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Waterfront Renaissance Associates v. City of Philadelphia

March 30, 2010


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


Waterfront Renaissance Associates contends that a City of Philadelphia ordinance is unconstitutional. Enacted in March, 2006, the ordinance set a new building height restriction.*fn1 According to Waterfront Renaissance, the ordinance empowers unelected civic associations to control re-development, delegates land-use decisions to private entities, and employs a variance process for coercive purposes. The City of Philadelphia wants this claim dismissed because Waterfront Renaissance lacks standing, the City cannot be held liable for actions of third parties, the claim is unripe and legally insufficient, and the statute of limitations bars the claim.*fn2 For the reasons set forth below, I will deny the City's motion.


On May 4, 2009, Waterfront Renaissance filed a second amended complaint, adding Count XV, which alleges a violation of Waterfront Renaissance's substantive due process rights. It avers Councilman Frank DiCicco's office "knowingly included the 65' height restriction in the March 2006 Ordinance*fn3 solely for the purpose of giving unelected civic associations in the First District a measure of control over and input into the planning of high-rise re-development projects within the [o]verlay [e]xtension through a compulsory variance process." Second Amended Complaint at ¶ 255.

Waterfront Renaissance claims Brian Abernathy, legislative aide to Councilman DiCicco, wrote to members of the Old City Civic Association and the Northern Liberties Neighborhood Association concerning the height restriction. Id. at ¶¶ 256-58. The civic associations stated they would like the height restriction added to the ordinance, noting "a height restriction would not prevent tall buildings from going up, but instead would allow for community input if and when someone wanted to go up high. It would be the only viable 'trigger' to allow input for any project that didn't include a restaurant, nightclub or other use prohibited by the Old City controls." Id. at 257. Among other communications, Matt Ruben of the Northern Liberties Neighborhood Association wrote to Mr. Abernathy that "[o]n the matter of height, I'll just re-emphasize that I -- and probably 95% of Northern Liberties residents -- believe it's essential to have community input via the variance process for any high-rise proposals, and so a 65-foot height restriction should be added via amendment in the committee." Id. at ¶ 261.

Count XV alleges Councilman DiCicco included the height restriction in the overlay extension to allow the Northern Liberties Neighborhood Association, Old City Civic Association, and River's Edge Civic Association to control large high-rise construction "through a compulsory variance process." Second Amended Complaint at ¶¶ 267-68.*fn4 To obtain a variance, a developer "must bargain for the support of the civic associations." Id. at ¶ 268. It alleges "the Civic Association Defendants and Councilman DiCicco's office played down the height limitation and relied on 'councilmanic prerogative' to secure passage of the March 2006 ordinance." Second Amended Complaint at ¶ 269.

Waterfront Renaissance believes Councilman DiCicco and the civic association's practices lead to "ad hoc regulation of development[,]... arbitrary decisions, favoritism and discrimination." Id. at ¶ 279. Waterfront Renaissance alleges the "pattern of ad hoc regulation of redevelopment" caused its financing for the project to be placed in doubt, which factored into its decision to allow $105.5 million in committed financing to lapse.

Id. at 284. In addition, it alleges that in the summer of 2006 an officer of Northern Liberties Neighborhood Association requested a contribution from Waterfront Renaissance to fund a planning study. The officer informed Waterfront Renaissance "it would go a long way to resolving your problems." Id. at ¶ 258.

Waterfront argues the height restriction is unconstitutional because it empowers "civil associations to impose ad hoc changes and concessions regarding high-rise developments through a compulsory variance process, contrary to the master planning concept of Pennsylvania zoning law and the Philadelphia zoning code" and "because it effectively delegates land use and planning powers to non-governmental neighborhood associations." Second Amended Complaint at ¶ 286-87.


A. Motion to Dismiss Standard

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).

The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 564. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Trans. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain enough factual matters to suggest the required elements of the claim ...

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