The opinion of the court was delivered by: Gene E.K. Pratter, J.,
Plaintiff Marc Pevar, an outspoken critic of the local government in the Borough of Kennett Square, Pennsylvania, applied for a permit to build townhouses on a sloping parcel of land in the Borough. However, because the Borough's municipal zoning ordinances prohibit building on lands with steep slopes, the Borough denied Mr. Pevar permission to build his townhouses and declined to make an exception from the ordinance for Mr. Pevar. Dissatisfied with the Borough's decisions, Mr. Pevar filed a complaint alleging that the Borough and two of its officials, Marc Jonas and Rusty Drumheller, rejected his applications in retaliation for his extensive political activities in violation of the First Amendment and targeted him as a "class of one" for disparate treatment in violation of the Equal Protection Clause.
The Borough, Mr. Jonas, and Mr. Drumheller moved for summary judgment. For the reasons that follow, the Court grants the Defendants' motion.
Mr. Pevar is the president of the Pevar Company, a general contracting corporation, and a resident of the Borough of Kennett Square, Pennsylvania. Borough Stmt. Facts ¶¶ 1-2. Mr. Pevar has been a "community activist" in the Borough since approximately 1996. Id. ¶ 3. Among his community activism, in about 1997, Mr. Pevar belonged to a group that challenged the Borough for an alleged lack of enforcement of ordinances, including the ordinance regulating how many families could live in a single-family residence. Id. ¶ 4. In approximately 1998 or 1999, Mr. Pevar also challenged the Borough's addition of a tax to its residents' sewer and water bills. Id. ¶ 5. In the 1999 to 2000 time frame, Mr. Pevar objected to the Borough's efforts to oppose the expansion of St. Patrick's Church, taking particular exception to the legal expenses incurred by the town for what Mr. Pevar viewed as a "losing battle." Pevar Dep. at 34-35. Mr. Pevar also petitioned the Borough regarding its use of public funds to purchase land for a spray irrigation system without first "perking" the land. Borough Stmt. Facts ¶ 6. In addition to his activism, Mr. Pevar had served in local government. In 1999 or 2000, Mr. Pevar was appointed to the Planning Commission of the Borough and served on the Commission until approximately 2008. Id. ¶ 7.
On February 14, 2006, Mr. Pevar entered into an agreement to purchase a property located at 126 South Walnut Street in the Borough (the "Property"). Id. ¶ 8. Attached to that agreement was an addendum providing that the agreement of sale was contingent on the Borough Council granting final approval for Mr. Pevar to build a five-unit townhouse subdivision. Id. ¶ 9. Paragraph 11 of the addendum acknowledges the existence of steep slopes on the Property. Id. ¶ 10; Borough Ex. B ¶ 11.
Mr. Pevar was concerned that the slopes could pose an issue to his development because Section 23-48(e)(2)(B) of the Borough's zoning ordinance expressly prohibits building on sites that include pre-existing slopes of 25% or greater, and Section 23-48(e)(1) prohibits building townhouses on areas with pre-existing slopes of 15% or greater. Borough Stmt. Facts ¶¶ 15-16a; Borough Ex. D. Thus, in anticipation of filing a zoning permit application for the Property with the Borough, in March 2006 Mr. Pevar met with the Borough Zoning Officer, Mr. Drumheller, and the Borough Manager, Marge Wolf to get assurances that "there was not going to be an issue around the slopes." Id. ¶ 11.
Additionally, on April 5, 2006, Mr. Pevar forwarded a letter to the Borough ahead of a scheduled meeting regarding his application. Id. ¶ 12. This letter included a photocopy of a topographical survey originally prepared for the adjoining property, and acknowledged, "If I use minimal front yard setback, then only one small corner of the townhouse building sits on steep slopes. If I set back 54' for a front parking lot like Berlin, next door, then the entire building is in steep slopes." Borough Ex. C. Likewise, the drawings attached to Mr. Pevar's April 5, 2006 letter depict slopes on the Property of 25-30%. Id.
Two days later, on April 7, 2006, Mr. Pevar submitted both his Zoning Permit and Land Development Application ("Permit Application") to the Borough and an Application to the Kennett Square Borough Zoning Hearing Board for Special Exception or Variance ("Variance Application"). Borough Stmt. Facts ¶ 16b. As a supplement to his Permit Application, on April 7, 2006 Mr. Pevar submitted a second letter to the Borough attaching revised drawings. Pevar Supp. Ex. 36. The revised drawings show slopes of 29.2%, 25.6%, 18.6%, and 17.5% on the Property. Id. In the letter, however, Mr. Pevar suggested that these slopes were not "steep slopes" under the ordinance because they were not "pre-existing" slopes.*fn1 Id. However, because the term "pre-existing" is not defined in the zoning ordinance, Mr. Pevar acknowledged in his April 7, 2006 letter, "it appears that Rusty [Drumheller] has the authority to interpret what 'pre-existing' means." Id.
In his Variance Application to the Zoning Hearing Board, Mr. Pevar requested "the right to build the otherwise permitted 5-townhouse building, the steep slopes notwithstanding." Borough Stmt. Facts ¶ 17. Defendants note that Mr. Pevar testified he filed this Variance Application because his calculations showed that there were slopes on the Property that exceeded the 15% allowed for the construction of townhouses. Id. ¶ 18. Mr. Pevar, however, disputes any contention that his inexpert calculations constitute an admission because he is not qualified to make conclusions about slopes, and explains that he probably calculated the slopes in a manner that does not conform to the calculation method described in the zoning ordinance. In addition, Mr. Pevar contends that his Variance Application was contingent upon a finding of steep slopes by Mr. Drumheller, and that he only filed the Variance Application as a precaution, not as an admission.
On April 10, 2006, Mr. Drumheller denied Mr. Pevar's Permit Application because the drawings Mr. Pevar submitted with his April 7, 2006 letter showed building in areas of steep slopes in violation of the zoning ordinance. Id. ¶ 19. In a letter dated the same day, Mr. Drumheller advised Mr. Pevar of his decision and explained that Mr. Pevar had a right to appeal to the Zoning Hearing Board. Id. ¶ 20. Mr. Pevar did not file an appeal of Mr. Drumheller's determination. Id. ¶ 21. Nevertheless, on May 10, 2006, Mr. Pevar wrote to Mr. Drumheller claiming for the first time that the Property did not have steep slopes based upon a new way of calculating the degree of slope, and reiterating his interpretation of the term "pre-existing" as it applied to the slopes. Id. ¶ 22. In this letter, Mr. Pevar asked Mr. Drumheller for his opinion on these issues. Id. ¶ 23. Mr. Drumheller responded on the same day to the May 10, 2006 correspondence with a letter, reiterating his conclusion that the submitted drawings depicted construction on steep slopes in violation of the zoning ordinance. Id. ¶ 24; Borough Ex. I. Mr. Pevar took no action on this determination other than to continue with his Variance Application before the Zoning Hearing Board. Borough Stmt. Facts ¶ 25.
By letter dated May 16, 2006, the Borough Planning Commission recommended that the Zoning Hearing Board uphold the Zoning Ordinance and deny Mr. Pevar's Variance Application.
Id. ¶ 26. The Planning Commission explained that "this ordinance is very important in keeping soil and erosion at a minimum and for the protection of properties within the borough." Borough Ex. J. The Zoning Hearing Board held hearings on Mr. Pevar's Variance Application on May 23, 2006 and July 31, 2006. Borough Stmt. Facts ¶ 27. Defendant Marc Jonas, the Borough Solicitor, represented the Borough at the hearings. Id. ¶ 28. On August 22, 2006, the Zoning Hearing Board denied Mr. Pevar's Variance Application, noting that the zoning ordinance mandated denial when applied to Mr. Pevar's Property. Id. ¶ 33.
While the Zoning Hearing Board matter was pending, Mr. Pevar wrote a letter to each of the Borough Council members complaining about Mr. Jonas' conduct at the Zoning Hearing Board hearings, and advising the Council members of their duty to follow the zoning ordinance. Id. ¶ 29. Instead of mailing the letter to the Council members, Mr. Pevar intended to have the letter read aloud during the public comment portion of the August 7, 2006 Borough Council meeting. Although Mr. Pevar could not attend the meeting due to a conflict,*fn2 Mr. Pevar's wife went in his stead to read the letter on his behalf. Id. ¶ 30; Pevar Dep. at 119. However, when Mrs. Pevar began to read the letter, the Council interrupted her and did not allow her to continue. Id. ¶ 31. Borough Council President Jeffrey Darman explained to her that because the letter "pertains to an application before the Zoning Hearing Board," and the Municipal Code specifies that the "Borough Council cannot discuss nor take any action pertaining to an application that is pending before the Zoning Hearing Board," it was inappropriate to have the letter read aloud at the meeting. Pevar Ex. 2. Nevertheless, Mr. Pevar's letter was incorporated into the official minutes of the meeting, and Mrs. Pevar handed a copy of the letter to each Council member. Id.
To bolster his equal protection claim, Mr. Pevar asserts that the Borough allowed the development of townhouses on two other properties in the Borough that are similar to the Property at 126 South Walnut Street. Id. ¶¶ 34-35, 38. One such property is located adjacent to the Property, and can be seen in the drawing Mr. Pevar submitted to the Borough on April 5, 2006. Id. ¶ 35. This adjoining property has steep slopes on only a small part of the land. Id. ¶ 36. Mr. Pevar admits that if the slopes occupy only a small part of the property, they are regarded as de minimus,and building on such slopes is permitted under the ordinance. Id. ¶ 37. The other allegedly similar property is located on Mulberry Street in the Borough. Id. ¶ 38. Townhouses were approved for the Mulberry Street property in August 2000, six years before Mr. Pevar made his applications, and one year before the Borough hired Mr. Drumheller as its Zoning Officer. Id. ¶¶ 39-40.
The Defendants contend that Mr. Drumheller based his denial of Mr. Pevar's Permit Application on Section 23-48 of the zoning ordinance and the fact that the Permit Application and accompanying papers state that the Property has slopes of 29.2%, 18.57% and 17.5%. Mr. Pevar disputes this, and offers the testimony of his expert witness, Tom Comitta, who opines that Mr. Drumheller's conclusion was inaccurate and not based upon objective or quantitative measurement as required by the ordinance. The Defendants have not responded to this expert opinion, and Mr. Pevar asserts-without any evidentiary support-that Mr. Jonas directed Mr. Drumheller not to read, review, or respond to the expert findings.
Mr. Pevar has had other development projects approved in the Borough both before and since the denial of his applications for the Property that are ...