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Angino v. Wagner

September 3, 2009

RICHARD C. ANGINO, ALICE K. ANGINO, KING DRIVE CORP. PLAINTIFFS
v.
J. THOMAS VAN WAGNER, INDIVIDUALLY AND AS A SUPERVISOR OF MIDDLE PAXTON TOWNSHIP, ET AL. DEFENDANTS



The opinion of the court was delivered by: (judge Vanaskie)

MEMORANDUM

Plaintiffs, Richard C. Angino, Alice K. Angino, and King Drive Corp., brought this civil rights action pursuant to 42 U.S.C. § 1983 to seek redress for Defendants' alleged wrongful interference with their efforts to develop their property located in Middle Paxton Township, Pennsylvania. Plaintiffs claim that Defendants acted in derogation of substantive due process and equal protection safeguards in a number of respects. The gist of their claims is that Defendants have engaged in a concerted and protracted campaign to thwart Plaintiffs' plans to develop their property as a multi-use resort. Defendants include Middle Paxton Township and Township Supervisors Thomas J. VanWagner, Jeffery Smith, Richard Peffer, Mary Jane Davis, and Serell Ulrich. Presently pending is Defendants' Motion for Summary Judgment. (Dkt. 62.)*fn1 Because Plaintiffs' challenge to the restrictive definition of the term "resort" in the Middle Paxton Township Zoning Ordinance is barred by a final state court adjudication, and because Plaintiffs have failed to supply sufficient evidence to create a genuine dispute of fact material to any of their other claims, and Defendants are entitled to judgment as a matter of law, Defendants' Motion for Summary Judgment will be granted.

I. BACKGROUND

A. Factual Background

Plaintiffs own approximately 810 acres of predominantly wooded valley and mountainside land in Middle Paxton Township, Pennsylvania ("the Property").*fn2 (Smith Report, Dkt. 63-5, at 13.)*fn3 The Property includes 52 acres reserved for the owners' private residence and grounds. The remaining 758 acres contain commercial, residential, and recreational facilities, as well as vast acreage of undeveloped land. (Cieri Report, Dkt. 63-5, at 3.) The Property is generally known, operated, and marketed as Felicita Resort.

Plaintiffs purchased the first parcel of land in what was to become Felicita Resort by acquiring 52 acres of land and a residence in 1971. (Id. at 2.) Plaintiffs acquired additional land in Middle Paxton Township over the next four decades, with the largest acquisitions of a former nudist colony and separate golf course occurring during the mid-1990s. (Schedule of Development Acquisitions, Dkt. 66, at 24.) The Plaintiffs improved the property by renovating and upgrading the original golf course facilities, installing extensive gardens, and constructing a spa and fitness center. (Smith Report, Dkt. 63-5, at 2.) In connection with these improvements, Plaintiffs were required to construct upgraded and/or expanded parking facilities, community water and sewer systems, storm water management facilities, and internal road systems. (Id.)

One of Plaintiffs' experts describes Felicita Resort as: a 'mixed use resort' that includes commercial, residential and recreational facilities which are commonly found in today's resorts. Felicita's commercial facilities include two restaurants, two banquet halls, a grillroom, lounge/bar and a small hotel. Residential uses include single-family detached dwellings on lots ranging in size from 1/3 acre to 52 acres, 40 rental lodges, a furnished rental house on Lakewood Drive, a 2-story apartment across from the spa and a three-bedroom golf house above the administration building. Various recreational facilities are provided by the 18-hole championship golf course with practice area and clubhouse, tennis courts, swimming pool, fitness center, soccer field, volleyball and bocce ball courts. Other amenities supporting the resort include a health spa, landscaped gardens with fountains, nature/hiking trails, a plant nursery, administration offices and maintenance facilities. (Ciere Report, Dkt. 63-5, at 3.)

Plaintiffs seek to more fully develop their landholdings as a multi-use resort, but have been frustrated by Defendants and a zoning regime that another of Plaintiffs' experts opines is inconsistent with both the historic and planned use of Plaintiffs' property. (Smith Report, Dkt. 63-5, at 16.) Their frustration erupted in a spate of litigation spanning a period of more than ten years.

Many of the legal proceedings concerned the Township's Zoning Ordinances. Middle Paxton Township adopted an initial Comprehensive Plan in 1979, a Comprehensive Plan Update in 1987, and a Comprehensive Plan Update and Recreation Plan in 1998. (Smith Report, Dkt. 63-5, at 14; 1998 Update, Dkt. 23-20, at 1.) Additionally, the Middle Paxton Township Zoning Ordinances were updated and changed numerous times over the course of Plaintiffs' acquisition of property.

The 1979 Zoning Ordinance zoned the land then held by Plaintiffs as Residential Agricultural (RA), with a 22,500 square foot lot required for a single family residence. (Smith Report, Dkt. 63-5, at 14.) The Zoning Ordinance adopted in 1988 generally required a one acre lot size, with a two acre lot size needed for property containing slopes greater than fifteen percent. (Id.) As noted above, the bulk of Plaintiffs' landholdings was acquired during the 1990s, with more than 550 acres being purchased during that decade. The Middle Paxton Township 2000 Zoning Ordinance (the "2000 Ordinance") placed all of Plaintiffs' property in an Agricultural/ Rural Residential district.*fn4 As explained in the 2000 Zoning Ordinance:

The purpose of the A-RR - Agricultural and Rural Residential District is to permit, protect, and encourage the continued use of the land therein for agricultural or silviculture uses while also permitting residential development. Districts designated A-RR . . . are to be used for farming, residential and accessory uses until a logical demand occurs for urban-type development in general conformance to the current Comprehensive Plan. This district may accommodate schools, churches, parks and residential uses under certain conditions. This district is established in areas where agriculture is the most prominent use, in areas where no utilities exist, accessibility is difficult, in areas of unique natural beauty or in areas which are presently undeveloped, to conserve the existing character of such areas and to provide for rural residential and agricultural uses. The preservation of open spaces and environmentally sensitive areas should be encouraged. (2000 Ordinance, Dkt. 66, at 21.) The 2000 Ordinance sets out the density requirements for conventional residential development in the A-RR District. (Id. at 23.) As explained by Ms. Smith:

The A-RR District imposes a minimum 2 acre minimum lot size (50 acres for resorts), but further imposes increasingly restrictive density requirements based on increasing parcel size. Under the density requirements, a property greater than 15 acres in size may be developed for 5 dwelling units plus one additional unit for every additional 3 acres of land. (Smith Report, Dkt. 63-5, at 14.)

The A-RR district also limited development based on a "steep slope" provision that limited the number of structures that could be built on certain acreage based on the grade of the property. Property with a twelve percent slope required three acres to build, property with a fifteen percent slope required five acres to build, and property with an eighteen percent or greater slope required ten acres to develop. (Amended Complaint, Dkt. 22, at ¶ 78; 2000 Ordinance, Dkt. 66, at 23.)

The 2000 Ordinance purports to permit "resorts" as an approved use in the A-RR district. (2000 Ordinance, Dkt. 66, at 22.) The term resorts, however, is defined narrowly as:

A hotel or motel that serves as a destination point for visitors. A resort generally provides recreational facilities for persons on vacation. A resort shall be self-contained and provide personal services customarily furnished at hotels including the service of meals. Buildings and structures in a resort shall contain the scenic quality of the location in which the resort is situated. (2000 Ordinance Definitions, Dkt. 66-3, at 76.) A hotel is defined in the 2000 Ordinance as:

A building designed for occupancy primarily as the temporary abiding place of individuals who are lodging with or without meals, in which buildings:

a. There are more than ten (10) sleeping rooms;

b. Fifty percent (50%) or more of the gross floor area shall be devoted to residential use;

c. There may be club rooms, ball rooms, common dining facilities and swimming pools;

d. Such hotel services as maid, telephone and postal services are provided.

e. Business may be conducted when accessory and incidental. (Id. at 77.) Motel is defined as "[a] group of attached or detached buildings containing sleeping rooms or living units with accessory facilities designed for temporary uses by automobile tourists or transients including auto courts, motor lodges and similar establishments." (Id. at 78.)

Plaintiffs argue that the definition of "resort" is part of a concerted effort to prevent their development of a multi-use resort, similar to places like Kiawah Island. In this regard, Plaintiffs allege:

Defendants and previous Middle Paxton Township's Boards of Supervisors individually and collectively have conspired with their solicitors, engineers, other public officers, including Dauphin County Conservation and the Department of Environmental Protection and Dukes Pepper, assistant counsel, for DEP, South-central Regional Offices, to preclude virtually all development and particularly Plaintiffs' plans to develop a resort facility with multi-family condo type residences and/or condo hotel facilities. (Amended Complaint, Dkt. 22, at 8.) Plaintiffs argue that, in addition to the definition of "resort," various provisions of the Zoning Ordinance are arbitrary and unreasonably preclude development of a multi-use resort, such as the steep slope provisions and cul-desac length restrictions. Additionally, Plaintiffs contend that executive action taken by the Defendants, including reporting alleged environmental law violations to the Department of Environmental Protection ("DEP"), requiring a public road for a ten lot subdivision, requiring an impenetrable core in a detention basin, unreasonably delaying the approval of a conference center, improperly requiring a site plan for erection of a "pole barn," and prohibiting Plaintiffs from placing certain signs for the Felicita Resort, violated their substantive due process and equal protection rights.

B. Procedural Background

In August 1997, Plaintiffs commenced a mandamus action against the Board of Supervisors of Middle Paxton Township in the Court of Common Pleas of Dauphin County, concerning, among other property issues, "the plaintiffs' proposed development of fifty lodges on their Felicita spa and fitness center resort." (Mar. 2000 Memorandum Opinion, Dkt. 23-11, at 3.) Plaintiffs also brought an action in this Court, docketed to No. 1:CV-97-1265, raising essentially the same issues. The parties entered into mediation in the state court proceedings, resulting in a March 16, 1998 stipulation and agreement settling all issues and withdrawing and discontinuing the state court mandamus action and the federal court litigation. (Amended Complaint, Dkt. 22, at ¶ 19.)

In January 2000, Plaintiffs filed a civil rights action in the Middle District of Pennsylvania. The action alleged that the Defendants were wrongfully preventing them from developing their land in Middle Paxton Township. On April 4, 2002, the Honorable A. Richard Caputo granted Defendants' motions for summary judgment and dismissed the action without prejudice, determining that Plaintiffs' claims were not ripe because they had failed to pursue available processes to determine how the Middle Paxton Township zoning provisions would be applied in the context of Plaintiffs' planned development, such as an application for a curative amendment or a substantive challenge to the validity of the ordinance before the Township's Zoning Hearing Board. (Apr. 4, 2002 Order, Dkt. 23-6.)

On April 15, 2002, Plaintiffs filed with the Board of Supervisors of Middle Paxton Township (the Board) an Amended Challenge to the Validity of the 2000 Zoning Ordinance Coupled with a Curative Amendment (the "Challenge"). (Dkt. 23-7.) The Challenge alleged that "various sections of the 2000 Zoning Ordinance are unconstitutional, illegal, contrary to established precedent, contrary to Middle Paxton Township's 1987 and 1998 Comprehensive Plans and/or violative of the Anginos' and King Drive's right to use, develop, and/or sell some or all of their land." (Id. at 1.) Over a three year period the Board held 27 days of hearings.*fn5 (July 30, 2006 Memorandum Opinion & Order, Dkt. 63-2, at 68.) On August 9, 2005, the Board rendered a 62-page written opinion consisting of 316 findings of fact and 119 conclusions of law. (Id.) The Board denied all aspects of the Challenge, with the exception that the steep slope provision of the Township's 2000 Zoning Ordinance (Section 1104.B) was found to be invalid.*fn6 (Id.) With respect to the matters at issue in the matter sub judice, the Board concluded:

7. The Township is not required to provide for a "regional multi-use resort community".

8. The Zoning Ordinance is not irrational, arbitrary or capricious or otherwise invalid for failing to include more specific regulations governing "resorts".

9. The two-acre minimum lot area for dwellings in the Agricultural and Rural Residential District (A-RR) is valid.

10. The boundaries of the Agricultural and Rural Residential District (A-RR) are not arbitrary or capricious, and the Zoning Map and its designation of the boundaries of the Agricultural and Rural Residential District (A-RR) are valid.

11. The Agricultural and Rural Residential District (A-RR) allows many uses other than farming

12. Section 1104.B of the Zoning Ordinance does not meet the requirements of Pennsylvania law. . . . . (Bd. of Supervisors Decision, Dkt. 63-2, at 64.)

On August 22, 2005, Plaintiffs appealed this decision to the Court of Common Pleas of Dauphin County. (Id.) The Dauphin County Court issued an opinion on July 30, 2006, finding that Plaintiffs: have failed to show that the August 9, 2005, Decision of the Middle Paxton Township Board of Supervisors is not sufficiently supported by the record and it did not abuse its discretion or commit an error of law. . . . . Appellants did not present sufficient evidence throughout the 27 hearings (although they clearly and repeatedly expressed their disagreement with the Board's evidence) to rebut the presumption that the Ordinance is valid or to demonstrate that the Board acted without substantial evidence in denying the Appellants' Challenge. (Id. at 76.)

Plaintiffs appealed the Dauphin County Court decision to the Commonwealth Court of Pennsylvania, which affirmed the trial court's decision on March 20, 2007. (Commonwealth Opinion, Dkt. 63-3, at 2.) Plaintiffs filed a Petition for Allowance of Appeal, which was denied by the Supreme Court of Pennsylvania on October 11, 2007. An Application for Reconsideration was denied by the Pennsylvania Supreme Court on December 6, 2007. (Dec. 6, 2007 Order, Dkt. 63-3, at 14.) Plaintiffs then filed a petition for a writ of certiorari with the Supreme Court of the United States, which was denied on June 9, 2008. (Dkt. 63-3, at 17.)

On August 29, 2005, shortly after appealing the Board of Supervisors' adverse decision to the Dauphin County Court, Plaintiffs filed the current action. (Dkt. 1.) On July 21, 2006, Plaintiffs filed an Amended Complaint. (Dkt. 22.) Defendants filed a Motion to Dismiss on August 2, 2006. (Dkt. 24.) On November 3, 2006, this Court held oral argument on the Motion to Dismiss, which the Court granted in part and denied in part. (Dkt. 42.) On November 17, 2006, this Court stayed the current action pending the issuance of a ruling by the Commonwealth Court of Pennsylvania in the direct appeal from the Board of Supervisors' decision. (Dkt. 52.) On December 17, 2007, this court vacated the stay of litigation and re-opened the current action. (Dkt. 58.) On July 18, 2008, Defendants filed the pending Motion for Summary Judgment. The Motion has been fully briefed and is ripe for review.

II. DISCUSSION

A. Effect of this Court's Denial of the Motion to Dismiss

The parties do not dispute that Plaintiffs' claims trigger the two standards of review in substantive due process cases involving land use restrictions: first, Plaintiffs' challenge to the validity of certain aspects of the Zoning Ordinance invokes the arbitrary and irrational standard of review. See County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 169-70 (3d Cir. 2006). And second, Plaintiffs' contentions with respect to the application and enforcement of land use restrictions call for review under the "shocks the conscience" standard. See United Artist Theatre, Inc. v. Twp. of Warrington, 316 F.3d 392, 400 (3d Cir. 2003).

Defendants argue that the testimony of Mr. Angino and Plaintiffs' expert witnesses, along with the Plaintiffs' expert reports, when considered in the context of the Zoning Hearing Board adjudication and ensuing state court proceedings, are insufficient to support any of Plaintiffs' claims. In response, Plaintiffs argue that this Court's denial of Defendants' Motion to Dismiss compels denial of their summary judgment motion. (Brief in Opp., Dkt. 65, at 10.) Essentially, Plaintiffs appear to be asserting that because this Court found that they had pleaded viable causes of action, summary adjudication of their claims is necessarily foreclosed.*fn7

Contrary to Plaintiffs' suggestion, a determination that a complaint satisfies the pleading requirements of Federal Rule of Civil Procedure 12(b)(6) is not an adjudication of the merits of each claim within the complaint. See Harold v. Barnhart, 450 F. Supp. 2d 544, 551 (E.D. Pa. 2006) ("The purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of a complaint, not to resolve disputed facts or decide the merits of the case."). As explained more than fifty years ago in Cold Metal Process Co. v. United Eng'g & Foundry Co., 190 F.2d 217, 221 (3d Cir. 1951), "allegations are not proof and though a motion to dismiss under Rule 12 may dispose quickly and properly of many such suits, such a motion cannot take the place of proof."

Moreover, the Motion to Dismiss in this case was decided before the United States Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and the Court's more recent decision in Ashcroft v. Iqbal, 129 S.Ct. 1937 (May 18, 2009).*fn8 In Twombly the Supreme Court abrogated its longstanding decision in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which had held that a complaint may be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." The Court retired this "no set of facts" language in favor of a new standard: a plaintiff's obligation to state a claim for relief under Rule 8(a)(2) "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. As a result of Twombly, plaintiffs were forced to nudge their claims "across the line from conceivable to plausible." Id. Moreover, the Court's more recent decision in Iqbal held that the pleading requirements of Rule 8 mark "a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 129 S.Ct. at 1950. Consequently, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n] '-- 'that the pleader is entitled to relief,'" and the complaint should be dismissed. Id.

This Court's denial of the motion to dismiss the Amended Complaint explicitly relied upon the now-retired "no set of facts" standard of review. (Tr. of Nov. 3, 2006 Oral Arg., Dkt. 51, at 43.)*fn9 It is not clear that Plaintiffs' Amended Complaint, rife with conclusory assertions, would survive the more searching inquiry demanded by Twombly and Iqbal.

Even the heightened Twombly and Iqbal standards, however, do not require the determination of the merits of the claim at the motion to dismiss stage. Instead, an assessment of the evidence to determine whether there is a genuine issue concerning any material fact is the standard of review at the summary judgment stage. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, Plaintiffs' assertion that "[y]our Court Has Already Determined By Its Order in Response to Defendants' Motion to Dismiss that Plaintiffs' Other Allegations of Civil Rights Violations and the Damages Resulting From Same Are All Jury Issues" is without merit. (See Brief in Opp., Dkt. 65, at 10.) No such determination has been made in this case. Consequently, this Court will review each of Defendants' summary judgment arguments to now decide whether the evidence of record merits a jury trial.

B. Effect of the State Court Adjudication

Defendants argue that certain claims asserted by Plaintiffs were decided in the state court proceedings and cannot be re-litigated here. (Mt. for Sum. Judg., Dkt. 63, at 12.) Title 28, United States Code, section 1738 "requires federal courts to give res judicata effect to a state judgment to the extent the state would give its own prior judgment such effect."*fn10

Davis v. U.S. Steel Supply, Div. of U.S. Steel Corp., 688 F.2d 166, 170 (3d Cir. 1982). "This statute has long been understood to encompass the doctrines of res judicata, or 'claim preclusion,' and collateral estoppel, or 'issue preclusion.'"*fn11 San Remo Hotel, L.P., 545 U.S. at 336.

In Pennsylvania, the doctrine of issue preclusion applies if: (1) the issue decided in the prior case is identical to the one presented in the subsequent action; (2) there was a final judgment on the merits; (3) the party against whom the doctrine is asserted was a party or in privity with a party in the subsequent case; (4) the party or person in privity with a party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and (5) the determination in the prior proceeding was essential to the judgment.

Lindquist v. Buckingham Twp., 106 F. App'x 768, at *7 (3d Cir. July 19, 2004); see Assocs. in Obstetrics & Gynecology v. Upper Merion Twp, No. 03-2313, 2004 WL 2440779 (E.D. Pa. Oct. 29, 2004).

"Plaintiffs do not dispute the fact that the parties in the constitutional challenge case and the present case are the same or that a final judgment on the merits was reached in the prior suit." (Opp. Brief, Dkt. 65, at 7.) Plaintiffs instead contend that Middle Paxton Township never adjudicated the civil rights issues concerning the definition of "resort" addressed by Plaintiffs in their Amended Complaint, and thus the identity of the issue element is lacking. (Id.)

Specifically, Plaintiffs contend:

Middle Paxton never in its 13-section "Adjudication" addressed the issue of the validity of the []definition . . . of "resort" in its ordinance. It certainly did not in its adjudication or in its decision address the civil rights issues of Plaintiffs' resort in the context presented in the Amended Complaint.

Plaintiffs do not dispute the fact that the parties in the constitutional challenge case and the present case are the same or that a final judgment on the merits was reached in the prior suit. Plaintiffs disagree that the instant suit was based on the same cause of action. Plaintiffs in the instant case are not limiting their argument to the definition of "resort" but rather contend that commencing in 1997/1998, Defendants violated Plaintiffs' civil rights by requiring that Plaintiffs in 1997/1998 submit plans for their proposed multi-purpose resort development. Plaintiffs submitted the plans. Defendants' solicitor, an authorized agent of the Township, wrote to Plaintiffs' counsel and stated that the issue of Plaintiffs' "resort" as an approved use would be the subject of proposed amendments to the Township's ordinance. Plaintiffs' resort as an approved use was the specific subject of meetings throughout the Township. Consideration and response by each of the Township Supervisors, the Planning Board, the Township solicitor, etc. All of this was part of the background of the 2000 ordinance that adopted "resort" as an approved use in A/RR districts. Evidence of meetings, the discussions, the exchange of letters, the comments of the Supervisors, Planning Commission, Township Supervisors, Township Solicitor, etc. appear in Plaintiffs' Appendix at 25, 30, 35, 40.

Plaintiffs were then forced to decide whether to be zoned R-1 with the advantages of one-acre and cluster zoning which would enable Plaintiffs to have 810 units on their 810 acres clustered onto a significantly lesser amount of acreage with much greater density. Under one-acre zoning with ...


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