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United States District Court, E.D. Pennsylvania

May 20, 2004.


The opinion of the court was delivered by: BRUCE KAUFFMAN, District Judge


Plaintiff Deirdre Blain brings this action under 42 U.S.C. § 1983 for alleged violations of her substantive due process rights by the Township of Radnor, its Board of Commissioners, and Commissioners Clinton A. Stuntebeck, William A. Spingler, James M. Pierce, Lisa Paolino-Adams, Harry G. Mahoney, and Graham D. Andrews in their individual capacities (collectively, "Defendants"). Now before the Court is Defendants' Motion for Summary Judgment. For the reasons stated below, the Motion will be granted.*fn1

I. Factual Background

  Plaintiff owned two parcels of land in the Township of Radnor with a combined size of 13.6 acres. Amended Complaint ("Compl.") ¶ 1. She submitted her subdivision plan (the "plan") to the Township for preliminary approval on July 2, 1999. Compl. ¶ 19. The Planning Commission and Plaintiff agreed to extend the statutory period for consideration of her plan through November 9, 1999. Plaintiff's Response to Motion for Summary Judgment ("Resp.") at 3.

  Although the plan complied with the Township's density ordinance, several neighbors spoke at Planning Commission meetings about their concerns regarding the density of the new development. Resp. at 4-6. Relying on the opinion of the Township Engineer, Duncan Hubley, that the plan violated two provisions of the Township's subdivision ordinances, the Planning Commission recommended denial. Id. at 5-6. According to Hubley, Lots 7 and 8 violated Section 255-25A (which prohibited the formation of remnants), and Lot 6 violated Section 255-34E (which required that lots be "conveniently shaped"). Id.

  Hubley made his recommendation despite advice from the Township Solicitor that the lots conformed with the ordinances. After the first Planning Commission meeting, the attorney for Plaintiff, John Snyder, wrote to the Solicitor, Eugene Evans, to ask about the alleged violations. Id. In response, Evans left the following voicemail message for Snyder:

Hey John, this is Gene Evans. I'm getting back to you on that letter of September 27, 1999 with regards to the regular shaped lots. I spoke to Duncan. I told Duncan that you were right. Once you put those new lots together, they are very regular shaped. I told him to leave you alone, okay. Thanks.
Resp. at 5. Evans did not attend any Planning Commission meetings considering the plan because he was suffering from terminal cancer, and Defendants claim that they never had a formal recommendation from him that they approve the plan. Motion Ex. C at 30-31, Ex. F at 13.

  After receiving the Planning Commission's recommendation, the Board of Commissioners (the "Board") considered the plan for the first time on October 18, 1999. Resp. at 7. After an additional meeting on November 8, the Board voted on November 22 to deny the plan on the basis of its failure to comport with Sections 255-25A and 34E. Id. at 9.

  Plaintiff filed a Notice of Land Use Appeal in the Delaware County Court of Common Pleas on December 14, 1999. Resp. Ex. 25. In the meantime, Board members met with neighbors to discuss the possibility of buying development rights from the developer of Plaintiff's property, but this effort was unsuccessful. See Motion Ex. B at 114-120, Resp. Ex. 35.

  On June 8, 2001, after a lengthy analysis of Sections 255-25A and 34E, the Court of Common Pleas concluded that because Plaintiff discussed the remnant issue with the Solicitor and followed the procedures set forth in the Township ordinances, the Township could not disapprove the plan on the grounds that it violated 255-25A. Resp. Ex. 27 at 15-16. The Court also found that the "conveniently shaped" language in 255-34E was too vague to support a denial of the plan, and accordingly, the denial was arbitrary and capricious. Id. at 19-20. The Court further stated that the Board's written denial was insufficient because it "did not specify the defects complained of or describe the requirements which have not been met." Id at 21-22. In addition, because the final denial was made after the November 9 statutory deadline, the plan was deemed approved as of that date. Id. at 23.

  The Court of Common Pleas ordered the Board to approve Plaintiff's subdivision application "forthwith." Id. at i. The Township appealed, but the day before its brief was due in October, 2001, it withdrew the appeal. Resp. at 12. The Resolution authorizing withdrawal stated in part that the appeal had been taken due to "the announced interests of some neighbors in the immediate area to acquire some of the development rights for some or all of the properties in question and because of some interest on the part of Radnor Township in assisting those citizens in maintaining open space." Resp. at Ex. 28. The Resolution further stated that it was "legally and financially impractical to proceed" with the litigation and directed the Solicitor to withdraw the appeal. Id.

  Plaintiff submitted a plan for final approval on December 17, 2001. Resp. at 15. At a Planning Commission meeting on January 8 and a Board meeting on January 22, three proposed changes were discussed. Id. at 15-16. On January 8, there was a discussion about the Township Engineer's request that Plaintiff install a sewer line for houses located off of the subdivision property, a request that apparently was made of all subdivision applicants. Motion at 26; Resp. at 36.*fn2 On January 22, a discussion took place about limiting construction on Saturdays. Resp. Ex. 33 at 13. Both conditions were included in a draft resolution that was faxed to Plaintiff for her approval on February 7. Id. Ex. 41. In a letter of that same date, her attorney requested that the Resolution be revised to eliminate the two conditions, and the next day they were eliminated. Id. Ex. 41, 42. The third proposed condition involved the creation of walking paths across the property.*fn3 At the January 22 Board meeting, Commissioner James Pierce threatened to condemn land for walking paths if Plaintiff refused to grant a right-of-way voluntarily. See Resp. Ex. 33.*fn4 Plaintiffs attorney asserts in his affidavit that Commissioner Pierce's threats about condemning the land "imposed upon [Plaintiff] and her buyer an obligation to disclose this fact to all future home buyers, which would have the effect of lowering the value of the property." Resp. Ex. 1 ¶ 35. The plan received final approval on February 8, 2002, without any of the three proposed conditions. Resp. at 38.

 II. LeRal Standard

  In deciding a motion for summary judgment pursuant to Fed.R.Civ.P. 56, the test is "whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)). "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). The Court must examine the evidence in the light most favorable to the non-moving party and resolve all reasonable inferences in that party's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, "there can be `no genuine issue as to any material fact' . . . [where the non-moving party's] complete failure of proof concerning an essential element of [its] case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

 III. Analysis

  A party may seek damages under 42 U.S.C. § 1983 for the deprivation of federal statutory or constitutional rights by any person acting under color of state law. 42 U.S.C. § 1983. Plaintiff alleges that Defendants violated her substantive due process rights by delaying approval of her plan.

  As a threshold matter, the Court finds that Plaintiff has a property interest worthy of substantive due process protection. The parties do not dispute Plaintiff's ownership of the land at issue, and the Third Circuit has stated that an owner's use and enjoyment of land is protected by substantive due process. DeBlasio v. Zoning Board of Adjustment. 53 F.3d 592, 600 (3d Cir. 1995) (abrogated on other grounds by United Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392 (3d Cir. 2003)).

  The next question, however, is whether the interference by Defendants in Plaintiff's use and enjoyment of her land rose to the level necessary to implicate substantive due process.*fn5 Until a few years ago, the standard in this Circuit for determining whether land use decisions violated substantive due process rights was whether they were taken with an improper motive or were arbitrarily or irrationally reached. United Artists, 316 F.3d at 394; DeBlasio, 53 F.3d at 593. In United Artists, however, the Third Circuit significantly raised the bar for such claims. To prevail, a plaintiff must demonstrate that the disputed conduct "shocked the conscience" as that standard was defined by the Supreme Court in Sacramento v. Lewis, 523 U.S. 833 (1998). United Artists, 316 F.3d at 394. "[O]nly the most egregious official conduct can be said to be `arbitrary in the constitutional sense' . . . [T]he Due Process Clause was intended to prevent government officials `from abusing [their] power, or employing it as an instrument of oppression.'" Lewis, 523 U.S. at 846 (quoting Collins v. Harker Heights, 503 U.S. 115, 126, 129 (1992) (internal quotations omitted)). Accordingly, "the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm." Id. at 848. It is particularly important in the land use context that the district court avoid sitting as a "zoning board of appeals." United Artists, 316 F.3d at 402.

  The conscience-shocking inquiry is fact-specific. The Lewis Court explained that, "[w]hile the measure of what is conscience shocking is no calibrated yard stick, it does, as Judge Friendly put it, `poin[t] the way.'" Id. at 847 (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). Mere negligence cannot constitute a violation. Lewis, 523 U.S. at 849. "Conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level." Id. at 849. "Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances." Id. at 850.

  The Third Circuit has not yet applied the shocks-the-conscience standard to the land use context in any precedential opinion, but a series of district court cases provide some guidance.*fn6 Substantive due process rights may be implicated by corrupt or fraudulent government conduct. See Development Group. LLC v. Franklin Township Board of Supervisors, No. Civ. A. 03-2936, 2003 WL 22358440 (E.D. Pa. Sept. 24, 2003) (denying a Motion to Dismiss where plaintiff alleged that officials delayed approval for development while attempting to "buy off plaintiff in violation of Pennsylvania law). Such rights also might be implicated when another constitutional right is violated in addition to the due process right to the use and enjoyment of property. See Associates in Obstetrics & Gynecology v. Upper Merion Township, 270 F. Supp.2d 633, 656 (E.D. Pa. 2003) (holding that selective enforcement of a zoning ordinance against an abortion clinic with the intention of "harm[ing] Plaintiffs' business interests and . . . restrict[ing] their practice of lawful medical procedures" implicated substantive due process rights); American Marine Rail NJ, LLC v. City of Bavonne, 289 F. Supp.2d 569, 576-77 (D.N.J. 2003) (denying summary judgment where rejection of proposed waste transfer center was alleged to have violated the dormant Commerce Clause).

  This case does not involve fraud or corruption, nor does it implicate constitutional rights other than, potentially, the right to substantive due process for the use and enjoyment of property. Defendants denied the application on the basis of a misinterpretation of the Township's ordinances despite their Solicitor's advice. The facts presented here are similar to those considered in two recent district court opinions that have been affirmed by the Third Circuit: Corneal v. Jackson Township, No. CIV.1:CV-00-1192, 2003 WL 23413767 (M.D. Pa. Jul. 28, 2003), aff'd, No. 03-3587, 2004 WL 790315 (3d Cir. Apr. 13, 2004), and Levin v. Upper Makefield Township, No. CIV.A.99-CV-5313, 2003 WL 21652301 (E.D. Pa. Feb. 25, 2003), aff'd, No. 03-1860, 2004 WL 449189 (3d Cir. Mar. 8, 2004).

  In Corneal, the plaintiffs purchased a ninety-five acre tract with the intention of subdividing. Id at *1. After the plaintiffs contracted to sell 25 acres for $150,000, the Township declared a temporary moratorium on subdividing land pending the enactment of a formal subdivision ordinance. Id. at *2. Then, when the plaintiffs attempted to obtain the necessary permits to begin constructing their own home on the land, the Township refused to provide an application for a building permit. Id. at *2-3. The Township's Building Permit Officer told one of the plaintiffs that he was "a trouble making yuppie from over the mountain." Id. at *3. Despite the existence of both bad faith and personal animus, the court found no substantive due process violation because the evidence did not indicate "that the challenged decision [was] completely unrelated in any way to a rational land use goal." Id. at *7. "[E]ven allegations of bad faith enforcement of an invalid zoning ordinance do not, without more, state a substantive due process claim." Id. (quoting Bituminous Materials Inc. v. Rice County., 126 F.3d 1068, 1070 (8th Cir. 1997)). Because the plaintiffs failed to "demonstrate that the land use decision . . . was so totally irrational that it could not possibly be the real reason for the locality's action or, alternately, that the locality applied its decision selectively so that its land use concern could not have been legitimate despite the rational basis for it," summary judgment was granted for the defendants. Id. at *9.

  In Levin, the plaintiff required a zoning variance to build a single-family dwelling. Levin, 2003 WL 21652301 at *1. A Common Pleas judge reversed the decision of the Zoning Hearing Board and granted the variance. Id. The Township appealed, the Commonwealth Court affirmed, and the Pennsylvania Supreme Court denied allocatur. Id. at *2. Nonetheless, the Township waited an additional year and a half after the denial of allocatur before granting the final building permit. Id. The Township also cashed the plaintiff's $2300 permit fee before any permits were issued and tried to enact a new setback ordinance in order to prevent the project from proceeding. Id. at *9. The district court found that although there was strong evidence that defendants had behaved with "a bad motive and purposeful intention to delay issuing" a permit, and although cashing the check was "senseless and spiteful," the behavior failed to rise to a conscience-shocking level. Id.

  As in Corneal and Levin, the facts of this case reveal possible impropriety and bad faith, but they fail to rise to the level of a substantive due process violation. Drawing all reasonable inferences in favor of Plaintiff, it appears that Defendants denied the plan in direct contravention of the Solicitor's advice that such action would violate the Board's legal duty to approve the plan. This conduct was improper, but under the circumstances, the omission does not shock the conscience as that term has been defined by the Supreme Court in Lewis, 523 U.S. at 846-50. The Solicitor advised the Township Engineer and Plaintiff's attorney, but he did not directly advise Defendants. No one ever obtained a formal opinion from the Solicitor; rather, Plaintiff's evidence on the point consists primarily of a transcribed voicemail message. Defendants should have known that if they were either unwilling or unable to consult the ailing Solicitor, they should have sought legal advice elsewhere. This omission was merely negligent, however, and negligence is not sufficient to violate substantive due process. Id. at 849.

  Plaintiff alleges that Defendants' true motivation was the desire to limit new development. Assuming arguendo that the reasons stated for the denial were entirely pretextual, there still would be no constitutional violation. The Township has a legitimate interest in land use planning and the preservation of open space. See Westrum Land Development Corp. v. Whitpain Township, No. Civ.A. 01-5535, 2002 WL 32351106, *5 (E.D. Pa. Oct. 23, 2002). Defendants' pursuit of a legitimate interest through the improper application of the Township's ordinances does not amount to a constitutional violation. Id. (under the pre-United Artists standard, a Township's efforts to preserve more open space than the amount permitted by law would not violate substantive due process).

  Furthermore, Plaintiff had an opportunity to seek redress for the Township's mistakes and improprieties in the state courts. As the Second Circuit explained:

Substantive due process is an outer limit on the legitimacy of governmental action. It does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit seeking review of administrative action. Substantive due process standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.
Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999). The slow pace of the state court proceedings does not create a claim for damages, because "the ordinary lapse of time required for the processing of an appeal from the denial of a permit does not permit a plaintiff to recast a case as a delay claim." Holland Transport, Inc. v. Township of Upper Chichester, No. CIV. A.00-397, 2002 WL 31518836 (E.D. Pa. Oct. 24, 2002) at *15 (quoting Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 598 (3d Cir. 1998). The Township's decision to appeal from the Court of Common Pleas decision was not improper, nor do the Board's efforts to help the neighbors purchase development rights shock the conscience. See Holland Transport, 2002 WL 31518836 at *22 (officials' efforts in opposition to development plan, including discussions with third parties, are insufficient to raise a material question of fact on substantive due process claim).

  Once the appeal was withdrawn on October 22, 2001, the Board acted quickly to approve the plan. Plaintiff submitted her final plan to the Township on December 17, 2001, and final approval was given on February 8, 2002. Although the Township attempted to require Plaintiff to install sewers and to restrict Saturday construction hours, these proposed conditions were removed from the Resolution the day after Plaintiff's attorney asserted a written objection. At the January 22 meeting, the Board discussed creating walking trails, but the plan received final approval a few weeks later without any walking trail requirement. Plaintiff alleges that the mere suggestion that the Board might condemn the properly impacted the value of the land. Even if this were true, however, such harm would not shock the conscience under the circumstances of this case. The Township has a legitimate interest in land use planning, and comments by two Board members about the possibility of condemning land are not enough to violate substantive due process. See Westrum Land Development Corp., 2002 WL 32351106 at *4.

 IV. Conclusion

  Examining all evidence in the light most favorable to Plaintiff and resolving all reasonable inferences in her favor, Defendants' conduct does not violate substantive due process. Accordingly, Defendants are not liable under § 1983, and the Court will grant the Motion for Summary Judgment in their favor. An appropriate Order follows. ORDER

  AND NOW, this ____ day of May, 2004, upon consideration of Defendants' Motion for Summary Judgment (docket no. 28), Plaintiffs response thereto (docket no. 30), Defendants' Reply to Response (docket no. 34), and after a Hearing on May 3, 2004, it is ORDERED that Defendants' Motion for Summary Judgment is GRANTED for the reasons stated in the accompanying Memorandum. Accordingly, judgment is entered in favor of Defendants. The Clerk of the Court shall mark this case CLOSED.

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