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Perano v. Township of Tilden

April 12, 2010

FRANK T. PERANO, PLAINTIFF,
v.
TOWNSHIP OF TILDEN, ET AL., DEFENDANTS.



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

OPINION AND ORDER

I. INTRODUCTION

This matter is before the Court on two Motions to Dismiss filed by Defendants. The first Motion to Dismiss (Doc. No. 28) was filed by Defendants Carbon Engineering, Inc. ("Carbon") and Ronald Tirpak, individually and in his capacity as Township Engineer (collectively "Engineer Defendants"). The second Motion to Dismiss (Doc. No. 29) was filed by Defendants Township of Tilden ("Township" or "Tilden"); Troy R. Hatt, individually and in his capacity as a Township Supervisor; Russell H. Werley, individually and in his capacity as a Township Supervisor; Judy E. Romig, individually and in her capacity as a Township Supervisor; John Yoder, individually and in his capacity as Township Zoning and Code Enforcement Officer; and Cheryl A. Haus, individually and in her capacity as Township Secretary (collectively "Township Defendants"). Plaintiff filed a Response in Opposition to each Motion (Doc. Nos. 31 and 30 respectively) and Engineer Defendants and Township Defendants each filed a Reply in Support of their Motions to Dismiss (Doc. Nos. 34 and 35 respectively). On March 12, 2010, the Court held a hearing on the Motions. Township Defendants filed supplemental exhibits following the hearing (Doc. No. 40).*fn1

Upon consideration of the parties' briefs, exhibits, and oral arguments, and after an independent review of the allegations in the Amended Complaint, Defendants' Motions to Dismiss will be granted and Plaintiff's Amended Complaint will be dismissed with prejudice.

II. PROCEDURAL HISTORY

On February 23, 2009, Plaintiff Frank T. Perano d/b/a GSP Management Co. commenced this action by filing a Complaint against the Township of Tilden, the Township Engineer, and several Township officials in their individual and official capacity. (Doc. No. 1.) On May 14, 2009, Engineer Defendants filed a Motion to Dismiss (Doc. No. 13) and on May 26, 2009, Township Defendants filed a Motion to Dismiss (Doc. No. 14). On June 26, 2009, Plaintiff filed a Motion for Leave to File an Amended Complaint (Doc. No. 20). Thereafter, the Court granted Plaintiff's Motion, and denied Defendants' Motions to Dismiss without prejudice to re-file such Motions after Plaintiff filed an Amended Complaint. (Doc. Nos. 23-25.) The Order allowing Plaintiff to amend specifically stated that the purpose was to allow Plaintiff to add the Pennsylvania Department of Environmental Protection ("PADEP") as a party and to supplement and detail additional facts to its Section 1983 and Section 1985 claims. (Doc. No. 25.) On September 10, 2009, Plaintiff filed an Amended Complaint (Doc. No. 27), but did not add the PADEP as a party. Plaintiff also removed the Section 1985 claims and added a constitutional claim under the Contract Clause, U.S. Const. art. I, § 10.

Counts I and II of the Amended Complaint are brought under 42 U.S.C. § 1983 and allege that Defendants violated Plaintiff's right to equal protection, substantive due process, and procedural due process. Count III is also brought under 42 U.S.C. § 1983 and alleges that Defendants conspired to deprive Plaintiff of the same constitutional rights. Count IV alleges impairment of a contract in violation of Article I, Section 10 of the United States Constitution.

III. FACTUAL BACKGROUND*fn2

Plaintiff is the developer and owner of the Pleasant Hills Mobile Home Park in Tilden Township, Berks County, Pennsylvania. (Am. Compl. ¶¶ 11-12.) The crux of this action concerns disputes between Plaintiff, a developer, and Defendants, who are township officials responsible for enforcing local land-use laws. Plaintiff alleges the following wrongful conduct by Defendants: (1) refusing to apply the appropriate land-use laws; (2) handling Plaintiff's application process and development of the property in a manner calculated to delay, frustrate, and ultimately discourage Plaintiff from developing the property; (3) threatening retaliation and actually retaliating against Plaintiff for persisting in the approval and development process; (4) attempting to shut down Plaintiff's business; (5) spuriously refusing to grant approvals, licenses, and permits; (6) favoring the interests of other developers in the Township over those of Plaintiff; and (7) intentionally failing to comply with their responsibility and obligation to provide a public water source. (Am. Compl. ¶ 1.)

In sum, the Amended Complaint alleges that several vexatious actions taken by Township officials over a span of several years, when considered cumulatively, demonstrate violations of Plaintiff's constitutional right to the use and development of his property.

Early Litigation and Consent Order

Operation of Plaintiff's Mobile Home Park began in 1990 and the Park has undergone expansion in phases. (Id. at ¶ 33.) As the Mobile Home Park expanded, opposition grew within the Township. (Id. at ¶ 14.) The Tilden Action Group ("TAG"), of which Defendant Romig was a founding member, was formed to oppose development of the Mobile Home Park. (Id. at 16.) The opposition resulted in an attempt to amend Township zoning ordinances to prevent further development of the Mobile Home Park. (Id. at ¶ 14.) In 1997, Plaintiff filed an action in state court challenging the proposed zoning amendment. (Id. at ¶ 15.)

On November 4, 1999, Plaintiff and Tilden entered into a Consent Order to resolve the state court litigation. (Id. at ¶ 18.) The Consent Order set forth the parties' obligations regarding further development of the Mobile Home Park and is expressly governed by Pennsylvania law. (Township Defendants' Motion to Dismiss, Ex. A at ¶ 19.)*fn3 The Consent Order provided, inter alia, that the Township would use its best efforts to make available sewage and water for the exclusive use of Plaintiff's Mobile Home Park. (Id. at ¶ 13.) Initial availability of sewage and water capacity was made contingent upon final land development approval of Phases VI and VII of the Mobile Home Park. (Id. at ¶ 13(A)(I).)

The Consent Order continues to be the subject of litigation between the parties. On January 7, 2010, Judge Jeffrey L. Schmehl of the Court of Common Pleas, Berks County, Pennsylvania, granted in part and denied in part Plaintiff's Petition to Enforce the Consent Order. (Township Defendants' Supplemental Exhibits, Ex. B.)*fn4

Denial of Sewage and Water Capacity

The Township granted final approval for Phase VII on June 5, 2001, and conditional final approval for Phase VI on July 1, 2006.*fn5 (Am. Compl. ¶ 19.) As part of this conditional approval, Plaintiff must develop sewage and water distribution systems for Phase VI of the Mobile Home Park in accordance with the rules and regulations promulgated by the PADEP. (Id. at ¶ 20.) The conditional approval also includes a plan for Plaintiff to install a new sewage collection and transportation system and public water distribution system to connect to the existing sewage and water systems owned by the Township. (Id. at ¶ 21.)

Plaintiff alleges that, despite the conditional approval and the Consent Order, Defendants have intentionally, arbitrarily, and without basis in law prohibited Plaintiff from connecting the water distribution system for the Mobile Home Park to the public water supply and distribution system owned by the Township. (Id. at ¶ 22.) Plaintiff also alleges that the Engineer Defendants intentionally and arbitrarily advised the Township to take no action to provide public water to Plaintiff. (Id. at ¶ 23.) As a result, Plaintiff is unable to provide water to Phase VI of the Mobile Home Park in accordance with the rules and regulations of the PADEP and therefore cannot develop this phase of the Mobile Home Park. (Id. at ¶¶ 26-27.)

Denial of Operating License

Pursuant to Tilden Township Ordinances, Plaintiff must annually obtain a licence from the Township to operate the Mobile Home Park. (Id. at ¶ 32.) Plaintiff obtained a license every year from1990 through 2006. (Id. at ¶ 33.) On March 30, 2007, just as he had done in prior years, Plaintiff submitted the license renewal application and the $1,640 fee to the Township. The Township accepted the fee in August 2007. (Id. at ¶¶ 35-36.) Since that time, the Township has neither returned the fee nor issued a denial of the license renewal for the calendar year 2007. (Id. at ¶ 37.) As a result, once Plaintiff's fee was accepted by the Township, Plaintiff believed his license had been renewed even though he never received a physical copy of the license and never made further inquiry despite not receiving the license. (Statement of Plaintiff's Counsel, Hearing, Mar. 12, 2010.)

On November 10, 2007, the Tilden Township Supervisors (Hatt, Werley, and Romig -collectively "Township Supervisors") convened the monthly meeting of the Township Supervisors, at which time Cheryl A. Haus ("Township Secretary") announced that Plaintiff was operating the Mobile Home Park without a license. (Id. at ¶¶ 38-39.) Plaintiff alleges that this announcement was made without granting him notice and the opportunity to be heard in violation of his right to procedural due process. (Id. at ¶¶ 40-41.)

Stop-Work Orders and Denial of Permits

On June 28, 2007, the Zoning Officer entered and inspected Plaintiff's property without notice or permission, which resulted in a letter from the Officer to the Township Supervisors describing "every possible alleged violation he could find." (Id. at ¶ 49.) A formal notice of violation was never issued to Plaintiff. However, on August 28, 2007, the Township instructed the Zoning Officer to send a notice of hearing for alleged violations. (Id. at ¶ 50.) Plaintiff's Counsel requested that the hearing be continued to a different date. Since this request, neither Plaintiff nor the Township have rescheduled the hearing.

Additionally, as a result of the November 10, 2007 announcement that Plaintiff was operating the Mobile Home Park without a license, the Township Supervisors unanimously approved a motion directing the Zoning Officer to issue a stop-work order for any projects and/or permits previously issued for the Mobile Home Park and directing the Zoning Officer not to issue any future building permits for the Mobile Home Park. (Id. at ¶ 43.) Plaintiff alleges that this motion was approved without granting Plaintiff notice and the opportunity to be heard in violation of his right to procedural due process. (Id. at ¶¶ 45-46.)

On November 14, 2007, without notice or a hearing, the Zoning Officer issued a stopwork order on Plaintiff's real estate and business operations. (Id. at ¶ 55.) The Township, the Township Supervisors, and the Zoning Officer further denied building permits to Plaintiff's potential residents based on the alleged inability of Plaintiff to provide capacity for sewage treatment. (Id. at ¶ 56.)*fn6

The Zoning Officer also reported that he received a letter from the PADEP stating that the Mobile Home Park did not have sufficient sewage capacity to treat additional residents. (Id. at ¶ 57.) Thereafter, on November 20, 2007, the Township Supervisors passed a motion to authorize the solicitor's office to send a letter to Plaintiff stating that no new homes would be permitted to be placed on Plaintiff's property until a license was issued. (Id. at ¶ 54.)

In response, Plaintiff made an open records request for any and all documentation from the PADEP to Tilden that would indicate that the Mobile Home Park did not have sufficient sewage capacity. (Id. at ¶ 58.) The Township Secretary replied that no such documentation existed. (Id. at ¶ 59.) Plaintiff then submitted to the Township all permits and plans related to the Mobile Home Park's ability to provide sewage capacity, which demonstrated more than adequate capacity for additional residents on the property. (Id. at ¶ 60.) Despite this documentation from Plaintiff, the Zoning Officer and the Township continued to deny permits. (Id. at ¶ 61.)

Eminent Domain Proceedings

On November 10, 2007, the Township Supervisors instructed the solicitor's office to issue a motion to compel Plaintiff to turn over ten (10) acres of land to the Township. (Id. at ΒΆ 52.) Plaintiff alleges this action was taken in retaliation for Plaintiff's request for access to the public water supply and for Plaintiff's insistence that the Zoning Officer arbitrarily and ...


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