                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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
                  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
       -AND-
Anthony 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.




                             2
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

                                 3
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



                                 4
for seeking “just compensation,” so long as the procedures
provided by the state were adequate.

       1. Williamson Prong One: The Finality Rule

        We have said that Williamson’s finality rule bars not only
as-applied Just Compensation Takings claims, but also as-
applied substantive due process and equal protection “claims by
property owners or tenants who have challenged the denial of a
permit by an initial decision-maker but failed to take advantage
of available, subsequent procedures.” Lauderbaugh v. Hopewell
Twp., 319 F.3d 568, 574 (3d Cir. 2003); see also Taylor Inv.,
Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1292, 1295 (3d Cir.
1993) (barring plaintiff’s as-applied SDP and EPC claims
against municipal land use decision as unripe). Only once a
“decision maker has arrived at a definitive position on the issue”
has a property owner been inflicted with “an actual, concrete
injury.” Williamson, 473 U.S. at 192. This rule does not apply,
however, to facial attacks on a zoning ordinance, i.e., a claim
that the mere enactment of a regulation either constitutes a
taking without just compensation, or a substantive violation of
due process or 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

                                5
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.


                                6
              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

                                7
[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 as-
applied 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 as-
applied/facial-challenge distinction, and argue that their attack
on the Ordinance is a facial one only and that we should hold
that a facial substantive due process challenge to a zoning
ordinance – asserted on the theory that the law as a whole is
arbitrary, capricious and unreasonable – is ripe even if the
plaintiff did not seek a variance from the zoning ordinance. We
so hold.

              ii. SDP Claim as to Appellees’ Conduct

        Appellants argue that the District Court gave an unduly
narrow construction to their SDP and EPC claims by 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

                                8
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

                                9
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

                                10
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

                                11
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”



       1
         We express no view on the merits of appellants’ Just
Compensation Takings claim, as the District Court did not reach
the issue and must address it in the first instance upon remand.

                               12
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



                                 13
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

                                14
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

                                15
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

                                16
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.)

                               17
       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.2 Appellants alleged



   2
    Unlike Acierno, in which we reviewed the District Court’s
grant of summary judgment, the District Court here dismissed
Counts One through Four on a Rule 12(b)(6) motion to dismiss,

                                18
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




and, thus, our review is limited to the factual allegations in the
complaint.

                                19
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




  3
    The complaint, in this regard, is deficient in that it names the
individual defendants without regard to whether they were being
sued in their individual or official capacities.

                                20
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

                                21
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

                                 22
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

                                23
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

                               24
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.




                                 25
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’



  4
    Similarly, given our extensive discussion of all of the claims
and our disposition thereof, we need not address appellants’
contentions addressed to the September 14th order.

                               26
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’ pre-
Ordinance 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,5 and the order
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.




 5
   Appellants have not argued that the dismissal on Count Five
should be reversed.

                               27
