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EPSTEIN v. TOWNSHIP OF WHITEHALL

August 22, 1988

JEFFRY A. EPSTEIN, Individually, JEFFRY A. EPSTEIN and WILLIAM M. BERGER, Partners, t/a SEVENTH STREET JOINT VENTURE, and BERGER-EPSTEIN ASSOCIATES, INC., Plaintiffs,
v.
THE TOWNSHIP OF WHITEHALL, MICHAEL P. HARAKAL, JR., GERALD J. FABIAN, JOHN C. WIEAND, ELIZABETH L. BUCHMILLER, CLAIR HUNSBERGER, and LINDA SNYDER, Defendants



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, SENIOR UNITED STATES DISTRICT JUDGE.

 Presently before us in the above-captioned action is the defendants' Motion To Dismiss the plaintiffs' Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Since both parties have submitted evidence in support of their respective positions outside the only pleading of record, i.e., the plaintiffs' Complaint, we have, as required by Fed.R.Civ.P. 12(b), treated the defendants' Motion, where appropriate, as one for summary judgment pursuant to Fed.R.Civ.P. 56.

 The plaintiffs instituted this action pursuant to 42 U.S.C. § 1983 claiming that the defendants had deprived them of a number of rights secured to them by the Constitution of the United States. Specifically, the plaintiffs aver that the defendants: (1)deprived them of their rights under the Fourteenth Amendment to "substantive due process" and "equal protection of the laws" and (2)violated the Contracts Clause of the Constitution, U.S. Const. art. I, § 10, cl. 1. Jeffry Epstein also asserts a pendent state law claim against defendant Whitehall Township for breach of contract. *fn1"

 The plaintiffs' action has its origin in their desire to develop a parcel of land located in Whitehall Township. The individual defendants, with the exception of Michael P. Harakal, Jr., served as the members of the Township's Board of Commissioners, the municipality's legislative body. Mr. Harakal served as the Township Executive. According to the facts of record, Jeffry A. Epstein is the owner of the realty in question. Epstein, as owner of the property, at some point in the past executed an agreement with a partnership consisting of himself and William A. Berger for the development of a shopping center to be known as "MacArthur Square". The partnership, trading as "Seventh Street Joint Venture", in turn, executed an agreement with Berger-Epstein Associates, Inc., under which the corporation would act as the partnership's agent in the development, leasing and management of the shopping center.

 On May 14, 1985, Epstein and Berger-Epstein Associates, Inc., petitioned the Township pursuant to the Township's "Subdivision and Land Development Ordinance" for approval of the construction of MacArthur Square. On December 28, 1987, defendants Fabian, Wieand, Buchmiller, Hunsberger and Snyder voted to deny approval of the plan submitted by the plaintiffs, despite the fact that the Township's "Planning Commission" had recommended that the plan be approved, though subject to certain conditions. See defendants' Motion To Dismiss, Doc. #2, Ex. "5" attached thereto.

 I. Plaintiffs' § 1983 claims.

 A. Lack of factual specificity.

 The defendants first argue that the plaintiffs' Complaint should be dismissed because it fails to set forth with the requisite factual specifity the "facts" upon which the plaintiffs' rely to support their claims that the defendants deprived them of one or more of their constitutional rights. This argument possesses no merit. A review of the plaintiffs' Complaint demonstrates that they have alleged, with excruciating detail, the facts upon which they rely to support their claims under § 1983. Given the detail with which the plaintiffs have pleaded their case, to place any additional burden upon them would require that they prove their case by way of their Complaint. The law of this Circuit requires no such result. See, e.g., Freedman v. City of Allentown, 853 F.2d 1111 (3d Cir. 1988).

 B. Failure to state a claim.

 The defendants next argue that the plaintiffs' § 1983 claims should be dismissed for failure to state a claim upon which relief may be granted. Citing Justice Stevens's concurring opinion in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 87 L. Ed. 2d 126, 105 S. Ct. 3108 (1985), the defendants assert that, since the plaintiffs do not allege that they were deprived of procedural due process and only attack the correctness of the Commissioners' decision, they possess no cause of action under the Due Process Clause of the Fourteenth Amendment. The defendants' argument, however, flies in the face of the plaintiffs' allegations that the Board of Commissioners denied approval to their plan for the construction of MacArthur Square for reasons totally unrelated to the question of whether the Plan did or did not comply with the Township's Subdivision and Land Development Ordinance. The plaintiffs aver that the defendant Commissioners voted to deny the plan approval because they refused to waive their rights, if any, under a contract the Township had executed with a corporation known as DML Realty in 1965. *fn2" As was recently stated by the Third Circuit Court of Appeals,

 
(where a plaintiff) present(s) evidence from which a fact finder could reasonably conclude that certain council members, acting in their capacity as officers of the municipality improperly interfered with the process by which the municipality issued building permits, and that they did so for partisan political or personal reasons unrelated to the merits of the application for the permits(,) (t)hese actions can have no relationship to any legitimate government objective, and if proven, are sufficient to establish a substantive due process violation actionable under section 1983.

 Bello v. Walker, 840 F.2d 1124, 1129-1130 (3d Cir. 1988), cert. denied, 488 U.S. 868, 102 L. Ed. 2d 145, 109 S. Ct. 176 (1988) (No. 87-1968).

 Here, it may be argued that the plaintiffs have failed to state a claim for deprivation of their right to substantive due process because, although the defendants may have conditioned approval of the plaintiffs' development plan upon fulfillment of a requirement not found in the Township's Subdivision and Land Development Ordinance, viz., the plaintiffs' waiver of whatever contractual rights they may have under the 1965 Whitehall Township-DML Realty agreement, the plaintiffs make no allegation that the defendants imposed this requirement upon them for partisan political or personal reasons. *fn3" Absent such allegations, the only inference which may be drawn from the facts alleged in the plaintiffs' complaint is that the defendants imposed the "waiver" condition upon the plaintiffs' ...


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