JOHN SANDONE, DANIEL AARON, WING PROPERTIES, LLC. v. WILLIAM PARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6346-07T16346-07T1

JOHN SANDONE, DANIEL AARON, WING PROPERTIES, LLC, SANTA FE BAR & GRILL, LLC, and HADDON CENTER ASSOCIATES, LLC,

Plaintiffs-Appellants,

vs.

WILLIAM PARK, individually in his private capacity and also in his official capacity as Borough Commissioner and Mayor of the Township of Haddon, and THE TOWNSHIP OF HADDON, a municipal corporation of the State of New Jersey,

Defendants-Respondents,

and

DAVID CUNEO, individually in his private capacity and also in connection with his prior official position as Solicitor (Municipal Attorney) of the Township of Haddon, and FIELDSTONE ASSOCIATES a/k/a FIELDSTONE REDEVELOPMENT LP, a business entity operating in the Township of Haddon and elsewhere,

Defendants.

_______________________________________

 

Argued: November 5, 2009 - Decided:

Before Judges Cuff, Payne and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3659-05.

Jeffrey P. Resnick argued the cause for appellants (Sherman, Silverstein, Kohl, Rose & Podolsky, P.A., attorneys; Mr. Resnick, on the brief).

Robert A. Baxter argued the cause for respondents (Wardell, Craig, Annin & Baxter, LLP, attorneys; Mr. Baxter, of counsel; Ekta Patel, on the brief).

George J. Botcheos argued the cause for respondents on the damages claims only.

PER CURIAM

Plaintiffs John Sandone, Daniel Aaron, Wing Properties, LLC (Wing), Santa Fe Bar & Grill, LLC (Santa Fe), and Haddon Center Associates, LLC (Haddon Center) owned property in an area of the Township of Haddon (Township) designated for redevelopment. They alleged that defendants William Park, the mayor during the relevant time period, and other Township officials, engaged in various acts during the redevelopment period that frustrated their business ventures, and this intrusion and frustration of their business goals violated their constitutional rights to substantive and procedural due process and equal protection. Judge Millenky granted summary judgment in favor of defendants and also rebuffed plaintiffs' motion to alter or amend the judgment based on newly discovered evidence. Plaintiffs appeal; we affirm.

On July 21, 1998, the governing body of the Township adopted a resolution to authorize investigation of redevelopment of various areas of the Township, including the former Dy-Dee Diaper Company (Dy-Dee). The Dy-Dee site was located on Haddon Avenue.

Plaintiffs, in various combinations and through various corporate legal entities, owned three lots bordering the Dy-Dee site: 207, 209, and 211 Haddon Avenue. Plaintiff Sandone purchased 211 Haddon Avenue in 2000 or 2001; plaintiff Aaron exercised an option to purchase 209 Haddon Avenue through plaintiff Wing in 2002. Plaintiff Santa Fe is the owner of the liquor license acquired for use at 209 Haddon Avenue. In 2003, plaintiff Haddon Center purchased 207 Haddon Avenue for use as a parking lot in conjunction with the contemplated use at 207-209 Haddon Avenue.

On May 2, 2002, the Planning Board of the Township held a public hearing to determine the proposed areas in need of redevelopment. After public comment, the Planning Board voted to recommend to the governing body redevelopment of various areas of the Township, including the Dy-Dee site and surrounding properties. On May 21, 2002, the governing body accepted the recommendation and officially declared the Dy-Dee site and surrounding properties in need of redevelopment. A redeveloper, Fieldstone Associates (Fieldstone), was appointed on July 15, 2003; an independent fee appraiser was appointed in Fall 2003.

Plaintiffs opposed the redevelopment and also sought to convince the governing body that their plans for the assembled properties should be included in the redevelopment plan and that they were capable of managing the redevelopment of their sites. In June 2004, plaintiffs and other affected owners in the redevelopment area filed a complaint in lieu of prerogative writs to challenge the redevelopment project. They alleged that defendants' decision to adopt and implement the redevelopment plan was arbitrary, capricious, unreasonable and contrary to law. They also asserted a claim pursuant to 42 U.S.C.A. 1983.

Specifically, plaintiffs alleged that their actions to acquire the various Haddon Avenue parcels were done with the knowledge and support of the governing body, particularly the mayor. They further alleged that the governing body, and particularly the mayor, knew plaintiffs had commenced negotiations with a restaurateur to develop their assembled parcels, that the mayor interfered with those negotiations by informing the interested party that the Township planned to acquire these parcels, and that the restaurateur soon thereafter purchased a nearby but unaffected site from a close political ally of the mayor and a member of the Planning Board. Plaintiffs further alleged that the mayor and David Cuneo, the Township attorney, engaged in a pattern of threats, intimidation and harassment against plaintiffs Sandone and Aaron and their business interests to deter their opposition to the redevelopment plan.

Eventually, the matter settled in 2006. In accordance with the comprehensive settlement agreement, plaintiffs conveyed title to the 207, 209 and 211 Haddon Avenue sites and received $1,100,000. This sum substantially exceeds the price paid by plaintiffs for these sites. In addition, the redeveloper paid plaintiffs $200,000 for the anticipated costs to activate a bar/restaurant at the site and to vacate and relocate to an alternate location. Plaintiffs received the right to exercise an option to use and occupy the site for $5,000 a month until the redeveloper required the site for construction of its project. Thereafter, plaintiffs received an option to acquire up to 4,000 square feet of commercial space in the redevelopment project at a price ten percent less than preconstruction pricing.

While the 2004 prerogative writs action proceeded, plaintiffs filed the current action on April 29, 2005. In this complaint, plaintiffs essentially restated the civil rights and constitutional claims addressed in their prerogative writs complaint filed in 2004. They alleged that defendants Park, the Township attorney, the redeveloper, and various unknown parties conspired to and interfered with plaintiffs' prospective economic advantage, violated plaintiffs' civil and constitutional rights, and enforced the law in a discriminatory fashion. More specifically, plaintiffs asserted that the decision to take their properties in the name of redevelopment and to prevent them from pursuing their business plan for the assembled properties was not the product of a duly considered and adopted redevelopment plan but retribution for past slights.

Following discovery, defendants Park, Cuneo and the Township moved for summary judgment. In an oral decision, Judge Millenky dismissed plaintiffs' substantive due process, procedural due process, and equal protection claims. He also ruled that the balance of the claims were barred by legislative and qualified immunity. Plaintiffs' appeal of the August 17, 2007 order was dismissed as interlocutory because the counterclaim filed by the Township attorney had not been dismissed. Eventually, plaintiffs and the attorney agreed to dismiss their claims, and plaintiffs filed a motion to alter or amend the judgment based on an ethics claim filed against defendant Park. The judge noted that the animus of Park towards plaintiffs had been discussed in the prior motion and denied the motion.

On appeal, plaintiffs contend that the existence of genuine issues of material fact precluded summary judgment. They also argue that the motion judge misapplied the law to the facts. We disagree.

Addressing the August 2007 summary judgment motion, Judge Millenky recognized that plaintiffs had never established any irregularity in the investigation, adoption and implementation of the redevelopment plan. The judge emphasized that he was required to evaluate plaintiffs' various claims and the actions of the public official defendants in the context of a properly adopted redevelopment plan. In doing so, the judge found no direct evidence that the Township adopted and implemented a redevelopment plan with the specific purpose to interrupt and frustrate plaintiffs' business ambitions, and noted the substantial return plaintiffs realized on these properties as reflected in the settlement of the 2004 prerogative writs action.

Addressing the procedural due process argument, Judge Millenky noted that plaintiffs had an adequate remedy through state law and procedures to redress any deficiencies in the redevelopment process generally and as applied to them. Similarly, plaintiffs had adequate remedies available to them to redress any delay in obtaining fair compensation for their property and to address any claim of low valuation.

Addressing the substantive due process claim, Judge Millenky recognized that plaintiffs were required to establish that any statement made to the effect that plaintiffs would be "buried financially" must have had the capacity to cause the harm alleged and be so outrageous as to shock the conscience. The judge held, however, that there was no evidence that those same defendants personally or at their direction took any action to cause plaintiffs any financial harm, whatever the content of various statements by defendants. Similarly, plaintiffs failed to demonstrate any legal error in the date selected for valuation of their property, and plaintiffs had an adequate remedy at law to challenge the valuation.

Finally, Judge Millenky addressed whether any immunity defenses protected defendants Park and Cuneo for their actions. Judge Millenky held that plaintiffs had failed to submit facts to support the assertion that Park or Cuneo committed any acts beyond the scope of their legislative or executive responsibilities. Nevertheless, to the extent that Park and Cuneo embarked on a course of conduct motivated by a purpose to harm plaintiffs, the judge held that such actions were immunized. As to legislative immunity, the judge stated:

And here, to the extent that the mayor acted, and to the extent Mr. Cuneo acted, to carry out the redevelopment process, notwithstanding some animus that might be well-found . . . what they did in the end was act legislatively. What they did in the end was adopt a variety of resolutions that provided for valuations of property or, alternatively, gave official information to appraisers concerning valuations of property.

To the extent that those actions were wrong again, the appropriate remedy was the remedy that the plaintiffs undertook, that was the remedy of filing an action in lieu of prerogative writs. . . .

If, in fact, the statements attributed to Mr. Cuneo and attributed to Mr. Park are true, they do not alter the fact that when, indeed, action was taken, it was taken in the legislative capacity.

Addressing those acts that might not have been taken in their legislative capacities and the application of a qualified good faith immunity, Judge Millenky held that plaintiffs had to demonstrate that defendants' actions violated a constitutional right and the contours of that right were clearly established so that the official knew his conduct violated that right. The judge found that plaintiffs did not satisfy the first prong of the test. He stated that the facts did not demonstrate that defendants violated plaintiffs' right to prompt valuation of their property or any right to speak freely in opposition to the redevelopment plan. In fact, he found that the record revealed that plaintiffs spoke frequently in public against the plan. Similarly, the judge found that plaintiffs failed to establish that they had been treated differently than other property owners affected by the redevelopment plan.

Plaintiffs sought reconsideration of the August 17, 2007 order based on a finding by the Local Finance Board that defendant Park had violated the Local Ethics Law, N.J.S.A. 40A:9-22.5, and the alleged abandonment of the redevelopment project. Judge Millenky, however, held the Local Finance Board's finding did not alter his earlier decision because the wrongful conduct alleged by plaintiffs subsumed the facts underlying the ethics charge. Moreover, the subsequent progress or lack thereof of the redevelopment project had no influence on the disposition of the various claims.

Having had the opportunity to review the briefs and appendices submitted by the parties, and having the benefit of oral argument by all parties, we affirm substantially for the reasons expressed by Judge Millenky in his thorough and comprehensive August 17, 2007 and June 20, 2008 oral opinions. We add the following brief comments.

The claims presented by plaintiffs are rooted in the exercise by a municipality of its authority to execute economic development plans for the community. Such efforts are often controversial and the Supreme Court of New Jersey has sharply limited the ability of disapproving citizens to redress their grievances through other than existing remedies. Thus, when a party has an adequate remedy at law to correct an arbitrary act by a governmental agency, that party has no remedy under federal law, specifically 42 U.S.C.A. 1983. Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, cert. denied, 519 U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996). The statute does not create substantive rights. Id. at 363. Thus, when a party has a remedy, either pre- or post-deprivation, that adequately addresses a grievance, the party may not resort to 1983 for relief, even when the state remedy does not offer complete relief. Id. at 378-80.

As to the statute's ability to redress substantive due process claims, Justice O'Hern noted that "substantive due process is reserved for 'state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning and harmful as literally to shock the conscience of a court.'" Id. at 365 (quoting Ramos v. Gallo, 596 F. Supp. 833, 837 (D. Mass. 1984)). Claims other than of this type rarely, if ever, shock the judicial conscience. Id. at 366. Moreover, in the context of governmental land use decisions, the Court explained that it would be a mistake to equate arbitrary and unreasonable decision-making in this context with a substantive due process claim because arbitrary and capricious conduct describes the standard of review, and substantive due process claims in the land use context "should be reserved for 'truly irrational' governmental abuses that bear no relationship to the merits of the pending matter." Id. at 370 (quoting Lemke v. Cass County, 846 F.2d 469, 472 (8th Cir. 1987) (Arnold, J., concurring)).

Here, the record clearly demonstrates that plaintiffs had adequate remedies at law. They commenced an action in lieu of prerogative writs and achieved an advantageous monetary award and future considerations to effectuate future business plans. They also had the ability to contest any valuation of their property in the context of a condemnation proceeding. Furthermore, plaintiffs never established that the actions taken to investigate and adopt a redevelopment plan were legally defective. Under these circumstances, plaintiffs' allegations of substantive and due process violations were deficient as a matter of law.

 
Affirmed.

The record reveals that plaintiffs paid between $90,000 and $105,000 for 211 Haddon Avenue and received $210,000; they paid $225,000 for 209 Haddon Avenue and received $660,000; and they paid $150,000 for 207 Haddon Avenue and received $230,000.

The settlement agreement in the 2004 prerogative writs action dismissed the redeveloper from the 2005 complaint.

(continued)

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A-6346-07T1

February 2, 2010