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Tucker Industrial Liquid Coatings, Inc. v. Borough of East Berlin

United States District Court, M.D. Pennsylvania

January 13, 2015


For Tucker Industrial Liquid Coatings, Inc., Plaintiff: Dennis E. Boyle, Kenneth E. Raleigh, Fox Rothschild LLP, Washington, DC.

For Borough of East Berlin, David Richards, Council Member of Borough of East Berlin, Robert Clayton, Council Member of Borough of East Berlin, David Woodward, Council Member of Borough of East Berlin, Charles Phillips, Council Member of Borough of East Berlin, Defendants: Anthony R. Sherr, Mayers, Menneis & Sherr, LLP, Blue Bell, PA.

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Hon. John E. Jones III, United States District Judge.

This matter is before this Court on a Motion for Summary Judgment filed by Defendants Richards, Clayton, Woodward, and Phillips, protesting Plaintiff's equal protection claim. For the reasons articulated herein, the Court shall grant the Motion.


By way of introduction, the equal protection challenge filed by Tucker Industrial

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Liquid Coatings (" Tucker" ) largely focuses on Defendants' actions in seeking to enforce a use provision of a zoning ordinance. However, this dispute cannot be viewed in isolation, and both parties detail at-length various other contentions coloring this litigation. Most eminently, the parties discuss odor emission issues and environmental protection violations implicating Tucker and other businesses in the Borough. Accordingly, our factual recitation will outline the primary zoning dispute while also seeking to provide relevant context. Although Defendants were only elected to the East Berlin Borough Council in January 2008, our review begins a decade prior.

Tucker is a contract coating applicator, applying finish coatings to component parts manufactured by others. (Doc. 93, ¶ 1). It is owned by Bernard and Brian Tucker and, since 1998, has operated a facility at 407 North Avenue in the Borough of East Berlin, Pennsylvania. ( Id. ¶ 2; Doc. 117 ¶ 2).

Not long after Tucker commenced operations, the Pennsylvania Department of Environmental Protection (" DEP" ) discovered various compliance issues and violations at Tucker's facility, including surface coating and emissions reporting violations and failure to obtain a plan approval and operating permit. (Doc. 93, ¶ 3). Tucker and DEP resolved the matter by way of a Consent Assessment of Civil Penalty, entered into on November 27, 2002, pursuant to which Tucker agreed to pay a civil penalty of $5,500.00. (Doc. 92-4, pp. 241-46).

Also in 2002, the Borough of East Berlin revised its zoning ordinance, and under the new ordinance and zoning map, Tucker's North Avenue facility was in the district zoned mixed use. (Doc. 93, ¶ ¶ 5-6). The ordinance permits light industrial use in the mixed use district by special exception. ( Id. ¶ 7).

Tucker later sought to expand its North Avenue facility by adding a 130 by 160 foot addition purposed to house additional painting booths for its business operations. ( Id. ¶ 8). Tucker applied for and received a building permit from the Borough on August 10, 2005. (Doc. 102-6, p. 2). While the permit indicated that the construction was intended for industrial use, it did not specify whether or not a variance or special exception was required. ( Id.). The permit was issued and executed by then Borough Manager T. Michael Thoman but was not signed by the applicant. ( Id.).[1] Construction commenced thereafter, and the addition was completed and operational by 2006. (Doc. 93, ¶ 14).[2]

During 2007 and 2008, malodor in the Borough was a regular topic of discussion at Council meetings. Residents of East Berlin lodged air quality grievances against several businesses in the Borough, with approximately 13 complaints addressed to Tucker during that time. (Doc. 92-5, pp. 2-14).[3] For example, residents complained that the smell of paint fumes was so strong that it woke them up, was " overwhelming," affected their breathing, choked them, made their eyes water, and burned their throats. ( Id.). The Borough

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Council contacted DEP and the Environmental Protection Agency to investigate the complaints. (Doc. 92-4, pp. 594, 599).

Meanwhile, in January 2008, Defendants Richards, Phillips, Clayton, and Woodward were elected to the East Berlin Borough Council, with Mr. Richards appointed as Council President. (Doc. 93, ¶ ¶ 19, 21). Also around that time, Tucker acquired another building, the former Tyco facility, on 224 East King Street in East Berlin. ( Id. ¶ 31; Doc. 75, ¶ 18).

In the spring and fall of 2008, DEP again found Tucker's North Avenue facility in violation of various state and federal environmental standards. DEP issued a Notice of Violation on May 18, 2008, describing violations commencing in 2006 that included the construction and operation of three spray paint booths without receipt of a plan approval or operating permit, and emission of excessive amounts of a hazardous air pollutant (namely, toluene). (Doc. 92-5, p. 151-52). DEP followed with a second Notice of Violation on November 14, 2008, outlining additional offenses implicating national emissions standards. (Doc. 92-6, pp. 8-10). Tucker was responsive to both Notices, submitting a plan approval application to DEP's Air Quality Program after receiving the first, and notifying DEP that it had employed an environmental expert after receiving the second. (Doc. 92-5, p. 167; Doc. 102-15, p. 2). On April 16, 2009, Tucker and DEP entered into a Consent Order and Agreement (" COA" ). (Doc. 92-6, pp. 15-31). Pursuant to the COA, Tucker agreed to pay a $154,000.00 civil fine for, among other things, toluene emissions and operating without a permit. ( Id. pp. 21, 22, 26).

During the DEP inquiry and before the entry of the COA, Mr. Richards in his capacity as Council President wrote at least two letters to DEP, outlining the Borough's relevant concerns. (Doc. 92-5, pp. 158-60; Doc. 92-6, pp. 2-6). He also testified that he drove to Harrisburg to review Tucker's public DEP file, ...

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