The opinion of the court was delivered by: CONABOY
RICHARD P. CONABOY, UNITED STATES DISTRICT JUDGE.
This is a civil rights action filed pursuant to 42 U.S.C. § 1983, and the Fifth and Fourteenth Amendments of the United States Constitution. Plaintiff commenced this action seeking to recover compensatory damages resulting from the Defendants' refusal to approve a land development project. Presently pending before the Court are motions by the Plaintiff to amend the complaint and for partial summary judgment; a motion by Defendant, Susquehanna county Planning Commission for summary judgment; and a motion for summary judgment filed on behalf of all Defendants. For the foregoing reasons, this court will grant the Defendants' motion for summary judgment and dismiss this case.
On July 29, 1987, Martin Schoenleber, as President of Edelweiss Development Corporation, submitted to the Susquehanna County Planning Commission (hereinafter referred to as Commission) a preliminary development plan for the construction of 122 condominium units to be located at the base of Elk Mountain in Herrick Township, Susquehanna County, Pennsylvania. By way of letter dated August 5, 1987, the Commission advised Mr. Schoenleber that they had received Edelweiss' filing fee and additionally outlined in the letter the procedure which the Commission would follow. On September 2, 1987, after reviewing the preliminary plan for the Edelweiss Development, the Commission notified Mr. Schoenleber of the contradictions that existed in the plan with the Susquehanna County Subdivision and Land Development Ordinance.
On November 30, 1987, Edelweiss submitted revised plans, marked as the 4th revised plan, and requested reconsideration of the Commission's disapproval of the preliminary plan pursuant to Section 1003.01 of the Susquehanna County Subdivision and Land Development Ordinance.
On December 1, 1987, Plaintiff filed the instant federal suit based on a three count complaint against the defending parties. Essentially, Edelweiss seeks compensatory damages for the alleged unlawful taking of its property by the Defendants. Plaintiff's claim is premised on the contention that the denial of its development plan was unlawful since the deficiencies cited by the Commission were actually zoning restrictions imposed outside the scope of the Commission's authority.
On December 18, 1987, the Commission notified Mr. Schoenleber that his request for reconsideration would be considered at the Commission's December 29, 1987 meeting. On January 6, 1988, the Planning Commission notified the Plaintiff that the request for reconsideration had been granted and that the Commission would meet with the Plaintiff for a workshop to resolve the remaining disputes. On February 23, 1988, the Commission met to consider the Plaintiff's submitted plan, which at this time was the 6th revised plan developed by Edelweiss. At the said meeting, Mr. Schoenleber, at the request of the Commission, executed a statement indicated that the 6th revised plan replaced all previous plans. Doc. No. 23, Exhibit W. Furthermore, by letter dated March 1, 1988, Mr. Schoenleber indicated to the Commission possible resolutions to the deficiencies in the 6th preliminary plan, including the Commission's granting of waivers to its Ordinance. Additionally, Mr. Schoenleber, on behalf of the Plaintiff, proposed a compromise that would result in a reduction in the total units to be constructed from 122 to a maximum of 80 units. Doc. No. 23, Exhibit X.
On March 2, 1988, the Commission advised the Plaintiff of deficiencies found in the 6th revised plan as submitted to the Commission at its February 23, 1988 meeting. On April 19, 1988, the Commission advised Mr. Schoenleber that the 6th revised preliminary plan for Edelweiss Development in Herrick Township would be listed on the agenda before the County Planning Commission's meeting scheduled for April 26, 1988. Upon the Commission's consideration of the 6th preliminary plan as submitted by Mr. Schoenleber, the Commission unanimously decided not to approve the plan. Plaintiff was notified of this result by letter dated March 1, 1988. Since that time, it would appear that Plaintiff has not submitted any further revised preliminary plans but has concentrated his efforts on the instant federal suit.
Presently pending before this Court is a motion for summary judgment filed on behalf of the Susquehanna County Planning Commission and a similar motion raising further objections filed on behalf of all Defendants. This Court shall review the arguments offered in each motion, examine the response filed by the Plaintiff and outline the basis for our decision as to each element presented.
The second issue raised by the Commission was that the actions taken by them did not constitute a taking within the purviews of the 5th & 14th Amendments. Citing the case of Pennsylvania Central Transportation Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978), the Commission cited the proposition that it was erroneous to focus on the nature of the use of the land which was prohibited without also examining the many profitable uses to which the property could still be put to use. The Defendants concluded that even if the denial of the preliminary development plan is deemed a prohibition of the development of 122 condominium units as proposed by the Plaintiff, it certainly is not a denial of all use of the Plaintiff's property. Document #8 at 6.
As for the motion filed on behalf of all Defendants, the issue raised is whether the Plaintiff's complaint states a claim against any of the Defendants pursuant to 42 U.S.C. § 1983 for which Plaintiff would be entitled to relief. After delineating the legal standard for summary judgment, the Defendants assert that since the Plaintiff had failed to exhaust the remedies available to Edelweiss pursuant to the Susquehanna County Subdivision and Land Development Ordinance, no due process violation has been presented. Defendants claim that sufficient state remedies were available to provide a fair hearing, therefore, no due process violation had occurred. Document #29 at 14. Moreover, Plaintiff failed to establish facts, which would create an issue of fact as to whether or not a taking had occurred since Edelweiss never submitted a plan which was in compliance or in accord with the Susquehanna County Subdivision and Land Development Ordinance.
As to the issue of ripeness and the requirement of exhausting available remedies, the Petitioner asserts that there is no exhaustion requirement in a civil rights action filed pursuant to 42 U.S.C. § 1983. Document #30 at 5 citing Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982). According to the Plaintiff, even if an exhaustion requirement did exist, since the disputed actions of the Commission constituted an attempt to impose zoning ...