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Bezerra v. Township of Belleville

2006 WL 1971807 (N.J. Super. App. Div. 2006) (Unpublished)

MUNICIPALITIES; IMMUNITY — The statute providing immunity for a municipality’s failure or refusal to issue, deny, suspend or revoke a permit, license, certificate, approval, order or similar authorization expressly denies exoneration of a public employee from liability where the employee is guilty of a crime, actual fraud, actual malice or willful misconduct.

A contractor sought to construct an addition to a structure and to construct a modular home on another property. His plans for the modular project were thwarted when the construction official issued a stop-order. The contractor appealed that decision to the county’s Construction Board which found the proposed structure to be a three-story building, whereas the permit was issued for a two and one-half story building. Although it upheld the stop-order, it lifted the order “for the sole purpose of enabling [the contractor] to install a roof truss system.” The contractor then applied to the local zoning board for permission to build the structure, but was turned down. Eventually, the contractor complied with the municipal requirements and a certificate of occupancy was finally issued.

After the certificate was issued, the contractor sued the municipality and the construction official. It alleged that the municipality “negligently supervised its employees, acted arbitrarily and unreasonably with respect to the approval of [the] construction plans, and selectively prosecuted [the contractor].” The contractor also alleged that the construction official “selectively prosecuted and persecuted [the contractor], abused the power of his position, and acted maliciously, intentionally, and willfully. Specifically, the contractor claimed that the construction official deliberately and maliciously delayed conducting the necessary inspections for the room addition, which resulted in a header beam falling, causing considerable damage to the property. With respect to the modular house [the contractor] contend[ed] [the construction official] deliberately and maliciously caused further delays by raising various objections to paperwork and alleging the project was not being constructed in accordance with the plans.”

The case against the municipality was dismissed because of a statute “which immunizes a public entity for any injury caused by the ‘failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where the public entity or public employee is authorized by the law to determine whether or not such authorization should be issued, denied, suspended or revoked.’” The lower court also dismissed the case against the construction official based on a statute “which immunizes public employees in the good faith execution and enforcement of any law; ..., which grants immunity to public employees arising out of the institution or prosecution of any judicial or municipal proceeding within the scope of the employee’s employment; ... .” The lower court believed that because “all of the acts committed by [the construction official] were supported by all of the boards and appeared to be within the scope of his employment,” the construction official’s intent was irrelevant.

The Appellate Division agreed that the immunity provisions “related to the issuance or denial of a certificate and the enforcement of laws provide[d] absolute immunity to the [municipality],” but did not agree “that the allegations as pled against [the construction official were] entitled to similar protections at this stage in the litigation simply because ‘it appears that all of the acts were within the scope of his employment and approved and confirmed by the board, which ha[d] never been overturned.’” It pointed to the immunity statute which expressly denies exoneration of a public employee from liability where the employee is guilty of “a crime, actual fraud, actual malice or willful misconduct.” The Court interpreted the statute to evidence “the legislative intent to create an exception based upon conduct independent of the employee’s authority to engage in the conduct.” Consequently, the Court, finding that the contractor had set forth allegations against the construction official sufficient to survive a motion to dismiss and was entitled to pursue its claim. In doing so, it pointed out that “[a]lthough, a board’s approval of an employee’s conduct may be evidence that the employee was properly exercising his or her discretion ... or acting in ‘good faith’ ..., that approval does not establish immunity for actions that are illegal, malicious or intentional.”

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