CITADEL WELLWOOD URBAN RENEWAL LLC v. BOROUGH OF MERCHANTVILLE

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CITADEL WELLWOOD URBAN RENEWAL,

LLC, Civ. No. 1:21-cv-16700-NLH-EAP

Plaintiff, OPINION

v.

BOROUGH OF MERCHANTVILLE;

EDWARD F. BRENNAN; ANTHONY J.

PERNO, III; DANIEL J.

SPERRAZZA; ANDREW O. MCCLOONE;

AND DENISE BROUSE

Defendant.

APPEARANCES:

ROBIN RABINOWITZ

ROBERT W. MAURIELLO

GIMIGLIANO MAURIELLO & MALONEY, P.A.

163 MADISON AVENUE

PO BOX 1449

MORRISTOWN, NJ 07960-1449

Attorneys for Plaintiff

MATTHEW PAUL MADDEN

MADDEN & MADDEN

108 KINGS HIGHWAY EAST, SUITE 200

P.O. BOX 210

HADDONFIELD, NJ 08033-0389

Attorney for Defendants

HILLMAN, District Judge

Before the Court is Defendant’s Motion for Summary Judgment

(ECF 34). For the reasons expressed below, the Motion for

Summary Judgment will be granted.

I. BACKGROUND

a. Redevelopment Plan and Financial Agreement

Plaintiff, Citadel Wellwood Urban Renewal, LLC (“Citadel”

or “Plaintiff”), is a redevelopment company in New Jersey.

(Statement of Material Facts, ECF 34-2 [hereinafter “SOMF”] at ¶

1). Richard DePetro is the managing member of Citadel. (Id. at

¶ 2). In June 2011, the Borough of Merchantville (“the

Borough”) adopted a redevelopment plan intended to restore and

redevelop a property called Wellwood Manor, located at 606 West

Maple Avenue (“the Property”). (Id. at ¶ 9). On September 26,

2011, the Borough entered into a Redevelopment Agreement with

Citadel to redevelop the Property. (Id. at ¶ 10).

On December 12, 2011, Citadel acquired the Property. (Id.

at ¶ 11). Plaintiff applied for a Long-Term Tax Exemption

(“LTTE”) pursuant to N.J.S.A. 40A:20-8, et seq. and payment in

lieu of tax (“PILOT”) program”. (Id. at ¶ 12; ECF 34-6 at 97,

104). The Borough issued Resolution R12-138 on November 19,

2012 approving the LTTE, and on February 11, 2013 the Borough

enacted Ordinance 13-01, approving a Financial Agreement

authorizing the LTTE. (ECF 34-6 at 97, 104). On February 12,

2013, Citadel and the Borough entered into the Financial

Agreement. (SOMF at ¶ 13).

Pursuant to the Financial Agreement, Citadel received a tax

abatement for up to 30 years in exchange for its redevelopment

of the Property. (Id. at ¶¶ 14–15; ECF 34-6 at 108–24). Under

the Financial Agreement, Citadel paid funds under the PILOT

program in lieu of taxes. (ECF 34-6 at 110–13). During the

first five years of the agreement, 63% of the funds went to the

Merchantville Board of Education, 5% went to the County, and 32%

went to the Borough. (SOMF at ¶ 20; ECF 34-6 at 193–94). The

first payment became due in August 2013. (ECF 35-12 at 2).

Paragraph 19 of the Financial Agreement provides that

The sale of the Project by the Entity, or

the sale of the interests of the managing

member of the Entity, the sale of the

Entity, or the sale of the majority interest

in the Entity, shall render this Agreement

null and void, unless the assumption of the

terms, conditions and obligations of this

Agreement by the transferee urban renewal

entity person, partnership and/or

corporation, is approved by Resolution of

the Borough Council of the Borough of

Merchantville, upon whose approval this

Agreement and its then remaining obligations

and the tax exemption of the improvements

shall continue, and inure to the benefit of

the transferee urban renewal entity.

(ECF 34-6 at 117–18).

In February 2020, Citadel entered a contract to sell the

Property to Maple Gardens Urban Renewal Entity, LLC (“Maple

Gardens” or the “Purchaser”). (SOMF at ¶ 26; ECF 35-13 at 8).

Citadel advised the Borough of its intention to sell the

Property in March 2020. (SOMF at ¶ 27). In May 2020, the

Purchaser submitted information to the Borough in support of its

request to continue the PILOT program following its purchase of

the Property. (Id. at ¶ 28). On June 29, 2020, counsel for the

Borough advised counsel for Citadel that the Borough would not

transfer the Financial Agreement, but instead would consider it

null and void upon the sale. (Id. at ¶ 29).

b. State Court Proceedings

On August 12, 2020, Plaintiff filed a complaint in New

Jersey Superior Court, Camden County, Law Division. (Id. at ¶

30). In the complaint, Plaintiff alleged that the Borough’s

“denial of plaintiff’s courtesy request to sell the Property was

arbitrary, capricious, unreasonable and unlawful.” (ECF 34-6 at

235). Plaintiff alleged that Paragraph 19 of the Financial

Agreement no longer had any effect and in the alternative that

it was void and unenforceable. (ECF 34-6 at 236). Plaintiff

also alleged that the Borough denied the request to sell the

Property in violation of its substantive and procedural due

process rights. (SOMF at ¶ 31; ECF 34-6 at 236).

On April 22, 2021, the Honorable Deborah Silverman Katz of

the Superior Court issued an Order and Memorandum of Decision on

summary judgment. (SOMF at ¶ 32). Judge Silverman Katz ordered

the Borough to make an official decision on Plaintiff’s request

to sell the Property with the tax benefits of the Financial

Agreement. (Id.; ECF 34-6 at 240). In the Memorandum of

Decision, Judge Silverman Katz explained that the Borough had a

duty of good faith under the Financial Agreement, pursuant to

which “plaintiff had a justifiable expectation that the Borough

would act on the request to assign the rights and obligations of

the Financial Agreement.” (ECF 34-6 at 267). Judge Silverman

Katz determined that Paragraph 19 of the Financial Agreement was

valid and required the Borough’s consent to transfer the tax

benefits to any purchaser of the Property, although Plaintiff

“is free to sell the property both under the Redevelopment and

Financial Agreements.” (SOMF at ¶ 33; ECF 34-6 at 264).

In addition, in discussing Plaintiff’s procedural due

process claim, Judge Silverman Katz held that Plaintiff did “not

possess an unequivocal right to transfer the LTTE in the

Financial Agreement, but merely had an abstract expectation in

selling the property with the Financial Agreement attached upon

the Borough’s consent.” (SOMF at ¶ 34; ECF 34-6 at 275).

Accordingly, the Court held that “plaintiff does not have a

protected property interest that warrants the protection of Due

Process under the New Jersey and federal constitutions.” (Id.).

On June 1, 2021, Plaintiff filed a notice of appeal of

Judge Silverman Katz’s decision, and on May 25, 2022, the New

Jersey Appellate Division affirmed. (SOMF at ¶¶ 38–39).

c. Resolution Denying Transfer of Financial Agreement

Following Judge Silverman Katz’s Order, the Borough

convened an Ad Hoc Committee of Councilmembers to review

Plaintiff’s transfer request, including Defendants Daniel

Sperrazza, Anthony Perno, and Andrew McCloone. (Id. at ¶ 35;

ECF 34-6 at 281). On August 9, 2021, in a Council meeting, the

Committee recommended against transfer of the Financial

Agreement. (SOMF at ¶ 41). Council and Committee member

Anthony Perno spoke and stated that unlike other PILOT program

agreements, in this Agreement the Borough shared the payments

with the Board of Education. (Id. at ¶ 42). In addition, he

stated that the Purchaser had not presented argument for why the

PILOT should be extended. (Id. at ¶ 43). The Council followed

this recommendation and adopted Resolution 21-90, which stated

that transferring the PILOT program “would not be in the best

interest of the citizens of the Borough of Merchantville.” (Id.

at ¶ 44; ECF 34-6 at 326–29).

d. Federal Court Proceedings

After the Council passed the resolution denying transfer of

the Financial Agreement, Plaintiff filed the instant Complaint

against five defendants: The Borough of Merchantville, Edward F.

Brennan, Anthony J. Perno, III, Daniel J. Sperrazza, Andrew O.

McCloone, and Denise Brouse. Defendant Perno is President of

the Merchantville Borough Council, and Defendants Perno,

Sperrazza, and McCloone are all members of the Borough Council

and, as noted above, made up an Ad Hoc Committee formed in

response to Judge Silverman Katz’s decision regarding procedural

due process. (SOMF at ¶ 35). As also explained above, Perno,

Sperrazza, and McCloone recommended against permitting the

transfer and the Council adopted a Resolution denying the

transfer. (Id. at ¶¶ 41, 44). Defendant Edward F. Brennan is

the Mayor of the Borough of Merchantville. (Id. at ¶ 4). Mayor

Brennan was involved in communicating with Plaintiff about the

transfer of the Financial Agreement. (Id. at ¶ 56). He also

appointed the selected Councilmembers to the Ad Hoc Committee.

(ECF 34-6 at 281). Defendant Denise Brouse is Merchantville’s

Borough Clerk. (Id. at ¶ 8). Clerk Brouse was involved in the

Committee insofar as she set up Zoom meetings between the

Committee and Purchaser. (Id. at ¶ 66). She did not attend the

meetings. (Id.).

The Complaint alleges: (1) Violation of Procedural Due

Process Rights pursuant to § 1983 and the Fourteenth Amendment

to the United States Constitution against all Defendants; (2)

Violation of Substantive Due Process Rights pursuant to § 1983

and the Fourteenth Amendment to the United States Constitution

against all Defendants; (3) Violation of Equal Protection Rights

pursuant to § 1983 and the Fourteenth Amendment against all

Defendants; (4) Violation of Substantive Due Process Rights

pursuant to N.J.S.A. 10:6-2(c), the New Jersey Constitution, and

the Fourteenth Amendment to the United States Constitution

against all Defendants; (5) Violation of Equal Protection Rights

pursuant to N.J.S.A. 10:6-2(c), the New Jersey Constitution, and

the Fourteenth Amendment to the United States Constitution

against all Defendants; (6) Breach of Doctrine of Fundamental

Fairness against all Defendants;1 (7) Breach of Contract against

the Borough; (8) Breach of Implied Duty of Good Faith and Fair

Dealing against the Borough; and (9) Violation of New Jersey Law

against all Defendants. (ECF 1).

On November 3, 2021, Defendants filed their Answer. (ECF

6). On May 26, 2023, Defendants filed a Motion for Summary

Judgment. (ECF 34). Plaintiff filed its response on June 23,

2023. (ECF 35). On June 30, 2023, Defendants filed their

reply. (ECF 36).

e. Anti-Semitism Allegations

In support of its claims, Plaintiff sets forth allegations

of anti-Semitism against Defendants. First, Plaintiff alleges

that before the Borough entered into its Redevelopment Agreement

related to the Property with Citadel, in 2009, another company

NJ Norse Holdings, Inc. (“Norse”) had corresponded with the

Borough about redeveloping the Property. (Counterstatement of

1 It is not entirely clear from the Complaint whether this Count,

Count Six for the Breach of the Doctrine of Fundamental

Fairness, is raised against all or some Defendants, as it merely

makes allegations about “Defendants.” The Court will interpret

this as a claim against all Defendants due to the lack of

clarity. The same is true for Count Nine for “Violation of New

Jersey Law.”

Material Facts,2 ECF 35-1 at 31 [hereinafter “COMF”] at ¶ 12; ECF

35-16; ECF 35-17; ECF 35-18; ECF 35-19; ECF 35-20; ECF 35-21;

ECF 35-22). Norse had an Orthodox Jewish principal. (ECF 34-6

at 33-34). Plaintiff alleges that the Borough approached Norse

with skepticism, requiring assurances and guarantees that

complaints made by tenants in another property operated by Norse

would not be ignored. (COMF at ¶¶ 13–14). Plaintiff alleges

that Borough employees referred to Norse as “slumlords.” (Id.

at ¶ 17). The agreement fell through due to Norse’s inability

to obtain a performance bond, which Plaintiff alleges the

Borough used as a pretense to avoid the agreement. (Id. at ¶

16). Plaintiff alleges that when it acquired the Property in

2011 it was not subject to any of these same requirements. (Id.

at ¶ 18). Plaintiff’s contention in this regard, ironically,

2 Pursuant to Local Rule 56.1 “the opponent [of a Motion for

Summary Judgment] may also furnish a supplemental statement of

disputed material facts, in separately numbered paragraphs

citing to the affidavits and other documents submitted in

connection with the motion, if necessary to substantiate the

factual basis for opposition.” Here, Plaintiff set out a

Counterstatement of Material Facts immediately following and in

the same document as its Response to Defendants’ Statement of

Material Facts. Defendants did not file a response to the

Counterstatement of Material Facts. Thus, for purposes of this

Motion, this Court will deem true the facts alleged in the

Counterstatement, see V.C. by Costello v. Target Corp., 454 F.

Supp. 3d 415, 419 (D.N.J. 2020) (“Local Civil Rule 56.1(a) deems

a movant’s statement of material facts undisputed where a party

does not respond or file a counterstatement.”), and where

relevant have considered these admitted facts for purposes of

deciding the pending motion.

amounts to an admission that it benefited (apparently without

protest) from the Borough’s alleged anti-Semitism some twelve

years ago.

Plaintiff alleges that in 2018 the Borough was again

“upset” by a prospective sale of the Property from Citadel to MA

Acquisitions, LLC, a company with an Orthodox Jewish principal.

(Id. at ¶¶ 19–21). Next, Plaintiff alleges that the Borough

refused to consider Citadel’s request to sell the Property with

the Financial Agreement to Maple Gardens, which has an Orthodox

Jewish principal, Sam Haikins. (Id. at ¶¶ 22–23). This

prospective sale and transfer precipitated the state court

litigation and subsequently this litigation.

II. LEGAL STANDARD

Summary judgment is appropriate where the Court is

satisfied that the materials in the record, including

depositions, documents, electronically stored information,

affidavits or declarations, stipulations, admissions, or

interrogatory answers, demonstrate that there is no genuine

issue as to any material fact and that given the undisputed

facts the moving party is entitled to a judgment as a matter of

law. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);

Fed. R. Civ. P. 56(a).

A dispute about a material fact is “genuine” “if the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). A fact is “material” if, under the

governing substantive law, a disputed fact may affect the

outcome of the suit. Id. In considering a motion for summary

judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence. Id.

at 255. Instead, the non-moving party’s evidence “is to be

believed and all justifiable inferences are to be drawn in his

favor.” Id.

Initially, the moving party has the burden of demonstrating

the absence of a genuine issue of material fact. Celotex, 477

U.S. at 323. Once the moving party has met this burden, the

burden shifts and the nonmoving party must identify specific

facts showing that there is a genuine issue for trial. Id. To

withstand a properly supported motion for summary judgment, the

nonmoving party must identify specific facts and affirmative

evidence that contradict those offered by the moving party.

Anderson, 477 U.S. at 256-57. A party opposing summary judgment

must do more than just rest upon mere allegations, general

denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d

228, 232 (3d Cir. 2001).

First, the Court will discuss whether any immunity

doctrines shield defendants from liability, specifically

addressing legislative immunity and qualified immunity. Then,

the Court will address the substance of Plaintiff’s civil rights

claims. Lastly, the Court will address Plaintiff’s assertions

of municipal liability under Monell v. Dep’t of Soc. Servs. of

City of New York, 436 U.S. 658, 694 (1978).

III. DISCUSSION

a. Subject Matter Jurisdiction

This Court has subject matter jurisdiction pursuant to 28

U.S.C. § 1331 and § 1367.

b. Civil Rights Claims (against all Defendants)

Plaintiff raises both substantive and procedural due

process claims under federal law pursuant to 42 U.S.C. § 1983

(Counts One and Two) and a substantive due process claim under

state law pursuant to the New Jersey Civil Rights Act (Count

Four) as well as an equal protection claims under both federal

and state law (Counts Three and Five). All of these claims are

raised against all Defendants.

i. Absolute Legislative Immunity

Councilmembers Perno, Sperrazza, and McCloone are

implicated in Counts One through Five, raised against all

Defendants. Defendants Perno, Sperrazza, and McCloone contend

that they are entitled to absolute immunity because the alleged

conduct is part of their legislative function. Specifically,

they argue that “the Councilmembers are entitled to absolute

legislative immunity since Plaintiff’s claims arise out of the

Council’s adoption of Resolution 21-90 which denied the

Purchaser’s request to assume the terms and conditions of the

Financial Agreement.” (ECF 34-1 at 33).

Plaintiff argues that Defendants’ actions here are not part

of their legislative function, but rather are part of their

administrative duties. They argue that a decision that “affects

a small number or a single individual” is administrative, as are

“ordinances or resolutions passed in an effort to facilitate

enforcement of existing land use laws, rather than enact new

laws involving ‘broad-based policy.’” (ECF 35 at 27 (citations

omitted)). Plaintiff advises that the fact that the Borough’s

decision was “memorialized and enforced by means of a

resolution” does not render it legislative. (Id.).

In Bogan v. Scott–Harris, 523 U.S. 44, 48–49, 54 (1998),

the Supreme Court recognized the long-standing principle that

legislatures are entitled to absolute immunity from liability

for their legislative activities and held that “local

legislators are likewise absolutely immune from suit under §

1983 for their legislative activities.”

In Bogan, after preparing his budget, the mayor introduced

an ordinance eliminating 135 city positions, including the

plaintiff’s. Id. at 47. The plaintiff filed a § 1983 action

against the city, the mayor and other city officials. Id. She

alleged that the elimination of her position was racially

motivated and in retaliation against her for exercising her

first amendment rights regarding another employee who was

politically connected with city officials. Id.

The Supreme Court found that the act of voting on an

ordinance was “in form, quintessentially legislative.” Id. at

55. In addition, the Court held that the mayor introducing the

budget and signing an ordinance into law were legislative acts

because such actions were “integral steps in the legislative

process.” Id. The Court determined that the ordinance was

legislative in substance because it “reflected a discretionary,

policymaking decision implicating the budgetary priorities of

the city and the services the city provides to its

constituents.” Id. at 55–56.

The Supreme Court in Bogan made an important distinction

between legislation that terminates a particular employee, and

legislation that abolishes a certain position. Id. at 56. The

Supreme Court found that the ordinance that abolished

plaintiff’s position was a legislative act because it had

possible implications beyond the current holder of the position.

Id. Conversely, an ordinance that serves only to terminate an

employee is not a legislative act. See In re Montgomery County,

215 F.3d 367, 376 (3d Cir. 2000) (finding act of firing employee

was not a substantive legislative act entitled to absolute

immunity).

The Third Circuit has explained that “[i]n determining

whether legislative immunity attaches to municipal actors

engaging in arguably administrative activities, we ask whether

the activities are ‘both substantively and procedurally

legislative in nature.’” Baraka v. McGreevey, 481 F.3d 187, 198

(3d Cir. 2007) (quoting In re Montgomery County, 215 F.3d at

376).

This Court first addresses whether the resolution is

substantively legislative. An act is substantively legislative

if it involved “policy-making of a general scope” or line-

drawing even where the action may have an adverse impact on one

individual or entity. See, e.g., Schlegel v. Koteski, 307 F.

App’x 657, 660 (3d Cir. 2009) (“While the actions may have had

an adverse impact on Schlegel as the individual who eventually

was elected to the position of Real Estate Tax Collector, the

decisions concerned the scope of the office and expenditures of

public funds on a public function for the citizens of Plum

Borough.”). Whether the decision at issue affects only a single

individual or small number of people is an appropriate factor

weighing against a finding that the decision is substantively

legislative, but it is not determinative. Acierno v. Cloutier,

40 F.3d 597, 610 (3d Cir. 1994).

For example, in Acierno the Third Circuit found that a

zoning ordinance directed at a single property was substantively

legislative where “the subject property consisted of thirty-

eight acres of unimproved land with an approved development plan

calling for 322 apartment units and some commercial use” and

where “specific concerns arose such as whether the development

plan complied with wetlands regulations, the fire prevention

code, and public works regulations, and that the project as

planned may pose serious traffic and road access problems.” Id.

at 613. Another factor is whether the decision involved the

enactment or amendment of legislation or merely enforcement of

already existing law. Id. at 611 (quoting Jodeco, Inc. v. Hann,

674 F. Supp. 488, 494–95 (D.N.J. 1987)).

The resolution here involved the application of an already

existing law, the Long-Term Tax Exemption law, N.J.S.A. 40A:20-

1, et seq. The resolution declined to “transfer the terms and

conditions of the Financial Agreement pursuant to the Long-Term

Tax Exemption Law, N.J.S.A. 40A:20-1, et seq., which included a

Payment in Lieu of Taxes relative to the real property taxes on

the Property” at issue in this case. (ECF 34-6 at 328–29).

Accordingly, it is not policy-making or line-drawing. In

addition, the resolution is specifically targeted to one

property, further supporting a finding that this resolution was

an administrative rather than legislative activity. Because the

resolution and decision at issue is non-legislative, absolute

legislative immunity does not apply and the Court will not

dismiss Counts One through Five against Defendants Perno,

Sperrazza, and McCloone on that basis.

ii. Qualified Immunity

Defendants Mayor Brennan, Clerk Brouse, and Councilmembers

Perno, Sperrazza, and McCloone contend that they are entitled to

qualified immunity as it relates to Counts One through Five.

“Qualified immunity shields government officials from civil

damages liability unless the official violated a statutory or

constitutional right that was clearly established at the time of

the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664

(2012). “When properly applied, it protects ‘all but the

plainly incompetent or those who knowingly violate the law.’”

Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011) (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986)). To overcome a defendant’s

qualified immunity shield, a plaintiff must plead facts showing

“(1) that the official violated a statutory or constitutional

right, and (2) that the right was ‘clearly established’ at the

time of the challenged conduct.” al-Kidd, 563 U.S. at 735

(citation omitted). Lower courts have “discretion to decide

which of the two prongs of qualified-immunity analysis to tackle

first.” Id. (citing Pearson v. Callahan, 555 U.S. 223, 236

(2009)).

“The dispositive point in determining whether a right is

clearly established is whether a reasonable officer in the same

situation clearly would understand that his actions were

unlawful.” Morillo v. Torres, 117 A.3d 1206, 1214 (N.J. 2015);

Reiche, 566 U.S. at 664 (holding that a right is clearly

established when the law is “sufficiently clear that every

reasonable official would [have understood] that what he is

doing violates that right.”) (citation omitted) (alteration in

original). “In other words, ‘existing precedent must have

placed the statutory or constitutional question beyond debate.”

Id. (quoting al-Kidd, 563 U.S. 731, 741 (2011)); see also White

v. Pauly, 580 U.S. 73 (2017) (“While this Court’s case law

do[es] not require a case directly on point for a right to be

clearly established, existing precedent must have placed the

statutory or constitutional question beyond debate.”) (internal

quotations omitted) (citation omitted).

Qualified immunity “shields an officer from suit when [he

or she] makes a decision that, even if constitutionally

deficient, reasonably misapprehends the law governing the

circumstances [he or she] confronted.” Brosseau v. Haugen, 543

U.S. 194, 198 (2004) (citing Saucier v. Katz, 533 U.S. 194, 206

(2001) (stating that qualified immunity operates “to protect

officers from the sometimes ‘hazy border between excessive and

acceptable force’”)). There is a “longstanding principle that

‘clearly established law’ should not be defined ‘“at a high

level of generality.”’” White, 580 U.S. at 79 (quoting al–Kidd,

563 U.S. at 742). Rather, “the clearly established law must be

‘particularized’ to the facts of the case.” Id. (citing

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “Otherwise,

[p]laintiffs would be able to convert the rule of qualified

immunity . . . into a rule of virtually unqualified liability

simply by alleging violation of extremely abstract rights.” Id.

(alterations in original) (citation omitted). One final caveat

regarding qualified immunity is that the defense only protects

against claims against officers and other public officials in

their individual capacities and not their official capacities.

Kentucky v. Graham, 473 U.S. 159, 166 (1985).

Defendants argue first that Defendant Brouse is entitled to

qualified immunity because her only involvement in the

allegations is that she set up Zoom meetings between the

Committee and Purchaser, she did not take notes or record the

meetings, and did not produce certain documents during this

litigation that have since been provided. (ECF 34-1 at 35).

Next, Defendants assert that Mayor Brennan is entitled to

qualified immunity because they aver that there is no evidence

of “discriminatory motive,” he was not aware of the Purchaser’s

religious affiliation, and “[a]side from two (2) statements

Mayor Brennan allegedly made in 2018 which DePetro [Citadel’s

principal] seeks to somehow portray as anti-Semitic, there is no

evidence that Mayor Brennan bore any anti-Semitic animus toward

Plaintiff’s Purchaser.” (ECF 34-1 at 36). Moreover, Defendants

explain that “[n]either Mayor Brennan nor Clerk Brouse were

voting members of the Council.” (ECF 34-1 at 35).

Finally, Defendants argue that “Council and Committee

members Perno, Sperrazza, and McCloone are also entitled to

qualified immunity since DePetro concedes he neither heard of

nor witnessed them make any anti-Semitic statements and there is

simply no evidence that their denial of Plaintiff’s request was

in any way related to Mr. Haikins’ religious affiliation.” (ECF

36 at 8).

In sum, Defendants argue that the lack of evidence of anti-

Semitism demonstrates that “there is no evidence to support a

finding that the individual Borough Defendants ‘knowingly

violate[d] the law’ or Plaintiff’s constitutional rights,” and

as such they are entitled to qualified immunity. (Id.).

Plaintiff responds that “Defendants attempt to argue that

there was no ‘clearly established’ constitutional right at

issue. However, Defendants focus on whether their actions

violated Citadel’s rights, omitting a number of material facts

in the process.” (ECF 35 at 27 (citation omitted)). Pointing

to the constitutional right that Plaintiff alleges Defendants

have violated, Plaintiff claims that “Defendants are not

permitted to deprive Citadel of its protected property rights in

Wellwood Manor without providing adequate procedures and based

on bias against an ethnic group has long been established in the

Third Circuit.” (Id. at 27–28).

The Court exercises its discretion to resolve the qualified

immunity defense in Defendants’ favor on the first prong of the

analysis assuming for present purposes that a municipal officer

who exercises a discretionary government function because of a

person’s religious affiliation violates a clearly establish

right. See Al Falah Ctr. v. Twp. of Bridgewater, No. 11-2397,

2013 WL 12322637, at *9 (D.N.J. Sept. 30, 2013) (denying summary

judgment on equal protection claim where there were disputed

facts demonstrating that the council had discriminatory intent

in passing an Ordinance that would prevent construction of a

Mosque). Where Plaintiff’s claims fail here is the lack of

evidence that Defendants acted in a way that violated its

statutory or constitutional rights. With respect to Defendants

Brouse, Perno, Sperrazza, and McCloone, Plaintiff has not

pointed to any support for its argument that they engaged in

anti-Semitism. Thus, because Plaintiff has not demonstrated

actions taking their conduct outside of the protection of

qualified immunity, Defendants Brouse, Perno, Sperrazza, and

McCloone are entitled to qualified immunity in their individual

capacities.

With respect to Mayor Brennan, Plaintiff has pointed to

allegations of anti-Semitism that it asserts informed his

conduct. However, Plaintiff has not pointed to evidence

demonstrating that Mayor Brennan acted in a manner that

knowingly violated a constitutional or statutory right. Brennan

was not a voting member of the Council and Plaintiff offers no

evidence that he had any role in the decision making process

that resulted in the municipal resolution passed after Judge

Silverman Katz’s ruling. Rather, Plaintiff complains that Mayor

Brennan actively did not provide the Ad Hoc Committee with

instructions or guidelines for the analysis they should engage

in in assessing the transfer request. (ECF 35 at 16–17).

Therefore, no rational juror could find that any of his actions

violated Plaintiff’s constitutional or statutory rights.

Accordingly, Mayor Brennan is also shieled by qualified

immunity.

Therefore, Counts One through Five shall be dismissed

against Mayor Brennan, Clerk Brouse, and Councilmembers Perno,

Sperrazza, and McCloone in their individual capacities.

iii. Due Process Claims (Counts One, Two, and Four)

Counts One, Two, and Four for violations of Due Process are

raised against all Defendants; however, pursuant to the immunity

discussion above only the claims against the Borough as well as

Mayor Brennan, Clerk Brouse, and Councilmembers Perno,

Sperrazza, and McCloone in their official capacities remain. In

determining whether Plaintiffs may have a due process claim to

survive summary judgment, the issue of whether Plaintiff has a

fundamental right entitling it to due process is a threshold

question that this Court must answer before considering the

specifics of the federal procedural and substantive claims

(Counts One and Two) and the state substantive claim (Count

Four). Defendants argue that Plaintiff has not stated a

fundamental property right entitling it to due process. (ECF

34-1 at 21, 24, 31). Plaintiffs respond that they do have a

fundamental property interest that Defendants violated. (ECF 35

at 29).

This question was addressed in the Parties’ prior

litigation in New Jersey state court.3 Judge Silverman Katz held

that “while plaintiff has a contractual right to sell the

property, and thus Due Process could be implicated, plaintiff

does not have a protected property interest that warrants the

protection of Due Process” insofar as “Plaintiff does not

possess an unequivocal right to transfer the LTTE in the

Financial Agreement, but merely had an abstract expectation in

selling the property with the Financial Agreement attached upon

3 This Court notes that the circumstances here seem to raise an

at least a colorable defense of res judicata. However, neither

party has raised this issue and as such the Court will not

engage in a res judicata analysis sua sponte. The Court does,

however, find the state court’s legal analysis on the facts

before it at the time compelling and persuasive and adopts it in

full here.

the Borough’s consent.” (ECF 34-6 at 275). Although the Court

determined that the Borough had not fulfilled its contractual

obligation, it concluded that “plaintiff is not being deprived

of their right to sell the property, nor is that right subjected

to the Borough’s taking” and that “plaintiff failed to establish

a legitimate claim of entitlement in transferring the benefits

in the Financial Agreement.” (Id.).

While we note that the claims before this Court are not

identical to those before the state court in that Plaintiff

alleges here that it was denied its fundamental right due to

anti-Semitism, the core question of whether Plaintiff had a

fundamental right or interest in the transfer of the Financial

Agreement is unchanged. It is an important distinction, made by

the state court and emphasized by Defendants in their briefing,

that “Defendants did not refuse Plaintiff’s request to sell the

Property,” but rather did not “approve a transfer of the

Agreement and its PILOT tax benefits.” (ECF 36 at 9; ECF 34-6

at 264 (“While plaintiff is free to sell the property both under

the Redevelopment and Financial Agreements, the Borough’s

consent is required in order to transfer the tax exemption to

the contract purchaser”)).

This Court adopts the state Court’s analysis of this issue

both as a matter of comity, and as the state court set out a

well-reasoned analysis of this question. As such, like the

state court, this Court grants Defendants’ summary judgment on

the federal and state due process claims. As for Plaintiff’s

claims of a violation of substantive due process, this Court

holds, as the state court held, that the tax abatement in the

Financial Agreement, only transferable upon consent of the

Borough, did not create a property right protected under federal

or state law. To the extent it evidenced a right to have the

Borough consider, as a matter of procedural due process, any

reasonable request by the Plaintiff to transfer that tax

abatement to a purchaser of the Property, the Borough honored

that obligation when it considered and denied that request by

resolution in accordance with the state court decision. And at

no point did the Borough impede Plaintiff’s right to sell the

property sans tax abatement. No procedural or substantive right

Plaintiff holds under the Financial Agreement has been violated.

iv. Equal Protection (Counts Three and Five)

Counts Three and Five for violations of Equal Protection

are raised against all Defendants; however, pursuant to the

immunity discussion above only the claims against the Borough as

well as Mayor Brennan, Clerk Brouse, and Councilmembers Perno,

Sperrazza, and McCloone in their official capacities remain.

The Fourteenth Amendment’s Equal Protection Clause provides that

no State shall “deny to any person within its jurisdiction the

equal protection of the laws.” U.S. Const. amend. XIV, § 1.

“To prevail on an equal protection claim, a plaintiff must

present evidence that [it] has been treated differently from

persons who are similarly situated.” Renchenski v. Williams,

622 F.3d 315, 337 (3d Cir. 2010) (quoting Williams v. Morton,

343 F.3d 212, 221 (3d Cir. 2003)). An equal protection claim

can in some circumstances be sustained if the plaintiff “claims

that she has been irrationally singled out as a so-called ‘class

of one.’” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601

(2008). “Where a litigant asserts a so-called ‘class of one’

Equal Protection challenge, alleging that the litigant itself,

and not a particular group, was the subject of discriminatory

treatment . . . , we have required the litigant to allege ‘that

she has been intentionally treated differently from others

similarly situated and that there is no rational basis for the

difference in treatment.’” PG Publ. Co. v. Aichele, 705 F.3d

91, 114 (3d Cir. 2013) (quoting Marcavage v. Nat’l Park Serv.,

666 F.3d 856, 860 (3d Cir. 2012)). “Persons are ‘similarly

situated’ for equal protection purposes when they are alike ‘in

all relevant aspects.’” Joey’s Auto Repair & Body Shop v.

Fayette Cty., 785 Fed. Appx. 46, 49 (3d Cir. 2019) (citations

omitted).

Defendants argue that Plaintiff has not pointed to anti-

Semitism and that the Borough has presented legitimate, non-

discriminatory reasons for denying consent to transfer the

Financial Agreement. (ECF 34-1 at 28). Defendants argue that

Plaintiff has not pointed to evidence of discrimination, nor has

Plaintiff identified a similarly situated entity that was

treated differently. (Id.). Defendants argue that Plaintiff

and the Purchaser are not similarly situated because “the

Borough had completely different interests when entering into an

initial PILOT, i.e., incentivizing the redevelopment of a

property, opposed to transferring the PILOT once the property is

already rehabilitated.” (ECF 34-1 at 29).

Plaintiff responds that Defendants have a “pattern and

practice” of Anti-Semitism, and that regardless it “does not

need to show Anti-Semitism to prevail on a class-of-one equal

protection claim.” (ECF 35 at 39). Plaintiff explains that

Citadel itself was treated differently when it initially engaged

in the Financial Agreement with the Borough and now as it seeks

to transfer the Financial Agreement to the Purchaser. (ECF 35

at 40). Plaintiff states that Citadel and the Purchaser are

similarly situated because the Borough maintained the same

interest in incentivizing redevelopment of the Property at the

time the Financial Agreement was entered into and at the time of

the transfer request. (ECF 35 at 40–41).

Plaintiff has not demonstrated that it was treated

differently than another, similarly situated individual. First,

this Court notes that Plaintiff is not claiming that Citadel was

the subject of anti-Semitism, but rather that the proposed

purchaser of the property was the subject of anti-Semitism,

injuring Plaintiff’s ability to transfer the property along with

the Financial Agreement.

Next, it is unclear whether Citadel is alleging that it is

being treated differently now than it had in the past, or

whether it is alleging that it was treated differently than the

Purchaser is now. If Citadel is alleging that it is being

treated differently now than it was in the past, then Citadel

has not pointed to a similarly situated individual as it is

instead comparing its own treatment at different points in time.

If Citadel is alleging that it was treated differently than the

Purchaser is now, such premise raises questions of standing, as

Citadel is not the entity treated disparately, the Purchaser is.

Setting aside this issue of who is being compared, this

Court is convinced that the circumstances are not sufficiently

similar so as to find similarly situated entities even if

Plaintiff were successful in demonstrating that there are two

appropriate entities to be compared. When the Borough entered

into an agreement with Citadel the Property was in need of

repair. At the time of the proposed transfer to the Purchaser,

the Property was already significantly repaired. Thus, in

considering whether the Borough engaged in disparate treatment

in refusing the transfer the agreement, these entities are not

similarly situated so as to implicate equal protection. Summary

judgment will be granted on behalf of Defendants on the equal

protection claims.

c. Breach of Doctrine of Fundamental Fairness (Count Six

against all Defendants)

Under New Jersey law, the doctrine of fundamental fairness

“serves to protect citizens generally against unjust and

arbitrary governmental action, and specifically against

governmental procedures that tend to operate arbitrarily.”

Constantine v. Twp. of Bass River, 967 A.2d 882, 891 (N.J.

Super. Ct. App. Div. 2009). This doctrine serves “as an

augmentation of existing constitutional protections or as an

independent source of protection against state action.” Id.

Fundamental fairness has “been ‘invoked when the actions of

government, though not quite rising to the level of a

constitutional violation, nonetheless included aspects of

fairness which required this Court’s intervention.’” C.P.M. v.

D’Ilio, 916 F. Supp. 415, 421 (D.N.J. 1996) (quoting Doe v.

Poritz, 662 A.2d 367, 421 (1995)).

Defendants argue that “[i]n light of the express language

of the Financial Agreement which permits the Financial Agreement

to be voided upon the sale of the property, Plaintiff cannot

establish that the Borough engaged in an egregious deprivation

sufficient to warrant the application of this doctrine. In

short, the Financial Agreement expressly permits precisely the

action the Borough ultimately took of denying the transfer

request.” (ECF 34-1 at 38).

Plaintiff responds that the doctrine of fundamental

fairness “is specifically intended to guard ‘against

governmental procedures that tend to operate arbitrarily.’”

(ECF 35 at 42) (quoting Dorchester Manor v. Borough of New

Milford, 287 N.J. Super. 114, 116 (App. Div. 1996) (emphasis in

original)). In addition, Plaintiff urges that the interest here

is sufficiently compelling to warrant application of this

doctrine, comparing the interest here to that in Dorchester

Manor where the doctrine was applied to issue a “judgment

reimbursing the owner of a multi-family dwelling for the cost of

garbage collection and disposal fees.” (ECF 35 at 42).

Here, the parties bargained for and entered into a contract

that vested the Borough with discretion in determining whether

to transfer the Financial Agreement to a purchaser of the

property. The state court ordered that the Borough was required

to consider Plaintiff’s request and make its determination by

resolution. (SOMF at ¶ 32). Defendants followed this

directive. (Id. at ¶ 44). The Borough convened an Ad Hoc

Committee to consider the request. (Id. at ¶ 35). Then the Ad

Hoc Committee considered the matter and issued a resolution

declining to transfer the Financial Agreement to the proposed

purchaser of the property and stated its reasons. (Id. at ¶

44).

Although Plaintiff disagrees with the Committee’s decision

and takes issue with the lack of established procedures for

making this decision, the Financial Agreement did not set out

procedures, rules, regulations, factors, or requirements for the

Borough in making its determination. Nor did the Plaintiff

return to state court to contend that the procedures implemented

as a result of the state judge’s rulings were inadequate or

failed to abide by the letter or spirit of her rulings, rulings

upheld by an appellate court. There is simply nothing “unfair”

about either the substantive decision of the Borough or how that

decision was reached. Accordingly, Plaintiff has not

established that Defendants violated the doctrine of fundamental

fairness in declining to transfer the Financial Agreement.

Thus, this Court will grant summary judgment on behalf of

Defendants on this claim.

a. Breach of Contract (Count Seven against the Borough)

Under New Jersey law, to establish a breach of contract

claim a plaintiff must demonstrate: (1) the existence of a valid

contract, (2) defective performance by the defendant that

resulted in a breach, and (3) resulting damages. MacWilliams v.

BP Prods. N.A., 2010 WL 4860629 (D.N.J. Nov. 23, 2010) (Kugler,

J.) (citing Coyle v. Englander’s, 199 N.J. Super. 212, 488 A.2d

1083, 1088 (N.J. Super. 1985)). “Under principles of contract

law[,] the construction and legal effect of an unambiguous

writing is for the court and not for a jury. Summary judgment

may be entered in a case where the court is asked to construe

contractual clauses that are clear and unambiguous despite the

parties’ differing views as to what consequences flow from those

provisions.” United States v. Bills, 639 F. Supp. 825, 829

(D.N.J. 1986) (citations omitted).

Defendants assert that there is no breach of contract,

stating that “as both the New Jersey Superior Court and

Appellate Division have ruled, the express language of the

Financial Agreement unambiguously provides the Borough with the

discretion as to whether or not to consent to an assignment of

the Financial Agreement to another party.” (ECF 34-1 at 40).

Defendants further explain that they engaged in “a review

process in accordance with Judge Silverman Katz’s April 22, 2021

order.” (Id.).

Plaintiff does not point to any evidence of a breach of the

express contract terms, but instead argues only about the

covenant of good faith. Thus, this Court will proceed to

discussion of that claim. Summary judgment will be granted on

behalf of Defendants on Plaintiff’s breach of contract claim.

b. Breach of Implied Covenant of Good Faith and Fair

Dealing (Count Eight against the Borough)

The covenant of good faith and fair dealing is present in

every contract and prohibits a party from depriving the other

from receiving “the fruits of the contract.” Sons of Thunder,

Inc. v. Borden, Inc., 690 A.2d 575, 587 (N.J. 1997) (quoting

Palisades Props., Inc. v. Brunetti, 207 A.2d 522, 531 (N.J.

1965)). Pursuant to the covenant of good faith and fair

dealing, a defendant may be liable for a breach where it has not

violated the express terms of the contract. Brunswick Hills

Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 864 A.2d

387, 396 (2005). Important to a finding of a breach of the

implied covenant is “[p]roof of ‘bad motive or intention’” and

evidence that the offending party “has engaged in some conduct

that denied the benefit of the bargain originally intended by

the parties.” Id. (quoting Wilson v. Amerada Hess Corp., 773

A.2d 1121, 1130 (N.J. 2001) and 23 Williston on Contracts §

63:22, at 513-14 (Lord ed. 2002)). “An allegation of bad faith

or unfair dealing should not be permitted to be advanced in the

abstract and absent improper motive.” Wilson v. Amerada Hess

Corp., 168 N.J. 236, 773 A.2d 1121, 1130 (N.J. 2001). “Without

bad motive or intention, discretionary decisions that happen to

result in economic disadvantage to the other party are of no

legal significance.” Id.

Defendants argue that “the contractual language itself,

which establishes that the benefits of the Financial Agreement

will be void upon the sale of the property, defeats this claim.”

(ECF 34-1 at 41). Moreover, Defendants point out that “[w]hen

weighing whether or not to approve the transfer, the Borough’s

overriding consideration, as expressed by Mayor Brennan and the

Committee members, was not the qualifications of the purchaser

or their return on investment, but rather whether the transfer

was in the best interests of the Borough’s taxpayers.” (ECF 34-

1 at 42).

Plaintiff alleges that “Defendants’ arguments ignore the

fact that their discretion is not unfettered — Defendants cannot

unreasonably withhold consent to transfer the Financial

Agreement.” (ECF 35 at 43). It explains that Defendants’

determination was unreasonable as “(1) the Defendants conducted

no financial analysis in unreasonably withholding their consent,

(2) neither Defendants’ tax assessor nor CFO were consulted

prior to withholding consent, and (3) perhaps most importantly,

a proper financial analysis . . . had it been done by Defendants

would have demonstrated that the Borough benefitted more from

the transfer of the Financial Agreement and the continuation of

the PILOT than the imposition of ad valorem taxes upon the

Purchaser (as Defendants incorrectly suggest).” (ECF 35 at 44–

45).

Defendants reply that “they did not consent to the

Agreement’s transfer based on their understanding that returning

the Property to the tax rolls, where it would be subject to

reassessment, rather than transferring the tax exemption after

the Property was redeveloped, was in their taxpayers’ best

interests.” (ECF 36 at 17-18). Accordingly, “Defendants acted

well within their contractual rights under the Agreement.” (Id.

at 18).

Although the Borough had complete discretion to determine

whether to consent to the transfer of the LTTE, they have a duty

of good faith in exercising this discretion. Wilson, 773 A.2d

1121 at 1128 (“a party must exercise discretion reasonably and

with proper motive when that party is vested with the exercise

of discretion under a contract.”). Defendants expressed that

they decided against transfer as it would be in the best

interest of the citizens to collect ad valorum taxes. (ECF 34-1

at 10; ECF 34-6 at 326–29). While Plaintiff points to facts in

the record that suggest that rejecting the transfer would not be

a better financial decision, there is no requirement that

Defendants decide in a way that is most financially prudent when

viewed through the rearview mirror. See Wilson, 773 A.2d at

1130 (“Without bad motive or intention, discretionary decisions

that happen to result in economic disadvantage to the other

party are of no legal significance.”).

Plaintiff has not pointed to any requirement that the

Borough analyze certain factors in its determination or present

a particular explanation for its decision-making. Thus,

although Plaintiff argues that the process was deficient, this

does not demonstrate a lack of good faith. Id.; Whitman v.

Herbert, No. A-4234-09T2, 2012 WL 787380, at *8 (N.J. Super. Ct.

App. Div. Mar. 13, 2012) (“The essential element in a claim of a

breach of the good faith obligation is a finding of improper

motive.”). Plaintiff has cited to no authority, and this

Court’s independent research has revealed none, that allows a

party to a contract with a municipality to sue for the breach of

the covenant of good faith and fair dealing simply because the

public entity otherwise acting within its lawful discretion made

a choice someone might view as ill-informed or imprudent or

unwise. The remedy for such miscues, if any occurred, is at the

ballot box.

Plaintiff alleges that the Borough did not act in good

faith insofar as its decision not to approve the transfer of the

Financial Agreement was motivated by anti-Semitism. (ECF 35 at

20–21). In support of its criticism of the decision-making

process, Plaintiff states that the Ad Hoc Committee met with the

Purchaser’s principal, Mr. Haikins, on two Zoom calls and during

depositions “not a single member of the Ad Hoc Committee would

admit under oath that Mr. Haikins was wearing his kippah during

both calls or that the Purchaser’s offices were in Lakewood, New

Jersey or that the Purchaser’s investors were of the Orthodox

Jewish faith.” (Id. at 20). Plaintiff further states that

“Defendants admittedly conducted no financial analysis in

rejecting Citadel’s Orthodox Jewish Purchaser.” (Id. at 21).

While evidence of anti-Semitism could provide a basis for a

finding of the breach of good faith and fair dealing, Plaintiff

has not pointed to evidence of anti-Semitism from the voting

councilmembers that passed the resolution. The mere fact that

the Ad Hoc Committee may have been aware that Mr. Haikins was of

the Orthodox Jewish faith does not demonstrate animus.

The other allegations of anti-Semitism are too removed from

the Council’s decision to support a finding of breach of good

faith. These allegations include: (1) that in 2009 the Borough

required a performance bond as a contingency from a

redevelopment entity with a Jewish principal, Norse, before

entering into a redevelopment agreement, which ultimately caused

the agreement to fall through; (2) that an attorney for the

Borough referred to Norse as slumlords in 2011 and another

“unknown individual” also referred to Norse as slumlords in

2013; (3) that in 2018 Mayor Brennan asked if the Property was

being sold to a Zev Rothschild in a tone that Plaintiff

interpreted as emphasizing the Jewish name; (4) Mayor Brennan

being “disturbed” by at the prospect of the sale of the Property

to Rothschild; and (5) that in 2020 an “unidentified Borough

police officer” commented on the prospective sale of the

Property stating that “these Jews have enough money.” (SOMF at

¶ 56; CSOF at ¶ 11).

First, Plaintiff’s characterization of the fact that the

Borough sought assurances from Norse before entering into an

agreement as anti-Semitic is not supported by any facts in the

record. Second, the term slumlord is not affiliated with a

particular group of people and the mere fact that it was used to

describe an entity with a Jewish principal one time in 2011 by

the Mayor and again two years later by an undefined person is

simply too attenuated for a rational factfinder to conclude the

named Defendants harbored a malicious motive towards the Jewish

community. In addition, the allegations about the tone of voice

used when referring to someone Plaintiff identifies as having a

Jewish name is purely speculative.

Finally, the statement made by the Borough police officer

does display animus towards Jewish people and is as offensive as

it is disturbing. However, there is simply no evidence that the

sentiments of this single Borough police officer, as deeply

troubling as they are, represent the motivations of the Borough

or the Council and even if true simply fail to raise an issue of

material fact regarding the defendant decision makers in this

case. Accepting these allegations as true for purposes of this

analysis, the allegations are too far removed from the Council’s

decision here to demonstrate a malicious motive and therefore a

disputed issue of material fact.

In sum, Plaintiff has not pointed to any evidence to

support that this prejudice was held by any other Borough

employee or any Borough employee with decision-making power

related to this case. Moreover, Plaintiff has not pointed to a

single anti-Semitic comment made by any councilmember. As such,

it has not pointed to facts from which a rational factfinder

could conclude that anti-Semitism motivated the Borough’s denial

of the request to transfer the Financial Agreement. The Court

will grant summary judgment on Count Eight.

c. Violation of New Jersey Law (Count Nine against all

Defendants)

Defendants argue that “Defendants are entitled as a matter

of law to summary judgment dismissing Plaintiff’s claim in Count

IX because, as set forth above, Plaintiff cannot establish that

the Borough’s contractually permissible denial of the transfer

request was ‘arbitrary, capricious, unreasonable and otherwise

unlawful under New Jersey law.’ As set forth above at length,

the Borough acted in the best interests of its citizens and

taxpayers and well within the confines of the Financial

Agreement’s explicit language.” (ECF 34-1 at 43).

Count IX of the Complaint alleges a “violation of New

Jersey law” and seems to be a catchall allegation intended to

capture any “arbitrary, capricious, unreasonable and otherwise

unlawful” conduct. This is not a standalone claim. Plaintiff

has not made an argument with respect to this claim in its

summary judgment briefing. As such, summary judgment on this

claim will be granted.

d. Monell Claims against the Borough

Counts One through Five are raised against all defendants,

including the Borough, and as such set forth claims under Monell

v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694

(1978) against the Borough. Under Monell, “a local government

may not be sued under § 1983 for an injury inflicted solely by

its employees or agents. Instead, it is when execution of a

government’s policy or custom, whether made by its lawmakers or

by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury that the government as an

entity is responsible under § 1983.” Monell v. Dep’t of Soc.

Servs. of City of New York, 436 U.S. 658, 694 (1978). Liability

may be imposed against a municipality only “when the policy or

custom itself violates the Constitution or when the policy or

custom, while not unconstitutional itself, is the ‘moving force’

behind the constitutional tort of one of its employees.” Thomas

v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014)

(citations omitted). “[M]unicipal liability under § 1983

attaches where – and only where – a deliberate choice to follow

a course of action is made from among various alternatives by

the official or officials responsible for establishing final

policy with respect to the subject matter in question.” Pembaur

v. City of Cincinnati, 475 U.S. 469, 483 (1986). A policymaker

is a person who is “responsible for establishing final

government policy respecting” the activity in question and

“whether an official had final policymaking authority is a

question of state law.” Id.

For a policy or custom claim, in addition to pleading that

a policy or custom inflicted the injury in question, a plaintiff

must also allege that the policy or custom was the proximate

cause of his injuries. Estate of Roman v. City of Newark, 914

F.3d 789, 798 (3d Cir. 2019). To do this, a plaintiff must

demonstrate “an ‘affirmative link’ between the policy or custom

and the particular constitutional violation he alleges,” such as

where the plaintiff shows that the municipality “had knowledge

‘of similar unlawful conduct in the past, . . . failed to take

precautions against future violations, and that [its] failure,

at least in part, led to [his] injury.’” Id. (citation

omitted). A plaintiff does not need to identify a responsible

decisionmaker in his pleadings, and a plaintiff is not required

to prove that the custom had the municipality’s formal approval.

Id. (citation omitted).

Defendants argue that “there is no evidence that any

constitutional violation has occurred or, moreover, that any

Borough policy, custom or procedure was the cause of Plaintiff’s

alleged civil rights violations resulting from the outrageous

allegation that that Council’s denial of the transfer request

was motivated by anti-Semitism.” (ECF 34-1 at 37–38).

Plaintiff responds that “the Borough adopted and

promulgated a resolution denying the transfer of the Financial

Agreement. This resolution constitutes ‘formal approval through

the [Borough’s] official decisionmaking channels’ and the

Borough may therefore be held liable for the unconstitutional

deprivation of rights visited upon Citadel as a result.” (ECF

35 at 25).

The Court will assume without holding that the adoption of

the Borough resolution at issue would qualify as a policy,

custom or procedure sufficient to establish Monell liability.4

4 This Court’s decision to make this assumption should not be

construed as so finding or holding that the Borough resolution

qualifies as a policy under Monell. Memorializing an action by

way of an ordinance does not, in and of itself, mean that those

actions were taken in accordance with an official policy. See

City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985)

(“Proof of a single incident of unconstitutional activity is not

sufficient to impose liability under Monell, unless proof of the

incident includes proof that it was caused by an existing,

unconstitutional municipal policy, which policy can be

attributed to a municipal policymaker. Otherwise, the existence

of the unconstitutional policy, and its origin, must be

separately proved. But where the policy relied upon is not

itself unconstitutional, considerably more proof than the single

However, a central requirement to bring a Monell claim is a

constitutional violation. Although Plaintiff has alleged a

violation of its due process and equal protection rights,

Plaintiff has failed to carry its burden of production

sufficient to withstand summary judgment on any constitutional

violation. The state court explained that “Plaintiff does not

possess an unequivocal right to transfer the LTTE in the

Financial Agreement, but merely had an abstract expectation in

selling the property with the Financial Agreement attached upon

the Borough’s consent.” (ECF 34-6 at 275).

As this Court discussed above, Plaintiff has not

demonstrated a constitutional right or interest in the transfer

incident will be necessary in every case to establish both the

requisite fault on the part of the municipality, and the causal

connection between the ‘policy’ and the constitutional

deprivation.”).

This Court notes that both Parties present arguments that

seem to be in conflict. In arguing against a Monell claim,

Defendants assert that the Council did not act pursuant to a

Borough policy or custom; however, in arguing for legislative

immunity for the individual Councilmembers Defendants state that

their actions were done in accordance with official policy. On

the other hand, Plaintiff urges the opposite, urging that the

Council’s actions were done pursuant to a Borough policy or

practice in seeking to maintain their claims against the

Borough, but argue that the Councilmember’s actions were not

based on a broad-based policy in seeking to avoid legislative

immunity. Of course, parties are permitted to make arguments in

the alternative. That said, this Court notes this apparent

contradiction from both Parties. Here, the Court proceeds under

the assumption that Plaintiff asserts a claim that the

resolution was simply another example of a broader unofficial

policy or custom of anti-Semitism, a contention unsupported by

the material and uncontested facts.

of the Financial Agreement nor has Plaintiff demonstrated

disparate treatment or discriminatory animus. Plaintiff having

failed to make out a claim of a constitutional violation cannot

make out a Monell claim against the municipality and Counts One

through Five will be dismissed as against the Borough.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion for

Summary Judgment will be granted in full.

An appropriate Order follows.

Date: November 22, 2023 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.