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Kolodziej v. Borough of Elizabeth

November 10, 2008


The opinion of the court was delivered by: Mitchell, Magistrate Judge


Presently before the Court is a motion to dismiss the complaint for failure to state a claim submitted by defendants Borough of Elizabeth and its Mayor, John Yacura. For reasons discussed below, the defendants' motion to dismiss (Document No. 4) is granted as to Counts II, III, IV and V of the complaint and denied in all other respects.

The plaintiff, Kenneth Kolodziej, has filed a civil rights complaint pursuant to 42 U.S.C. §§ 1983, 1985 and 1988 against defendants Borough of Elizabeth (the "Borough"), its Mayor, John Yacura, and its Building Inspector/Code Enforcement Officer, Arlo A. Roma.*fn1 The plaintiff complains that the defendants, individually and in conspiracy, violated his Fifth and Fourteenth Amendment rights to substantive due process rights, procedural due process, equal protection of the law, and freedom from a regulatory taking or condemnation of his property without due process of law. The Court's federal question and supplemental jurisdiction are invoked.

As gleaned from the complaint, the plaintiff alleges as follows: in or about April 2004, he purchased a commercial building and parcel located at 113 2nd Avenue in Elizabeth, PA, also known as the Jaskols Building, which is situated in the Borough. Defendant Yacura and/or defendant Roma resented the plaintiff for acquiring the Jaskols Building, as they too wanted to acquire, develop and market it as a commercial office building. As a result, they decided to assert their authority to hinder or prevent the plaintiff from developing the property.

On June 14, 2006, the defendants posted the property and issued a letter to the plaintiff which falsely asserted that the Borough inspected the property and found it to be substandard, such that he had to obtain a building permit from the Borough to perform work necessary to bring the building into compliance. In response to that letter, he applied for a building permit from the Borough. On July 5, 2006, the defendants denied him a permit to perform work on the building and required him to submit drawings and a report from a certified structural engineer, confirming that the structural integrity of the building was sound and could be shored before a building permit would be issued.

At the time of the aforesaid letters of June 14, 2006 and July 5, 2006, the Borough had elected not to enforce the Uniform Construction Code ("UCC") pursuant to Act 45 of 1999. Having opted out of administering the UCC as of July 8, 2004, the Borough was responsible for notifying applicants for commercial building permits that they had to secure permits and inspections from the PA Department of Labor and Industry, but it failed to do so. As an opt out municipality under the UCC, the Borough, upon receiving the plaintiff's application for a building permit, should have issued him a "Notice to Applicant for Commercial Building Permit of Non-Enforcement by Municipality" ("Notice of Non-Enforcement") and informed the PA Department of Labor and Industry that it advised him to seek commercial construction approvals from it, but the defendants failed to do so.

On or about August 6, 2006, the defendants acted in concert and in accordance with Borough ordinances, including ordinance 483, to condemn the plaintiff's property, and they threatened to demolish the building on it. According to the plaintiff, the defendants' failure to issue him the required "Notice of Non-Enforcement" was in direct violation of state law and violated his constitutional right to use, enjoy and profit from his property.

On or about November 17, 2007, the plaintiff again applied for a building permit to perform work on the property. On or about March 10, 2008, the defendants again denied him a building permit and failed to issue him the requisite "Notice of Non-Enforcement". On April 10, 2008, the plaintiff appealed the denial of his request for a building permit. However, the defendants have not yet notified him that a zoning board has been convened to hear his appeal.

The plaintiff contends that the defendants violated his constitutional rights by continuing to apply zoning ordinances 286, 476 and 483, while asserting authority to handle building permit matters after the Borough opted out of administering the UCC, such that they acted in an arbitrary, capricious and unlawful manner; that they treated him in a disparate manner from similarly situated property owners who were issued building permits without having to submit drawings and a report from a certified structural engineer; and that they engaged in a virtual taking of his property by denying his applications for building permits, condemning his property, and ignoring his appeal. In his five-count complaint, the plaintiff asserts that the defendants deprived him of his Fourteenth Amendment rights to substantive due process (Count I), procedural due process (Count II), and equal protection of the law (Count III). He also contends that they violated his Fifth and Fourteenth Amendment rights to be free from a regulatory taking or an inverse or direct condemnation of his property without due process (Count IV) and conspired with each other to deprive him of his rights in violation of 42 U.S.C. § 1985 (Count V).

Defendants Borough and Yacura have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). They argue that the plaintiff's Fifth and Fourteenth Amendment claims are not ripe for adjudication, as the Borough has not issued its final decision on his appeal. The movants also insist that the plaintiff's conspiracy claim fails, as he has not alleged a racial or class-based discriminatory animus which is necessary to support a claim under § 1985(3).

In reviewing a motion to dismiss, all well-pleaded allegations of the complaint must be accepted as true and viewed in a light most favorable to the non-movant. Estelle v. Gamble, 429 U.S. 97 (1976). To survive a motion to dismiss, a complainant's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). A complaint will be dismissed if it does not plead "enough facts to state a claim to relief that is plausible on its face." Id. at 1974.

In a land use controversy, the ripeness of a claim alleging a constitutional violation depends on whether the plaintiff is making an "as-applied" challenge, or a "facial" attack on a zoning ordinance or regulation. A plaintiff makes an "as-applied" challenge when he contends that a defendant municipality violated his constitutional rights in the manner in which it applied an ordinance or regulation to his property. County Concrete Corp. v Town of Roxbury, 442 F.3d 159, 164 (3d Cir. 2006); Cornell Companies, Inc. v. Borough of New Morgan, 512 F.Supp.2d 238, 256 (E.D.Pa. 2007). In contrast, a plaintiff makes a "facial" attack on an ordinance or regulation by claiming that its mere enactment violated his rights, and that any application of it is unconstitutional. Id.

In Williamson County Regional Planning Com. v. Hamilton Bank, 473 U.S. 172, 186, 195 (1985), the Supreme Court held that an "as-applied" Fifth Amendment takings claim against a municipality's enforcement of its regulations is not ripe until (1) "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue" (the "finality rule"), and (2) "a State provides an adequate procedure for seeking just compensation, [but] the property owner ... has not used the procedure and been denied just compensation". Our Court of Appeals has stated that "Williamson's finality rule bars not only as-applied Just Compensation Takings claims, but also as-applied substantive due process and equal protection claims by property owners ... who have challenged the denial of a permit by an initial decision-maker but failed to take advantage of available, subsequent procedures." County Concrete, supra, 442 F.3d at 164. That is because only when a "'decision maker has arrived at a definitive position on the issue' has a property owner been inflicted with an 'actual, concrete injury.'" Id., quoting Williamson, 473 U.S. at 192.

Here, a final decision on the plaintiff's appeal has not been rendered by the zoning board of review. See, Complaint at ¶¶ 27-29.*fn2 Hence, the movants argue that the plaintiff's ...

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