South Camden Citizens in Action v. New Jersey Dep., Civil Action No. 01-702.

• Decision Date: 16 April 2003
• Docket Number: Civil Action No. 01-702.
• Parties: SOUTH CAMDEN CITIZENS IN ATION, Geneva Sanders, Pauline Woods, Barbara Pfeiffer, Julita Gilliard, Oscar Lisboa, Phyllis Holmes, Gwen Peterson, Latoya Cooper, Julio Lugo, Lula Williams, and Sharon Christie Potter, Plaintiffs, v. NEW JERSEY DEPARTMENT OF EVIRONMENTAL PROTECTION and Bradley M. Campbell, Commissioner of the New Jersey Department of Environmental Protection, in his official capacity, Defendants, and St. Lawrence Cement Co., L.L.C., Defendant-Intervenor.
• Court: U.S. District Court — District of New Jersey

254 F.Supp.2d 486

SOUTH CAMDEN CITIZENS IN ATION, Geneva Sanders, Pauline Woods, Barbara Pfeiffer, Julita Gilliard, Oscar Lisboa, Phyllis Holmes, Gwen Peterson, Latoya Cooper, Julio Lugo, Lula Williams, and Sharon Christie Potter, Plaintiffs, v. NEW JERSEY DEPARTMENT OF EVIRONMENTAL PROTECTION and Bradley M. Campbell, Commissioner of the New Jersey Department of Environmental Protection, in his official capacity, Defendants and St. Lawrence Cement Co., L.L.C., Defendant-Intervenor.

Civil Action No. 01-702.

United States District Court, D. New Jersey.

April 16, 2003.

COPYRIGHT MATERIAL OMITTED

Olga D. Pomar, Esq., South Jersey Legal Services, Inc., Camden, NJ, Jerome Baiter, Esq., Michael Churchill, Esq., Pu lic Interest Law Center of Philadelphia, Philadelphia, PA, Luke W. Cole, Esq., Center on Race, Poverty and the Environment, San Francisco, CA, for Plaintiffs, South Camden Citizens in Action, Geneva Sanders, Pauline Woods, Barbara Pfeiffer, Julita Gilliard, Oscar Lisboa, Phyllis Holmes, Gwen Peterson, Latoya Cooper, Julio Lugo, Lula Williams, and Sharon Christie Potter.

Peter C. Harvey, Esq., Acting Attorney General of New Jersey, Stefanie Brand, Esq., John M. Van Dalen, Esq., Deputies Attorney General, R.J. Hughes Justice Complex, Trenton, NJ, for Defendants, the New Jersey Department of Environmental Protection and Bradley M. Campbell, Commissioner of the New Jersey Department of Environmental Protection.

Brian S. Montag, Esq., Catherine A. Trinkle, Esq., Mary E. Storella, Esq., Kathryn E. Tagliareni, Esq., Kirkpatrick & Lockhart, LLP, Newark, NJ, for the DefendanHntervenor, St. Lawrence Cement Co., LLC.

OPINION

ORLOFSKY, District Judge.

                TABLE OF CONTENTS
                I.   Introduction......................................  489
                II.  Procedural History...............................   489
                III. Legal Standard Governing Motions to Dismiss Pursuant to Fed.R.Civ.P
                      12(b)(6).........................................   493
                IV.  Discussion....................................   ....493
                     A. Intentional Discrimination under § 601 of Title VI and the Equal
                       Protection Clause...............................   493
                     B. Unlawful Discrimination under the Fair Housing ..........Act499
                      1. Have the SCCIA Plaintiffs Stated a Claim under § 3604(a) of
                         the Fair Housing Act?.............................  500
                     2. Have the SCCIA Plaintiffs Stated a Claim under § 3604(b) of
                        the Fair Housing Act?.............................  502
                   C. Nuisance..............................................503
                       1. Have the SCCIA Plaintiffs Stated a Claim of Private Nuisance? ..........503
                       2. Have the SCCIA Plaintiffs Stated a Claim of Public Nuisance? ...........506
                

                   V. Conclusion ......................... 508
                

I. INTRODUCTION

Approximately two years ago, South Camden Citizens in Action, and the individual Plaintiffs who reside in a South Camden, New Jersey neighborhood, known as "Waterfront South," asked this Court to issue a preliminary injunction enjoining the construction and operation of a proposed cement grinding facility, which they claimed would have a disparate impact on the residents of their community in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-1. Since then, the boundaries of Title VI jurisprudence have been narrowed well beyond what was initially thought to be appropriate by this Court. As observed by Edmund, the protagonist in Shakespeare's King Lear who met an untimely demise, "The wheel is come full circle." ¹ With this lawsuit now before this Court for the second time, I must consider the Defendants' motions to dismiss Plaintiffs' remaining claims pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs' remaining claims are: (1) intentional discrimination in violation of both § 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and 42 U.S.C. § 1983 and the Fourteenth Amendment (First and Third Counts, Second Amended Complaint); (2) discriminatory impact on the basis of race, color, and national origin in violation of the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601 et seq. (Fourth Count, Second Amended Complaint); (3) Private Nuisance and Public Nuisance against the Defendant-Intervenor, St. Lawrence Cement Co., LLC only (Fifth and Sixth Counts, respectively, Second Amended Complaint). This Court has jurisdiction over Plaintiffs' federal claims pursuant to 28 U.S.C. §§ 1331, 1343. It also has supplemental jurisdiction over Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367. I have considered the submissions of the parties and decided Defendants' motions on the papers without oral argument pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, I shall grant in part and deny in part the Defendants' motions to dismiss.

II. PROCEDURAL HISTORY

This is the third published opinion I have filed in the course of adjudicating the claims asserted by Plaintiffs, South Camden Citizens in Action and the individual residents of a community located in South Camden, New Jersey, known as "Waterfront South"² (collectively, "the SCCIA Plaintiffs"), that Defendants, New Jersey Department of Environmental Protection ("NJDEP") and NJDEP Commissioner Robert Shinn ("Shinn"), now Bradley M. Campbell ("Campbell") (collectively, "the NJDEP Defendants"), inter alia, violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"), by granting Defendant-Intervenor, St. Lawrence Cement Co.'s ("SLC"), application for air permits to operate a proposed cement grinding facility without considering the potential adverse, disparate impact of their permitting decision on the residents of "Waterfront South," an impoverished and largely minority neighborhood in Camden, New Jersey. See South Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot, 145 F.Supp.2d 446 (D.N.J.2001) (Orlofsky, J.) ("SCCIA I"); South Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot, 145 F.Supp.2d 505 (D.N.J.) (Orlofsky, J.) ("SCCIA II"), rev'd, South Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot, 274 F.3d 771 (3d Cir.2001), cert, denied ___ U.S. ___, 122 S.Ct. 2621, 153 L.Ed.2d 804 (2002). The basic facts underlying the SCCIA Plaintiffs' claims are set forth in great detail in this Court's earlier Opinions, and will only be repeated here when necessary to provide context. A brief recitation of the procedural history, however, is warranted to explain the current procedural posture of this case.

On February 13, 2001, the SCCIA Plaintiffs moved for a preliminary injunction and declaratory relief against the NJDEP Defendants. In their original verified Complaint, the SCCIA Plaintiffs alleged that the NJDEP Defendants violated Title VI and the regulations promulgated by the United States Environmental Protection Agency ("EPA") to implement Title VI when the NJDEP issued air pollution control permits to SLC to operate a cement grinding facility without regard to the discriminatory effect it would have on their neighborhood, Waterfront South, an impoverished, minority community located in South Camden, which was already suffering from the cumulative environmental effects of the numerous industrial facilities situated in and around it. On February 22, 2001, I signed a consent order which permitted SLC to intervene as a defendant in this action. See Consent Order (filed Feb. 22, 2001).

Subsequently, on April 19, 2001, I granted the SCCIA Plaintiffs' motion for a preliminary injunction and declaratory relief. In doing so, I relied on controlling case law in this Circuit which held that a private right of action existed under § 602 of Title VI, see Powell v. Ridge, 189 F.3d 387 (3d Cir.), cert denied, 528 U.S. 1046, 120 S.Ct. 579, 145 L.Ed.2d 482 (1999). I determined that, inter alia, SCCIA had established a reasonable likelihood that the operation of the proposed cement grinding facility which would emit various pollutants and require the annual ingress and egress of nearly 80,000 delivery trucks would have an adverse, disparate impact on the residents of the Waterfront South neighborhood based on their race, color, or national origin. SCCIA I, 145 F.Supp.2d at 495.

Five days later, on April 24, 2001, however, the United States Supreme Court decided the case of Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), in which a five justice majority held that: "Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under § 602." Id. at 293, 121 S.Ct. 1511. In response to the Supreme Court's decision in Sandoval, which effectively overruled this Court's decision rendered five days earlier, the SCCIA Plaintiffs argued that my decision of April 19, 2001, which granted preliminary injunctive relief, could stand on alternative legal grounds. In particular, the SCCIA Plaintiffs maintained that their claim of disparate impact, originally brought under § 602 of Title VI, could be properly brought under 42 U.S.C. § 1983 ("§ 1983"). On April 26, 2001, I granted the SCCIA Plaintiffs' motion for leave to amend the complaint to seek to enforce Title VI's disparate impact regulations pursuant to § 1983.

Thereafter, after considering the supplemental briefs filed by the parties, on May 10, 2001, in a Supplemental Opinion and Order granting the SCCIA Plaintiffs preliminary injunctive and declaratory relief, I held that the EPA's Title VI implementing regulations, codified at 40 C.F.R. §§ 7.1 et seq., created rights which are enforceable under § 1983. See SCCIA II, 145 F.Supp.2d at 548. After concluding that the EPA's § 602 implementing regulations have the force and effect of law under governing Supreme Court and Third Circuit case law, see id. at 526-29, I then applied the three-part analysis set forth in Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997), in...