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April 26, 1993


The opinion of the court was delivered by: BY THE COURT; EDWARD N. CAHN


 Glendon Energy Company ["GEC"], the plaintiff, initiated this lawsuit against the defendants Karin Brittain, the Borough of Glendon, and the following members of the Borough Council of Glendon: George Tombler, Jr., James McAllister, Joyce Moore, Leo Templeton, Lana Farmer, and Edwin Brittain. Except for Karin Brittain, all of the defendants are represented by the same counsel and will hereinafter be referred to as "the remaining defendants." The plaintiff alleges violations of the Fifth and Fourteenth Amendment to the U.S. Constitution, 42 U.S.C. § 1983, 42 U.S.C. § 1988, and numerous state law claims. Currently, this court must decide whether the plaintiff's claims are ripe for review. For the reasons set forth below, the plaintiff's claims are not ripe, and therefore will be dismissed.


 Karin Brittain and the remaining defendants each filed a motion to dismiss the plaintiff's claims. Additionally, the remaining defendants filed a motion for a protective order. While these motions were pending, the Third Circuit Court of Appeals issued its opinion in Taylor Investment, Ltd. v. Upper Darby Township, 983 F.2d 1285 (3d Cir. 1993). Taylor, like this case, involved constitutional challenges to a land-use decision made by township officials pursuant to 42 U.S.C. § 1983. The court of appeals found that the plaintiff's claims were not ripe for judicial review and dismissed them as premature. Because the court emphasized that "unripe claims should ordinarily be disposed of on a motion to dismiss [for a lack of subject matter jurisdiction, instead] of summary judgment," Taylor, 983 F.2d at 1290 & n.10, and because this case is factually similar to Taylor, this court denied the outstanding motions without prejudice and directed the parties to brief the issue of ripeness.

 The lawsuit arises out of the plaintiff's efforts to develop a solid-waste-to-energy resource recovery facility and recycling center ["the Project"] in the Borough of Glendon, Northampton County, Pennsylvania. The process commenced in 1986 when the plaintiff's president met with the Council members of the Borough of Glendon. On September 3, 1986, the Glendon Borough Council passed a favorable resolution regarding the plaintiff's Project. On June 3, 1987, the Glendon Council adopted Ordinance 87-1, which permitted the plaintiff to use the site for the proposed project. It also provided that the Borough and the plaintiff would execute a Host Community Agreement. The Agreement designated and authorized the site as a permitted use for the plaintiff's Project provided that the plaintiff complied with certain requirements. In August of 1987, the Borough adopted Ordinance 87-2, which states that resource recovery facilities are lawful in an area zoned as Industrial-Office. The land that the plaintiff had earmarked for the project was in such an area.

 In February of 1992, the plaintiff purchased approximately nine acres of land, which was contiguous to the property that it had originally acquired. This acquisition enabled the plaintiff to reposition most of the Project more than 300 yards from Heil Park. On February 29, 1992, the plaintiff then filed a Conditional Use Application with the Borough. The sole difference between that application and the one in 1987 was the location of the project. At a hearing, GEC allegedly produced evidence to show that the Project complied with Borough regulations, and would inure to the health, safety, and welfare of the Borough. It also produced evidence to demonstrate that the completed facility would not cause any pollution problems. GEC alleges that Borough did not meaningfully rebut any of GEC's evidence. At the conclusion of the hearing, the Council unanimously voted to deny GEC's application. GEC maintains that the Council's determination was not supported by evidence presented at the hearing, and that the hearing was a sham.

 Meanwhile in 1987, local opposition to the project surfaced. Representatives of the opposition were then elected to the Glendon Borough Council. The plaintiff cites four separate attempts by the defendants to enact confiscatory special legislation, the effect of which would destroy its Project. First, the plaintiff contends that defendant Edwin Brittain, in his capacity as a Borough Councilman, introduced a motion to revoke the 1986 resolution, and the two ordinances adopted in 1987. Mr. Brittain also introduced a motion to amend ordinance 87-2 so that resource recovery facilities would not be an approved conditional use of the land, and a motion to rezone the plaintiff's property as residential. Despite advice from the Borough Solicitor that such acts were unlawful, on July 6, 1988, the Borough Council adopted two ordinances that effectively destroyed the project. Three weeks later the Mayor of Glendon vetoed the two proposed ordinances.

 The second alleged attempt to destroy the plaintiff's project came in 1989, when Mr. Brittain along with defendants Tombler and Templeton, who were also members of the Borough Council, introduced another ordinance to rezone the plaintiff's property. The Borough Council adopted this proposed ordinance on June 7, 1989. The Mayor of Glendon vetoed this ordinance as well.

 The third alleged attempt occurred when a petition was presented to the Borough Council that would amend the Borough Zoning Code in order to frustrate the plaintiff's project. This petition was signed by Mr. Brittain and defendant Karin Brittain, who is his wife. Defendant Lana Farmer, moved that the property be rezoned in accordance with the petition. The motion was subsequently withdrawn.

 The plaintiff's complaint alleges that the Borough acted arbitrarily and took GEC's property without compensation. Specifically, the plaintiff alleges that the denial of GEC's application to undertake construction, the Borough's denial of GEC's application for a conditional use permit, and the enactment of Ordinance 92-3, each effectuated an unconstitutional taking. GEC also alleges that violations of substantive due process occurred when the defendants denied the 1987 Application and the 1992 Application. Finally, GEC avers that the defendants conspired, inter alia, to take its property without procedural due process of law when they failed to give the plaintiff proper notice of the bases for the Council's actions.


 Under Fed. R. Civ. P. 12(b)(1), a party to a lawsuit may make a Motion to Dismiss for "lack of jurisdiction over the subject matter[.]" *fn1" A case is properly dismissed pursuant to Rule 12(b)(1) "where the alleged claim under the Constitution . . . clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946), quoted in Growth Horizons, Inc. v. Delaware County, Pennsylvania, 983 F.2d 1277, 1280 (3d Cir. 1993). Thus, dismissal for a lack of jurisdiction is proper where the right claimed has been "foreclosed by prior decisions of the Court." Growth Horizons, 983 F.2d at 1280 (citations omitted). In deciding such a motion, the court is "not limited to the face of the pleadings." Taylor, 983 F.2d at 1290, citing Armstrong World Industries, Inc. v. Adams, 961 F.2d 405, 410, n.10 (3d Cir. 1992)). "Rather, as long as the parties are given an opportunity to contest the existence of federal jurisdiction, the court 'may inquire, by affidavits or otherwise, into the facts as they exist.'" Armstrong, 961 F.2d at 410 n.10, quoting Land v. Dollar, 330 U.S. 731, 735 n.4, 91 L. Ed. 1209, 67 S. Ct. 1009 (1947). Moreover, unlike a motion made under Rule 12(b)(6), "the court is 'free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" Boyle v. Governor's Veterans Outreach & Assistance Center, 925 F.2d 71, 74 (3d Cir. 1991), quoting Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir. 1977).


 As the Third Circuit Court of Appeals recently noted, "ripeness is 'peculiarly a question of timing.'" Taylor, 983 F.2d at 1290 (quoting Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580, 87 L. Ed. 2d 409, 105 S. Ct. 3325 (1985)). "The doctrine is essentially viewed as a prudential offshoot of the case or controversy requirement under Article III of the Constitution." Binker v. Commonwealth of Pennsylvania, 977 F.2d 738, 753 (3d Cir. 1992). It has also, however, been characterized as a "prudential limitation on federal jurisdiction." Taylor, 983 F.2d at 1290 (citations omitted). Regardless of which interpretation is more appropriate, it is clear that the primary issue that ripeness doctrine addresses is when a proper party may bring an action. See Armstrong, 961 F.2d at 411.

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