cause of action with specificity or suffer dismissal. Clarence C. Wagner v. Township of Harmar, et al., No. 86-1428 (W.D. Filed October 9, 1986).
Plaintiff's amended complaint sets forth a list of specific instances where similarly situated individuals were granted building permits and variances and their standing was never challenged, contrary to the way defendants enforced the zoning ordinance against plaintiff. All of the examples listed by plaintiff, however, occurred at least four years prior to plaintiff's application being denied. It may be that the township had begun a more rigorous enforcement policy after experiencing the effects of being lax for too long. The character of the area may have changed during those four years, necessitating more strict enforcement or possibly, a new board of officers had come into office with new ideas since the period of lax enforcement of ordinances.
"In any § 1983 action, the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). "The Constitution does not require states to enforce their laws (or cities their ordinances) with Prussian thoroughness as the price of being allowed to enforce them at all." Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir. 1985). Showing that the zoning ordinance was not strictly enforced four years before plaintiff applied for a building permit, without more, does not establish a deprivation of rights, privileges, or immunities, which must be shown in a § 1983 cause of action.
In order to establish a § 1985(3) violation, "plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." United Brotherhood of Carpenters & Joiners of America, Local 610, AFL-CIO, et al. v. Scott et al., 463 U.S. 825, 828-829, 103 S. Ct. 3352, 77 L. Ed. 2d 1049 (1983).
"Enforcement of an otherwise valid zoning ordinance violates the Constitution only if: (1) the decision of the particular zoning body is arbitrary or (2) if the ordinance is applied or enforced with a discriminatory intent or purpose." Scudder v. Greendale, 704 F.2d 999, 1002 (7th Cir. 1983). Plaintiff has not suggested any reason why he may have been singled out for different treatment, nor has he shown that at the time he applied for a building permit, he was in fact treated differently. Without such a showing, he cannot move forward with his § 1985(3) claim. "There must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). Discriminatory purpose is not presumed; intentional discrimination must be clearly shown. Wilson v. Schillinger, 761 F.2d 921, 929 (3d Cir. 1985); Snowden v. Hughes, 321 U.S. 1, 8, 88 L. Ed. 497, 64 S. Ct. 397 (1941).
Accepting plaintiff's allegations as true, as we must, we find that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). Plaintiff has attempted to raise the normal operation of a zoning system to a constitutional level. The federal courts will not sit as a zoning review board and where no constitutionally prohibited deprivation of property has occurred, challenges to the township's action are the province of the state courts. Hynes v. Pasco County, Florida, 801 F.2d 1269, 1270 (11th Cir. 1986).
Plaintiff has failed to allege facts to set forth a cause of action, as he was ordered by this court to do on October 9, 1986, and therefore, he must suffer dismissal. We hold that plaintiff's claims are without merit and accordingly, shall grant defendant's motion to dismiss.
A written order shall follow.
DATED: January 21, 1987
Donald E. Ziegler, United States District Judge
ORDER OF THE COURT
AND NOW, this 21st day of January, 1987,
IT IS ORDERED that the motion to dismiss of defendants, Township of Harmar, et al., be and hereby is granted.
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