ECOTONE FARM LLC аnd William R. Huff, Appellants v. Edward A. WARD, II; Township of Harding; Paul D. Fox; New Jersey Conservation Foundation; Harding Township Committee; Marshall Bartlett; Louis Lanzerotti; Regina Egea; James Rybka; Nicholas Platt; Sally Ward; APGAR Associates.
No. 14-3625.
United States Court of Appeals, Third Circuit.
Argued Nov. 10, 2015. Opinion Filed: Jan. 28, 2016.
For the foregoing reasons, we will affirm the District Court‘s order denying Parkell‘s motions for a preliminary injunction.7
Thomas B. Hanrahan, Esq., David J. Pack, Esq. (Argued), Thomas B. Hanrahan & Associates, L.L.C., River Edge, NJ, Counsel for Appellees Edward J. Ward, II, Township of Harding, Harding Township Committee, Marshall Bartlett, Louis Lanzerotti, Regina Egea, James Rybka, and Nicholas Platt.
Craig L. Corson, Esq., Michael F. Dolan, Esq., (Argued), Hoagland Longo Moran Dunst & Doukas, New Brunswick, NJ, Counsel for Appellees Paul D. Fox and Apgar Associates.
R. James Kravitz, Esq., Joseph Schramm, III, Esq., (Argued), Fox Rothschild, Lawrenceville, NJ, Counsel for Appellee New Jersey Conservation Foundation.
George C. Jones, Esq., Graham Curtin, Morristown, NJ, Counsel for Appellee Sally Ward.
Before: CHAGARES, RENDELL, and BARRY, Circuit Judges.
OPINION *
CHAGARES, Circuit Judge.
This is an appeal from an amended opinion and order, dated July 23, 2014, of the United States District Court for the District of New Jersey, dismissing at the pleadings stage all federal claims against the defendants on qualified immunity* grounds because the plaintiffs had not adequately alleged that their constitutional rights were violated, and declining to exercise supplemental jurisdiction over the state-law claims. For the reasons that follow, we will affirm in part and reverse in part.
Because we write exclusively for the parties, we set forth only those facts necessary to our disposition. Plaintiff William Huff is the managing member of co-plaintiff Ecotone Farm LLC and the owner of a 31-acre plot of land in Harding Township, New Jersey (“the Property“), where Ecotone conducts farming activity. This lawsuit concerns Huff‘s efforts to renovate a house and two barns on the Property, which he says were thwarted by twelve defendants: his neighbors Edward and Sally Ward; the Township of Harding; the Harding Township Committee; the individual members of the Harding Township Committee (Edward Ward, Marshall Bartlett, Louis Lanzerotti, Regina Egea, James Rybka, and Nicholas Platt); the township engineer Paul Fox; Fox‘s engineering firm Apgar Associates; and the New Jersey Conservation Foundation (“NJCF“), which holds a conservation easement over the Property.
Huff purchased the Property in 1987. In approving the estate sale, a state court imposed a conservation easement on the Property to prеvent further subdivision, with rights running to the NJCF. The Wards1 owned an adjacent parcel with an ingress/egress easement permitting them to use Huff‘s land for a driveway to the public road. Litigation broke out between Huff and the Wards when Huff installed speed bumps in the driveway to prevent the Wards from speeding through, and the Wards responded by destroying the speed bumps. They reached a settlement in 1998, but there was a subsequent legal battle over whether the Wards had complied with the terms of the settlement.
Ward, motivated by animosity from those earlier disputes, made baseless reports to environmentаl authorities in 2001-02 about Huff‘s activities on the Property as a means of harassment and instructed the township engineer, Fox, to do the same. After Ward was elected to the Township Committee in 2008, he became Fox‘s “boss” and “enlist[ed]” Fox to interfere with Huff‘s renovation. Second Amended Compl. (“SAC“) ¶¶ 3-4. Fox‘s compliance “ensure[d] [his] reappointment as Township Engineer,” and his obstruction of Huff‘s renovation allowed him to “line [his] pockets through baseless engineering charges.” Id. ¶¶ 5-6. Huff accuses both Fox and Ward of harboring “personal animus” towards him. Id. ¶¶ 2, 4. Fox openly expressed to оthers his animosity towards Huff and desire to prevent Huff from obtaining construction permits. Fox also had a financial motive to support Ward and the NJCF. His engineering firm counts NJCF among its clients and receives referrals from Ward, who is a real estate broker.
In 2008, Huff began renovating one of the barns on the Property. The conservation easement permitted him to maintain and replace existing structures, and he obtained zoning approvals and building permits. But Ward and Fox took steps to prevent the renovation from going forward. First, in November 2008 and again in January 2009, Ward tried and fаiled to have the police halt the renovation by claiming that it made the driveway unsafe. Then in January 2009, Ward emailed Fox court documents from the earlier driveway litigation, and Fox then circulated the doc-
In April 2009, Huff submitted a revised soil disturbance plan, taking account of Storage Area 2, but then heard nothing from Fox for months. Meanwhile, Fox forwarded the revised plan to the NJCF to seek its position, and the NJCF wrote back to object to the plan. Fox continued to correspond with the NJCF and seek its consent throughout the process, which gave the NJCF potential leverage over Huff to renegotiate thе terms of its conservation easement. Fox provided Ward and the NJCF with copies of documents relating to the renovation. Fox and Ward also forwarded documentation of the NJCF‘s opposition to the renovation to other township departments, including the Health Department, which would later deny Huff‘s application to drill a new well on the Property because of its location within the conservation easement.
In September 2009, Huff received a Notice of Violation concerning Storage Area 2, accusing him of violating the original soil disturbance plan, despite the fact that Huff had submitted the revised plan, which had been approved by default by virtue of Fox‘s failure to respond to it within thirty days. On October 1, 2009, Fox issued Huff a summons and complaint for violating section 105-104A of Harding Township‘s municipal code (“the soil disturbance ordinance“).2 The soil disturbance ordinance vests Fox with exclusive enforcement authority, and Huff was the only person against whom the ordinance had ever been enforced.
Huff brought his own state court action, which was resolved in the spring of 2011 when Harding Township agreed to drop the October 2009 еnforcement action, as well as its objections to the renovation based on the conservation easement. Fox then issued an engineering review requiring Huff to seek a determination from the New Jersey Department of Environmental Protection (“NJDEP“) that the renovation was not a “major development” for stormwater management purposes, despite the fact that the township had already requested, and the NJDEP had already made, that determination on several previous occasions. Fox also threatened to issue a Notice of Violation and encouraged and assisted the NJCF to object to the NJDEP‘s issuance of permits to Huff. On
At a January 2012 meeting of the Township Committee, Committeeman Bartlett rejected a proposal to open the township engineer position to competitive bidding, arguing that it would be better to stick with Fox in light of the ongoing litigation. Other committee members approved Fox‘s reappointment despite having seen “extensive information on Fox‘s abusive conduct.” Id. ¶ 11.
The plaintiffs claim that as a result of all this harassment and obstructionism by the defendants, they incurred significant administrative costs and attorney‘s fees and lost full enjoyment of the Property. They are suing Fox, Ward, the Township of Harding, the Township Committee, and the individual members of the Township Committee under
In granting the defendants’ motion under
The District Court dismissed the section 1983 claims against Bartlett, Lanzerotti, Egea, Rybka, and Platt because there were no allegations about their personal involvement in constitutional violations; the claims against Ward because the allegations concerned his conduct as a private citizen and not under color of state law; and the claims against Harding Township because of insufficient allegations of a municipal policy or custom. The District Court then аddressed whether the federal claims stated valid causes of action with reference to Fox (although the District Court concluded that the same principles would apply to the other defendants). With regard to substantive due process, it found the allegations insufficient to meet the “shocks the conscience” standard. It found the equal protection allegations insufficient because the plaintiffs had not identified any similarly situated individuals who were treated differently, and the mere fact that the soil disturbance ordinance had never been enforcеd against anyone else was insufficient to show irrational disparate treatment. It dismissed the procedural due process claim because the complaint did not describe the state procedures that were allegedly inadequate. Finally, it dismissed the conspiracy claim under section 1985(3) because the claim was not related to class-based discrimination, such as race discrimination.
II.
The District Court had jurisdiction under
“Our review of both a dismissal under Fed.R.Civ.P. 12(b)(6) and a grant of qualified immunity is plenary.” Leveto, 258 F.3d at 161. “In reviewing the dismissal of a claim under Rule 12(b)(6), we must accept the allegations of the complaint as true and draw all reasonable inferences in the light most favorable to the plaintiff[s].” Id. (quotation marks omitted). “[P]laintiff[s] must allege enough facts to state a claim to relief that is plausible on its face.” New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir.2014) (quotation marks omitted). “This same approach must be followed when qualified immunity is asserted in a Rule 12(b)(6) motion.” Leveto, 258 F.3d at 161.
III.
For the reasons that follow, we will reverse and remand to the District Court the plaintiffs’ equal protection claim as against defendants Ward, Fox, and Harding Township, substantive due process claim as against defendants Ward and Fox, and pendent state-law claims. We will affirm in all other respects.
A.
Under the “class-of-one” theory recognized in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed. 2d 1060 (2000), a plaintiff may state an equal protection claim by alleging that “(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006). Because the plaintiffs’ allegations, accepted as true and construed in the light most favorable to them, meet this standard, we conclude that the District Court erred in dismissing their equal protection claim.
The complaint is sufficient with regard to the first element. The plaintiffs allege that “other proximate and/or similarly situated properties were not accorded the treatment suffered by Plaintiffs and complained of herein.” SAC ¶ 123. The allegation is made plausible by the totality of the complaint, which describes a “pattern of unjustified harassment.” Geinosky v. City of Chicago, 675 F.3d 743, 748 & n. 3 (7th Cir.2012). Under those circumstances, specific descriptions of others similarly situated are not required at the pleadings stage. See id.
The defendants do not challenge the second element of the class-of-one claim, as the complaint plainly alleges intentional action by the defendants.
As tо the third element, although there may well have been a rational basis for the defendants’ treatment of the plaintiffs, that rational basis is not apparent from the complaint. The complaint repeatedly characterizes the defendants’ conduct as “discriminatory, arbitrary, capricious, unreasonable, malicious, improperly motivated, and conscience-shocking,” SAC ¶ 123, and motivated by “personal animus,” SAC ¶¶ 2, 4. More importantly, the complaint describes a factual setting in which there was no violation of the easements, no real question about whether the renovation was a “major development” for stormwater management purposes, and therefore no legitimate rationale for the defendants to impose barriers to the renovation. This is sufficient at the pleadings stage.
Even Fox‘s enforcement of the soil disturbance ordinance is lacking an apparent rational basis, despite the fact that Huff admits to storing construction materials in Storage Area 2. “[I]t is possible
Accordingly, the District Court erred in dismissing the plaintiffs’ equal protection claim.3
B.
Land ownership “is a property interest worthy of substantive due process protection.” DeBlasio v. Zoning Bd. of Adjustment for Twp. of W. Amwell, 53 F.3d 592, 600 (3d Cir.1995), overruled on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA, 316 F.3d 392 (3d Cir.2003). Executive action (as distinguished from legislation) violates substantive due process protections “only when it shocks the conscience ... the meaning of [which] varies depending on the factual context.” United Artists, 316 F.3d at 399-400. The complaint, construed in the light most favorable to the plaintiffs, sufficiently alleges conscience-shocking executive action on the part of the defendants. The District Court therefore erred in dismissing the plaintiffs’ substantive due process claim.
Land-use decisions are generally “matters of local concern” and “should not be transformed intо substantive due process claims based only on allegations that government officials acted with ‘improper’ motives” because “the term ‘improper’ sweeps much more broadly” than the “shocks the conscience” standard. Id. at 400, 402. A government official‘s motives can be improper in some way without being conscience-shocking. But that does not mean that executive actions undertaken with improper motives are never conscience-shocking. Indeed, “conduct intended to injure in some way unjustifiable by any government interest is the sort of offiсial action most likely to rise to the conscience-shocking level.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). In affirming the dismissal of a substantive due process claim in Eichenlaub v. Township of Indiana, 385 F.3d 274 (3d Cir.2004), we specifically noted the absence of allegations that local officials were motivated by “corruption or self-dealing” or “bias against an ethnic group,” suggesting that the presence of such motives might conceivably change the outcome. Id. at 285-86.
C.
“A finding of liability under 42 U.S.C. § 1983 requires that the defendant ... have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Bonenberger v. Plymouth Twp., 132 F.3d 20, 23 (3d Cir.1997) (quotation marks omitted). The District Court erred in concluding that Ward did not act under color of state law; the allegations concerning Ward meet the standard.
“[A] state employee who pursues purely private motives and whose interaction with the victim is unсonnected with his execution of official duties does not act under color of law,” but “off-duty police officers who flash a badge or otherwise purport to exercise official authority generally act under color of law.” Id. at 24. “[I]nformal, behind the scenes exertion of state authority is as much within the scope of § 1983 as the more usual examples of formal and open action leading to the denial of federal rights.” Kletschka v. Driver, 411 F.2d 436, 447 (2d Cir.1969).
After Ward was elected to the Township Committee in 2008, he became Fox‘s “boss” and “enlist[ed]” Fox to interfere with Huff‘s renovation, and Fоx‘s misconduct “ensure[d] [his] reappointment as Township Engineer by Ward.” SAC ¶¶ 3-5. Ward also “kept tabs on” the situation “by using his position, influence, and relationship with defendant Fox to obtain copies of correspondence” between Huff and Fox, and “Fox improperly shared private documents concerning the barn renovation with Ward.” Id. ¶ 82. The clear and fair implication of these allegations is that Ward wielded his supervisory position over Fox—in particular, his ability to influence whether Fox would keep his job—to convince Fox to harass the plaintiffs and share documents that facilitated Ward‘s own complaints. That suffices to allege action under color of state law.5
D.
The District Court also erred in concluding that none of Fox‘s actions could be attributed to Harding Township under Monell v. Dep‘t of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and its progeny. Because Fox himself was the final рolicymaker with regard to enforcing the soil disturbance ordinance, any violation of equal protection rights in connection with that enforcement is attributable to Harding Township. But that enforcement is the only instance of alleged harassment attributable to Harding Township and, viewed in isolation from the entire course of harassment, would not “shock the conscience.” We therefore will reverse the District Court‘s finding as to Monell liability only with respect to the equal protection claim.
“[A] municipality may only be liable for the torts of its employees in one of three ways: First, the municipality will be liable if its employee aсted pursuant to a formal government policy or a standard operating procedure long accepted within the government entity; second, liability will attach when the individual has policy making authority rendering his or her behavior an act of official government policy; third, the municipality will be liable if an official with authority has ratified the unconstitutional actions of a subordinate, rendering such behavior official for liability purposes.” McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir.2005) (citations omitted).
We reject the plaintiffs’ argument that the township ratified all of Fox‘s conduct. They claim that Ward himself ratified Fox‘s conduct on behalf of the township but cite no authority for the proposition that Ward, acting as a single member of the Township Committee, had power to set policy for Harding Township. As for the committee acting collectively, ratification occurs “[i]f the authorized policymakers approve a subordinate‘s decision and the basis for it.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality). The committee cannot be said to have “approved” Fox‘s specific decisions and bases for them merely because it reappointed him as municipal engineer with awareness of complaints about his conduct.
But Fox‘s decision to enforce the soil disturbance ordinance is attributable to the township because he was the final policymaker in that domain. “[A]n official with policymaking authority can create official policy, even by rendering a single decision.” McGreevy, 413 F.3d at 367-68. “[A]n official has final policy-making authority, and can thus bind the municipality by his conduct” if “the official is responsible for making policy in the particular area of municipal business in question” and “the official‘s authority to make policy in that area is final and unreviewable.” Hill, 455 F.3d at 245 (emphases in original). This “is a question of state law.” Praprotnik, 485 U.S. at 124.
The provisions of this article shall be enforced by the Township Engineer, who shall also inspect or require adequate inspection of the work carried out pursuant to this article. If the Township Engineer finds any existing conditions not as stated in the applicant‘s erosion and sediment control plan and application, he or she may refuse to approve further work and may require necessary erosion and sedimentation control measures to be promptly installed and may require modifications to the plan when, in his or her judgment, such are necessary to properly control erosion and sеdiment. He or she may also seek other penalties as provided in § 225-94.
Harding Township, N.J., Code § 225-92. An aggrieved party may ask the “Township Authority” for reconsideration and then appeal to the State Soil Conservation Committee. Id. § 225-93(B). But the “Township Authority” is defined as “[t]he Township Engineer“—Fox himself—“and such other departments, employees, officials or consultants as have been authorized by the Township Committee to approve plans required by this article.” Id. § 225-89 (emphasis added). The defendants have failed to point to any municipal official who could potеntially have overruled Fox. And the possibility of appeal to the state committee does not make Fox‘s decision any less final as to the township‘s policy. Thus, Fox‘s decision to enforce the soil disturbance ordinance was final and unreviewable for Monell purposes.
E.
The plaintiffs have made no argument that the District Court erred in dismissing their procedural due process claim, so we consider that issue abandoned. We have also considered the plaintiffs’ arguments with regard to Count Four of the complaint (conspiracy to violate constitutional rights) and with regard to the personal involvement of defendants Bartlett, Lanzerotti, Egea, Rybka, and Platt, which we find to be without merit. We therefore will affirm the District Court‘s judgment as to those issues.
We will remand the pendent state-law claims because they were dismissed on the premise that no federal claims remained, which is no longer true, but we express no view as to the merits of those claims or whether the District Court should, in its discretion, exercise supplemental jurisdiction over them.
IV.
For the foregoing reasons, the judgment of the District Court will be reversed and remanded as to the plaintiffs’ equal protеction claim as against defendants Ward, Fox, and Harding Township, substantive due process claim as against defendants Ward and Fox, and pendent state-law claims. The judgment will be affirmed in all other respects.