6th Camden Corp. v. Evesham Tp., Burlington Cty.

Decision Date02 September 1976
Docket NumberCiv. A. No. 74-1194.
Citation420 F. Supp. 709
CourtU.S. District Court — District of New Jersey




Mathews & Sitzler by John O. Sitzler, Palmyra, N.J. (White & Williams by John Francis Gough, Richard M. Shusterman, Robert M. Schwartz, Philadelphia, Pa., of counsel), for plaintiff.

Bennett E. Bozarth, Delran, N.J., for defendants Planning Board, Hutton, Moon, Lease, Farinelli, Dombroski, Williams, Carasella and Barney.

Hartman, Schlesinger, Schlosser & Faxon by John E. Harrington, Mount Holly, N.J., for defendants Township, Council, De Grandis, Shenfeld and Garnett.

Arthur N. Frakt, James J. Seeley, Camden, N.J., for defendants Antel and Allen.

Harry H. Wooden, Jr., pro se.


BROTMAN, District Judge.

Plaintiff, the Sixth Camden Corporation, is a land developer that sought to build a shopping center in Evesham Township, Burlington County, New Jersey. It brings this action under 42 U.S.C. §§ 1983, 1985(3), and 1986, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment, to redress asserted violations of its constitutional rights. Jurisdiction of the court is challenged, but plaintiff invokes 28 U.S.C. §§ 1331 and 1343(3).

Although other acts and theories are alleged, the principal thrust of the complaint is that the defendants wrongfully denied plaintiff a zoning variance and site plan approval, and that these actions denied it due process of law and caused it injurious delay in construction. Plaintiff seeks compensatory and punitive damages, a declaration of its rights, and injunctive relief; however, it subsequently completed construction of the shopping center, rendering its request for injunctive relief moot and modifying its other demands. Named as defendants are the Township of Evesham (hereinafter the "Township"), the Council of the Township of Evesham ("Council"), the Planning Board of the Township of Evesham ("Planning Board"); the Mayor, members of the Council, and members of the Planning Board, named individually; and two private citizens, Alexander F. Antel and Estelle J. Allen (hereinafter the "individual defendants"). The Township, the Council, and the individual defendants now move to dismiss the complaint for lack of jurisdiction, for failure to state a claim upon which relief can be granted, and upon other grounds.

I. The Background

The facts set forth in the complaint are somewhat complicated.

Since November, 1972, plaintiff has owned approximately 20 acres of land in Evesham Township. In July, 1955, the Township had platted the land and zoned it for general business use. In 1960, the Township had rezoned the land in such a way that approximately 17.9 acres of plaintiff's land fell within a general business zone, and approximately 2.1 acres fell within a residential zone. Plaintiff alleges that the zoning ordinance of 1960 rendered the 2.1 acres of land in the residential zone "sterile and useless," and was an unconstitutional taking of its property. (Complaint, ¶¶ 18-23).

In July 1973 plaintiff submitted to the Planning Board a site plan proposing the construction of a shopping center on its land; this original plan located a portion of the construction on the 2.1 acres which had been zoned for residential use. The Planning Board indicated that no action would be taken on the plan until plaintiff obtained a zoning variance for the residentially-zoned portion of the site. (Complaint, ¶ 25). In October, 1973, the Zoning Board of Adjustment held a public hearing on the request for a variance, and as required by law all land owners within 200 feet of the variance property were given prior notice of the hearing. In November, 1973, the Zoning Board of Adjustment unanimously recommended to the Township Council that the variance be granted. (Complaint, ¶¶ 26-27).

Plaintiff contends that, under the applicable state law and local ordinances, the Council must limit its review of the recommendation of the Zoning Board of Adjustment to consideration of the record made before that body; but that, knowing of this requirement, the Council opened the matter for public testimony and comment at its meeting of January 15, 1974. On January 30, 1974, the Township advised plaintiff that it would take no action on the recommendation unless and until plaintiff prepared a transcript of the January 15th meeting for the Council. By state law, if the Council fails to act on the recommendation within sixty days, the recommendation is deemed disapproved. N.J.S.A. 40:55-39.1.1 (Complaint, ¶¶ 29-31). The operation of the statute duly had that effect in February of 1974. Plaintiff contends that the Council's failure to act was "arbitrary, unreasonable, discriminatory . . . and unlawful." (Complaint, ¶ 32).

In March 1974, plaintiff filed an action in prerogative writ in the Superior Court of New Jersey, Burlington County, Docket No. L-19938-73, seeking judicial review of the Council's denial of the variance. In April 1974, the Superior Court granted the plaintiff a summary judgment and declared the variance granted. In May 1974, the Council voted to appeal the trial court's ruling. Plaintiff contends that the Council filed the appeal knowing of its groundlessness and solely for the purpose of maliciously delaying plaintiff's construction. (Complaint, ¶¶ 34-35, 38).

Rather than suffer further delays pending appeal of its state court suit, plaintiff then resolved to resubmit another site plan ("site plan # 2"), locating all of the proposed construction on land zoned for business use. Plaintiff alleges that "as early as May 7, 1974, but in no event later than July 11, 1974," site plan # 2 had complied with all applicable federal, state and local laws. (Complaint, ¶ 39). Plaintiff contends that the Planning Board thus had a nondiscretionary duty to approve the plan, but instead arbitrarily and capriciously tabled it. (Complaint, ¶¶ 39, 39.1, 42(d), (f)).

Plaintiff finally contends that in June, 1974 the Council initiated procedures to rezone its land from general business to office district use. This rezoning, if passed, would have had the effect of blocking construction of plaintiff's shopping center. Plaintiff contends that since this rezoning would have been contrary to the Township Master Plan, state law required the Council to first refer the change to the Planning Board. According to the complaint, therefore, the Council acted illegally in proposing the rezoning ordinance without prior Planning Board approval. Plaintiff further alleges that at approximately the same time, the Council attempted to cure this defect by purporting to alter the Master Plan, without affording notice or a hearing to plaintiff, which action again contravened state law. However, in July 1974, when the rezoning ordinance came up for final approval, it failed of adoption by a single vote. (Complaint, ¶ 42(c), (e), (g)).

Distilling the essence from the foregoing narrative, plaintiff complains of four acts on the part of the defendants:

1. that the Council committed substantive and procedural error in refusing to pass plaintiff's zoning variance;
2. that the Council groundlessly appealed the decision of the New Jersey Superior Court declaring the zoning variance granted;
3. that the Planning Board refused its nondiscretionary duty to approve site plan # 2;
4. that the Council initiated a procedurally defective attempt to rezone plaintiff's property, albeit unsuccessfully.

Repeated reference to this summary will be made throughout this opinion.

Turning to its legal theories, plaintiff alleges that the foregoing facts constitute a conspiracy by the defendants to deprive it of its civil rights under the Fifth and Fourteenth Amendments to the United States Constitution. Specifically, the conspiracy sought:

a. to take the 2.1 acres of plaintiff's land zoned for residential use without just compensation;
b. to take the same property without due process of law;
c. to deny plaintiff the equal protection of state and local laws by denying it the necessary zoning variance and site plan approval, when such were required by law.

(Complaint, ¶¶ 41(a), (b), 44). Plaintiff also alludes to unspecified pendent claims under state law. (Complaint, ¶¶ 41(a), (d), 47.1, 47.2).

As relief, plaintiff originally prayed for damages in the amount of the fair market value of its entire tract, supplemented by the additional value the land would have had with zoning and site plan approval for its shopping center, plus additional compensatory damages for the following harms: financing charges during the period construction was delayed; loss of rental income due to delayed completion of the project; increased interest charges for permanent financing; injury to reputation; and other consequential damages. Together these total in the millions of dollars. It also prayed for punitive damages in the amount of $1-million; for its legal fees and costs of suit; and for declaratory and injunctive relief securing its rights to a zoning variance and site plan approval. However, subsequent to the filing of the complaint, plaintiff obtained its zoning variance through its state-court litigation, and by now has succeeded in constructing its shopping center upon the site. Its demands for equitable relief are therefore moot, but its prayers for damages, while modified by events, continue to present a live controversy. E. g., Broderick v. Associated Hospital Service, 536 F.2d 1, 3 n. 9 (3rd Cir. 1976).

II. The Township

The cause of action against the Township will be analyzed first.

A. Jurisdiction

The Township first urges that the complaint against it should be dismissed because it is not a "person" within the contemplation of the Civil Rights Act. This position is incontrovertible. A township is not a "person" within the Civil Rights Act whether the relief sought...

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