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Dotzel v. Ashbridge

November 15, 2007

NORBERT J. DOTZEL, JR., D/B/A DOTZEL TRUCKING, AND JOANNE DOTZEL, D/B/A DOTZEL TRUCKING, PLAINTIFFS
v.
ERNEST ASHBRIDGE, JOHN R. BOWER, DARREN CRISPIN, AND SALEM TOWNSHIP, DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court is defendants' motion for summary judgment (Doc. 40) in the instant case. Having been fully briefed and argued, the matter is ripe for disposition.

Background

This case centers around a zoning dispute between the plaintiffs and Salem Township. Plaintiffs had sought a conditional use permit to remove topsoil, sand and gravel from 34 acres they owned on or about July 28, 2000. (Defendants' Statement of Material Facts (Doc. 42) (hereinafter "Defendants' Statement") at ¶ 1).*fn1 They purchased the property with the intention of operating a quarry or soil removal project there. (Plaintiffs' Statement of Material Facts (Doc. 45) (hereinafter "Plaintiffs' Statement") at ¶ 2).*fn2 A quarry similar to the one proposed by plaintiffs operates on an adjoining parcel of land. (Plaintiffs' Statement at ¶ 3; Deposition of Norbert Dotzel, attached as Exh. 8 to Defendants' Statement (hereinafter "Dotzel Dep.") at 36).*fn3 Plaintiffs proposed a quarry for their land that would operate on an almost identical scale to the one already operating in the district. (Plaintiffs' Statement at ¶ 8).

The property is zoned A-1 agricultural district and a conditional use permit is required for removal of natural resources. (Defendants' Statement at ¶ 1; Plaintiffs' Statement at ¶¶ 9-10). Plaintiffs applied for such a permit, submitting an environmental impact statement along with their application. (Plaintiffs' Statement at ¶ 11). The Township Planning Commission approved the permit on March 15, 2002, subject to three conditions. (Defendants' Statement at ¶ 1; Plaintiffs' Statement at ¶ 14). The Township Board of Supervisors held a public hearing on the application on April 9, 2002. (Defendants' Statement at ¶ 3). At that time, plaintiffs allege, there were no reports, studies or evidence in opposition to the project.*fn4 (Defendants' Statement at ¶ 11; Plaintiffs' Statement at ¶ 17).

During this meeting discussion arose over whether plaintiffs would have to meet five standards for a variance. (Plaintiffs' Statement at ¶ 20).*fn5 The Township attorney allegedly told Board members that no such requirement existed. (Plaintiffs' Statement at ¶ 21).*fn6 The Board members, ignoring this advice, insisted that the standards be met. (Defendants' Statement at ¶ 5; Plaintiffs' Statement at ¶ 48). A transcript of the Board meeting indicates that Supervisor Ashbridge asked the Township's attorney whether the five standards had to be met before the permit could issue. (Transcript of Testimony Before the Salem Board of Supervisors, Attached as Exh. 3 to Defendants' Statement of Facts (hereinafter "T.") at 53). Ashbridge disagreed with the lawyer's assessment that meeting such conditions was unnecessary. (Id. at 54). When the Supervisors voted to deny conditional use approval, Ashbridge cited plaintiffs' failure to meet the five conditions as the reason for his vote. (Id. at 57). The Chair of the Board, Defendant Crispin, however, based his vote denying the permit on "[t]he impact on the road and the public property, the street itself that services the property and the long term effects that would affect all the taxpayers of the community." (Id. at 60). Supervisor Bower also did not cite the five conditions as the reason for his vote, instead asserting that his "concern is for residents that lived here all their life, to put up with the dust, the trucks, noise, things like that." (Id. at 56).

On May 14, 2002, defendants denied the plaintiffs' application. (Defendants' Statement at ¶ 5; Plaintiffs' Statement at ¶ 42). Plaintiffs appealed this decision to the Luzerne County Court of Common Pleas on June 11, 2002. (Defendants' Statement at ¶ 7). Among the contentions they made in their petition was that the Township erred in attempting to regulate the quarry. (Id.). Plaintiffs also argued that the Township's attempt to regulate the quarry was pre-empted by the Pennsylvania Non-Coal Surface Mining Conservation and Reclamation Act. (Plaintiffs' Statement at ¶ 52). On February 4, 2003, the Court sustained the plaintiffs' appeal and reversed the Board's decision. (Defendants' Statement at ¶ 7).

The plaintiffs filed a complaint in this court on August 19, 2003. That complaint, brought under 42 U.S.C. § 1983, alleged that defendants violated plaintiffs' substantive and procedural due process rights. It also contended that defendants had violated plaintiffs' First Amendment rights. This court issued a decision on defendants' motion to dismiss on June 30, 2004. (See Memorandum and Order (Doc. 19)). The court dismissed all of plaintiffs' claims except their substantive due process and Monell claims for municipal liability. The Third Circuit heard an appeal of this decision, and on February 14, 2006 found that the individual members of the Planning Commission were entitled to absolute immunity for their individual acts. (See Mandate of United States Court of Appeals (Doc. 27)). Only plaintiffs' Monell and substantive due process claims against the Supervisors remained.

After the Appellate Court remanded the case, plaintiff deposed several members of the Board of Supervisors. Supervisor Bower testified that he agreed that the Township Attorney had advised him that the five conditions need not be met before granting the variance, but that he nevertheless voted to deny plaintiffs' permit. (Deposition Testimony of John R. Bower, attached as Exh. 6 to Defendants' Statement (hereinafter "Bower Dep.") at 22). Defendant Bower testified that he had voted against the plaintiffs' application "mostly for the people. The neighbors of the property that he owns." (Id. at 18). At the meeting where he voted on the project, Bower discovered that the majority of property owners who lived near the project opposed it. (Id.). These residents had "lived there all their life, and . . . they would have to put up with . . . the noise, the dust, the trucks." (Id. at 20). The Defendant recognized that "they didn't want it, and they have to live there." (Id.). Bower also testified that he was aware that similar excavation work occurred on adjoining property, which required large trucks and frequent traffic. (Id. at 24-25). Further, his brother, who owned a construction company, often hauled sand a pit on the property. (Id. at 23). Bower's brother did not own the property, however, and John Nunsick, the owner of that property, did not oppose granting plaintiffs their permit. (Id. at 36-37).

Defendant Crispin also testified by deposition. At the time of the events in question, he served as Chairman of the Board of Supervisors. (Deposition of Darren Crispin, Attached as Exh. 8 to Defendants' Statement (hereinafter "Crispin Dep.") at 7). Crispin testified that he voted against the project because "I had concerns about the long term impact on the road, and the impact on the residential environment around the site." (Id. at 12). Though he had not consulted with engineers about the impact of trucks on the road, Crispin claimed that his concern about the weight of trucks on the road was "solely based on the fact that we had a five ton weight limit, and thirty-five ton trucks being requested to use the road on a frequent basis." (Id. at 13). Defendant Crispin also disapproved of the project because of a "concern" about "reduced value in property, reduced enjoyment of their own property, and [nearby landowners'] general objection to the use." (Id. at 14). He further testified that he was aware that the Township attorney had determined that the five conditions insisted on by the Township before issuing the permit were unnecessary.

Plaintiffs also deposed Defendant Ashbridge. He testified that he voted against plaintiffs' application because he felt that the application had failed to comply with the procedures required by the Township ordinance. (Deposition of Ernest Ashbridge, attached as Exh. 7 to Defendants' Statement (hereinafter "Ashbridge Dep.") at 14). Ashbridge insisted that plaintiffs had sought a variance, and that the Township ordinances require "five points for Provisions for Granting Variances." (Id. at 15). He voted against the application because plaintiffs had failed to "meet the criteria" required by Township ordinance for a variance. (Id.). Ashbridge adhered to this position, even after the Township attorney advised him that he was wrong. (Id. at 16-17). Plaintiffs' failure to comply with these "five points," defendant testified, was his only reason for voting to deny the application. (Id. at 18). Defendant also testified that he was not aware that Defendant Bower's brother operated trucks on the adjoining property. (Id. at 19).

After the close of discovery, defendants filed a motion for summary judgment. Both sides filed briefs and we heard argument, bringing the case to its present posture.

Legal Standard

Granting summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the ...


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