United States District Court, E.D. Pennsylvania
D. WOLSON, J.
law permits municipalities to require property owners to
obtain a Use and Occupancy (“U&O”)
Certificate before selling real property. See 68
P.S. § 1082.1. The Municipality of Norristown imposes
such a requirement. Plaintiff LXR RS V, LLC
(“LXR”) claims in this case that Norristown's
requirements, at least as applied to it, imposed a temporary
taking, violated its rights to substantive and procedural due
process, and violated the Civil Rights Act. LXR also asserts
claims for a writ of mandamus and a declaratory judgment
under Pennsylvania law. Norristown has moved to dismiss all
claims. (ECF No. 18.) As explained below, the Court concludes
that LXR has not stated a claim for any of its federal causes
of action. The Court also declines to exercise supplemental
jurisdiction over LXR's state-law claims. The Court will
therefore remand this case to the Court of Common Pleas for
Norristown's Ordinances Regarding Sales Of
Pennsylvania law, a municipality that requires U&O
Certificates must proceed as follows: (1) if the municipal
inspection of the property reveals no violations, then the
municipality must issue a U&O Certificate; (2) if the
inspection reveals one violation but no substantial
violation, the municipality must issue a temporary U&O
Certificate; and (3) if the inspection reveals at least one
substantial violation, the municipality must specifically
note the items on an inspection report and issue a temporary
access certificate. See 68 P.S. § 1082.1. In
the event that an inspection reveals a substantial violation,
a purchaser has one year to rectify the violation or to
demolish the building. 68 P.S. § 1083.
requires U&O Certificates in connection with the sale of
property. In particular, Norristown Code § 128-3.3
prohibits the sale of property without a U&O Certificate.
The Norristown Code provides for property inspections and the
issuance of certificates in compliance with Pennsylvania law.
See Norristown Code § 128-6, 128-7.
LXR's Acquisition Of The Properties
October 12, 2018, LXR executed a series of Standard
Agreements for the Sale of Real Estate (the
“Agreements”) to acquire the properties at 5 E.
Elm Street, 15 E. Elm Street, and 17 E. Elm Street (the
“Properties”). The Agreements included a closing
date of November 13, 2018. In addition, the Agreements made
LXR, as buyer, responsible to order a U&O Certificate and
to make any repairs necessary to obtain a U&O
October 25, 2018, LXR applied for zoning permits for the
Properties. Because Norristown was still processing the
zoning permit applications as of the date of the scheduled
closing, LXR agreed with the property owners to delay the
closing from November 13, 2018, until January 11, 2019.
Norristown issued zoning permits on November 20, 2018, and
November 28, 2018. The zoning permits identified the need for
a U&O inspection to take place as an “Additional
Step To Be Taken By Applicant.” LXR applied for
U&O Certificates on November 28, 2018. Norristown
conducted an inspection of the Properties approximately one
month later, on December 27, 2018. That same day, Norristown
issued a Warning Notice to one of the owners of the
Properties, noting violations that the inspection revealed.
However, Norristown did not issue a temporary access
certificate or a U&O Certificate. Instead, it apparently
insisted that the property owners correct the violations so
that Norristown could avoid declaring the properties
uninhabitable and turning out the residents. (ECF No. 9, Ex.
the owners of the Properties extended the closing deadline at
least two more times, once to February 8, 2019, and a second
time to March 25, 2019. On March 6, 2019, Norristown issued
temporary U&O Certificates for the Properties.
filed this action in the Court of Common Pleas for Montgomery
County. In its original Complaint, LXR sought a writ of
mandamus and a declaratory judgment under Pennsylvania law.
Norristown removed the case to this Court and moved to
dismiss the case. LXR then filed an Amended Complaint, in
which it seeks a writ of mandamus and a declaratory judgment
and in which it asserts claims for a temporary taking,
violation of substantive due process, violation of procedural
due process, and violation of the Civil Rights Act.
Norristown again moved to dismiss under Rules 12(b)(1) and
12(b)(6). (ECF No. 18.)
other things, Norristown argues in its Motion that the Court
cannot hear LXR's takings claim because LXR did not
pursue remedies in state court. Since the Parties filed their
briefs, the Supreme Court has ruled that a property owner
“has suffered a violation of his Fifth Amendment rights
when the government takes his property without just
compensation, and therefore may bring his claim in federal
court under § 1983 at that time.” Knick v.
Twp. of Scott, Pennsylvania, 139 S.Ct. 2162,
2168 (2019). In July, the Court conducted a status conference
with the Parties, during which Norristown acknowledged that
the Knick decision renders its argument about
Pennsylvania state court remedies moot. The Court therefore
will not address that argument.