The law in New Jersey is such that a public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or 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 law to determine whether or not such authorization should be issued, denied, suspended or revoked.
Pursuant to N.J.S.A. 59:2-3, “(a) a public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity; (b) a public entity is not liable for legislative or judicial action or inaction or administrative action or inaction of a legislative or judicial nature.” Determining whether governmental action is discretionary for the purposes of the Tort Claims Act generally depends upon whether the decision is a high level policy decision. Generally high level policy decisions classified as discretionary acts involve planning, and are distinct from ministerial acts, which pertain merely to operations and which are not immunized.
A ministerial act has been defined as “one which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done.” Thus, it has been determined that decisions of planning boards and boards of health are discretionary because planning boards and boards of health do not simply perform in a given manner without the exercise of their own judgment, their actions cannot be deemed ministerial. While it is true that once certain facts have been established, a planning board is mandated to act in a certain way, however, the board uses discretion in weighing the credibility of witnesses and evidence presented when making findings of fact. Therefore, the decisions of planning boards and boards of health, to issue permits or authorize subdivisions, for example, are the types that are afforded immunity. See N.J.S.A. 59:2-5.
This immunity is necessitated by the almost unlimited exposure to which public entities would otherwise be subject if they were liable for the numerous occasions on which they issue, deny or suspend permits and licenses. In addition, most actions of this type by a public entity can be challenged through an existing administrative or judicial review process.
As the comment to N.J.S.A. 59:2-5 describes, the TCA has been interpreted to grant immunity to all phases of the licensing function, whether or not the act was classified as discretionary or ministerial. See Malloy v. State, 76 N.J. 515 (1978). Therefore, any allegations that a planning board negligently granted site plan approval or a licensing board wrongly issued a permit, would more likely than not fall within the purview of the immunizing provisions of the Act.