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Selig v. North Whitehall Township Zoning Hearing Board

United States District Court, E.D. Pennsylvania

April 24, 2018

MICHAEL B. SELIG, Plaintiff,


          EDWARD G. SMITH, J.

         The pro se plaintiff brought the instant action against a township zoning hearing board and two of its members for violations of his due process rights and conspiracy to violate his constitutional rights when the board refused to grant his application for a special use permit for a heliport in two separate zoning proceedings. The plaintiff seeks damages and injunctive relief. The defendants have moved to dismiss the complaint because (1) the statute of limitations bars the claims, (2) the court lacks subject-matter jurisdiction based on Rooker-Feldman, and (3) the claims are not ripe for judicial review. The defendants also assert that the plaintiff has failed to state a cognizable claim for money damages and the court should abstain from exercising jurisdiction over the demand for equitable relief.

         The court grants the defendants' motion on several grounds. First, the plaintiff fails to state plausible claims for violation of his substantive due process rights or conspiracy to violate his constitutional rights. In addition, these claims are so weak that amendment of the complaint would be futile. Second, the plaintiff lacks standing to bring any claims based on the first zoning proceeding because he did not own the relevant property at the time of the proceeding. Even if he did somehow have standing, the statute of limitations would bar his claims because his purported constitutional injury occurred more than two years before he brought this lawsuit. Finally, although the complaint does not explicitly reference a claim for a procedural due process violation (contrary to the multiple references to substantive due process in the complaint), at the plaintiff's urging the court has considered whether the complaint states a claim for procedural due process and finds that it does not.


         On October 10, 2017, the pro se plaintiff, Michael B. Selig (“Selig”), filed a complaint asserting that the defendants, North Whitehall Township Zoning Hearing Board (the “Board”), Chairman Richard Benjamin (“Benjamin”), and Eugene Wolfgang (“Wolfgang”), violated his substantive due process rights and that they conspired to violate his constitutional rights.[1]Compl., Doc. No. 1. The defendants filed a motion to dismiss the complaint on October 31, 2017. Mot. to Dismiss, Doc. No. 4. The motion to dismiss raised five grounds for dismissal. See Br. in Supp. of Def.'s Rule 12(b)(6) Mot. to Dismiss the Compl. (“Defs.' Br.”), Doc. No. 4-1. Selig filed a response in opposition to the motion on November 22, 2017, the defendants filed a reply to the response on December 3, 2017, and Selig filed a sur-reply brief on December 7, 2017. Doc. Nos. 7, 9, 11. On January 4, 2018, the court heard oral argument on the motion to dismiss. During the oral argument, Selig asserted that his complaint also raises a procedural due process claim despite the lack of a specific reference to such a claim in the complaint. The motion to dismiss is now ripe for adjudication.


         A. Standards of Review

         1. Motions to Dismiss Under Rule 12(b)(1)

         “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). “They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Id. (citations omitted). “[F]ederal courts are without power to adjudicate the substantive claims in a lawsuit, absent a firm bedrock of jurisdiction.” Carlsberg Res. Corp. v. Cambria Sav. & Loan Ass'n, 554 F.2d 1254, 1256 (3d Cir. 1977). Therefore, “[w]hen the foundation of federal authority is, in a particular instance, open to question, it is incumbent upon the courts to resolve such doubts, one way or the other, before proceeding to a disposition of the merits.” Id.

         “[A] court must grant a motion to dismiss [under Rule 12(b)(1)] if it lacks subject-matter jurisdiction to hear a claim.” In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012). “In evaluating a Rule 12(b)(1) motion, a court must first determine whether the movant presents a facial or factual attack.” Id. (citation omitted). A jurisdictional challenge is factual if “it concerns not an alleged pleading deficiency, but rather the actual failure of [the plaintiff's] claims to comport with the jurisdictional prerequisites[.]” U.S. ex rel. Atkinson v. Pennsylvania Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007) (quotation marks and citation omitted). A jurisdictional challenge is facial if it “challenges subject matter jurisdiction without disputing the facts alleged in the complaint, and it requires the court to consider the allegations of the complaint as true.” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (citations and internal quotation marks omitted). On the other hand, “a factual challenge attacks the factual allegations underlying the complaint's assertion of jurisdiction, either through the filing of an answer or ‘otherwise present[ing] competing facts.'” Id. (quoting Constitution Party of Pa. v. Achiele, 757 F.3d 347, 358 (3d Cir. 2014)). When a jurisdictional challenge is factual, a court may “weigh and consider evidence outside the pleadings.” Id. (citation and internal quotation marks omitted).

         2. Motions to Dismiss Under Rule 12(b)(6)

         Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a complaint or a portion of a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests “the sufficiency of the allegations contained in the complaint.” Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted). As the moving party, “[t]he defendant bears the burden of showing that no claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citation omitted).

         In general, a complaint is legally sufficient if it contains “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “The touchstone of [this] pleading standard is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Although Rule 8(a)(2) does “not require heightened fact pleading of specifics, ” it does require the recitation of “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In other words, “[t]he plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quotation omitted). Ultimately, a complaint must contain facts sufficient to nudge any claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

         Because the plaintiff is proceeding pro se, the court must liberally construe the allegations in the complaint. See Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (explaining that courts must liberally construe pro se complaints and “apply the applicable law, irrespective of whether [the] litigant has mentioned it by name”). Although the court must accept as true the factual allegations in the complaint, the court need not do so with conclusory allegations of law. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, the court may consider “only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

         B. Factual Background

         In 2012, Selig used a holding company, Aerotierra, L.L.C. (“Aerotierra”), to purchase a 50-acre plot of land located at 5471 Route 309, Schnecksville, Pennsylvania (the “Property”) to use as a heliport. See Compl. at 3. In purchasing the Property, Selig relied on an assertion by the prior North Whitehall Township zoning manager that his “proposal [for a heliport] meets the requirements of the Zoning Ordinance.” Id. at 4. Selig applied for a special exception to use the Property as a heliport and, after holding a hearing on the application, the Board denied the application in 2013. See Id. Selig believes that the defendants violated his due process rights in this zoning proceeding because (1) the solicitor, Steven Miller, had a conflict of interest because he was Selig's “non-amicably released divorce attorney, ” (2) the Board panel did not have a tie-breaking vote because it was composed of two, instead of three members, in violation of 53 P.S. § 10906, (3) the chairman of the board, Benjamin, had a conflict of interest because he is Selig's “across the street neighbor” from the Property, and (4) the Board's denial of his application was inconsistent with governing law and the Board's prior decisions which permitted heliports in two locations. See Id. at 4, 5, 10.

         Selig then appealed the Board's decision to the state courts. See Id. at 5-7; see also Selig v. Zoning Hearing Bd. of N. Whitehall Twp., No. 180 C.D. 2014, 2014 WL 3586255, at *1 (Pa. Commw. July 22, 2014). The Court of Common Pleas initially determined that Selig lacked standing and dismissed the appeal, and the ...

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