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BEAVER v. BOROUGH OF JOHNSONBURG

May 10, 1974

James J. BEAVER et al., Plaintiffs,
v.
The BOROUGH OF JOHNSONBURG, a municipal corporation, et al., Defendants


Weber, District Judge.


The opinion of the court was delivered by: WEBER

WEBER, District Judge.

Plaintiffs have sued the Borough of Johnsonburg, a municipal corporation, six individuals who are present members of the Borough Council, the present individual members of its Zoning Board and the present Zoning Officer of the Borough.

 Plaintiffs allege jurisdiction under the Civil Rights Laws of the United States. 42 U.S.C. §§ 1983, 1985 and 28 U.S.C. § 1343.

 The gravamen of plaintiffs' complaint is that the defendants have wilfully failed, neglected and refused to enforce the conditions and restrictions on occupancy permits issued to an industrial concern which allows it to operate a chipper facility of a pulp paper mill on property within the Borough.

 Plaintiffs allege that they have been and are being damaged both in their persons and property by the continued operation of the chipper facility contrary to the restrictions of the permit. This is alleged to result in the taking of plaintiffs' property for the benefit of the owners of the pulp paper mill and the general economic benefit of the residents of the Borough without compensation to the plaintiffs, the owners thereof, contrary to the Constitution and laws of the United States and the Commonwealth of Pennsylvania.

 The actions of defendants are alleged to violate constitutional and civil rights of the plaintiffs for which redress is provided under the federal Civil Rights Acts. The plaintiffs seek injunctive relief and monetary damages.

 Defendants have filed a Motion to Dismiss and Amended Motion to Dismiss, or in the Alternative to Stay Proceedings raising the following objections and defenses:

 
(1) The complaint fails to state a cause of action.
 
(2) The court lacks jurisdiction over the subject matter.
 
(3) The pendency of state court litigation by the same plaintiffs seeking the same relief, which should require either a stay of the present proceedings or dismissal on the doctrine of abstention.
 
(4) The failure to join in the present proceeding the owner of the pulp paper mill, Penntech Paper Company, as a necessary party in these proceedings under Fed. R. Civ. P. 19.

 Both parties have filed extensive briefs and amendments thereto and oral argument has been heard.

 1. We find that the complaint does state a valid cause of action. Under 42 U.S.C. § 1983 local zoning boards have been party defendants although these cases have dealt with the re-zoning of the plaintiff's own property, generally from commercial to residential. See Shellburne, Inc. v. New Castle County, 293 F. Supp. 237 [D. Del. 1968]. We find that the members of the Zoning Board are persons acting under color of state law and that their action or inaction in the involvement of Zoning Ordinances could cause the deprivation of civil rights.

 The defendants claim that there may be a distinction between actions which are in persona vs. in rem or quasi in rem. In Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424 [1972], the court held that a deprivation of a property interest is a violation of an individual's civil ...


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