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Girard Estate Area Residents v. Defense Realty

September 30, 2009

GIRARD ESTATE AREA RESIDENTS, ET AL., PLAINTIFFS
v.
DEFENSE REALTY, LLC, ET AL., DEFENDANT



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

MEMORANDUM

Plaintiffs Girard Estate Area Residents and Broad Street West Civic Association ("Civic Associations") filed this action for declaratory and injunctive relief. Defendants the United States of America and Defense Realty, LLC ("Defense Realty") filed motions for summary judgment on February 2, 2009 and February 4, 2009, respectively.*fn1 For the reasons set forth below, their motions will be granted.

I. BACKGROUND

This is an action for declaratory and injunctive relief and for a decree of specific performance to enforce a written agreement between the parties and a declaration of deed restrictions. The Civic Associations are located in South Philadelphia and organized for the purpose of preserving the quality of life in, and character of, their neighborhoods. Plaintiff's March 31, 2009 Memorandum at Ex. 1, at ¶ 3. This controversy involves a large section of land around 20th & Johnson Streets containing six buildings, which used to be the local headquarters of the Department of Defense. See Plaintiff's March 31, 2009 Memorandum at Ex. P, at ¶ 60-61, 123; Ex. 1, at ¶ 96.

Defense Realty purchased the property, which was zoned "general industrial." See Complaint at ¶ 3; Defense Realty's Answer at ¶ 3, 5. Defense Realty wanted to use the property for commercial development, a use not permitted under the general industrial zoning classification. See Complaint at ¶ 6; Defense Realty's Answer at ¶ 5-6. Defense Realty went before the Philadelphia City Council to request the re-zoning of the property to commercial classification. Id.

Defense Realty sought the support of the Civic Associations. See Plaintiff's March 31, 2009 Memorandum at Ex. 1, at ¶51. Defense Realty and the Civic Associations entered into negotiations. The Civic Associations informed Defense Realty they did not want the site used as another school because the elementary and high schools in the area caused noise and traffic congestion, and they were concerned about a school's impact on the community's quality of life. See Plaintiff's March 31, 2009 Memorandum at Ex. 1, at ¶ 57-64; see, e.g., Plaintiffs' March 31, 2009 Memorandum at Ex. G, at 65-66.

Defense Realty spoke about their desire to work with the community and their hopes to establish a retail complex. Id., at Ex. 1, at ¶ 72-73; Plaintiffs' March 31, 2009 Memorandum at Ex. J, at 7-8, 9-10. To get the support of the civic associations, Defense Realty entered into an agreement dated June 10, 2005, in which the plaintiffs agreed to support the re-zoning subject to certain conditions. See Plaintiff's March 31, 2009 Memorandum at Ex. A.

The civic associations were concerned the property would be used in ways which would bring more problems into their neighborhoods. Therefore, they attached a declaration of deed restrictions to the June 10, 2005 agreement. Id. This declaration placed restrictions on the use of the property which would have otherwise been permitted under commercial zoning. For example, it prohibited elementary schools and high schools, fast food and take-out restaurants, counter service restaurants, buffet restaurants, and drive-in restaurants. See Defendant's Memorandum at Ex. L, at 1. Restaurants at the property are limited to restaurants with "dine-in table service" and "wait-staff." See Defendant's Memorandum at Ex. L, at 2. Residential use of the property was limited to single-owner occupancy use. In consideration of this agreement and declaration, the plaintiffs supported the proposed change in zoning which was passed on June 16, 2005. See id. The declaration was recorded with the Commissioner of Records in Philadelphia on July 13, 2005. See Plaintiffs' March 31, 2009 Memorandum at Ex. 1, at ¶ 82.

On October 22, 2007, Defense Realty entered into a twenty-year lease with the Department of Labor to use three floors of one of the sites' buildings as Philadelphia Job Corps Center ("Job Corps"). See Plaintiffs' March 31, 2009 Memorandum at Ex. C, at ¶¶ 1, 2, 6. Prior to executing the lease, Defense Realty did not consult or provide notice to the Civic Associations regarding its lease with the Department of Labor, or the intended use of the property. See Plaintiffs' March 31, 2009 Memorandum at Ex. G. Job Corps has classes for obtaining a General Educational Development ("GED") certificate, and classes to prepare enrollees for vocation, college, and entry into the armed forces. See id., at ¶¶ 97-98. Job Corps also has an institutional kitchen, where enrollees are trained in nutrition, meal planning, and food preparation for health care institutions. Job Corps enrollees are provided with the prepared meals free of charge. Faculty members may partake in the prepared meals for a nominal fee of $2.00.

The Civil Associations filed a complaint in the Court of Common Pleas, which Defense Realty removed here. They claimed Defense Realty breached the agreement by entering into a long-term lease with the U.S. Department of Labor to use one of the buildings on the property for Jobs Corps, which, they allege, is a high school, contains a restaurant, and has an impermissible residential use. They demanded the defendant cease and desist. On June 26, 2008, pursuant to a stipulation by the parties, the United States of America intervened as an additional defendant pursuant to Federal Rule of Civil Procedure 24(a).

II. STANDARD OF REVIEW

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). An issue is "genuine" when a reasonable jury could return a verdict for the non-moving party based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" when it could affect the outcome of the case under the governing law. Id.

A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial Celotex burden can be met simply by demonstrating "to the district court that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Summary judgment is therefore appropriate when the non-moving party fails to rebut by making a factual showing that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

Under Rule 56 of the Federal Rules of Civil Procedure, the court must view the evidence in the record in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. The court must decide not whether the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Id. at 252. If the non-moving party has produced more than a "mere scintilla of evidence" demonstrating a genuine issue of material fact, then the court may not credit the moving party's version of events against the opponent, ...


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