Roxbury, Appellees/Cross-Appellants. |
Ernest W. Schoellkopff, (Argued), Connell Foley, Roseland, NJ, for Appellants/Cross-Appellees.
Richard P. Cushing, (Argued), Gebhardt & Kiefer, Clinton, NJ and Anthony M. Bucco, Johnson, Murphy, Hubner, McKeon, Wubbenhorst & Appelt, Riverdale, NJ, for Appellees/Cross-Appellants Township of Roxbury, et al.
Peter A. Piro, (Argued), Hack, Piro, O'Day, Merklinger, Wallace & McKenna, Florham Park, NJ, for Appellee Thomas J. Bodolsky.
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, 105 S.Ct. 3108, 87 L.Ed.2d 126 (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.
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) (). 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, 105 S.Ct. 3108. 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.2d at 1294 n. 15 (); Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 406 (9th Cir.1996) (). 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.
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, 105 S.Ct. 3108. 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, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997) .
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.
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...
To continue reading
Request your trial
-
Mettler Walloon v. Melrose Twp.
...so that the township could obtain an impact fee offered by a competing developer) shocked the conscience. In Co. Concrete Corp. v. Roxbury Twp., 442 F.3d 159, 170 (C.A.3, 2006), the plaintiffs argued that the township impeded their efforts to expand their sand and gravel extraction business......
-
Nekrilov v. City of Jersey City
...municipal body votes for " ‘a change in the permitted uses in a zoning district,’ the act is legislative in character." Cnty. Concrete Corp., 442 F.3d at 169 (quoting Timber Props., Inc. v. Chester Twp., 205 N.J.Super. 273, 500 A.2d 757, 763 (N.J. Super. Ct. App. Div. 1984) ). The test is e......
-
Cornell Companies, Inc. v. Borough of New Morgan
...violations. Cornell responds to the defendants' arguments by citing to the recent Third Circuit opinion of County Concrete Corporation v. Twp. of Roxbury, 442 F.3d 159 (3d Cir.2006). In its view, its complaint contains ripe constitutional claims for this court's consideration and none of th......
-
Hernandez v. Grisham
..."irrational, arbitrary or capricious do not bear a rational relationship to any end." Reply at 2 (citing Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 169 (3d. Cir. 2006) ).32. The Plaintiffs contend that "simple statistics" demonstrate the Defendants’ actions are irrational and "de......
-
Hearsay
...judicial admission because the memorandum could easily be interpreted in more than one way. County Concrete Corp. v. Township of Roxbury , 442 F.3d 159 (3rd Cir. 2006). A complaint which calls one defendant as “Township Planner and/or Consultant” and another as “Township Engineer and/or Con......
-
Hearsay
...judicial admission because the memorandum could easily be interpreted in more than one way. County Concrete Corp. v. Township of Roxbury , 442 F.3d 159 (3rd Cir. 2006). A complaint which calls one defendant as “Township Planner and/or Consultant” and another as “Township Engineer and/or Con......
-
Hearsay
...judicial admission because the memorandum could easily be interpreted in more than one way. County Concrete Corp. v. Township of Roxbury , 442 F.3d 159 (3rd Cir. 2006). A complaint which calls one defendant as “Township Planner and/or Consultant” and another as “Township Engineer and/or Con......
-
Hearsay
...judicial admission because the memorandum could easily be interpreted in more than one way. County Concrete Corp. v. Township of Roxbury , 442 F.3d 159 (3rd Cir. 2006). A complaint which calls one defendant as “Township Planner and/or Consultant” and another as “Township Engineer and/or Con......