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Sutton v. Chanceford Township

United States District Court, M.D. Pennsylvania

March 21, 2018

TERRY SUTTON, d/b/a CINKAJ BROGUE LIMITED PARTNERSHIP, BRENDA SUTTON d/b/a CINKAJ BROGUE LIMITED PARTNERSHIP, CHRIS CINKAJ, d/b/a/ CINKAJ BROGUE LIMITED PARTNERSHIP, Plaintiff
v.
CHANCEFORD TOWNSHIP, et al., Defendants

          MEMORANDUM OPINION

          Martin C. Carlson United States Magistrate Judge

         Before the Court is the defendants' motion for summary judgment on the plaintiffs' remaining claims. The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the motion will be granted and the case will be closed.[1]

         I. BACKGROUND

         The plaintiffs in this action are a group of real estate developers and co-owners of a business known as Cinkaj Brogue Limited Partnership (referred to collectively as “plaintiffs” or “developer”). At the time this lawsuit was initiated, the plaintiffs owned a shopping center development in Chanceford Township, York County, Pennsylvania (the “shopping center”).[2] The plaintiffs allege that in 2013 their partnership was denied a zoning permit necessary to open a cabaret featuring nude dancing in the shopping center. The plaintiffs have sued Chanceford Township and several of its officials alleging that that Township's denial of their request for a special exception needed to open their intended adult entertainment business violated their rights under the United States and Pennsylvania Constitutions. The plaintiffs' chief argument seems to be that the Chanceford Township zoning ordinance operates as a prior restraint on protected speech, and thereby violates the First Amendment. The plaintiffs have also made a claim that the ordinance, as applied to their application, violated the First Amendment, in particular by arguing that the stated bases given for denying the special exception were pretextual cover for the real reason the permit was denied, namely, a moral aversion to allowing the plaintiffs' to open a business that featured nude dancing. The plaintiffs also claim that the defendants violated their right to substantive due process in that the land-use decision was “conscience shocking”, and that the defendants violated similar prohibitions contained in the Pennsylvania Constitution regarding freedom of expression. The plaintiffs seek damages and declaratory relief.

         The plaintiffs own property identified as 2514 Delta Road, Chanceford Township, York County, which is where the shopping center is situated. Chanceford Township is a township organized and existing under the laws of the Commonwealth of Pennsylvania. On April 10, 2006, the Township, acting under the Pennsylvania Municipalities Planning Code, 53 P.S. §§ 10101 et seq., adopted the ordinance known as the Chanceford Township Zoning Ordinance (the “Ordinance”). Section 513.C gives the Chanceford Township Zoning Hearing Board (the “ZHB”) exclusive jurisdiction to rule on all zoning applications for uses pursuant to the Ordinance. (Doc. 67, Ex. D, Zoning Ordinance.) Section 513.C.2 specifies that collectively and individually, the members of the ZHB have the authority “to hear and decide special exceptions upon which the Board is required to pass” under the Ordinance. (Id.)

         The plaintiffs' property is located in the General Commercial Zone in the Township and has been developed into a small shopping center that includes businesses offering goods for sale, as well as service businesses that include a bank. The Ordinance provides that the General Commercial Zone in the Township allows for the use of property for an “Adult Oriented Facility” only under Special Exception as shown in Table 203.1 and Article IV of the Ordinance.

         The Ordinance defines “Adult Oriented Facility” to mean any “establishment open to the general public or a private club open to members except person under the age of eighteen (18) years, which is used and occupied for one (1) or more of the following activities: . . . ADULT CABARET - An establishment, club tavern, restaurant, theater or hall which features live entertainment distinguished or characterized by an emphasis on sexual conduct or sexually explicit nudity.” (Zoning Ordinance § 602.)[3] The plaintiffs' intended to use the property to operate an Adult Cabaret.

         Section 407 of the Ordinance specifies that the manner of operation of an “Adult Oriented Facility” is regulated under the Ordinance. Section 407 sets forth the general and specific requirements that must be met in order for members of the ZHB to approve a special exemption for an “Adult Oriented Facility” under the Ordinance. These requirements provide that no materials, merchandise, film or service offered for sale or view shall be displayed or represented outside of the building; that all Adult Oriented Facilities will be windowless or have opaque coverings over the windows and doors; that no sign shall be erected depicting the types of goods or services offered in the establishment; that signage be posted restricting access to adults only and warning others that they may be offended upon entry; establish parking requirements; and include restrictions on locating Adult Oriented Facilities at least 1, 000 feet from schools churches. (Zoning Ordinance § 407.)

         Section 502 of the Ordinance provides the guidelines that govern uses permitted by special exception, and requires, inter alia, that the proposed use meets drainage requirements; that the proposed use will not create traffic congestion; that the proposed use has made adequate provision for disposal of sewage; and that the proposed use is “in harmony with the orderly and appropriate development” of the zone. (Zoning Ordinance § 502.) Section 502.2 of the Ordinance, in turn, sets forth the requirements for special exceptions and provides that “For any use permitted by special exception, a special exception must be obtained from the Zoning Hearing Board.” (Id.) That section further provides that “All applicants for a special exception shall be referred to the Planning Commission for a report. The Chairman of the Planning Commission shall insure that a copy of its report is delivered to the Township Secretary for inclusion in the permanent record of the application, to the Zoning Officer and to the Zoning Hearing Board.” (Id.)

         The Ordinance also sets forth a number of specific requirements that govern hearings for special exceptions conducted by the ZHB, and purports to confer certain rights upon applicants or appellants. Among the requirements is one that requires the ZHB to hold a hearing within 60 days of the date of the applicant's request for a hearing, and provides that when a hearing is not held within this 60-day period, a decision shall be “deemed to be rendered in favor of the applicant, unless the applicant has agreed in writing or on the record to an extension of time.” (Am. Compl., ¶ 61 and Ex. R.)

         On February 11, 2013, plaintiff Terry Sutton asked the Chanceford Township Solicitor, Timothy Bupp, about the prospect of opening an adult entertainment facility in the Township, specifically at the property, with live nude dance performances. The solicitor invited Sutton to attend a meeting of the Board of Supervisors that night. (Am. Comp., ¶ 91.) At that meeting, plaintiff Sutton told the Board that there was someone interested in subleasing space in the property to private groups with BYOB privileges. Solicitor Bupp informed Sutton that pursuant to the Ordinance, the plaintiffs “would need to apply to the Zoning Hearing Board for special exception for any proposed restaurant or commercial use at which time the board would determine the conditions of use.” (Id., ¶ 92.)

         On March 12, 2013, the plaintiffs submitted an application for a special exception pursuant to Section 203 of the Ordinance to the ZHB seeking to make use of the property as an Adult Oriented Facility. (Am. Compl., Ex. F.) The application specifically disclosed the plaintiffs' intention to use the property to operate as an “Adult Cabaret, ” as defined in the Ordinance, “featuring live nude dancers.” (Am. Compl., ¶ 80.) The application disclosed the plaintiffs' intention to “not offer materials, merchandise, film, or service for sale, rent, lease, loan or for view outside of a building or structure.” (Id., ¶ 81.) The application stated that the plaintiffs intended to “establish a membership requirement for entry into the facility and with ten (10) separate rooms for private entertainment.” (Id., ¶ 82.) The application contained additional information with respect to the décor to be implemented, discretion with respect to signage, signs restricting admission to adults, the distance of the facility from any school or church, and regarding improvement of parking spaces in conformity with the Ordinance. (Id., ¶¶ 83-87.)

         The plaintiffs' application was first formally addressed on April 16, 2013, during a Township Planning Commission meeting. At that time, Terry Sutton and the property owner's attorney, Chris Vedder, explained specifics of the application and its exhibits and answered questions asked by the Commissioners and the general public. (Am. Compl., Ex. V.) During the public comment period that followed, the chair of the Planning Commission, John Shanbarger, referred to Section 102 of the Ordinance that states that the purpose of the Ordinance is the public welfare, safety, morals and general welfare and opined that “There is nothing stated tonight that you are meeting very many of these, if any.” (Id., ¶ 96 and Exs. V, U.) Following two hours of testimony and dissenting opinions from opponents of the application, many of whom offered morality-based arguments in their opposition, the Chanceford Township Planning Commissioners unanimously recommended that the ZHB reject the plaintiff's application for permission to open an adult-oriented facility. (Id., ¶ 97 and Ex. V.)

         During a meeting of the Township Planning Commission on or around May 21, 2013, defendant Jeff Koons, a zoning officer for the Township, requested the help of the Planning Commission to determine which sections of the Ordinance were relevant to proving noncompliance with the plaintiff's application for a permit. (Id., ¶ 100 and Ex. X.)

         During a meeting of the ZHB on May 23, 2013, Defendant Bupp, the Township Solicitor, provided legal advice to members of the ZHB, and advised them that their consideration of whether or not to grant the special exemption must focus on determining whether the proposed use of the property was a permitted use under the Ordinance, and whether the proposed use was of the same general character as other uses permitted in the applicable zone. (Id., ¶ 107.) During the public deliberations that took place during this meeting, attendees urged the application be denied because the proposed cabaret was “immoral” or “criminal” or ran afoul of the “character and nature . . . in the neighborhood” or was “not appropriate for the community.” (Id., ¶ 108.)

         The ZHB met on June 17, 2013, during which time the plaintiff, through counsel, argued that denial of the special exception would constitute regulation of the proposed use based on the content of expressive conduct or speech, which would violate the United States Constitution. (Id., ¶111.) A little more than a month later, on July 22, 2013, Terry Sutton appeared before the ZHB again, during which time the ZHB heard additional complaints by community members about the proposed use of the property. (Id., ¶ 113.) On or around July 25, 2013, the ZHB voted unanimously to reject the plaintiffs' application for a special exception. (Id., ¶114.) On August 15, 2013, the ZHB issued a written decision that memorialized the denial. (Doc. 67, Ex. K.) The plaintiffs assert that the denial of their application was improper, untimely and unconstitutional, and that it had the effect of depriving them of “presenting the Constitutionally protected speech and expression they desire to provide, ” (Id., ¶ 117), causing them financial harm.

         Review of the decision itself, however, reveals that it does not purport to be based upon the nature of the expressive activity of nude dancing.[4] To the contrary, the decision rests upon a number of factual findings and conclusions in its determination that the plaintiffs failed to meet their burden, all of which are unrelated to the expressive nature of the proposed activity. For example, the ZHB concluded that because the plaintiffs proposed to establish a nude dancing business within a shopping center, the use also needed to conform to the regulations governing tenants on the premises, and concluded that under no reasonable definition could a cabaret be considered to be a “store.” (Doc. 67, Ex. K, at 13-14.) In addition, and in our view most importantly, the ZHB found that the plaintiffs had failed to come forward with evidence sufficient to meet the ground water discharge requirements of the proposed use - instead, the plaintiffs simply rested on the fact that the shopping center had been approved at the time of its development, and therefore concluded that their proposed use would satisfy these requirements as well. However, as the ZHB noted in its decision, the shopping center had been planned and developed seven or eight years prior, at which time there were no plans to include an adult cabaret among the possible uses and the sewage uses and needs for this facility would be significantly greater than the needs of other facilities within this mall since it was anticipated that this facility could house 100 or more long-term visitors at any given time.

         Likewise, the ZHB noted that the Zoning Ordinance required that the party seeking a special exception demonstrate that adequate provisions can and will be made to deal with sewage created by the proposed use. (Id. at 15.) In this regard, the ZHB noted that Mr. Sutton had merely represented that the sewage facilities for the existing premises were “adequate, ” without taking into consideration in any way the fact that the proposed use would be open up to 14 hours per day, and have up to 150 patrons at any given time, which was substantially different than any previous or current shopping center tenants. (Id.) In addition, the Ordinance provided that the applicant provide sufficiently detailed information concerning studies and data to allow the ZHB to conclude that the project would comply with DEP regulations and the Chanceford Township Sewage Permit Ordinance, and the ZHB found that none of this information was provided as part of the application.

         Finally, the ZHB found that because the proposed nude dancing venue was to be operated as a BYOB “bottle club”, Pennsylvania law actually prohibited the proposed use of the property, referring to 18 Pa. Cons. Stat. Ann. § 7329. That statute prohibits a bottle club from operating in connection with “lewd, immoral or improper entertainment, ” which is defined by statute to include sexually explicit activity including nude dancing. The ZHB noted that the statute prohibited these uses in conjunction with one another because of the potential for nuisance. The ZHB found that the proposed use would thus violate Pennsylvania statutory law, and therefore identified this potential violation as a fourth basis to deny the application.

         Having found that the plaintiffs failed to meet four specific, objective requirements of the ordinance, the ZHB found it unnecessary to review evidence and argument from parties protesting the proposed use, or to determine whether the objecting parties had met their own burden of proving that the proposed use would have a generally detrimental effect on public health, safety and welfare, or whether it would conflict with other policies provided for by the Ordinance. (Id. at 15-16.)

         The plaintiffs chose not to appeal the ZHB's adverse decision to state court, electing instead to file this federal lawsuit. The plaintiffs initiated this action by filing a complaint on August 12, 2014. (Doc. 1.) The complaint named as defendants the Township, its Solicitor, members of the Township's Planning Commission, Zoning Hearing Board, and Board of Supervisors, a Zoning Officer and the Township Engineer. The plaintiffs sought a declaration that the denial of the requested permit was unconstitutional and that the Ordinance itself was facially unconstitutional as an unlawful restraint on protected expressive activity. The plaintiffs additionally sought damages for the claimed constitutional violations, including violations of the First and Fourteenth Amendments of the United States Constitution, a claim for a regulatory taking, and violations of the Pennsylvania Constitution. Following the District Court's ruling on the defendants' initial motion to dismiss, the plaintiffs filed an amended complaint on June 28, 2016. The defendants moved to dismiss the amended complaint on July 18, 2016, and that motion became ripe on October 27, 2016.

         By Order entered on December 14, 2016, the Court granted the motion in part and denied it in part. Specifically, the Court dismissed the plaintiffs' claims alleging violation of their right to equal protection, procedural due process, and a standalone claim under 42 U.S.C. § 1983. (Doc. 38.) The Court denied the motion as to the plaintiffs' claims alleging violation of their right to substantive due process, as well as their facial and as-applied First Amendment claims. The Court also denied the motion with respect to the plaintiffs' request for a declaratory judgment, and claim that the ZHB's decision violated the Pennsylvania Constitution.

         Following the conclusion of the discovery, the defendants filed the instant motion for summary judgment. (Doc. 67.) Thereafter, the plaintiffs - who apparently had taken little discovery in this case up to this point - sought an enlargement of the discovery period in order to develop evidence to oppose the motion. The Court entered an Order extending the discovery period, and staying further briefing pending the conclusion of discovery. (Doc. 88.) Thereafter, the plaintiffs filed a brief in opposition to the motion for summary judgment on December 20, 2017, and the defendants filed their reply on January 5, 2018. (Docs. 91, 94.) The motion is now fully briefed in ripe for disposition.

         III. STANDARD OF REVIEW

         Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Through summary adjudication a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact, ” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. ...


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