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Cmr D.N. Corp. and Marina v. City of Philadelphia

November 4, 2011


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


This case involves a private real estate developer's efforts to build a World Trade Center along the Delaware River in Philadelphia. The developer, Waterfront Renaissance Association ("WRA"), contends the City thwarted the project by changing its zoning laws and by imposing certain unfair requirements through its Planning Commission. Several claims have already been dismissed. The parties filed cross motions for summary judgment on Count XVI, which alleges the City's Central Delaware Riverfront Overlay District and plan of development regulations are unconstitutional. The City also seeks summary judgment on WRA's promissory estoppel and detrimental reliance claims (Count III and IV) and WRA's claim for Unjust Enrichment (Count VIII). For the reasons discussed in this memorandum opinion, I will grant the City's motions and deny the Plaintiff's.


Waterfront Renaissance Associates is a Pennsylvania limited partnership seeking to develop a "major World Trade Center" located at 400-456 North Columbus Boulevard, Philadelphia, Pennsylvania. From 1987 through 1989, Waterfront Renaissance negotiated with the City of Philadelphia Planning Commission to re-zone the site to C-4 zoning. In 1989, WRA met with three civic associations, which led to an agreement whereby the Civic Associations would support re-zoning the site to C-4 to enable the development of the WRA project in return for a twenty-year Zoning Covenant from WRA. Under the Zoning Covenant, WRA agreed to certain design specifications to address concerns raised by the Civic Associations. In return, the Civic Association Defendants agreed to "support and assist the Covenanter [WRA] in obtaining any and all permits and variances that may be necessary to use and/or develop said premises in accordance with the below listed restrictions and conditions." (Doc. #211*fn1 at ¶ 48).

In March 2001, after a series of cooperative efforts involving the Delaware River Port Authority (DRPA), WRA and the City, the Pennsylvania Department of Community and Economic Development granted Keystone Opportunity Zone ("KOZ") status to WRA's site, and eleven and a half (11.5) acres of City-owned property around it. KOZ status confers tax abatements at the state and local levels for qualified businesses that lease real property in the KOZ. The KOZ distinction made the property more valuable and would, presumably, attract new businesses to the site. WRA expended resources to obtain the application, including hiring a lobbyist, Steven Wojcik and Associates, to promote the granting of KOZ status. (Oral Argument Transcript Doc. #239 at 34 ¶¶ 17-25).

On March 5, 2009, Philadelphia City Councilman Frank DiCicco introduced Bill 090170-A, which the City Council approved, to create a zoning overlay ("CRO") for the Central Delaware Riverfront Overlay District.*fn2 WRA's site is within this overlay district and the requirements of the overlay district complicated the RA project. On April 20, 2010, the Planning Commission adopted regulations to implement the Plan of Development process (the "POD Regulations"). (Doc. #211 at ¶ 180e). The POD is submitted in order that the Planning Commission can ensure accordance with the overall planning strategy for the Central Delaware Riverfront.

On September 16, 2010, the Planning Commission filed the revised POD Regulations with the Philadelphia Department of Records. The revised POD Regulations became effective at midnight on September 27, 2010 pursuant to Section 8-407 of the Philadelphia City Charter. (Doc. #211 at ¶ 304). Subsection 13 of the CRO states that the Planning Commission shall approve a POD "only if the Commission has determined, in its discretion, that the Plan of Development provides for development appropriate in scale, density, character and use for the surrounding community." (Doc. #211 at ¶ 311; Exhibit J at 5-6). The parties' main contention is whether the CRO and POD Regulations are overly vague or result in arbitrary and capricious application.


WRA commenced this civil action in February 2007 by filing a fourteen-count complaint in the Court of Common Pleas of Philadelphia County against the City of Philadelphia, the Civic Associations for the surrounding neighborhoods, and a number of individual defendants. The defendants removed the case to this court on March 15, 2007. The original Complaint challenged a March 2006 ordinance that extended a 65 foot height restriction to the area north of Old City, which included property owned by Waterfront Renaissance.

The individual defendants were dismissed on 12(b)(6) motions, which left only the claims against the Civic Association and the City. Waterfront Renaissance Assocs. v. City of Philadelphia, 2008 U.S. Dist. LEXIS 25868 (E.D. Pa. Mar. 31, 2008). In 2011, the Civic Associations' Motion for Summary Judgment was granted. CMR D.N. Corp. v. City of Phila., 2011 U.S. Dist. LEXIS 25392 (E.D. Pa. Mar. 10, 2011). Additionally, in 2011, the constitutional challenge to the March 2006 ordinance was dismissed as moot. CMR D.N. Corp. v. City of Phila., 2011 U.S. Dist. LEXIS 25387 (E.D. Pa. Mar. 10, 2011).

WRA has since filed an amended complaint solely against the City of Philadelphia challenging the new ordinance and the POD and maintaining claims for promissory estoppel and unjust enrichment. (Doc. #211). The City then filed a motion for summary judgment on July 29, 2011 (Doc. #223*fn3 ). That same day WRA filed a partial motion for summary judgment on Count XVI (Doc. #224*fn4 ). The motions are well and fully briefed and I had the benefit of hearing oral argument on the motions from counsel.


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A dispute is "genuine" when "a reasonable jury could return a verdict for the nonmoving 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 "might affect the outcome of the suit 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 "must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e)(2). 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 draw "all justifiable inferences" in favor of the non-moving 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, even if the quantity of the [moving party's] evidence far outweighs that of its opponent." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).


A. Constitutional ...

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