2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-31-2006

Cty Concrete Corp v. Roxbury

Precedential or Non-Precedential: Precedential

Docket No. 05-1680

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 05-1680 and 05-1865

 

COUNTY CONCRETE CORPORATION;

J.C. SOIL & GRAVEL, 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

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

D.C. Civil 03-cv-01445

District Judge: The Honorable Dennis M. Cavanaugh

 
2

Argued January 17, 2006

 

Before: BARRY, AMBRO and ALDISERT, Circuit Judges

 

(Opinion Filed: March 31, 2006)

 

Ernest W. Schoellkopff, Esq. (ARGUED)

Connell Foley

85 Livingston Avenue

Roseland, NJ 07068

Counsel for Appellants/Cross-Appellees

Richard P. Cushing, Esq. (ARGUED)

Gebhardt & Kiefer

1318 Route 31 North

P.O. Box 4001

Clinton, NJ 08809

-ANDAnthony M. Bucco, Esq.

Johnson, Murphy, Hubner, McKeon

 Wubbenhorst & Appelt

51 Route 23 South

P.O. Box 70

Riverdale, NJ 07457

Counsel for Appellees/Cross-Appellants Township of Roxbury,

et al.
3

Peter A. Piro, Esq. (ARGUED)

Hack, Piro, O’Day, Merklinger,

 Wallace & McKenna

30 Columbia Turnpike

P.O. Box 941

Florham Park, NJ 07932

Counsel for Appellee Thomas J. Bodolsky

 

OPINION OF THE COURT

 

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 42 U.S.C. § 1983; (2)

violations of the equal protection clause (“EPC”) under § 1983;

(3) a regulatory taking/inverse condemnation in violation of the

Fifth and Fourteenth Amendments; (4) tortious interference with

contractual rights and prospective economic advantage; (5)

defamation; (6) breach of the implied covenant of good faith and

fair dealing; and (7) civil conspiracy to deprive appellants of

their aforementioned rights. The District Court dismissed most

of the counts for failure to state a claim under F.R.Civ.P.

12(b)(6) and granted summary judgment on the remaining

counts. We have jurisdiction over the appeal and cross-appeal

under 28 U.S.C. § 1291, and exercise plenary review over the

dismissals under Rule 12(b)(6) and the grants of summary
4

judgment. See Gallas v. Supreme Court of Pa., 211 F.3d 760,

768 (3d Cir. 2000) (Rule 12(b)(6)); Pa. Prot. & Advocacy, Inc. v.

Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 379 (3d Cir. 2005)

(Rule 56). We will reverse in part and affirm in part and remand

for further proceedings. 

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 whether 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 not.” Felmeister v. Office of

Attorney Ethics, 856 F.2d 529, 535 (3d Cir. 1988). 

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 (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
5

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 asapplied 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 equal protection. See, e.g., Taylor Inv., 983 F.3d

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
6

property for public use without just compensation. U.S. Const.

amend. V, XIV; Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d

Cir. 2001). Count Three of the complaint alleges that “the

Ordinance and other actions of the defendants” regulated

appellants’ property “into a state of economic inutility” without

just compensation in violation of the Fifth and Fourteenth

Amendments. The District Court dismissed this claim on

ripeness grounds because appellants failed to comply with both

prongs of the Williamson ripeness test. 

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 viable 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 (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. 
7

b. Substantive Due Process Claims

The Fourteenth Amendment provides that no State shall

“deprive any person of life, liberty, or property without due

process of law.” U.S. Const. amend. XIV. “To prevail on a

substantive due process claim, a plaintiff must demonstrate that

an arbitrary and capricious act deprived them of a protected

property interest.” Taylor Inv., 983 F.2d at 1292. Although the

District Court only recognized one SDP claim, we read the

complaint as alleging two: the first addressed to the face of the

Ordinance, and the second addressed to appellees’ allegedly

obstructive conduct during the time preceding the Ordinance’s

enactment. 

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. 983 F.2d 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 N.J. Stat. Ann. § 40:55D-70d for their

non-conforming use before their SDP and EPC claims would be

ripe under Taylor Investment. Just as with their Just

Compensation Takings claim, however, appellants attack the

Ordinance facially, i.e., they allege that, in all of its possible

applications the Ordinance “lack[s] any legitimate reason and
8

[is] arbitrary, capricious, [and] not rationally related to any

legitimate government interest.” (App. 72.) We stated in Taylor

Investment that Williamson’s finality rule only applies to asapplied challenges, such as the one asserted in that case, and not

to facial due process claims. 983 F.2d at 1294 n.15. Other courts

have also held that seeking a variance (i.e., complying with

Williamson’s finality test) is not a prerequisite to a plaintiff’s

claim that the enactment of a zoning ordinance, in and of itself,

violates the Due Process Clause. See, e.g., Pearson v. Grand

Blanc, 961 F.2d 1211, 1215 (6th Cir. 1992); Executive 100, Inc.

v. Martin County, 922 F.2d 1536, 1541 (11th Cir. 1991); So.

Pacific Transp. Co. v. Los Angeles, 922 F.2d 498, 507 (9th Cir.

1990); Eide v. Sarasota Cty., 908 F.2d 716, 724 n.14 (11th Cir.

1990); Smithfield Concerned Citizens v. Town of Smithfield, 907

F.2d 239, 242 (1st Cir. 1990). 

Appellants seize upon Taylor Investment’s asapplied/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 interpreting

them only as attacks on 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
9

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.” 57

F.3d 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 § 1983, even if the

ultimate outcome of plaintiff’s permit applications was

favorable.” Id. at 268. Thus, no further appeals were necessary

in order to have a ripe, final determination for a federal court to

review. 

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 approval of their application on terms in

violation of the 1993 agreement, to defeat their application by

erroneously attributing environmental contamination from other

sources to their extraction operations, and made false public

accusations against appellants during the application process. 

Additionally, they claim that the 1999 Bodolsky investigation

and his subsequent letter to the Township made false accusations

about appellants’ extraction operations in order to “restrict and

impede soil extraction and related activity which previously had

been agreed, approved, and/or requested by Roxbury.” (App.

67-68.)

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
10

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.” U.S. Const. amend XIV. In Count Two,

appellants allege that the enactment of the Ordinance was

“discriminatory, arbitrary, capricious, unreasonable, malicious,

improperly motivated and conscious-shocking, and sought to

deprive the plaintiffs of the use of their property, whereas other

proximate and/or similarly situated properties were not rezoned

in the same manner,” in violation of the Equal Protection Clause.

(App. 73.)

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

appellants 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 (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 permissible 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
11

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 State provides an adequate procedure for seeking just

compensation,” the plaintiff must have exhausted this procedure

in order for his or her Takings claim to be ripe for federal

adjudication. Williamson, 473 U.S. at 194-95. Of course, “there

is no requirement that a plaintiff exhaust administrative remedies

before bringing a § 1983 action.” Id. at 192 (citing Patsy v.

Florida Board of Regents, 457 U.S. 496 (1982)). Instead of

being a true “exhaustion of state remedies” requirement,

however, the second prong of Williamson’s ripeness test merely

addresses a unique aspect of Just Compensation Takings claims. 

Because the Fifth Amendment bars not just the “taking” of

property, but the taking of property “without just compensation,”

a plaintiff “cannot claim a violation of the Just Compensation

Clause until” he or she has exhausted a state’s “procedure for

seeking just compensation.” Id. at 194-95 & 194 n.13. Only

then can a Takings claimant allege that he or she has actually

been denied just compensation, and, thus, only then is his or her

Takings claim ripe. Id. at 195. We, therefore, will apply the

second prong of William’s ripeness test to appellants’ various

constitutional claims. 

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
We express no view on the merits of appellants’ Just 1

Compensation Takings claim, as the District Court did not reach

the issue and must address it in the first instance upon remand. 

12

failed to exhaust state just compensation procedures. (App. 16.) 

While the fact that appellants 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, 884 A.2d 1260

(N.J. 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 regulation and actual damages. The absence

of “just compensation” is not part of a due process or equal

protection injury. See Williamson, 473 U.S. at 197. Thus, given

that the “exhaustion of just compensation procedures”
13

requirement only exists due to the “special nature of the Just

Compensation Clause,” it is inapplicable to appellants’ facial

SDP and EPC claims. Because both claims satisfy the finality

rule, they are ripe for adjudication. Id. at 195 n.14.

B. Merits of the Substantive Due Process Claims

1. SDP Claim as to the Ordinance

The District Court dismissed appellants’ SDP facial

challenge to 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 Theater 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

clearly 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
14

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, 500 A.2d 757, 763 (N.J. Super. Ct. Law

Div. 1984); see also Bow & Arrow Manor, Inc. v. West Orange,

307 A.2d 563, 567 (N.J. 1973) (“It is fundamental that zoning is

a municipal legislative function.”). “‘[F]ederal judicial

interference 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. Bd.

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. 

In Pace, we affirmed the dismissal of a landowner’s SDP

challenge to the facial validity of a zoning ordinance because the

“complaint fail[ed] to make any factual allegations that

indicate[d] irrationality,” and merely alleged that the zoning

change in question “did not conform to the spirit and general

guidelines of the comprehensive plan which encouraged

industrial development.” Id. We explained that such an

allegation only indicated that political compromise and

difference of opinion were motivating the zoning ordinance. 

Things would have been different, we suggested, had the

plaintiff “present[ed] a case involving actions aimed at this

developer for reasons unrelated to land use planning.” Id. 

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
15

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 Rule 12(b)(6) dismissal. 

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.” 57 F.3d 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
16

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

challenge to the Ordinance, summarily holding that “Roxbury’s

changes to the zoning ordinance do not present a basis for an

equal protection claim.” (App. 15.) Appellants argue that the

District Court erred because “[e]ven though the ordinance

doesn’t classify by race, alienage or national origin, it is

unreasonable, arbitrary and bears no rational relationship to a

permissible state objective.” (Appellants’ Br. 23.) 

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 certain 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
17

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” of 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 the “2001

Ordinance was adopted by the Defendants following the

Defendant planning board’s preparation of a Master Plan . . . .

Thus all of the Defendants were involved in the local legislative

process in adoption of zoning ordinances [of] which Plaintiffs

complain . . . .” (App. 11.) As for Bodolsky, the District Court

wrongly “assume[d]” that he “is a member of the Township’s

legislative body . . . .” (App. 35.)
 Unlike Acierno, in which we reviewed the District Court’s 2

grant of summary judgment, the District Court here dismissed

Counts One through Four on a Rule 12(b)(6) motion to dismiss,

18

Members of local legislative bodies, such as municipal

planning boards, are entitled to absolute legislative immunity for

actions taken in a purely legislative 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 “rezoning 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. 40 F.3d at 612-13.

It is not clear from the face of the complaint that the

Ordinance only affects appellants’ property. Appellants alleged 2
and, thus, our review is limited to the factual allegations in the

complaint. 

19

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 defendants who enacted it to absolute legislative

immunity for the act. It surely does not entitle the individual

defendants who were not involved in enacting the Ordinance to

immunity, but the District Court made no finding as to who was

and who was not involved, instead lumping all defendants

together in some sort of amorphous legislative “process.” This

was simply not enough. 

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
 The complaint, in this regard, is deficient in that it names the 3

individual defendants without regard to whether they were being

sued in their individual or official capacities. 

20

defendants’ individual or official capacities. See Bass v. Atardi,

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, 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 legislative

body that ratified the conduct.” 102 F.3d 96, 102 (3d Cir. 1996). 

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 § 1983 action for his alleged “harassment, threats, and

retaliation” designed to persuade county department heads to fire

the plaintiffs from their jobs even though those acts preceded his

legislative act of voting as a member of the county salary board

to ultimately eliminate plaintiffs’ positions. That the defendant

was a member of the county salary board was not dispositive. 

His pre-vote actions were executive or administrative in nature

and, thus, he was not entitled to absolute immunity in an action

for damages. Id. at 100. 

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
21

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”), N.J.

Stat. Ann. § 59:8-8, before bringing these tort claims against

public entities and public officials. To bring an action in tort

against a “public entity or public employee” in New Jersey, the

claimant must file a notice of claim with the entity within ninety

days of the accrual of the claim or else be “forever barred” from

asserting that cause of action. N.J. Stat. Ann. § 59:8-3 and -8;

Moon v. Warren Haven Nursing Home, 867 A.2d 1174, 1176

(N.J. 2005).

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. N.J. Stat. Ann. §

59:8-4. Applying this requirement, the Supreme Court of New

Jersey, in Wunschel v. Jersey City, held that a would-be claimant

had not substantially complied with the notice of claim

requirement by filing a workers’ compensation petition because
22

the petition failed to give notice of an intention to sue the public

entity defendant for the particular tort of wrongful death. 477

A.2d 329, 338 (N.J. 1994). 

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 § 1983 actions, Fuchilla v. Layman, 537 A.2d 652,

658 (N.J. 1988), or to state constitutional torts, see Garlanger v.

Verbeke, 223 F. Supp. 2d 596, 603-04 (D.N.J. 2002). 

Appellants, however, point to no authority establishing that the

NJTCA does not apply to a state law civil conspiracy claim. “A

civil action for conspiracy is essentially a tort action.” Farris v.

County of Camden, 61 F. Supp. 2d 307, 330 (D.N.J. 1999)

(citation omitted). “Unlike a claim under 42 U.S.C. § 1985 . . . a

conspiracy is not actually an element of a § 1983 claim. It is

recognized, however, that civil conspiracy is a vehicle by which

§ 1983 liability may be imputed to those who have not actually

performed the act denying constitutional rights.” PBA Local No.

38 v. Woodbridge Police Dep’t, 832 F. Supp. 808, 832 n.23

(D.N.J. 1993) (citing Pfanstiel v. City of Marion, 918 F.2d 1178,

1187 (5th Cir. 1990)). This does not mean, however, that a state

tort law civil conspiracy claim is converted into a federal claim

or a state constitutional tort merely because it is predicated upon

violations of the federal and state constitutions. The NJTCA

does not apply to federal and state constitutional claims because

a state statute may not abrogate an individual’s constitutional

rights. Greenway Dev. Co. v. Borough of Paramus, 750 A.2d

764, 770 (N.J. 2000). Applying the NJTCA to a civil conspiracy

claim will only hinder that state tort claim; it will not add
23

another hurdle for bringing a distinct § 1983 or state

constitutional claim because a conspiracy is not an element of

such claims. Thus, we hold that appellants were not exempt

from the NJTCA notice requirements for their civil conspiracy

claim in Count Seven.

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 N.J. Stat. Ann. §§ 59:1-3 and 8-3. As parties

moving for summary judgment, Stern and Bodolsky had the

initial burden to “demonstrate that the evidence creates no

genuine issue of material fact” as to their status as public

employees protected by the NJTCA notice provisions. See

Skerski v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir.

2001). 

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 F2d 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
24

moving party, failed to “demonstrate that the evidence creates no

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 an allegation that he is a “public employee” under the

NJTCA. In Borough of Dunellen v. F. Montecalvo

Contracting, 640 A.2d 1185 (N.J. Super. Ct. App. Div.

1994), the Superior Court of New Jersey, Appellate

Division, strongly implied that a municipal engineer is a

public employee and not an independent contractor. In

Borough of Dunellen, the issue was whether a

municipality had to provide a defense and indemnification

for its borough engineer, Stetler, for claims asserted

against Stetler by a third party. Id. at 1186. The

municipality conceded “that it would be obliged to pay

Stetler’s attorneys fees and expenses had they been
25

incurred in defense of claims arising out of its services as

the borough engineer,” because N.J. Stat. Ann. § 59:10-4

requires it to pay such expenses for “public employees.” 

Id. Therefore, the municipality argued “that Stetler was

acting as an independent contractor, not as the borough

engineer, with respect to the” third party’s claims. Id. 

This suggests that “independent contractor” and “borough

engineer” are mutually exclusive. Indeed, under New

Jersey law, a “borough engineer” appears to be, by

definition, a public employee. New Jersey Statutes

Annotated § 40A:9-140, cited in Dunellen, requires New

Jersey municipalities to appoint a “municipal engineer,”

and to pay him on “an annual salary or fixed fee basis or

at an hourly rate.” The municipality appointed Stetler

pursuant to this law, and because it failed to demonstrate

that Stetler was ever acting as an independent contractor

(i.e., not as the municipal engineer), the court ordered it to

provide him a defense and indemnification as a public

employee under N.J. Stat. Ann. § 59:10-4. Id. at 1186-89.

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. 
 Similarly, given our extensive discussion of all of the claims 4

and our disposition thereof, we need not address appellants’

contentions addressed to the September 14th order. 

26

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 42

U.S.C. § 1367(c). Because certain of the federal claims

were improperly dismissed and that, therefore, the District

Court retains jurisdiction over those claims, we will

vacate the dismissal of Count Six and remand Count Six

for consideration by the District Court. 

II. Conclusion

In summary, the facial Fifth Amendment Just

Compensation Claim alleged in Count Three is ripe for

federal adjudication, and the District Court’s dismissal on

this ground will be reversed. We reserve judgment on

whether a claim upon which relief can be granted has

been stated. The facial SDP and EPC challenges to the

Ordinance and the SDP challenge to appellees’

obstructive course of conduct prior to the enactment of

the Ordinance are ripe for review. The complaint states a

facial SDP claim upon which relief can be granted as to

the Ordinance, and a SDP claim as to appellees’
 Appellants have not argued that the dismissal on Count Five 5

should be reversed. 

27

obstructive course of conduct, and the order of the

District Court dismissing those claims on this ground will

be reversed. The complaint fails to state an EPC claim,

and the order of the District Court dismissing on this

ground will be affirmed. To the extent that the District

Court dismissed the SDP, EPC, Takings and Tortious

Interference claims (Counts One through Four) against

the individual defendants on the ground of absolute

legislative immunity, the order of the District Court will

be vacated, and we will remand for findings consistent

with this opinion. To the extent the District Court

accorded the individual defendants legislative immunity

as to appellants’ SDP claim attacking defendants’ preOrdinance conduct under Blanche Road, the order of the

District Court will be reversed. The order of the District

Court granting summary judgment on Counts Four and

Seven will be affirmed as to all appellees, except Stern,

with respect to whom the order will be reversed. The

District Court’s dismissal of Count Five on statute of

limitations grounds will be affirmed, and the order 5

dismissing Count Six will be vacated. The cross-appeal

will be dismissed. 

In sum, the following claims survive: a substantive

due process facial challenge to the Ordinance; a

substantive due process challenge to appellees’

obstructive course of conduct leading up to the enactment

of the Ordinance; a Fifth Amendment Just Compensation

Takings challenge to the face of the Ordinance; breach of

the implied covenant of good faith and fair dealing; and

the tortious interference and civil conspiracy claims, but

only against Stern.