and control in advance the random and unauthorized intentional
conduct of its employees than it can anticipate similar negligent
conduct"). Unlike Parrat, this case does not involve any "random and
unauthorized" conduct. Pre-deprivation process was practicable here
because it was predictable that the Board's hearings would have a
significant affect upon the plaintiffs' property interests. Thus, Parrat
Finally, the defendants argue that because the plaintiffs do not have a
plausible argument that the Board decision was wrong, the plaintiffs' due
process rights were not violated. The plaintiffs claim that, if granted an
opportunity, they will argue that the mobile homes are an expansion of a
pre-existing non-conforming use. In response, the defendants point out
that at least some of the plaintiffs advanced this same argument at the
conditional use hearing before the Board and that the matter is now
before the Chester County Court of Common Pleas.
Thus, the defendants argue that before receiving notice and a hearing,
the plaintiffs must be able to show that they would have prevailed at the
hearing. The defendants' argument is without merit. The right to be heard
"does not depend upon an advance showing that one will surely prevail at
the hearing." Fuentes v. Shevin, 407 U.S. 67, 87, 92 S.Ct. 1983, 1987
(1972). Moreover, "[t]o one who protests against the taking of his
property without due process of law, it is no answer to say that in his
particular case due process of law would have led to the same result
because he had no adequate defense upon the merits." Coe v. Armour
Fertilizer Works, 237 U.S. 413, 424, 35 S.Ct. 625, 629, 59 L.Ed. 1027
(1915). The plaintiffs need not show that they would have succeeded
before the Board in order to establish a claim for violation of due
(c) Under Color of State Law
The traditional test of "acting under color of state law" requires that
a defendant in a § 1983 action have exercised power "possessed by
virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law." West v. Atkins, 487 U.S. 42,
49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (quoting United States
v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1042-43, 85 L.Ed. 1368
(1941)). Acts of a state or local employee generally will be found to
have occurred under color of state law. Id.; Flagg Bros. v. Brooks,
436 U.S. 149, 157 n. 5, 98 S.Ct. 1729, 1734 n. 5, 56 L.Ed.2d 185 (1978).
The hearings presided over by the defendants took place under the
authority of state law. The defendants also acted under color of state
law when they ordered DiUbaldo to serve the plaintiffs with Notices to
2. Irreparable Harm
A court must also consider the possibility that the plaintiff will be
irreparably harmed if the injunction is not granted. Irreparable harm is
injury that cannot be adequately compensated by monetary relief. Morton
v. Beyer, 822 F.2d 364, 372 (3d Cir. 1987). What constitutes irreparable
harm in a particular case is dependent on the particular circumstances of
the case. See Oburn v. Shapp, 521 F.2d 142, 151 (3d Cir. 1975). A number
of courts have held that "when an alleged deprivation of a constitutional
right is involved, no further showing of irreparable injury is
necessary." Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (quoting
11 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 2948, at 440 (1973)); Jolly v. Coughlin,
76 F.3d 468, 482
(2d Cir. 1996) (holding that a "presumption of irreparable injury . . .
flows from a violation of constitutional rights"); Topanga Press, Inc.
v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993); see also Sikeston
Production Credit Ass'n. v. Farm Credit Admin., 647 F. Supp. 1155, 1163
(E.D.Mo. 1986); Hueblein, Inc., v. Federal Trade Commission,
539 F. Supp. 123, 128 (D.Conn. 1982).
The Court of Appeals for the Third Circuit, however, has held that
constitutional harm does not necessarily constitute irreparable harm.
See Hohe v. Casey, 868 F.2d 69, 73 (3d Cir. 1989) (holding that a simple
assertion of First Amendment rights does not automatically require a
finding of irreparable injury). In Hohe, the Third Circuit found that
because the plaintiffs were entitled to compensatory damages they would
not suffer irreparable harm. The present plaintiffs are not entitled to
compensatory damages.*fn6 Here, the irreparable harm consists not merely
in the asserted due process violation, but in the fact that the
plaintiffs will be displaced from their homes, a circumstance that would
be especially intolerable without an opportunity to be heard. See Butler
v. United States Dep't Housing and Urban Development, 595 F. Supp. 1041,
1046 (E.D.Pa. 1984) (holding that failure to enjoin HUD and the Federal
National Mortgage Association from foreclosing the plaintiffs mortgage
without reconsideration of the plaintiffs'application for mortgage
assignment will cause the plaintiffs irreparable injury because it "may
lead to loss of [the plaintiffs'] home"). The plaintiffs, therefore, have
satisfied this requirement.
3. Harm to the Non-Moving Party
Next, a court must assess the potential for harm to the non-moving
party. The defendants argue that they will be harmed because: (1) the
Township will have to permit a mobile home park to remain on the property
in violation of the zoning ordinance and (2) the Township will not be
permitted to collect the fines levied against DiUbaldo for violating the
zoning ordinance. Merely providing the plaintiffs with an opportunity to
present their case before the Board does not mean that the Township cannot
enforce the ordinance or eventually collect fines from DiUbaldo.
Therefore, granting the permanent injunction will not inflict cognizable
harm to the defendants.
4. Public Interest
Finally, a court must consider whether the public interest favors
granting the permanent injunction. Analysis of this factor "is another
way of inquiring whether there are policy considerations that bear on
whether the order should issue." 11 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 2948.4, at 200-01 (1973).
While enforcement of zoning ordinances generally promotes the public
interest, the public interest would best be served under these
circumstances by providing the plaintiffs with notice and an opportunity
to be heard before the Board. See Industrial Park Development Co. v.
EPA, 604 F. Supp. 1136, 1145 (E.D.Pa. 1985) (stating that "there is a
compelling public interest in oversight of governmental actions which
deprive individuals of generally protected property interests"); Bowman
v. Town of
Pennsauken, 709 F. Supp. 1329, 1348 (D.N.J. 1989).
In conclusion, I find that the plaintiffs have demonstrated success on
the merits of their procedural due process claim against the defendants,
that the plaintiffs will suffer irreparable injury if the defendants are
permitted to proceed to enforce the ordinance without affording the
plaintiffs notice and an opportunity to be heard before the Board, and
that the balance of hardships and public interest weigh in favor of
granting injunctive relief. Accordingly, I will grant the plaintiffs'
request for permanent injunctive relief. An appropriate Order follows.
AND NOW, this day of November 2002, it is ORDERED that:
(1) the plaintiffs' motion for a permanent injunction preventing the
defendants from enforcing its January 23, 2001 Order of eviction is
(2) the defendants' motion to dismiss the claims of the plaintiffs
(Docket Entry #10) and the plaintiffs' motion to amend the record
(Docket Entry #21) are DENIED AS MOOT.
(3) If the defendants reschedule a hearing on the appeal of the
enforcement notice of June 22, 2000 to the Zoning Hearing Board,
they shall provide notice to the plaintiffs consistent with this