John R. Padova, J.
Plaintiff Sara Caldwell has brought this action against Defendant, the Township of Middletown, seeking monetary damages for the loss of the use of property she owns in the Township, located at 18 North Pennell Road (the “Property”). The Township has moved to dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. For the following reasons, the Motion is granted in part and denied in part.
The Complaint alleges the following facts. On July 1, 2005, Plaintiff opened a business on the Property selling fashion beads and giving beading classes. (Compl. ¶ 3.) On July 21, 2008, without holding a prior hearing, the Township informed Plaintiff that she must stop all activity at the Property. (Id. ¶ 4.) On August 31, 2008, Plaintiff stopped conducting business at the Property and reopened her beading business at 1165 West Baltimore Pike, where she pays a monthly rent of $2, 500.00. (Id. ¶ 5.)
Plaintiff subsequently asked the Township to reissue the Certificate of Occupancy for the Property that had been in existence before she established her business there. (Id. ¶ 6.) The Township Code Enforcement Officer denied Plaintiff’s request on the ground that the Uniform Construction Code required Plaintiff to obtain a new Certificate of Occupancy, since there had been a change of occupancy of the Property. (Id. ¶ 7.) Plaintiff appealed the decision of the Code Enforcement Officer to the Delaware County Uniform Construction Code Appeals Board (the “Board”) pursuant to Township Ordinance 653, which had been enacted on May 24, 2004, and Township Resolution 2004-97, enacted on November 8, 2004, which designated the Board to hear all Uniform Construction Code appeals from decisions of the Township Code Enforcement Officer. (Id. ¶¶ 8-9.)
On September 28, 2010, the Board sustained Plaintiff’s appeal, finding that “the occupancy of the building has not changed and the [code] does not require a new Certificate of Occupancy.” (Id. ¶ 10, alteration in original, internal quotation omitted.) The Township appealed that decision to the Court of Common Pleas of Delaware County. (Id. ¶ 11.) On May 13, 2011, the Court of Common Pleas dismissed the appeal, finding that the Township had violated the Uniform Construction Code by improperly and unlawfully designating the Board to hear appeals from decisions of the Township Code Enforcement Officer. (Id. ¶ 12.) The Township appealed that decision to the Pennsylvania Commonwealth Court, which affirmed on April 20, 2012, concluding that “‘[t]he net effect of determining that the Board lacked jurisdiction to hear Caldwell's appeal is that the Township’s denial of Caldwell’s occupancy permit remains in place, and there is not a properly constituted Board of Appeals to hear her appeal.’” (Id. ¶ 14 (quoting Middletown Twp. v. Cnty. of Delaware Uniform Constr. Code Bd. of Appeal, 42 A.3d 1196, 1202 (Pa. Commw. Ct. 2012).)
The Complaint asserts two claims for relief pursuant to 42 U.S.C. § 1983. The First Claim for Relief alleges that the Township denied Plaintiff “a properly constituted Board to hear her appeal” thereby denying her due process of law in violation of the Fourteenth Amendment (the “procedural due process claim”). (Id. ¶ 17.) The Second Claim for Relief asserts that the Township’s actions have denied Plaintiff the use of the Property since July 21, 2008, which constitutes a taking without compensation in violation of the just compensation clause of the Fifth Amendment (the “takings claim”). (Id. ¶¶ 21-22.) The Township has moved to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
II. RULE 12(b)(1)
The Township argues that Plaintiff’s procedural due process claim should be dismissed as moot pursuant to Rule 12(b)(1) because the Township now has a properly constituted Uniform Construction Code Board of Appeals. “‘Under Article III, section 2 of the U.S. Constitution, federal judicial power extends only to cases or controversies. If a claim does not present a live case or controversy, the claim is moot, and a federal court lacks jurisdiction to hear it.’” Mollett v. Leicth, 511 F. App’x 172, 173 (3d Cir. 2013) (quoting United States v. Virgin Islands, 363 F.3d 276, 284–85 (3d Cir. 2004)).
A. Legal Standard
A motion to dismiss for lack of subject matter jurisdiction brought pursuant to Rule 12(b)(1) “‘may be treated as either a facial or factual challenge to the court’s subject matter jurisdiction.’” Minuti v. Internal Revenue Serv., 502 F. App’x 161, 162 (3d Cir. 2012) (quoting Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)). The Township has indicated that it is asserting a facial challenge to our subject matter jurisdiction. (Def.’s Br. at 7-8.) A court reviewing a facial attack “‘must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.’” Nichole Med. Equip. & Supply, Inc. v. TriCenturion, Inc., 694 F.3d 340, 347 (3d Cir. 2012) (quoting Gould Elecs., 220 F.3d at 176). The reviewing court may also consider matters of public record. See Medici v. Pocono Mountain Sch. Dist., Civ. A. No. 09-cv-2344, 2010 WL 1006917, at *2 (M.D. Pa. Mar. 16, 2010) (citing Hunter v. United States, Civ. A. No. 00-36, 2000 WL 1880257, at *3 (M.D. Pa. Dec. 15, 2000); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196-97 (3d Cir. 1993)); see also Jones v. Butler, Civ. A. No. 09-3128, 2009 WL 2461885, at *1 n.11 (E.D. Pa. Aug. 11, 2009) (citing Gould Elecs., 220 F.3d at 176-77). “‘[T]he plaintiff must bear the burden of persuasion’” in connection with a motion to dismiss brought pursuant to Rule 12(b)(1). Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (quoting Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
The Township argues that Plaintiff’s procedural due process claim is moot because it created its own Uniform Construction Code Board of Appeals via Township Ordinance 729 on May 24, 2012. The Township, however, appears to misapprehend Plaintiff’s procedural due process claim. The Complaint does not seek injunctive relief requiring the Township to create a properly constituted board of appeals. Rather, the Complaint seeks monetary damages to compensate Plaintiff for the violation of her due process rights. “Claims for damages are retrospective in nature -- they compensate for past harm. By definition, then, such claims cannot be moot, and [a] case is saved from mootness if a viable claim for damages exists.” CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 622 (3d Cir. 2013) (alteration in original) (internal quotations omitted). Consequently, if the Complaint states a viable Section 1983 claim for damages for violation of Plaintiff’s Fourteenth Amendment procedural due process rights, that claim is not moot. As we conclude, infra, that the First Claim for Relief ...