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GLASSMAN v. TOWNSHIP OF FALLS

July 13, 1982

Lorna R. GLASSMAN
v.
TOWNSHIP OF FALLS, et al.



The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, District Judge.

 This action arises out of an unsuccessful attempt by the plaintiff to sell a parcel of land located in Falls Township, Bucks County, known as "Rock Run." On April 10, 1978, the plaintiff entered into an agreement of sale of Rock Run that depended, in part, upon the final approval by the Township of development plans for the parcel. When this approval was not forthcoming, the purchaser withdrew from the agreement and, apparently unable to recoup its purchase money deposit from plaintiff voluntarily, instituted a suit in this court for its return. W-W Rock Run v. Glassman, C.A. No. 79-2037 (E.D.Pa.). The plaintiff's defense in that action is that she had performed her part of the contract, but that Falls Township had illegally refused to acknowledge that the development plans were approved as a matter of law. Plaintiff was granted leave to join the Township as a third-party defendant in that action.

 On July 26, 1979, plaintiff filed this related action directly against the Township, its Board of Supervisors and the Township Solicitor. She alleged that in failing to acknowledge that the aforesaid development plans were approved and by imposing oppressive requirements as pre-conditions to the issuance of building permits, the defendants violated her federal constitutional rights under the due process, the equal protection and takings clauses. The new action was brought under 42 U.S.C. § 1983; plaintiff also alleged certain state law claims brought under this court's pendent jurisdiction.

 Defendants then moved to dismiss the complaint on several grounds including, inter alia, failure to state a cognizable claim under § 1983. Rejecting the various grounds for dismissal put forward by defendants, I denied the motion to dismiss in a memorandum filed on March 31, 1980. I concluded that discovery would aid in the determination of whether plaintiff could indeed make out a constitutional claim for relief, and I suggested that defendants could renew their challenge to plaintiff's claim in the form of a motion for summary judgment at discovery's conclusion, if they then considered such a motion appropriate. A substantial period of discovery ensued, and a voluminous record of documentary and testimonial evidence has been assembled. Defendants now move for summary judgment under Rule 56, F.R.Civ.P.

 II.

 Summary judgment is proper only when the record clearly establishes that no genuine issue of material fact remains to be tried and that the moving party is entitled to judgment as a matter of law. Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962). Any doubt respecting the existence of material factual issues must be resolved against the moving party, and all inferences from the underlying facts must be viewed in the light most favorable to the party opposing summary judgment. Adickes v. S.H. Kress & Company, 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).

 In view of these guidelines, the undisputed facts in this matter can be stated as follows.

 In August, 1973, plaintiff filed with the Township of Falls an application for approval of site plans for the development of a project known as "Rock Run Village." At the time plaintiff filed these preliminary plans, her property, Rock Run, was zoned "G-A" (Garden Apartments) under the Falls Township Zoning Ordinance of 1955 which was then in effect. G-A zoning permitted the kind of development projected in plaintiff's site plans. However, after plaintiff submitted these plans, the Township Board of Supervisors rezoned Rock Run from G-A to "R-1", a classification which does not permit the type of development set out in the plans. The Board of Supervisors also rejected and returned plaintiff's site plans on the ground that they did not contain sufficient information. Plaintiff challenged both these actions by the Board through administrative and judicial channels, and on May 1, 1974, the Court of Common Pleas of Bucks County declared the rezoning of Rock Run illegal and void. On February 14, 1975, the same court entered an order deeming plaintiff's preliminary plans approved.

 Acting through her then attorney, William J. Carlin, plaintiff filed with the Township on March 25, 1975 what she regarded to be her final plans for the development of Rock Run. Plaintiff never received formal notice that the Township regarded these plans as a submission for final approval. Neither the Township Board of Supervisors, nor its Planning Commission, set a date for a hearing on the plans, nor did plaintiff ever receive notice that the submitted plans had been formally approved or rejected.

 Mr. Carlin, then and now a township solicitor for a community neighboring Falls Township and an attorney well-versed in local zoning procedures and practices, testified on deposition that his normal practice in situations such as this, where townships have allowed ninety days or more to pass without taking formal action on submissions for site plan approvals, was to "file an appeal" pursuant to section 508(3) of the municipalities Planning Act, 53 P.S. § 10508(3), with the Court of Common Pleas to secure a legal "determination that the plans were deemed approved" by action of law. *fn1" Deposition of William J. Carlin at 149-150. But in this instance Carlin decided on behalf of his client not to press the Township Board of Supervisors to take formal administrative action respecting her plans or to seek a judicial determination that the plans were deemed approved by action of law. Instead, he decided simply to go forward with the next, and final, stage of ushering plaintiff's project through the local procedures, seeking the requisite building permits.

 Carlin based his decision on several considerations. First, in his view, the Township's Board of Supervisors had already demonstrated an antagonism toward plaintiff's project by what Carlin regarded as its obstructionist actions on her preliminary plans. Second, Carlin had, by late June, 1975, begun to confer and correspond with the Township's Town Manager, Gus Bauer, regarding plaintiff's application for building permits, and Bauer had specified to him various measures which plaintiff had to take in order to receive building permits. *fn2"

 Among the prerequisites for receiving a building permit from the township is prior approval of one's final site plans. Because Bauer did not specify final plan approval as a hurdle plaintiff had yet to clear to get her building permits, Carlin concluded that he and Bauer shared a common working assumption that the Township regarded or would regard the plans as constructively approved by virtue of § 508. *fn3" Carlin conceded in deposition that Bauer never confirmed that plaintiff's final plans had been approved, and "no township official, that is no elected township official, ever advised me that the [final] plans were approved." Carlin Deposition at 154. Nonetheless, encouraged by Bauer's cooperative spirit, Carlin decided that "dealing with the town manager" would prove a more expeditious way of moving plaintiff's project along than "getting hung up with the [Township] solicitor or with the Township elected officials [i.e., the Board of Supervisors]." Id. at 156.

 Carlin continued to consult with the Township Manager and with other Township officials, including the Township Engineer and its Building Official, concerning the preparation of plaintiff's application for building permits until in mid-July, 1975, he encountered an obstacle in the form of a moratorium on the issuing of sewer permits by the Township's Sewer Authority. Because a sewer permit was among the pre-requisites to receiving a building permit, plaintiff's endeavors toward that end were halted until the Sewer Authority lifted its moratorium in May, 1977.

 On December 5, 1975, during the "sewer moratorium," the Township of Falls put into effect a new zoning code encompassing the whole township. Under the new code, Rock Run fell into a new zoning designation known as "medium-high density residential" ("MHR") which does not support the kind of condominium units which plaintiff sought to construct. However, section 508(4) of the ...


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