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LOFTUS v. TOWNSHIP OF LAWRENCE PARK

May 17, 1991

THOMAS P. LOFTUS, PLAINTIFF,
v.
TOWNSHIP OF LAWRENCE PARK AND PAUL J. JAZENSKI, DEFENDANTS.



The opinion of the court was delivered by: Mencer, District Judge.

MEMORANDUM OPINION

Defendant Township of Lawrence Park is a political subdivision of the Commonwealth of Pennsylvania, created pursuant to the First Class Township Code. Defendant Paul Jazenski was, at all relevant times, the Zoning Administrator for Lawrence Park. The plaintiff, Mr. Loftus, is a resident of Lawrence Park and a candidate for the Democratic nomination for the office of Township Commissioner. By this action he seeks to enjoin enforcement of a local zoning ordinance, to wit, Township of Lawrence Park Zoning Ordinance § 404 (Ordinance 300, enacted March 4, 1985) [hereinafter LPZO], because it prevents him from posting political signs supporting his candidacy. He argues that the ordinance violates his right to free speech, U.S. Const.Amend. I, and that under 42 U.S.C. § 1983 and Fed.R.Civ.P. 65, he is entitled to injunctive, declaratory and monetary relief. In addition, Mr. Loftus alleges violations of his rights under the Fifth and Fourteenth Amendments. U.S. Const.Am. V, XIV. Jurisdiction is based upon 28 U.S.C. § 1331, 1343. Asserting pendent jurisdiction, Mr. Loftus also claims that defendants violated his rights under the Pennsylvania Constitution, Pa.Const.Art. I § 7.

On May 2nd, 1991, this court held a short hearing on this matter. Due to the accelerated pace of the case and the primacy of legal issues, both sides conceded to a general agreement regarding most of the pertinent facts. On May 8th, 1991, we issued an order, stating that an opinion would follow. Today we issue that opinion together with a modified order intended to clarify an ambiguity in the first one.

I. Factual Background

The challenged ordinance provides:

SECTION 404 — SIGNS

  All signs require a permit before erection and
  the following conditions shall apply to the
  issuance of said permit.
  404.3 Signs in residential districts shall be
  limited to temporary real estate signs not to
  exceed four (4) square feet, temporary garage
  sale signs not to exceed two (2) square feet, and
  permanent home occupation signs not to exceed one
  (1) square foot that are affixed to the structure
  housing the activity. All temporary signs must be
  removed immediately after the expressed activity
  has terminated. LPZO at §§ 404, 404.3.

Mr. Loftus attended many meetings of the Township's Board of Commissioners seeking to convince the Board to install an exemption for political signs in this ordinance. Although his attempts were unsuccessful, in the fall of 1990 he went ahead and posted a sign in his front yard supporting a gubernatorial candidate.

Mr. Jazenski sent Loftus a notice of violation which stated that if Loftus wished to challenge the validity of the ordinance, he should "remove the sign and seek a curative amendment." The Ordinance, however, allows for a swifter review procedure. The Ordinance allows appeal of enforcement notices to the Zoning Hearing Board. LPZO § 616. Loftus was never informed of that provision. After Loftus refused to comply, Jazenski filed a complaint in District Justice Court 06-3-01.

Loftus appeared before District Justice Peter Nakoski and defended himself on the grounds that the ordinance was unconstitutional and that the Township had failed to accord him due process by depriving him of his appeal to the Zoning Hearing Board. Loftus lost and was fined $100, and he then initiated an appeal to the Court of Common Pleas. Next, he brought this action in federal court; his appeal to the Court of Common Pleas is still pending.

II. Younger Abstention

A.

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) teaches that federal courts should abstain from interfering with state processes where equity does not clearly demand such interference. Younger is based, less upon judicial economy, see Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), than on a recognition that state courts are as competent as federal courts to adjudicate constitutional questions. It is also built upon "the notion of `comity,' that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." Id. 401 U.S. at 44, 91 S.Ct. at 750. Recent expositions remind us, however, that "[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution." New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (citation omitted) [NOPSI]. Abstention, therefore, remains the ...


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