Burlington Assembly of God Church v. Zoning Bd. of Adjustment, Tp. of Florence

• Decision Date: 28 November 1990
• Citation: 588 A.2d 1297,247 N.J.Super. 285
• Parties: BURLINGTON ASSEMBLY OF GOD CHURCH, Plaintiff, v. ZONING BOARD OF ADJUSTMENT, TOWNSHIP OF FLORENCE; and Township of Florence, Defendants.
• Court: New Jersey Superior Court

Page 285

247 N.J.Super. 285

588 A.2d 1297

BURLINGTON ASSEMBLY OF GOD CHURCH, Plaintiff, v. ZONING BOARD OF ADJUSTMENT, TOWNSHIP OF FLORENCE; and Township of Florence, Defendants.

Superior Court of New Jersey, Law Division Burlington County.

Nov. 28, 1990.

Frederick W. Hardt, Moorestown, for plaintiff.

Arthur L. Shanker, Atlantic City, for defendant Bd. of Adjustment (Weiner, Ostrager, Fieldman & Zucker, Hackensack, attorneys).

William B. Hildebrand, Jersey City, for defendant Tp. of Florence (Slimm, Dash and Goldberg, Westmont, attorneys).

WELLS, III, A.J.S.C.

By Order signed on February 24, 1988 Judge Haines reversed the Florence Township Zoning Board's decision to deny plaintiff a variance to erect a radio station including two transmission towers on its property. N.J.S.A. 40:55-70(d). On May 5, 1988, he declined to certify the decision as final for appeal purposes while at the same time granting the Township's request to stay his February Order temporarily pending resolution of a claim for damages by plaintiff. About a year later in a published decision, Judge Haines ruled that plaintiff had been deprived of its freedom of speech by virtue of the actions of the Zoning Board in denying the variance, and that it was entitled "to recover such damages as it may prove." Burlington Assembly of God Church v. Florence, 238 N.J.Super. 634, 570 A.2d 495 (Law Div.1989).

Judge Haines retired before reaching trial on the damages issue and the same was held before me. The plaintiff Church introduced evidence of loss of profits the proposed station would have made between September 24, 1985, the date of the Zoning Board's original denial, and July 27, 1989; ¹ increased costs of erecting the station itself and certain other expenses largely attributable to prosecuting the zoning case, including an allocated portion of the salaries of Church staff in connection therewith. Total damages sought are between $700,000 and $800,000 plus counsel fees under 42 U.S.C. § 1988.

While Judge Haines' opinion is laden with language that the central injury to the Church was the deprivation of its First Amendment rights, I cannot conclude, reading it as a whole that he intended to award damages measured by the projected income and increased expenses elicited at the trial before me flowing from the Church's inability to broadcast during the zoning application process and ensuing litigation. Traditional analysis of damages where zoning regulation has been found to unconstitutionally prohibit or inhibit uses of property proceeds on the theory that property has been taken. Such claims are treated as actions for inverse condemnation and awards are based upon the value of the property affected.

Judge Haines himself clearly recognized that approach in several cases where the First Amendment concerns were not at stake but where claims under 42 U.S.C. § 1983 had been made. Sheerr v. Evesham Tp., 184 N.J.Super. 11, 56-59, 445 A.2d 46 (Law Div.1982); Woodsum v. Pemberton Tp., 172 N.J.Super. 489, 526-527, 412 A.2d 1064 (Law Div.1980).

In Sheerr he wrote:

The EP-1 ordinance has been shown to violate the Due Process and Equal Protection Clauses of the State and Federal Constitutions. It may therefore be invalidated. However, plaintiff seeks different relief, namely, damages under 42 U.S.C.A. Sec. 1983. May she recover?

This question, in a zoning context, is very troublesome. If the answer is yes, every invalid zoning regulation which depreciates the value of a property, no matter how little, will invite a suit for damages. Zoning regulations always affect property values, sometimes favorably, sometimes not. A right to collect damages under the Civil Rights Act for an unreasonable and unfavorable regulation, regardless of the amount of loss, would have vast economic consequences for every governmental body exercising regulatory powers. Its stifling effect upon innovative land use planning is obvious.

The logic of plaintiff's position is clear. However, that logic is one-sided; it ignores public consequences which invite a logical analysis running in a different direction. Some balancing of public and private interests must take place when remedies for invalid zoning legislation are addressed; if private remedies impose too heavy a burden upon the public, everyone loses. Some restriction of remedies is necessary. Sheerr, Id. [184 N.J.Super. at] 58 .

In Woodsum he stated:

Plaintiffs here seek damages for the inconvenience, discomfort and expense caused by their forced move as well as an award for the damage to the dwelling caused by vandalism, all in addition to their "taking" claim. These are consequential damages. They are extremely speculative. They are not recoverable in the usual condemnation case, whether inverse or otherwise, under the State or Federal Constitutions. (footnote omitted)

The Civil Rights Act should not be interpreted as expanding the damage concept of taking cases. The act was designed, as its language clearly states, to permit recoveries when there has been a deprivation of constitutional rights. When there has been a condemnation through appropriate statutory proceedings or as the result of an inverse condemnation, the recovery does not include consequential damages. The Civil Rights Act is not intended to enhance the award which a litigant would have received had his constitutional rights not been denied. In a zoning case, where a taking was claimed, damages have been so limited. Sixth Camden v. Evesham, supra. Woodsum, Id. [172 N.J.Super.] at 526 .

Other cases support the proposition that damage to the property itself is the proper measure of damages. In the case of 6th Camden Corp. v. Evesham Tp., 420 F.Supp. 709, 728-729 (D.C.N.J.1976), Judge Brotman held:

Zoning damage claims, by their nature, seem narrowly limited to effects occurring during the interim period for which the invalid restriction was in effect. The compensation for a "temporary taking" is normally the fair rental value of the property. E.g., United States v. General Motors Corp., 323 U.S. 373, 382, 65 S.Ct. 357 , 89 L.Ed. 311 (1945); Kimball Laundry Co. v. United States, 338 U.S. 1, 7, 69 S.Ct. 1434 [1438], 93 L.Ed. 1765 (1949). And substantial authority from the taking cases seems to indicate that, when land is taken without compensation, future profits from the use of the land may not be compensable. See, e.g., Mitchell v. United States, 267 U.S. 341, 344-45, 45 S.Ct. 293 , 69 L.Ed. 644 (1925); R.J. Widen Co. v. United States, 357 F.2d 988, 994, 174 Ct.Cl. 1020 (1966); A.G. Davis Ice Co. v. United States, 362 F.2d 934, 936 (1st Cir.1966).

Nonetheless, the chance exists that because of the heightened sensitivities surrounding the deprivation of a First Amendment right and the natural desire to deter such conduct that Judge Haines was prepared to move beyond the limitation of awards measured by the value of property taken to losses directly attributable to the deprivation of the constitutional right. Whether he was or not, I have given the matter considerable thought and now decide for the reasons stated hereinafter that the proper measure of damages in these cases is the loss in property value, if any. Recovery for consequential damages even in the case of an institutional First Amendment user should continue to be barred.

First, research has not produced a single case which awards consequential damages to an institutional First Amendment user under 42 U.S.C. § 1983 for the temporary deprivation of that constitutional right as the result of the arbitrary imposition of a zoning regulation or the denial of a variance. This seems to represent a significant consensus that land use controls and their administration directly affect property and therefore that unconstitutional deprivations thereof are best measured by the loss in land values, if any. Secondly, even if one were inclined to award loss of profits and the like to institutional and commercial First Amendment users such as churches, book stores, newspapers, radio and TV stations, theaters, and outdoor advertisers for wrongful zoning decisions, it could not be so limited. Eventually, such damage awards could not logically be withheld from other businesses claiming such losses. At that point the threat of such damage claims in every case against municipalities and zoning boards would have a significant negative influence on zoning and planning decisions and impact the carefully constructed cloak of independence achieved by the quasi-judicial nature of zoning and planning boards and the immunities protecting their individual members. Cf. Centennial Land & Dev. Co. v. Tp. of Medford, 165 N.J.Super. 220, 397 A.2d 1136 (Law Div.1979); Anastasio v. Planning Board of Tp. of West Orange, 209 N.J.Super. 499, 507 A.2d 1194 (App.Div.1986). Judge Haines recognized the problem in Sheerr when he wrote "... if private remedies impose too heavy a burden on the public, everyone loses. Some restriction of remedies is necessary." Sheerr, Id. 184 N.J.Super. at 58, 445 A.2d 46.

Considered then by a damage measure consisting of loss to property value, plaintiff here proved only nominal damage. The only actual damages, if any, were entirely consequential in nature. The fact is plaintiff continued to actively occupy and use its property for religious purposes for the entire 21 months it awaited a favorable zoning decision. There was, in fact, no actual taking of a part of its property let alone all of its property as a result of the variance denial. The proposed radio station was never more than one of plaintiffs' several religious and community projects all of which proceeded unabated pending the variance. As to the Church's land, the proposed radio station was clearly a...