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Mon Rail Terminal, Inc v. Borough of Dunlevy and

December 18, 2012


The opinion of the court was delivered by: Judge Cathy Bissoon



Pending before the Court are Defendant Borough of Speers's Motion to Dismiss (Docket No. 16) and Defendant Borough of Dunlevy's Motion to Dismiss (Docket No. 17). For the reasons stated herein, the Court will GRANT Defendant Borough of Speers's motion and will GRANT IN PART Defendant Borough of Dunlevy's motion.


A.Factual Background

This case arises out of Plaintiff Mon Rail Terminal, Inc.'s attempts to develop a 28.482 acre tract of vacant land (the "Property") it owns in Washington County, Pennsylvania. Am. Compl. ¶¶ 9-10 (Docket No. 14). The Property is located in both the Borough of Speers ("Speers") and the Borough of Dunlevy ("Dunlevy") (collectively "Defendants"), with 27.082 acres of the land in Speers and 1.4 acres of the land in Dunlevy. Id. at ¶ 10.

The Property is bounded on the east by the Monongahela River, on the west by the Norfolk and Southern Railroad, on the southwest by property owned by Charles Barcelona, on the southeast by property owned by Joseph Barcelona, and on the north by property owned by Guttman Realty Company. Id. at ¶ 11. Currently, the Property has no street access in Speers, and there is no driveway connecting the Property to Dewey Street, a public road located in Dunlevy. Id. at ¶¶ 15-19.

In May of 1996, Mon Rail requested that Speers rezone roughly 12.5 acres of the Property located in Speers, which had all been zoned M-2 Heavy Industrial, to residential, and proposed the construction of townhouses on the land. Id. at ¶ 21. Residents and elected officials in Dunlevy took issue with the planned access to the Property through Dewey Street in Dunlevy. Id. at ¶ 22. Mon Rail withdrew its application for rezoning due to the opposition. Id. at ¶ 24.

Despite the withdrawal of the application, Speers enacted Ordinance No. 392 on November 6, 1996, creating a wooded buffer area between Speers and Dunlevy, and more specifically, the properties of Charles and Joseph Barcelona. Id. at ¶ 25. Around the same time, Dunlevy passed Ordinance No. 6-7-96, which restricts access to out-of-borough property, among other things. Id. at ¶ 27. Plaintiff claims Defendants enacted both of the ordinances without giving notice to Plaintiff. Id. at ¶ 28.

In 2009, Plaintiff began to take actions to use the Property as a water withdrawal operation. Id. at ¶¶ 29-33. On November 10, 2009, Plaintiff submitted to Dunlevy its application for an Excess Hauling Permit, which would allow Plaintiff or its lessee to transport materials to and from the Property via Dewey Street. Id. at ¶¶ 34-35. Plaintiff followed up that application with a request to construct a driveway connecting the Property to Dewey Street. Id. at ¶ 42. On March 2, 2010, Plaintiff presented its plans for the Property at a meeting of the Speers Borough Council; the Council expressed no opposition to the proposed plan, and the Speers Zoning Map still showed the Property was zoned M-2 Heavy Industrial. Id. at ¶¶ 43-45.

Shortly thereafter, Dunlevy Borough Council voted to deny Plaintiff's request for an Excess Hauling Permit, citing "safety concerns," and invoked Ordinance No. 6-7-96 (as well as Ordinance 6-4-88) to deny the request to open a driveway onto Dewey Street. Id. at ¶ 47. Following failed discussions with Dunlevy, Plaintiff filed an Action for Declaratory Judgment in the Court of Common Pleas of Washington County on June 24, 2010. Id. at ¶¶ 54-55. That action is still pending. Id.

Also around this time, Plaintiff learned that Speers had enacted Ordinance No. 392, which had purportedly rezoned the Property to residential. Id. at ¶¶ 57-58. However, the ordinance had not changed the Speers Zoning Map, so Speers enacted Ordinance No. 423 on October 6, 2010, to rezone half of the Property as residential. Id. at ¶¶ 60-61. Plaintiff was once again not notified of this action. Id.

B.Procedural Background

On April 30, 2012, Plaintiff filed an amended complaint, claiming that it has been illegally prevented from accessing and developing the Property by the unlawful actions of Dunlevy and Speers, who have been acting in concert and in deprivation of Plaintiff's federally protected rights. Id. at ¶ 1.

Plaintiff alleges seven different causes of action: (1) Dunlevy violated the Fourteenth Amendment's Equal Protection Clause; (2) Dunlevy and Speers violated Plaintiff's right to substantive due process under the Fourteenth Amendment; (3) a conspiracy claim against Dunlevy and Speers; (4) Speers unlawfully enacted a zoning ordinance amendment; (5) Dunlevy and Speers intentionally interfered with Plaintiff's contractual relations; (6) declaratory and injunctive relief against Dunlevy and Speers under 28 U.S.C. §§ 2201 and 2202; and (7) a de facto takings claim against Speers. Id. at ¶¶ 66, 89, 106, 117, 128, 131-34, 145.

Defendants Speers and Dunlevy filed separate motions (Docket Nos. 16 and 17, respectively) to dismiss Plaintiff's Amended Complaint on May 14, 2012.


A.Equal Protection and Substantive Due Process -- Statue ...

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