COUNTY CONCRETE CORPORATION; J.C. Soil & Grаvel, 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.
No. 05-1680, 05-1865.
United States Court of Appeals, Third Circuit.
Argued Jan. 17, 2006. March 31, 2006.
442 F.3d 159
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.
BARRY, Circuit Judge.
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
I. Discussion
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 whеther 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
A. Ripeness
“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.
1. Williamson Prong One: The Finality Rule
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) (barring plaintiff‘s as-applied SDP and EPC claims against municipal land use decision as unripe). 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. 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 еqual protection. See, e.g., Taylor Inv., 983 F.2d at 1294 n. 15 (final decision not necessary for facial SDP and EPC claims); Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 406 (9th Cir.1996) (final decision not necessary for facial Takings claims). 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.
a. Fifth Amendment Just Compensation Takings Claim
The Fifth Amendment, made applicable to the states by the Fourteenth Amendment, proscribes the taking of private property for public use without just compensation.
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. 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 viаble 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) (“[F]acial challenges to regulation are generally ripe the moment the challenged regulation or ordinance is passed, but face an uphill battle, since it is difficult to demonstrate that mere enactment of a piece of legislation deprived [the owner] of economically viable use of [his] property.” (internal citations and quotations omitted)).
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.
b. Substantive Due Process Claims
The Fourteenth Amendment provides thаt no State shall “deprive any person of life, liberty, or property without due process of law.”
i. SDP Claim as to the Ordinance
In Taylor Investment, we held that Williamson‘s finality rule applies to due process and equal protection challenges to the application of a land-use ordinance. Id. at 1292. In that case, the plaintiff landowner brought as-applied SDP and EPC challenges against a township and its officials after a township zoning officer revoked a tenant‘s use permit for allegedly supplying false or misleading information in his permit application. The plaintiff‘s claims were not ripe under the finality rule, we held, because plaintiff failed to appeal the zoning officer‘s decision to the zoning hearing board, which had the exclusive authority to render a final adjudication under the terms of the Pennsylvania Municipal Planning Code. Only a decision by the board could represent a final revocation of the plaintiff‘s permit and until then the “impact of the zoning ordinances on plaintiff‘s property” would not be clear. Id. at 1290.
Appellees claim that appellants were similarly required to seek a variance under
Appellants seize upon Taylor Investment‘s as-applied/facial-challenge distinction, and argue that their attack on the Ordinance is a facial one only and that we should hold that a facial substantive due process challenge to a zoning ordinance—asserted on the theory that the law as a whole is arbitrary, capricious and unreasonable—is ripe even if the plaintiff did not seek a variance from the zoning ordinance. We so hold.
ii. SDP Claim as to Appellees’ Conduct
Appellants argue that the District Court gave an unduly narrow construction to their SDP and EPC claims by interpret-ing them only as attacks оn the Ordinance, because they have also “alleged that the defendants abused the zoning process in the Township of Roxbury to deprive the plaintiffs of lawful use of their property, out of impermissible personal and political animus.” (Appellants’ Letter Br. 3.) Appellants claim that this “other conduct” does not have to comply with Williamson‘s finality rule under our decision in Blanche Road Corp. v. Bensalem Twp., 57 F.3d 253 (3d Cir.1995).
In Blanche Road, we held that a plaintiff landowner need not comply with the finality rule where, instead of “appealing from an adverse decision on a permit application,” the plaintiff claimed that the defendant Township officers “deliberately and improperly interfered with the process by which the Township issued permits, in order to block or to delay the issuance of plaintiff‘s permits, and that defendants did so for reasons unrelated to the merits to the application for the permits.” Id. at 267-68. It was asserted by the plaintiff that the Township “engaged in a campaign of harassment designed to force [it] to abandon its development of [an] industrial park.” Id. at 258. We explained that this type of SDP claim is “substantively different” from “that presented in the ripeness cases” and that “[s]uch actions, if proven, are sufficient to establish a [SDP] violation, actionable under
Appellants applied to the Planning Board in 1994 for approval to merge two tracts in order to extend their sand and gravel extraction operations. They allege in their complaint that appellees attempted to “impose unreasonable and unlawful restrictions” on their use of their property in violation of a 1993 agreement, to condition
These allegations are similar to those asserted by the plaintiff in Blanche Road. As we held in that case, such claims are sufficient to establish a ripe SDP claim, regardless of the outcome of subsequent appeals for relief to municipal zoning boards. Thus, appellants’ claim that appellees’ course of conduct, separate and apart from the enactment of the Ordinance, violated their SDP rights is ripe for federal adjudication.
c. Equal Protection Claim
The Fourteenth Amendment prohibits a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.”
These allegations constitute a facial challenge to the Ordinance, and, accordingly, appellants’ EPC claim is ripe. The essence of this claim is that the mere enactment of the Ordinance violates the Equal Protection Clause because it arbitrarily treats appellаnts differently than other similarly situated property owners. This is not a case where a municipality has enacted a general ordinance and a homeowner objects to the application of the ordinance to his or her property. Here, the Township knew exactly how appellants intended to use their land and passed the Ordinance specifically tailored to prevent that use. Williamson‘s finality rule “responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer.” Suitum, 520 U.S. at 738. It has no application where, as here, there is “no question . . . about how the ‘regulations at issue [apply] to the particular land in question.‘” Id. at 738-39 (quoting Williamson, 473 U.S. at 191); see also Palazzolo v. Rhode Island, 533 U.S. 606, 620, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (“While a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any development, or the permissiblе uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened.“). It would be an exercise in futility to require appellants to seek a variance from an ordinance specifically directed at their properties. Accordingly, their facial challenge is ripe. See Hacienda Valley Mobile v. Morgan Hill, 353 F.3d 651, 655 (9th Cir.2003) (“Facial challenges are exempt from the first prong of the Williamson ripeness analysis because a facial challenge by its nature does not involve a decision applying the statute or regulation.“).
2. Williamson Prong Two: Exhaustion of Just Compensation Procedures
The second prong of the Williamson ripeness test states that “if a
a. Fifth Amendment Just Compensation Takings Claim
As stated above, the District Court erroneously found that appellants’ Takings claim failed to satisfy the finality rule. It correctly held, however, at the time of the motion to dismiss, that the Takings claim was nevertheless unripe because appellants failed to exhaust state just compensation procedures. (App.16.) While the fact that apрellants allege a facial Just Compensation Takings claim against the Ordinance may save them from the finality rule, it does not relieve them from the duty to seek just compensation from the state before claiming that their right to just compensation under the Fifth Amendment has been violated. This is true regardless of whether a property-owner claims that he was deprived of all of his property‘s economically viable uses by the mere enactment of a zoning ordinance, or by a municipality‘s application of a facially-neutral zoning ordinance to that land. See Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 405-06 (9th Cir.1996).
Although the District Court correctly determined that the facial Just Compensation Takings claim failed to satisfy the second Williamson prong at the time of the motion to dismiss, the Supreme Court of New Jersey denied review of appellants’ state court appeal while this appeal was pending before us. See County Concrete Corp. v. Township of Roxbury, 185 N.J. 288, 884 A.2d 1260 (Oct. 7, 2005). Accordingly, the second Williamson prong no longer prevents appellants from asserting that the mere enactment of the Ordinance deprived them of the economically viable use of their property, and, thus, we will reverse the District Court‘s conclusion that the claim was unripe.1
b. Substantive Due Process Claim and Equal Protection Claim
In contrast to a Just Compensation Takings Claim, the remedies for a successful substantive due process or equal protection claim as to the face of a zoning ordinance are the invalidation of the regu-lation and actual damages. The absence of
B. Merits of the Substantive Due Process Claims
1. SDP Claim as to the Ordinance
The District Court dismissed appellants’ SDP facial challenge tо the Ordinance on the ground that “[s]electing a recognized use of land and setting lot sizes of three acres on the face of a zoning ordinance is rationally related to a legitimate state interest, and is not egregious governmental abuse or official conduct against liberty or property rights that shock the conscience.” (App.13.)
The facial challenge being ripe, we first reject appellees’ contention, with which the District Court agreed, that under United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA., 316 F.3d 392, 400 (3d Cir.2003), government action does not violate substantive due process when merely motivated by an “improper motive,” as we had formerly held, but now must rise to the higher level of “shock[ing] the conscience,” a standard, appellees allege, with “the same practical effect” as a “taking.” (Appellees’ Letter Br. 7.) But United Artists did not apply the “shocks the conscience” standard to legislative action; rather, we clеarly held in United Artists that ”executive action violates substantive due process only when it shocks the conscience.” United Artists, 316 F.3d at 399-400 (emphasis added). There is a distinction in the standard of review for legislative and executive acts that allegedly violate substantive due process. As Judge, now Justice, Alito explained in Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 139 (3d Cir.2000), “typically, a legislative act will withstand substantive due process challenge if the government ‘identifies the legitimate state interest that the legislature could rationally conclude was served by the statute.‘” Id. (citation omitted). On the other hand, non-legislative state action violates substantive due process if “arbitrary, irrational, or tainted by improper motive,” or if “so egregious that it ‘shocks the conscience.‘” Id. (citations omitted)
When a municipal body in New Jersey acts to “either recommend[] or vot[e] for a change in the permitted uses in a zoning district,” the act is legislative in character. See Timber Properties v. Chester, 205 N.J.Super. 273, 500 A.2d 757, 763 (1984); see also Bow & Arrow Manor, Inc. v. West Orange, 63 N.J. 335, 307 A.2d 563, 567 (1973) (“It is fundamental that zoning is a municipal legislative function.“). “[F]ederal judicial interferеnce with a state zoning board‘s quasi-legislative decisions, like invalidation of legislation for ‘irrationality’ or ‘arbitrariness,’ is proper only if the governmental body could have had no legitimate reason for its decision.” Phillips v. Borough of Keyport, 107 F.3d 164, 186 (3d Cir.1997) (Alito, J., concurring and dissenting) (quoting Pace Resources, Inc., v. Shrewsbury Twp., 808 F.2d 1023, 1034 (3d Cir.1987)) (emphasis added in Pace); see also Nicholas, 227 F.3d at 139. Thus, for appellants’ facial substantive due process challenge to the Ordinance to be successful, they must “allege facts that would support a finding of arbitrary or irrational legislative action by the Township.” Pace, 808 F.2d at 1035.
Appellants have alleged facts that indicate irrationality and arbitrariness, and “present a case involving actions aimed at [appellants] for reasons unrelated to land use planning.” See id. The complaint charges appellees with attempting to impede appellants’ sand and gravel extraction operations on one tract, and their attempts to expand to another tract, through false accusations, verbal disparagement and the imposition of illegal conditions and restrictions on their business in violation a 1993 agreement. On the heels of this alleged animus, the Township enacted the Ordinance, which rezoned appellants’ land from Industrial to either Rural Residential or Open Space. While the land in question is of an industrial nature and has been zoned for industrial uses for close to fifty years, the new designations only permit single-family detached dwellings and a minimum lot size of three acres. Allegedly, this action was taken knowing that it violated appellants’ legal and contractual rights. There is nothing in the complaint that would indicate any possible motivation for the enactment of the Ordinance other than a desire to prevent appellants from continuing to operate and expand their extraction business. Such animus is not a legitimate reason for enacting a zoning ordinance, see Brady v. Town of Colchester, 863 F.2d 205, 216 (2d Cir.1988), and is unrelated to land use planning. See Pace, 808 F.2d at 1035. Thus, appellants have alleged facts which, if true, state a claim that the Ordinance, on its face, violates substantive due process. While their claim may be ultimately unsuccessful if the Township is able to demonstrate a legitimate reason for the Ordinance, there was no basis for a
2. SDP Claim as to Appellees’ Conduct
As we noted above, appellants argue that the District Court reduced Count One “to bald allegations of a ‘substantive due process violation for enacting a zoning ordinance,‘” but that “the[ir] complaint undeniably entails much more than this.” We agreed with that characterization, and discussed Blanche Road, where the SDP claim was that the defendant Township officers “engaged in a campaign of harassment designed to force [it] to abandon its development of [an] industrial park.” Id. at 258. In Blanche Road, we “reject[ed] defendants’ argument that [the plaintiff] failed to assert a constitutional claim because it has no vested property right that could be subject to a due process violation,” inasmuch as the plaintiff “had the right to be free from harassment in [its] land development efforts.” Id. at 268 n. 15. Appellants have leveled similar allegations of harassment and obstruction and have, therefore, stated a substantive due process claim.
C. Merits of the Equal Protection Claim
The District Court dismissed appellants’ Equal Protection сhallenge to the
Unlike a substantive due process challenge, where the question is whether it was irrational for a Township to have passed a zoning law at all, in an equal protection challenge the question is whether “the Township has irrationally distinguished between similarly situated classes.” Rogin v. Bensalem Twp., 616 F.2d 680, 689 (3d Cir.1980). Thus, the “first inquiry a court must make in an equal protection challenge to a zoning ordinance is to examine whether the complaining party is similarly situated to other uses that are either permitted as of right, or by special permit, in a certаin zone.” Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 137 (3d Cir.2002). If “the entities are similarly situated, then the [Township] must justify its different treatment of the two,” id., by demonstrating that the ordinance is rationally related to a legitimate government purpose. Rogin, 616 F.2d at 688.
The complaint charges appellees with taking “discriminatory” actions, and with seeking “to deprive the plaintiffs of the use of their property, whereas other proximate and/or similarly situated properties were not rezoned in the manner of the plaintiffs’ property; nor were they accorded the treatment suffered by the plaintiffs and complained of herein.” (App.73.) These conclusory allegations do not suggest what “similarly situated property” was not rezoned in the same manner, nor do they offer any facts demonstrating how those properties were similarly situated. See Ventura Mobilehome Cmtys. Owners Ass‘n v. City of San Buenaventura, 371 F.3d 1046, 1054-55 (9th Cir.2004) (dismissing facial EPC claim against zoning ordinance, in part, because the plaintiff‘s “conclusory allegations” оf being “singled out, from all property owners in Defendant City” did “not identif[y] other similarly situated property owners or alleged[ ] how they are treated differently.“). To state a claim, the complaint must allege facts supporting a finding of irrational or arbitrary legislative action by the Township. See Pace, 808 F.2d at 1035. Without any facts, we have no way of determining whether the Ordinance discriminated against appellants’ properties, and if so, whether there was a possible rational basis for that discrimination. See, e.g., Congregation Kol Ami, 309 F.3d at 140-43 (analyzing whether country clubs, which were exempted from a zoning ordinance, are similarly situated to plaintiff‘s synagogue, which was denied an exemption). The complaint is similarly bereft of any indication of how appellees’ “other conduct” violated appellants’ equal protection rights. We will affirm the District Court‘s dismissal of Count Two. At least as currently pled, it does not state a claim.
D. Legislative Immunity
In addition to dismissing appellants’ SDP, EPC and Takings claims in Counts One, Two and Three for lack of ripeness and/or failure to state a claim, the District Court dismissed those claims against all seventeen individual defendants on the ground of absolute legislative immunity. It dismissed appellants’ claim for tortious interference with contractual rights and prospective economic damage in Count Four on this ground as well as to all individual defendants except Bodolsky. The District Court simply concluded that
Members of local legislative bodies, such as municipal planning boards, are entitled to absolute legislative immunity for actions taken in a purely legislаtive capacity. Acierno v. Cloutier, 40 F.3d 597, 610 & 610 n. 10 (3d Cir.1994) (en banc). To determine whether actions are “legislative” for immunity purposes, we have set out a two-part test: “(1) the action must be ‘substantively’ legislative, which requires that it involve a policymaking or line-drawing decision; and (2) the action must be ‘procedurally’ legislative, which requires that it be undertaken through established legislative procedures.” Id. at 610 (citation omitted).
As to the first prong of the test, we have explained that, when zoning officials are enacting or amending zoning legislation, their acts are substantively legislative, and when they are enforcing already existing zoning laws, their acts are administrative, executive, or ministerial. Id. at 611. Aiding this analysis should be an evaluation of how many people are affected by the official conduct. Acts affecting the entire community tend to be substantively legislative, while acts affecting only one or a small number of individuals implicate executive or administrative action. Id.
Appellants argue that the “rezоning aims solely and discriminatorily at the plaintiffs’ property in the subject neighborhood.” (Appellants’ Br. 29.) In Acierno, we held that where a county council enacted an ordinance rezoning the plaintiffs’ property pursuant to legislative powers delegated under state law, and where that rezoning was performed via the ordinance procedure, the action was substantively legislative, even where the rezoning was directed at one particular parcel of property. Id. at 612-13.
It is not clear from the face of the complaint that the Ordinance only affects appellants’ property.2 Appellants alleged that the Ordinance changed the zoning of their tracts of land, but did not claim that this was all that it did. This seems unlikely, since, according to the complaint, the Ordinance repealed and revised Roxbury Township‘s entire Land Development Ordinance. (App.69, para.54.) In any event, even if the Ordinance only affected appellants’ tracts of land, the Township‘s action was the enactment of a zoning ordinance as opposed to the enforcement of an already existing zoning law and, thus, the action was substantively legislative.
Under the second prong of the test for determining whether an action is “legislative” in nature, the Ordinance was “procedurally legislative” if it was undertaken through established legislative procedures.” Acierno, 40 F.3d at 613. Appellants have not alleged that the Ordinance was enacted in a manner contrary to “statutory procedures specified for such action,” see id., either in their complaint or now on appeal.
Thus, under the test we announced in Acierno, the enactment of the Ordinance was a “legislative” act, which entitles those
We will vacate the dismissals of Counts One, Two, Three, and Four on the ground of absolute legislative immunity and remand for a determination of which of the many individual defendants, if any, are entitled to legislative immunity. If there are to be dismissals on this ground, the District Court must also determine whether the dismissals are in the defendant‘s or defendants’ individual or official capacities. See Bass v. Attardi, 868 F.2d 45 (3d Cir.1989).3
Implicit in the foregoing is the fact that the individual defendants would not be immune for their conduct from the time of County Concrete‘s 1994 application for subdivision and site plan approval until the Ordinance was enacted in 2001. In Carver v. Foerster, 102 F.3d 96 (3d Cir.1996), we stated that “the doctrine of absolute immunity, as it pertains to local legislators, does not shield executive officials from liability for a course of conduct taken prior to and independent of legislative action, even if those officials were simultaneously members of the local legislаtive body that ratified the conduct.” Id. at 102. Additionally, “[a]n unconstitutional or illegal course of conduct by county government does not fall within the doctrine of absolute immunity merely because it is connected to or followed by a vote of a county board.” Id. at 101. Thus, we found in Carver that a county commissioner was not absolutely immune in a
Appellants allege “specific efforts on the part of Bodolsky, Stern and individual members of the Roxbury Council and planning board, to harass the plaintiffs and frustrate their efforts to conduct and expand their sand and gravel extraction operations.” (Appellants’ Br. 28.) These acts, which on a motion to dismiss must be accepted as true, are non-legislative acts, which do not entitle the individual defendants to legislative immunity.
E. Tortious Interference and Civil Conspiracy Claims
Count Four alleges that the “defendants’ actions as aforesaid constitute an intentional and malicious interference with plaintiffs’ rights under the 1993 Developer‘s Agreement and with their prospective economic advantage.” Count Seven alleges that appellees conspired to deprive appellants of their federal and state constitutional rights. The District Court granted appellees’ motion for summary judgment on both Counts on the ground that appellants failed to serve a timely notice of claim under the New Jersey Tort Claims Act (“NJTCA“),
The District Court found that appellants failed to file a notice of claim with any of the defendants, and appellants do not argue to the contrary. They argue, instead, that they substantially complied with the NJTCA by filing their complaint against the Township in state court on May 24, 2001, “well within the ninety-day notice period of [the NJTCA].” (Appellants’ Br. 37.)
The NJTCA requires that a notice of claim include the “date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted,” a “general description of the injury, damage or loss incurred,” the “name or names of the public entity, employee or employees causing the injury,” and the amount of damages claimed.
Appellants’ state court complaint was only filed against the Township of Roxbury, while here they seek to bring tort claims against all or virtually all of the appellees, including Stern and Bodolsky. Additionally, the state court complaint makes no mention of the possibility of a tortious interference with contract claim or a civil conspiracy claim. Thus, that complaint did not substantially comply with the requirements of the NJTCA for the tortious interference and civil conspiracy claims brought here.
Next, appellants claim that to the extent their civil conspiracy claim is predicated on federal and state constitutional violations, the NJTCA does not apply. It is true that the NJTCA‘s notice requirements do not apply to federal claims, including
Appellants argue, finally, that even if they failed to comply, substantially or otherwise, with the NJTCA‘s notice of claim requirement, at least as to Stern and Bodolsky they were not required to comply. They claim that Stern and Bodolsky are not public employees under the NJTCA, but are independent contractors. See
Stern and Bodolsky argue that their status as public employees of the Township was affirmatively established by the factual admissions in appellants’ complaint. The complaint states that “at all relevant times [Stern] acted as the Roxbury Township Planner and/or consultant to Roxbury” and Bodolsky “acted as the Roxbury Township Engineer and/or consultant to Roxbury.” (App. 63 (emphases added).) “To be binding, judicial admissions must be unequivocal.” Glick v. White Motor Co., 458 F.2d 1287, 1291 (3d Cir.1972). The complaint equivocates as to whether Stern and Bodolsky were employed by the Township or whether they were only “consultants.” Because it is not clear that a consultant is a “public employee” of the Township for purposes of the NJTCA, the allegations of the complaint are not judicial admissions such that Stern and Bodolsky would be relieved of their burden of “demonstrat[ing] that the evidence creates no genuine issue of material fact.” See Skerski, 257 F.3d at 278.
Stern points to no evidence establishing the status of his relationship with the Township, and the District Court did not address the issue. (See App. 16-18.) Because Stern, as the moving party, fаiled to “demonstrate that the evidence creates no genuine issue of material fact” regarding whether he is a “public employee” for whom notice under the NJTCA is required, appellants met their burden of demonstrating a genuine issue of material fact for trial merely by pointing out his failure. Thus, we will reverse the District Court‘s grant of summary judgment in Stern‘s favor.
Bodolsky, on the other hand, submitted a declaration to the District Court on August 19, 2004 with his motion for summary judgment stating:
I acted in the capacity of interim Township Engineer for the Township of Roxbury from to [sic] July 6 to December 29, 1999. I have served as Planning Board Engineer since 1993.
During my tenure as Township Engineer and Planning Board Engineer, I was requested to prepare reports and render opinions relevant to this case. The Township and Planning Board would have considered and relied upon these products in taking action in this matter.
(App.246.)
Bodolsky‘s claim that he is, or was, the Township and Planning Board Engineer is essentially the equivalent of аn allegation that he is a “public employee” under the NJTCA. In Borough of Dunellen v. F. Montecalvo Contracting, 273 N.J.Super. 23, 640 A.2d 1185 (1994), the Superior Court of New Jersey, Appellate Division,
Thus, because under New Jersey law a municipal engineer is a public employee, and Bodolsky alleges that he was the Township Engineer and/or Planning Board Engineer during all relevant times, he has met his burden to “demonstrate that the evidence creates no genuine issue of material fact.” See Skerski, 257 F.3d at 278. The burden then shifted to appellants, the nonmoving parties, to identify, by affidavits or otherwise, specific facts showing a genuine issue for trial. Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 322 (3d Cir.2005). Appellants failed to meet that burden. They have not explained why Bodolsky is an independent contractor and argue only that “[t]here was nothing to show that Bodolsky did not act as an independent contractor.” (Appellants’ Br. 35.) Thus, we will affirm the District Court‘s grant of summary judgment to Bodolsky on Counts Four and Seven.
F. Cross-Appeal
Appellees, except Bodolsky, cross-appeal the District Court‘s September 14, 2004 Amended Order to the extent it dismissed the SDP and EPC claims without prejudice. Because we are reversing the dismissal of those claims, we need not reach the issue of whether the dismissals should have been with or without prejudice, and will dismiss the cross-appeal.4
G. Supplemental Claim
The federal claims having been dismissed, the District Court dismissed appellants’ Count Six claim for breach of the implied covenant of good faith and fair dealing for lack of supplemental jurisdiction under
II. Conclusion
In summary, the facial Fifth Amend-ment Just Compensation Claim alleged in
In sum, the following claims survive: a substantive due process facial challenge to the Ordinance; a substantive due process challenge to appellees’ obstructive course