potential constitutional injuries, the [Supreme] Court has held that local authorities should be given the opportunity to fully and finally determine the scope of the injury before the federal claims ripen." Taylor, 983 F.2d at 1294. GEC cannot circumvent this requirement and come into federal court at this juncture. Until the zoning hearing board has rendered a final decision on the validity of Ordinance 92-3, GEC's claim is not ripe. See Taylor, 983 F.2d at 1292 (holding that even though the defendant's actions may have been arbitrary and capricious, the plaintiff's claim was not ripe because the township had not rendered a final decision).
Additionally, the fact that the Borough has taken corrective measures in the interim does not alter this conclusion. The Pennsylvania Supreme Court addressed a similar sequence of events in Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. 219, 328 A.2d 464 (Pa. 1974). In Casey, Harcourt Wells, Inc., questioned the validity of the township's zoning ordinance and properly requested a hearing before the zoning hearing board. Before the board began its hearings on the challenge, the township adopted an amendment that cured all of the alleged constitutional defects.
After the hearings, but before the zoning hearing board issued its decision, Harcourt Wells' successor in interest, Casey, filed a lawsuit that alleged that because the amendment resolved the problem, the zoning hearing board had no authority to consider the validity of the ordinance. The Pennsylvania Supreme Court disagreed because "the amendment was not 'pending' when [the] challenge was commenced." Casey, 328 A.2d at 467. The Court reasoned that to hold otherwise would enable "the municipality to penalize the successful challenger by enacting an amendatory ordinance designed to cure the constitutional infirmity, but also designed to zone around the challenger." Casey, 328 A.2d at 468. The Court concluded that the municipality could not "thwart a valid challenge to its zoning ordinance by adopting a curative provision, which was not considered . . . prior to the time of the challenger's application." Casey, 328 A.2d at 469.
In this case, like Casey, GEC challenged the ordinance long before Ordinance 93-1 was pending. The difference between the two is that GEC challenged the validity of the ordinance in this court rather than before the zoning hearing board. Nevertheless, GEC's unfortunate choice of forums should not be fatal to its claim. The spirit of the holding in Casey10 suggests that the zoning hearing board is the proper governmental entity to render a final decision on the validity of Ordinance 92-3. Moreover, strong policy considerations advise that local government, rather than federal courts, resolve land-use disputes. See Village of Belle Terre v. Boraas, 416 U.S. 1, 13, 39 L. Ed. 2d 797, 94 S. Ct. 1536 (1974) (Marshall, J., dissenting) ("[Zoning] may indeed be the most essential function performed by local government"); Taylor, 983 F.2d at 1291; Rogin v. Bensalem Township, 616 F.2d 680, 698 (3d Cir. 1980), cert. denied, 450 U.S. 1029, 68 L. Ed. 2d 223, 101 S. Ct. 1737 (1981) (finding that "land-use regulation generally affects a broad spectrum of persons and social interests, and . . . local political bodies are better able than federal courts to assess . . . such legislation"). Finally, a contrary decision would actually discourage, rather than encourage, aggrieved land-owners from seeking relief from the zoning hearing board. GEC should not be able to circumvent the well-established procedures for challenging the validity of a zoning ordinance by instead using a federal lawsuit to induce the Borough to repeal the ordinance. Accordingly, the plaintiff must first proceed to the zoning hearing board for a determination on the validity of Ordinance 92-3. Until GEC has pursued such avenues and sought compensation under Pennsylvania's procedures, the plaintiff's claim is not ripe for adjudication.
4) THE FUTILITY EXCEPTION
Because the denial of the 1987 Application and the enactment of Ordinance 92-3 were not final decisions, this court examines GEC's claim that this case is ripe under the "futility exception" to the finality rule. The futility exception states that an aggrieved party may forego the administrative process, and proceed in federal court on a constitutional claim, where special circumstances dictate that pursuing additional relief with the government agency would be fruitless. See Gilbert v. City of Cambridge, 932 F.2d 51, 60-61 (1st Cir. 1991). "To come within the exception, a sort of inevitability is required: the prospect of refusal must be certain (or nearly so)." Gilbert, 932 F.2d at 61. In addition, the property owner, who bears the burden of proof, must make at least one application for administrative relief before the futility exception may be invoked. Gilbert, 932 F.2d at 61. Other courts have also recognized this exception See, e.g., Southern Pacific Transportation Co. v. Los Angeles, 922 F.2d 498, 504 (9th Cir. 1990); Eide v. Sarasota County, 908 F.2d 716, 726-27 (11th Cir. 1990). Nevertheless, even if the exception is recognized in this circuit,
it is not applicable here. GEC neither appealed to the zoning hearing board after its 1987 application was denied, nor applied for relief after Ordinance 92-3 was enacted. Moreover, GEC has not demonstrated that zoning hearing board, as opposed to the Borough Council, would inevitably deny it any sort of relief.
B) COMPENSATION THROUGH STATE-PROVIDED PROCEDURES
The only prong of GEC's complaint that survives scrutiny under the finality rule is the Borough Council's denial of GEC's conditional use permit. GEC alleges that this particular action by the defendants gives rise to a taking without just compensation, and a denial of due process. However, a takings claim is not ripe for review in federal court if an aggrieved landowner may recover compensation through a state established procedure. See Williamson, 473 U.S. at 195. The Court held that "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation." Williamson, 473 U.S. at 195. See also, Schertel v. Rex, 764 F. Supp. 1002, 1004 (E.D. Pa. 1991) (holding that there is simply no violation of the Fifth Amendment until just compensation has been denied). Additionally, the burden is on the property owner to demonstrate that the state's procedure is either "unavailable or inadequate" before the claim is ripe. Southview Associates, Ltd. v. Bongartz, 980 F.2d 84, 100 (1st Cir. 1992) (quoting Williamson, 473 U.S. at 197); Austin v. City and County of Honolulu, 840 F.2d 678, 680 (9th Cir.), cert denied, 488 U.S. 852, 102 L. Ed. 2d 109, 109 S. Ct. 136 (1988). To meet this burden the property owner must do more than show that the state procedure is unsure and undeveloped; it must demonstrate either statutory or judicial rejection of such procedures, or actually bring an unsuccessful suit in state court. Southview Associates, 980 F.2d at 100 (dismissing the plaintiff's claims because it failed to seek compensation in the Vermont courts); Abbiss v. Delaware Department of Transportation, 712 F. Supp. 1159, 1162 (D. Del. 1989) (Roth, J.) (finding the plaintiffs' claims to be premature because they did not establish that Delaware's post deprivation remedies were inadequate).
In this case, the plaintiff has not satisfactorily demonstrated that Pennsylvania's procedures for recovering just compensation are unavailable or inadequate. The Pennsylvania Courts, under the Eminent Domain Code, 26 Pa. Con. Stat. Ann. §§ 1-101--1-903, may provide the plaintiff with just compensation for a taking. Specifically, § 1-502(a) enables the condemnee
to file a petition requesting the appointment of viewers to ascertain just compensation. The plaintiff contends, however, that because a regulatory taking, rather than physical taking, has occurred it may only challenge the ordinance pursuant to the Municipalities Planning Code ["MPC"], 53 Pa. Con. Stat. Ann. §§ 10101-11202. The plaintiff further maintains that because the available relief under MPC is limited to invalidating the ordinance, Pennsylvania does not provide an adequate process for obtaining compensation. GEC cites Odhner v. Township of Woodward, 143 Pa. Commw. 450, 599 A.2d 276, 278 (Pa. Commw. Ct. 1991), and Appeal of Doyle, 142 Pa. Commw. 672, 598 A.2d 352, 354 (Pa. Commw. Ct. 1991) to support its position.
This court finds the plaintiff's position untenable. Although the plaintiff must originally seek relief pursuant to the MPC, suing under the MPC is not the exclusive method of relief available to it. Under the Eminent Domain Code, the plaintiff may recover just compensation for a regulatory taking once the ordinance in question is determined to be unconstitutional. See Gaebel v. Thornbury Township, 8 Pa. Commw. 399, 303 A.2d 57, 60 (Pa. Commw. Ct. 1973). The plaintiff must simply seek relief under the MPC before it seeks relief under the Eminent Domain Code. In fact, a more careful reading of the cases cited by the plaintiff suggests that Pennsylvania law does enable a property owner to recover for a regulatory taking once relief under the MPC has been granted. See Odhner, 599 A.2d at 278 (holding "until the landowner has pursued the remedies provided within the MPC to invalidate the ordinance, a compensation claim for the temporary taking is not ripe"); Appeal of Doyle, 598 A.2d at 354 (holding "[the plaintiff] must first exhaust [its] remedies under the MPC before [it] can bring an action for inverse condemnation under the Eminent Domain Code"). Other Pennsylvania court decisions further solidify the conclusion that GEC could be compensated for its taking claim. See e.g, Truck Terminal Realty Co. v. Commonwealth Department of Transportation, 486 Pa. 16, 403 A.2d 986, 989 (Pa. 1979) (finding that an aggrieved property owner could be compensated for a temporary taking provided that the governmental interference was arbitrary and unreasonable); McClimans v. Board of Supervisors of Shenango Township, 107 Pa. Commw. 542, 529 A.2d 562, 570 n.5 (Pa. Commw. 1987) (observing that if an ordinance is found to effectuate an unconstitutional taking, "it may well be that Appellants then will have to proceed under the provisions of the Eminent Domain Code . . . to obtain just compensation for the taking inasmuch as there is no provision in the MPC for the award of monetary damages"). This court holds that the plaintiff's failure to pursue its claim for compensation in the Pennsylvania Courts renders the taking claim unripe for adjudication in federal court. Accordingly, the plaintiff's claim is not ripe for review and it must be dismissed.
Finally, to the extent that the denial of the conditional use permit also gives rise to due process violations, this court finds that those claims are premature as well. GEC's "due process claims will be greatly affected", Schertel, 764 F. Supp. at 1005 n.5, should it subsequently be determined that the defendants' actions did not effectuate a taking of GEC's property. The plaintiff's conspiracy allegation meets the same fate because "§ 1983 does not provide a cause of action per se for conspiracy to deprive one of a constitutional right." Defeo v. Sill, 810 F. Supp. 648, 658 (E.D. Pa. 1993). Until there has been a deprivation, one has no cause of action under § 1983. Defeo, 810 F. Supp. at 658. Since GEC has not demonstrated that it has been deprived of its constitutional rights, the conspiracy claim is not mature.
For the reasons set forth above the plaintiff's claims shall be dismissed without prejudice. At this juncture, the plaintiff's federal claims are not ripe for review because the plaintiff has either failed to satisfy the finality rule or failed to demonstrate that Pennsylvania has no adequate procedure for providing compensation. Should the plaintiff ultimately satisfy these criteria, it may refile its suit at that time. Moreover, since all of GEC's federal claims will be dismissed without prejudice, and there is no diversity of citizenship between the plaintiff and the defendants, this court will also dismiss without prejudice GEC's state law claims. An appropriate Order follows.
ORDER - April 27, 1993, Filed
April 26, 1993
AND NOW, this 26 day of April, 1993, upon consideration of the parties memoranda on the issue of ripeness and for the reasons set forth in the accompanying Opinion, IT IS ORDERED that the case is DISMISSED without prejudice because the plaintiff's claims are not ripe, and thus this court lacks subject matter jurisdiction. The clerk is directed to close the within docket for statistical purposes.
BY THE COURT:
Edward N. Cahn, J.