temporary parking was unusual or routine, or whether it was motivated by a proper or improper purpose. Accordingly, this evidence does not create a genuine issue of material fact.
In conclusion, then, the evidence the Barnes offers with respect to the Defendants' conduct before, during, and after the Reopening Gala Events in November 1995 does not create a genuine issue of material fact whether the Defendants treated the Barnes any differently than other institutions or whether their conduct was motivated by a racially discriminatory purpose.
d. The December 1995 and August 1996 Zoning Citations
On December 13, 1995, the Township's Zoning Officer issued a zoning citation to the Barnes, charging the Barnes with changing its primary use from an educational institution to a museum, in violation of the Township's Zoning Ordinance. On August 6, 1996, the Township withdrew the December 13, 1995 zoning citation, the Barnes's appeal of which was still pending before the Township's Zoning Hearing Board, and issued a new zoning citation on the same day, again charging the Barnes with operating a prohibited museum use. (SMF, PP 313-316; Doc. # 289, P 299, 304-305; Doc. # 290; Defs.' Ex. 20.5, Ex. 39, at 1-3.) The Barnes contends that the Township has not issued zoning citations to similarly situated institutions when they have undergone similar changes in visitation or use and that the issuance of these zoning citations was racially motivated. (SMF, PP 105, 108, 313-21; Doc. # 323, at 24, 26-27, 49-55.) As discussed below, the evidence the Barnes cites does not support these claims and does not create a genuine issue of material fact.
To show that the Township has not issued zoning citations to similarly situated institutions when they have undergone similar changes in use, the Barnes offers the affidavit of Peter F. Kelsen, Esquire, the Barnes's zoning counsel.
In his affidavit, Kelsen states that the Township has not issued zoning citations to other educational institutions when they "have developed massive increases, and even instituted new uses." (Pl.'s Ex. 11, P 18.) He cites as examples the "addition of a summer camp by Episcopal Academy, the establishment of a computer use at Saint Joes, the development of doctors offices as an independent as a major [sic] business at Lankaneu Hospital, and the development of additional recreational and other activities at Episcopal and other institutions." (Id.)
Kelsen provides no indication in his affidavit that he has the personal knowledge required by Rule 56(e) about the changes in use at Episcopal Academy, St. Joseph's University, or Lankaneu Hospital or of how the Township responded to those changes. Although personal knowledge can be inferred from the nature of the affiant's position under certain circumstances, see, e.g., Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990) (per curiam), Kelsen's status as a zoning attorney for the Barnes, standing alone, does not support the inference that he is also personally familiar with the zoning history of Episcopal Academy, St. Joseph's University, and Lankaneu Hospital. Moreover, Kelsen testified in his deposition that he has not represented any institutions in Lower Merion other than the Barnes and that his other previous representations in Lower Merion involved private developers. (Defs.' Ex. 28.1, at 241-42.) Accordingly, because he has not shown affirmatively that he has personal knowledge and would be competent to testify about the Township's responses to changes in use at Episcopal Academy, St. Joseph's University, and Lankaneu Hospital, this evidence does not comply with the requirements of Rule 56(e) and cannot be considered on a motion for summary judgment.
See Fed. R. Civ. P. 56(e); Hlinka v. Bethlehem Steel Corp., 863 F.2d 279, 282-83 (3d Cir. 1988); Maldonado v. Ramirez, 757 F.2d 48, 50-51 (3d Cir. 1985).
Next, the Barnes claims that the Township's asserted reasons for issuing the December 1995 zoning citation were pretextual. As evidence, the Barnes cites again to the affidavit of Peter F. Kelsen, Esquire, in which he states that he "attempted to communicate to the Township" that its concern "about the Barnes' land use going beyond its pre-existing non-conforming use" was "entirely inappropriate and unfounded." (Pl.'s Ex. 11, P 16.) Kelsen states that he was "continually met by a misstatement that the Barnes was attempting to increase its visitation beyond that 'allowed' by the 1963 Court settlement." (Id.) Kelsen states that no matter how many times he pointed out that the 1963 decree was a minimum requirement imposed on the Barnes and not a maximum, "people have continually suggested that it was the maximum permitted, and that the Barnes has attempted to increase from its supposed maximum allowance." (Id.)
As an initial matter, Kelsen does not identify in his affidavit whom he spoke with, who kept disagreeing with him, or whether these individuals were the ones responsible for determining whether the Barnes had changed its use under the Zoning Ordinance. More importantly, Kelsen does not provide any information about what factors are relevant under the Zoning Ordinance to determine whether the Barnes had changed its primary use, nor has the Barnes provided any such evidence elsewhere. Thus, the Barnes has given the trier of fact no basis by which to determine whether the question of the Barnes's "change of use" under the Zoning Ordinance is even related to, much less dictated by, the Barnes's compliance with the 1963 court decree. If the Barnes's compliance with the Township's Zoning Ordinance is not related to its compliance with the 1963 court decree, then the asserted disagreement between Kelsen and the Township "people" over the Barnes's compliance with the 1963 court decree is not probative of whether the Township's reasons for issuing a "change of use" zoning citation were pretextual. Accordingly, because this evidence is not relevant unless the two are related, and because the Barnes has not offered evidence sufficient to support a finding that they are related, this evidence would not be admissible at trial and may not be considered on a motion for summary judgment. See Fed. R. Evid. 104(b); Fed. R. Evid. 402; Fed. R. Civ. P. 56(e); Philbin v. Trans Union Corp., 101 F.3d 957, 961 n.1 (3d Cir. 1996); J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990); Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109 & n.2 (5th Cir. 1991) (en banc) (per curiam).
Next, the Barnes contends that the Commissioners could not have been pursuing legitimate goals in litigating the December 1995 and August 1996 zoning citations because they were given weekly memoranda from the Township Manager that it claims demonstrated that the Barnes had not changed its use. The Barnes claims that these memoranda put the Board of Commissioners on notice that the level of the Barnes's visitation had not increased as compared to pre-renovation activities. (Doc. # 323, at 27, 53; SMF, P 321.)
As evidence, the Barnes offers ten memoranda, with dates spanning from November 17, 1995 to March 29, 1996, addressed from Township Manager David Latshaw to the President and Members of the Board of Commissioners, in which Latshaw provides weekly updates of significant events in the Township, including events involving the Barnes. (Pl.'s Ex. 223.) With the exception of the memoranda dated November 17 and November 22, 1995, however, Latshaw does not provide estimates of the level of the visitation experienced by the Barnes after its reopening or how that level compared to the level of visitation experienced before the renovations. For the week of November 17, 1995, Latshaw stated that the "anticipated large number of visitors did not materialize" on November 16, 1995, the Barnes's opening day, but that "no inference can be made from this small turn-out and the Police Department will continue to monitor the site during hours of operation for the next few weeks." (Pl.'s Ex. 223, at 122000.) For the week of November 22, 1995, Latshaw reported that the level of visitation for the opening weekend was "consistent with the visitations experienced prior to the closing of the Foundation for renovations" but that several parking citations were issued. (Pl.'s Ex. 223, at 122005.) For the remainder of the weeks, Latshaw does not discuss the level of visitation, but rather reports the number of parking citations issued, the number of citizen complaints received, and the level of police activity required, and he does not compare these latter circumstances to pre-renovation levels. Thus, aside from the opening week, Latshaw's memoranda do not provide information about how the Barnes's post-renovation activities compared to pre-renovation activities. Moreover, the Barnes has provided no evidence of what factors the Township relied on in determining that the Barnes had changed its primary use from an educational institution to a museum, or what factors would ordinarily be relevant to that determination, and thus the Barnes has not given the trier of fact any basis by which to assess whether Latshaw's weekly reports of parking citations and police activity should have put the Commissioners on notice that the Zoning Officer's citation was unfounded. Accordingly, this evidence does not create a genuine issue of material fact.
Finally, the Barnes contends that the Township's decision in August 1996 to withdraw its December 13, 1995 zoning citation, which mooted the Barnes's pending appeal, and to issue a new zoning citation the same day demonstrates that the zoning citations were baseless and designed to harass the Barnes. As evidence, the Barnes offers the affidavit of Peter F. Kelsen, Esquire, who states that "the fact that the Township withdrew its own citation before its own Zoning Hearing Board after the conclusion of hearings and briefs is additional evidence that the original notice issued by the Township in December 1995, was baseless." (Pl.'s Ex. 11, P 19.) Kelsen's statement is merely argument and does not set forth any specific fact. Accordingly, this evidence does not create a genuine issue of material fact. See Fed. R. Civ. P. 56(e); Maldonado v. Ramirez, 757 F.2d 48, 50-51 (3d Cir. 1985).
Thus, in conclusion, the Barnes's evidence with respect to the zoning citations, as with its evidence concerning the parking lot, the building inspections, and the Reopening Gala Events, fails to show that it was treated differently or that any of the Defendants' conduct was motivated by a racially discriminatory purpose.
AND NOW, this 26th day of September, 1997, for the reasons stated in the attached memorandum and appendix, IT IS ORDERED as follows:
1. The Motion for Summary Judgment of the Township of Lower Merion (document # 288) is GRANTED ; and
2. The Motion for Summary Judgment for the Commissioners of the Township of Lower Merion (document # 291) is GRANTED.
Anita B. Brody, J.