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Smith v. City of Bethlehem

March 4, 2009

JUSTIN SMITH
v.
CITY OF BETHLEHEM, ET AL.



The opinion of the court was delivered by: Golden, J.

MEMORANDUM OPINION AND ORDER

Plaintiff Justin Smith brought this action under 42 U.S.C. §§§ 1983, 1985 and 1986, claiming that the Defendants illegally conspired through corrupt motives and intentional misconduct to deny his request for a zoning exception. Plaintiff has also added a pendent state claim under Pennsylvania law for civil conspiracy. Named as Defendants are the City of Bethlehem, the Zoning Hearing Board of the City of Bethlehem, Laurie Gostley-Hackett, Individually and as a Member of the Zoning Hearing Board, Thomas J. Jones, Individually and as a Member of the Zoning Hearing Board, Donald R. Sullivan, Individually and as a Member of the Zoning Hearing Board, Darlene Heller, Individually and as Director of the Bethlehem Planning Bureau, Tony Hanna, Director of Community and Economic Development for the City of Bethlehem and John R. Lezoche, Individually and as Zoning Officer for the City of Bethlehem. By previous Order, the Court dismissed Plaintiff's claims under 42 U.S.C. §§ 1985 and 1986. Presently before the Court is the Defendants' motion for summary judgment on the § 1983 and civil conspiracy claims. For the reasons which follow, the motion is granted.

Summary judgment is proper when "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." Fed.R.Civ.P. 56(c); see also Daldana v. Kmart Corp,, 260 F.3d 228, 231-32 (3d Cir. 2001)(quoting Armbruster v, Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)(Internal quotation omitted)). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis which would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 249. The Court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).

Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, they must "go beyond the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and admissions on file, and designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-323.

The Defendants have attached to their motion for summary judgment as Exhibit A a Statement of Undisputed Facts. Since the Plaintiff has not objected to any of the Defendants' proposed undisputed facts and has not submitted a counter-statement of undisputed facts, the Court will adopt the Defendants' Statement of Undisputed Facts. They are as follows:

1. On April 25, 2005, Justin Smith entered into an agreement of sale with Eugene J. and Carolina Celebuski to purchase the property at 943-45 Monocacy Street, Bethlehem, Pennsylvania 18018. Complaint at ¶ 33; Answer at ¶ 33.

2. The property is located in the R-M Residential Zoning District under the City of Bethlehem zoning ordinance. Complaint at ¶ 35; Answer at ¶ 35.

3. The property consisted of several residential units and a space on the first floor of 945 Monocacy Street. Justin Smith Dep. at 11.

4. The first floor space in 945 Monocacy Street had historically been used for commercial purposes which were non-conforming uses in the R-M Residential Zoning District. Complaint at ¶ 37; Answer at ¶ 37.

5. The first floor space at 945 Monocacy Street was used as an upholstery shop from 1979 to 1995 and as a bicycle repair shop from 1995 to approximately 1999. The Zoning Hearing Board approved special exceptions for both non-conforming uses. Complaint at ¶¶ 39-40; Answer at ¶¶ 39-40.

6. Mr Smith intended to open a "coffee shop/café" in the commercial space at 945 Monocacy Street. Justin Smith Dep. at 13-14.

7. The "coffee shop/café" was not a permitted use in the R-M Residential Zoning District and represented a different non-conforming use from the previous commercial uses for the property. Justin Smith Dep. at 20-21.

8. In order to use the property as a coffee shop/café, Mr. Smith had to obtain a special exception from the Zoning Hearing Board following notice and a public hearing. Justin Smith Dep. at 17-18.

9. Under the Pennsylvania Municipalities Planning Code, the City of Bethlehem Zoning Officer did "not have the power to permit any construction or any use or change of use which does not conform to the zoning ordinance." 53 Pa.Stat.Ann. § 10614. The City of Bethlehem Zoning Officer could not issue a permit for a different non-conforming use. Mr. Smith knew that he had to obtain a special exception from the Zoning Hearing Board in order to open a coffee shop/café on the property. Justin Smith Dep. at 18.

10. Mr. Smith hired counsel, Emil Kantra, Esq. to represent him in obtaining the special exception. Justin Smith Dep. at 27.

11. Mr. Kantra prepared a Notice of Appeal to the Zoning Hearing Board requesting the Zoning Hearing Board to grant a special exception to permit Mr. Smith to operate a coffee shop/café on the property. Exhibit E to Motion for Summary Judgment.

12. By submitting the Notice of Appeal, Mr. Smith requested the Zoning Hearing Board to hold a public hearing and to determine whether he was entitled to a special exception under the City of Bethlehem Zoning Ordinance for the non-conforming use that he was proposing. Justin Smith Dep. at 49.

13. John Lezoche is the Zoning Officer for the City of Bethlehem. Complaint at¶ 25; Answer at¶ 25.

14. Mr. Lezoche and his wife, Janet, owned a property at 930 Monocacy Street on the same block as 943-45 Monocacy Street. Complaint at ¶ 27; Answer at ¶ 27.

15. Mr. and Mrs. Lezoche did not live on Monocacy Street. Mr. Lezoche was fixing the property up in anticipation of his daughter and grandchild living at the property. At the time of Mr. Smith's appeal to the Zoning Hearing Board, the ...


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