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Robert C. Long, Sr. & Janet V. Long v. Bristol Township

July 11, 2012


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


Presently before the Court is the Motion for Summary Judgment of Defendants Bristol Township, the Zoning Hearing Board of Bristol Township, Glenn M. Kucher, Wendy Margulies, Al Burgess, Ronald Marczak, Peggy Horvath, Joseph Champey, John Gushue, Tina Davis, John Monahan, and Linda Tarlini*fn1 (collectively hereinafter "Defendants," "the Township," or "Bristol Township"). For the following reasons, the Motion is granted in part and denied in part.


This matter involves a dispute over a parcel of land located in Bristol Township, Pennsylvania. The land is owned by Plaintiffs Robert C. Long, Sr. and Janet V. Long ("Plaintiffs" or "the Longs"). The individually named defendants are or formerly were officers of Bristol Township.

Under Bristol Township's land use laws and regulations, all land developers are required to formulate a "land development plan" describing their project, which subsequently must be filed with the Bristol Township Council for review and approval. (Defs.' Mem. Supp. Mot. Summ. J. ("Defs.' Summ. J. Mem."), Ex. P, Stipulation of the Longs and Bristol Township ("Stipulation") ¶ 30.) Upon approval of the plan, the developer may begin to develop his property. (Id.) Should a developer's plan require him to obtain a variance from a local ordinance, however, this entails a different procedure. (Id. ¶ 25.) In such a situation, the developer is first required to submit an application to the Bristol Township Zoning Hearing Board ("ZHB" or "the Board") for a variance. (Id.) After receiving preliminary approval for a variance, the developer thereafter has six months to obtain either a building permit or occupancy certificate. See Bristol Twp. Z.O. § 2506(e).*fn2 Failure to adhere to this requirement results in the expiration of the developer's variance grant, at which point he must apply for either a renewed variance or request an extension. A developer's land development plan cannot be approved by the Township Council absent a valid variance.

On January 28, 2005, the Longs filed an application with the Bristol Township Zoning Hearing Board ("ZHB") requesting a use and dimensional variance for a parcel of their land. (Pls.' Answer to Defs.' Mot. Summ. J. ("Pls.' Answer"), Ex. A, Dep. of Robert Long ("Robert Dep."), 26:24, 27:1--4.) Specifically, Plaintiffs sought to construct a "mini-storage warehouse" on the property. (Id. at 28:3, 6--9.) To assist them in this process, the Longs retained the services of Pennsylvania attorney John Koopman, Esq., and land use planning engineer Joseph Mixner. (Id. at 34:12--24, 35, 36, 37:1--6.)

On March 14, 2005, the ZHB held a public hearing on the Longs' application, and unanimously granted their request for a variance. (Defs.' Summ. J. Mem., Ex. B, 04/12/05 Zoning Hr'g Bd. Decision ("ZHB Decision") at 1.) The ZHB subsequently documented its grant of the variance in a formal written Decision on April 12, 2005, which explicitly stated that local regulations required the Longs to obtain either a building permit or occupancy certificate within six months or else their variance would expire. (ZHB Decision at 5.) The Longs did not obtain either document within the requisite six months. Plaintiff Robert Long claims that he was not made aware of this six-month expiration period. (Robert Dep. 46:13--24.) Robert further testified that, upon receiving a letter from the Township which stated that the variance had expired, Koopman advised him not to concern himself with the matter. (Id. at 62:5--24.)

Although they did not obtain either of the requisite documents, the Longs allege that they nonetheless incurred expenses associated with the development of their land during this time. (Id. at 63:23--24, 64:1--24.) Specifically, they assert that they were paying Koopman to oversee the land development plan, and that Mixner billed them for engineering work he completed on the property. (Id. at 64:14--24, 65, 66.) Invoices from Mixner's consulting company and Koopman's law firm indicate that the Longs were billed for approximately $150 in engineering fees and $1,860 in legal fees during this time. (Defs.' Summ. J. Mem., Ex. F, 06/16/09 J.H. Mixner Consultants, Inc. Billing Invoice ("Mixner Invoice"); Ex. G, 03/31/05 Begley, Carlin & Mandio LLP Billing Statement ("Koopman Bill").)

In January of 2006, the Longs filed their land development plan-nine months after their variance had been granted and three months after it had expired. (Robert Dep. 81:19--24.) The plan was originally set to be voted on by the Bristol Township Council on March 16, 2006. (Defs.' Summ. J. Mem., Ex. I, 03/01/06 Bristol Township Letter ("03/01/06 Letter").) However, Defendant Glenn M. Kucher ("Kucher"), a Bristol Township zoning officer, discovered that the variance had expired. He therefore sent the Longs a letter informing them that they needed to re-apply for a variance before their land development plan could be considered by the Council. (Defs.' Summ. J. Mem., Ex. D, Dep. of Glenn Kucher ("Kucher Dep.") 87--88; Ex.K 04/27/06 Letter from Glenn Kucher to Robert Long ("Kucher Letter").) Another six months passed before Plaintiffs actually filed a request for an extension of their variance on October 31, 2006. (Defs.' Summ. J. Mem., Ex. A, Compl. of Robert and Janet Long ("Court of Common Pleas Compl.") ¶ 28; Ex. L, 01/25/07 Findings of Fact &Conclusions of Law in Support of the Decision of the Bristol Twp. Zoning Hr'g Bd. ("ZHB Decision") at 2.) A hearing before the ZHB on the extension request was scheduled for December 11, 2006. (ZHB Decision at 2; Defs.' Summ. J. Mem., Ex. M, Bristol Twp. Zoning Mtg. ("12/11/06 ZHB Mtg.").)

In the time between the original grant of Plaintiffs' variance and the December 2006 hearing, however, significant changes occurred in Bristol Township. (Kucher Dep. 43:12--24, 44:1--24, 45:1--20; ZHB Decision at 3.) Specifically, several Township councils and associations worked together to complete the "Bristol Township Beautification Project," a community plan aimed at commercially revitalizing the local area, including the area buttressing the Longs' property. (Kucher Dep. 43:21--24.) In accordance with the Project, the local train station was re-done and the main local traffic route, Route 13, was re-designed into a pedestrian-friendly business corridor. (Id. at 43:22--24, 44:1--10.) The area was also eventually re-zoned for "mixed use." (Id. at 44:19--21.)

At the December 2006 hearing, the Longs were denied an extension of their variance. (Id. at 60:7--21; Robert Dep. 104:23--24, 105:1--7; 12/11/06 ZHB Mtg. at 38--42.) The ZHB issued a formal written Decision on January 25, 2007, in which it cited the Beautification Project as one reason for its denial of the variance renewal. (ZHB Decision at 3.) The Board also denied the extension based on the fact that Plaintiffs waited several months before requesting the extension, which implied to the Board that they had no real interest in developing their property. (Defs.' Summ. J. Mem., Ex. N, Dep. of Ronald Marczak ("Marczak Dep.") 17:13--19, 21:3--5.) As a result of the ZHB's denial of their variance, the Longs were therefore unable to move forward with their land development plan. (See Defs.' Summ. J. Mot., Ex. K, 04/27/06 Letter to Robert C. Long Re: 2019 Bristol Pike, Croydon, Tax Parcel #5-12-100 ("04/27/06 Letter").)

Plaintiffs appealed the ZHB's decision to the Court of Common Pleas of Bucks County. During discovery it was revealed that, since the time the six-month expiration requirement became effective, nine out of the twelve land development projects in Bristol Township had not obtained building permits or occupancy certificates within the requisite timeframe but were nonetheless permitted to move forward. (Stipulation ¶ 33.) Evidence unveiled during discovery further revealed that the six-month expiration period was not routinely enforced in Bristol Township, and that the ZHB regularly granted renewed variances and extensions for land development projects. (Id. ¶¶ 2--29.) It was also revealed that the Longs' neighbors, George and Susan Rosenberg, owned property in violation of an existing ordinance, but were not required to obtain a variance. (Robert Dep. 117.)

Based on this evidence, the Court of Common Pleas reversed the ZHB Decision, and held that the Longs could move forward with their property development. (Defs.' Summ. J. Mem., Ex. Q, Opinion & Order of the Court of Common Pleas ("Common Pleas Op.").) The Court of Common Pleas also found that: "[g]iven the fact that no other applicants ha[d] been treated this way[,] it [was] difficult to deny the existence of bad faith" on the Township's part. (Common Pleas Op. at 7.) After the Court of Common Pleas' reversal, the Township Council ultimately approved the Longs' land development plan, thereby permitting Plaintiffs to formally begin the development of their property. (Robert Dep. 107:19--22.) To date, however, the Longs still have not started construction of the warehouse on the property. (Id. at 109--112.)

Plaintiffs filed their Complaint in federal court on March 11, 2010, asserting several constitutional violations pursuant to 42 U.S.C. § 1983: (1) violations of their procedural and substantive due process rights (Count I); (2) violations of their equal protection rights (Count II); (3) a taking of their property (Count III); and (4) a conspiracy to deprive them of their constitutional rights (Counts IV).*fn3 Defendants filed the instant Motion for Summary Judgment on April 9, 2012.*fn4 Plaintiffs responded in opposition on May 4, 2012, making this matter ripe for judicial consideration.


Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. Cnty of Allegheny, Pa., 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Del. Co., Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

Although the moving party bears the initial burden of showing an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec., 475 U.S. at 586. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. Summary judgment may be granted when "the evidence is merely colorable . . . or is not significantly probative." Id. at 249-- 50 (citations omitted).


Defendants move for summary judgment in their favor on Plaintiff's constitutional claims brought under § 1983, alleging that the Longs have failed to establish the existence of constitutional violations on their part. Defendants likewise aver that Bristol Township cannot be held liable under a theory of municipal liability, and that the individually named Defendants are protected by the doctrine of qualified immunity. The Court considers each argument and response in turn.

A. The Constitutional Claims

Plaintiffs assert their constitutional claims against the Township pursuant to 42 U.S.C. § 1983. Section 1983 provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.] 42 U.S.C. § 1983. The statute itself does not independently create substantive rights, but rather merely "provides a remedy for deprivations of rights established elsewhere in the Constitution or federal laws." Kopec v. Tate, 361 F.3d 772, 775--76 (3d Cir. 2004) (internal citation omitted); see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284--85 (2002); Bush v. Lancaster City Bureau of Police, No. Civ.A.07-3172, 2008 WL 3930290, at *3 (E.D. Pa. Aug. 26, 2008). Federal law requires a plaintiff to satisfy two steps in order to properly establish a § 1983 claim: (1) the deprivation of a constitutional right or other federal law; and (2) that a "person acting under the color of state law" is responsible for the alleged deprivation. Collins v. City of Harker Heights, 503 U.S. 115, 119--20 (1992).

In the instant case, Plaintiffs claim that Bristol Township engaged in conduct committed under the color of state law that deprived them of their due process and equal protection rights under the United States Constitution. (Compl. ¶¶ 43--56.) Plaintiffs further aver that the Township's conduct resulted in an unconstitutional taking of their property. (Id. ¶¶ 57--69.)

1. Due Process (Count I)*fn5

The Fourteenth Amendment prohibits states from "depriv[ing] any person of life, liberty, or property, without due process of law[.]" U.S. Const. amend. XIV. As interpreted by the Supreme Court, the Fourteenth Amendment protects both the substantive and procedural due process rights of individuals. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846--47 (1992). In this case, the Longs assert that Bristol Township's conduct violated both types of due process. The Court considers each allegation in turn.

a. Procedural Due Process

"At the core of procedural due process jurisprudence is the right to advance notice of significant deprivations of liberty or property and to a meaningful opportunity to be heard." Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998) (internal citations omitted). In order to successfully establish a prima facie case of a procedural due process violation, a plaintiff must show: (1) there has been a deprivation of the plaintiff's liberty or property, and (2) the procedures used by the government to remedy the deprivation were constitutionally inadequate. See Mulholland v. Gov't of Cnty. of Berks, No. Civ.A.10-5616, 2012 WL 1057446, at *8 (E.D. Pa. Mar. 29, 2012) (citing Studli v. Child. & Youth & Fam. Ctr. Reg'l Office, 346 F. App'x 804, 813 (3d Cir. 2009)). Remedial procedures will be found to be constitutionally inadequate if "they contain a defect so serious [as to] characterize the procedures as fundamentally unfair." See Leonard v. Owen J. Roberts Sch. Dist., No. Civ.A.08-2016, 2009 WL 603160, at *4 (E.D. Pa. Mar. 5, 2009) (citing Daniels v. Williams, 474 U.S. 327, 341 (1987) (Stevens, J., concurring)). Put differently, if a plaintiff avers a lack of adequate procedures to protect his constitutional interest at issue, then the inquiry is whether the government in fact has an established procedure in place that would remedy the infringement. As such, the focus in procedural due process claims is on the adequacy of the remedial procedure, and not on the government's actual actions that allegedly deprived the individual of his liberty or property interest. Leonard, 2009 WL 603160, at *4.

Here, Plaintiffs allege that they were deprived of their property rights. (Compl. ¶ 47.) Specifically, Plaintiffs aver that "[t]he right of the Longs to develop the property consistently with the existing ordinances of Bristol Township and in accordance with the variance approved for the Property has been intentionally abridged by Defendants . . . with [the] intent to deprive" them of their property. (Id. ¶ 45.) It is well established law that "possessory interests in property invoke procedural due process protections." Abbott, 164 F.3d at 146 (internal citation omitted). As such, Plaintiffs have satisfied the first element of the procedural due process analysis.

The second element requires the Court to consider if the procedures used to remedy the deprivation were constitutionally inadequate. A fellow court in this District previously addressed this issue in a factual scenario largely similar to the one at hand in Maple Properties, Inc. v. Township of Upper Providence, No. Civ.A.00-4838, 2004 WL 2579740 (E.D. Pa. Nov. 12, 2004). In Maple, the plaintiff purchased a tract of land upon which it sought to construct fast food and convenience stores. Id. at *1. The plaintiff applied for and was granted a special exception from the relevant zoning ordinance, and began engineering work on the property. Id. While the plaintiff was in the course of completing its land development plan, the township changed the zoning demarkation of the area, which effectively prohibited further construction on the plaintiff's land. Id. The plaintiff sued the township, asserting a deprivation of its procedural due process rights related to its property interest. Id. at *4. In ...

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