GRACE LAND II, LLC v. BRISTOL TOWNSHIP

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GRACE LAND II, LLC, et al. : CIVIL ACTION

:

v. : No. 18-5413

:

BRISTOL TOWNSHIP, et al. :

MEMORANDUM

Juan R. Sánchez, C.J. September 30, 2019

Plaintiffs Grace Land II, LLC (Grace Land) and Daybreak Treatment Solutions (Daybreak)

bring claims against Defendants Bristol Township (the Township), Bristol Township Zoning

Hearing Board (ZHB), Craig Bowen, William McCauley, and Thomas Scott (the Individual

Defendants), individually and in their official capacities, for constitutional violations pursuant to

42 U.S.C. § 1983, and violations of the Americans with Disabilities Act and the Rehabilitation

Act. Plaintiffs’ claims arise from Defendants’ refusal to issue a permit for operation of a medical

office for outpatient treatment of persons suffering from alcohol and drug addiction disorders.

Defendants move to dismiss Plaintiffs’ Amended Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). For the reasons set forth below, Defendants’ Motion to Dismiss will be granted

in part and denied in part.

FACTS

Grace Land and Daybreak are associated entities providing outpatient treatment services

for persons suffering from alcohol and drug addiction disorders. Jonathon Goodman is the sole

owner of Grace Land and the majority owner of Daybreak. Daybreak is licensed through the

Pennsylvania Department of Drug and Alcohol Programs to operate a medical office located in

Levittown, Pennsylvania. Grace Land and Daybreak want to offer substance abuse and alcohol

rehabilitation services to more persons in the community than is currently offered at their location

in Levittown.

At issue in this dispute is a parcel of land located at 2104 Bath Road, Bristol Township,

Pennsylvania (the Property), which Grace Land purchased from Inspire Federal Credit Union (the

Bank) on December 18, 2017. Daybreak has a leasehold agreement with Grace Land, as Grace

Land’s treatment branch, to operate a medical clinic at the Property. The Property comprises

approximately 1.7 acres and is improved with a building containing approximately 9,758 square

feet (the Building) and parking fields with spaces for approximately 59 vehicles. At the time of

the purchase, the Property was zoned for commercial use, which permitted the Property to be used

as a medical office providing outpatient treatment.

Prior to Grace Land’s purchase of the Property, however, the Property was zoned for

residential use. In November 2015, the Bank approached the Township to change the Property’s

zoning to commercial. While the Bank’s zoning application was pending, Defendant Township

Council President Craig Bowen told the Bank’s president and CEO, James Merrill, the Township

did not have a problem with rezoning the Property as long as the Bank did not intend to sell the

Property to a drug and alcohol treatment provider. See Am. Compl. ¶ 29. On July 26, 2016, the

Township rezoned the Property to commercial.

On September 8, 2017, the Bank and Grace Land entered into an agreement of sale for the

Property. Grace Land subsequently submitted an application to the Township, requesting a use and

occupancy permit to operate an inpatient detoxification facility at the Property (the Detox

Application). Within days after the Detox Application was submitted, Defendant Township

Manager William McCauley, telephoned Marc Kaplin, Esquire, the attorney representing Grace

Land and told Kaplin the Township did not want a drug treatment facility operating on the

Property. See Am. Compl. ¶ 34. At a meeting on or about September 18, 2017, Township Council

President Bowen, told Grace Land’s real estate broker Jack Kitchen, “the Township had plans to

build a water park next to the Property and the Township did not want any drug treatment facility

at the Property.” Id. ¶ 35. Township Council President Bowen was concerned addicts would try to

use the water park to take showers. Id.

Township Council President Bowen suggested to Kitchen that Grace Land should purchase

vacant school properties the School District1 was offering for sale in the Township. After this

suggestion, an affiliate of Grace Land, Progressive Living Unites & Systems of Pennsylvania

(PLUS) submitted a good faith offer to the School District to purchase four of the five elementary

schools located in the Township for $1.75 million. This offer was higher than the other offers the

School District receive by nearly $800,000. The Township later countered with its own offer for

the schools, matching the offer price, but seeking to acquire five schools rather than four. Plaintiffs

allege the Township never intended to “make good” on its offer to buy the schools, but rather they

were just “scheming to delay Grace Land from being able to use the Property as a drug and alcohol

treatment facility.” Id. ¶ 43.

On October 11, 2018, the Township denied the Detox Application. Grace Land learned of

the denial on October 18, 2018. The following day, Kitchen arranged for Township Council

President Bowen to meet with Goodman. At the meeting, Township Council President Bowen told

Goodman and Kitchen the Township faulted the Bank for agreeing to sell the Property to Grace

Land, when the Bank knew the Township did not want a drug and alcohol treatment facility at the

Property under any circumstances. See id. ¶ 38. Township Council President Bowen also stated

1 The Amended Complaint does not identify a specific school district. Accordingly, the Court uses

the “School District” as identified by the parties.

the Township would not have approved the change to commercial zoning had it known a drug and

alcohol treatment provider would buy the Property. See id. Plaintiffs agreed to hold their challenge

to the denial of the Detox Application in abeyance while they submitted a second application.

On December 6, 2017, Grace Land submitted a second application to the Township for a

permit to operate a medical office at the Property (the Medical Office Application). The medical

office would provide rehabilitation outpatient treatment services to persons suffering from alcohol

and/or drug addictions. Defendant Township Zoning Officer Thomas Scott, sent a letter stating he

could not process the Medical Office Application without first having (a) “information on the

certification of the outpatient treatment methods by a board or agency authorized by statute to

issue such certification”; (b) the proposed hours of operation; and (c) the plan for off-street parking.

Id. Ex. C, at 2.

In a letter to Zoning Officer Scott, Grace Land explained Daybreak is precluded from

obtaining a state license to operate a treatment center at the Property until the Township issues the

permit allowing for that use. Grace Land further explained the medical office would be located in

4,407 square feet of the Building, the same area which the Bank operated its retail branch and

stated it would comply with the Township’s parking requirements under § 205-120(7) of the

Zoning Ordinance because only a total of 37 parking spaces would be needed. See id. Ex. D.

Zoning Officer Scott sent a second letter, requesting more information, including (1) a copy

of the medical director’s license, and (2) Grace Land’s plans for using the remaining vacant

portions of the Building. See id. Ex. F, at 1. Grace Land complied by providing a copy of the

medical director’s license and confirmed Grace Land had no current plans to utilize the rest of the

Building. Grace Land stated it would apply to the Township for a permit when it decided on a plan

for using the rest of the Building. See id. Ex. G, at 1-2.

On April 10, 2018, the Township denied the Medical Office Application and claimed it did

not approve a split or separate use of a portion of the Building and “assumed for purposes of this

determination that the entire building is proposed to be utilized for medical offices.” Id. Ex. H, at

1. Based on this allegedly false premise, the Township denied the Medical Office Application for

not meeting the Township’s parking requirement. Id. at 1-2. The Township’s requirement for

Grace Land to reserve additional parking was contradicted by its allowance for the Bank to use the

entire Building without additional parking although financial establishments are subject to the

same parking requirements as the medical offices Grace Land proposed. See id. ¶ 55.

On March 16, 2018, Grace Land appealed the Township’s denial of the Medical Office

Application to the Defendant ZHB. At the May 14, 2018, ZHB hearing, Stacy Hill, an executive

officer of Grace Land and Daybreak, testified to Grace Land’s intent to operate the medical office

solely in the 4,407 square foot portion of the Building and Grace Land would apply for a permit

to use the remainder of the Building once it had a plan for that space. The Township did not offer

any evidence to contradict Hill’s sworn testimony. Hill further explained Daybreak utilizes its own

vans to transport patients to and from treatment and therefore the patients will not be operating

vehicles to and from the Property.

At the ZHB hearing, Township officials and residents opposed the proposed treatment

center. At one point, the ZHB’s Solicitor Ken Federman, voiced his skepticism over the

Township’s claim against Grace Land using only part of the Building. Specifically, he stated, “it’s

not really about the parking, because theoretically the board can do what the board wants to do,

right?” Id. ¶ 60.

After hearing the Township and residents’ opposition, the ZHB members unanimously,

and without deliberation, voted to reject Grace Land’s appeal. In its written June 28, 2018,

decision, the ZHB acknowledged the Property is zoned C-Commercial and “such zoning

designation does allow[ ] for an outpatient medical office use pursuant to Section 205-36 and 205-

16C(2) of the Zoning Ordinance.” Id. Ex. I, at 4. Nonetheless, the ZHB denied Grace Land’s

permit, stating (1) the request for a permit constituted land development; (2) Grace Land could not

satisfy the Township’s parking requirements based upon the “assumption” that Grace Land would

be using the entire Building; and (3) Grace Land was not entitled to occupy only a portion of the

Building. See id. at 4-5. Plaintiffs allege these reasons were merely pretext.

To address the Township’s pretextual concern with parking, on April 6, 2018, Grace Land

applied for a building permit to add parking spaces within the Property’s existing impervious

surface area (the Building Permit). The Township denied the Building Permit, stating the proposed

work constituted land development. See id. Ex. J, at 2. On May 31, 2018, Grace Land appealed the

Township’s denial to the ZHB. At the July 9, 2018, ZHB hearing, the Township and the residents

again opposed Grace Land’s Building Permit. At the conclusion of the residents’ comments,

without deliberation, the ZHB unanimously voted to reject Grace Land’s appeal. In its written

August 22, 2018 decision, the ZHB adopted the Township’s argument requiring the Building

Permit to receive land development approval.

Grace Land and Daybreak allege the ZHB’s denial is in direct contradiction of

Pennsylvania Supreme Court precedent “which establishes that development approval is only

required when ‘large-scale development of land’ is involved.” Id. ¶ 70 (citing Upper Southampton

Twp. v. Upper Southampton Twp. Zoning Hearing Bd., 934 A.2d 1162, 1167 (Pa. 2007)). Grace

Land further alleges its Building Permit does not involve large-scale development of land because

it seeks to reduce the Building improvements and the new parking will be located on the same

impervious surface already in existence. Id. ¶ 71. Again, Plaintiffs allege the reasons Defendants

provided in denying their applications were merely pretextual.

On July 27, 2018, and September 21, 2018, Grace Land filed two separate land use appeals

in the Court of Common Pleas of Bucks County, Pennsylvania (the Bucks County Appeals). On

December 14, 2018, Plaintiffs filed the instant action alleging a claim under 42 § U.S.C. 1983 for

violations of due process and equal protection (Count I), a claim under the Americans with

Disabilities Act (ADA) (Count II), and a claim under the Rehabilitation Act (RA) (Count III). On

January 10, 2019, Defendants moved to dismiss the Complaint. In response, Plaintiffs filed the

Amended Complaint. Defendants then filed the instant Motion to Dismiss Plaintiffs’ Amended

Complaint on February 12, 2019.2 The Court heard oral argument on the Motion on April 10, 2019.

After oral argument, on April 30, 2019, the Bucks County Court of Common Pleas (the

Bucks County Court) issued its decision on Grace Land’s appeals. The Bucks County Court’s

decision reversed ZHB’s denial of both the Medical Office Application and the Building Permit.

See Pls.’ Mot. to Suppl. the R. on Defs.’ Mot. to Dismiss (Pls.’ Suppl.) Ex. A. The Bucks County

Court reviewed the parking requirements needed for Plaintiffs’ permit and held Plaintiffs’

requirements “are actually less than those of the [Bank].” Id. at 5. The Bucks County Court also

held Plaintiffs’ Building Permit did not constitute a land development because it “would have the

salutary effect of reducing the magnitude of the pre-existing non-conformity.” Id. at 5-6. The

Township appealed the Bucks County Court’s decision to the Commonwealth Court, and on June

2 Defendants also filed a Motion to Strike portions of Plaintiffs’ Amended Complaint. “Relief

under Rule 12(f) is generally disfavored and will be denied unless the allegations have no possible

relation to the controversy and may cause prejudice to one of the parties, or if the allegations

confuse the issues in the case.” Simmons v. Simpson House, Inc., 224 F. Supp. 3d 406, 421 (E.D.

Pa. 2016) (quotation and citation omitted). The Court will deny Defendants’ Motion to Strike

because the allegations sought to be struck are relevant to Plaintiffs’ claims, demonstrate

Defendants’ discriminatory animus toward Plaintiffs, and do not prejudice Defendants.

25, 2019, the Bucks County Court filed a supplemental opinion.3 Defendants’ Motion is now ripe

for review.

DISCUSSION

To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is facially plausible when the facts pleaded “allow[] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. In

evaluating a Rule 12(b)(6) motion, a district court must separate the legal and factual matter

elements of the plaintiff’s claims. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.

2009). The court must then “determine whether the facts alleged in the complaint are sufficient to

show that the plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting Iqbal, 556 U.S. at

679).

Defendants move to dismiss each of Plaintiffs’ claims for several reasons. First, Defendants

argued the Court should abstain from hearing this case pursuant to Younger v. Harris, 401 U.S. 37

(1971) until the Bucks County Court disposed of the two appeals which were still pending at the

time of this Motion. Because the Bucks County Court has issued its decision, reversing the ZHB

decisions and ordering the issuance of Plaintiffs’ permits, Defendants’ argument is now moot, and

the Court will not further address it. Also, because Plaintiffs received the injunctive relief they

sought in this Court in the Bucks County Appeals, the Court will dismiss the claims for injunctive

3 Plaintiffs moved to supplement the record on Defendants’ Motion to Dismiss with the Bucks

County Court’s opinion on July 1, 2019. See Pls.’ Mot. to Suppl. the R. on Defs.’ Mot. to Dismiss,

July 1, 2019, ECF No. 18. Plaintiffs’ Motion is granted and the Court will consider the Bucks

County Court’s supplemental opinion.

relief against all Defendants. See Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399,

411-16 (3d Cir. 2005) (stating claims for injunctive relief in land use appeal were available in

ongoing state proceedings); Gordon v. E. Goshen Twp., 592 F. Supp. 2d 828, 837-38 (E.D. Pa.

2009) (dismissing claims as moot when, after filing complaint, plaintiffs received the injunctive

relief originally sought).

Defendants next argue Plaintiffs lack standing to bring claims under either the ADA or the

RA. Defendants assert Plaintiffs’ standing is premised on third-party standing and Plaintiffs have

failed to allege an existing relationship with any individuals who qualify for relief under the ADA

or RA. “Standing is inextricably linked to the type of relief sought.” RHJ Med. Ctr., Inc. v. City of

DuBois, 754 F. Supp. 2d 723, 743 (W.D. Pa. 2010). If the remedy sought is damages, Article III

requires the injury only be suffered by the entity. See id. Associating with prospective patients is

permissible for purposes of ascertaining standing, as Article III grants standing if the injury is

“actual or imminent.” Id. at 742. An injury is actual or imminent if the plaintiff took “certain

concrete steps towards opening of the [medical facility] and establishing a relationship with

patients.” Id.

Under the ADA and RA, an entity’s standing is not limited to suits on behalf of its members

or clients. An entity may also sue “in its own right.” See Addiction Specialists, Inc., 411 F.3d at

406-07. While entities are “protected by these statutes only by virtue of [their] association with

disabled individuals, [their] standing to sue arises from [their] own alleged injuries, not those of

[their] clients.” Id. at 407. Defendants’ argument is premised on Plaintiffs only seeking relief on

behalf of their clients. The Amended Complaint, however, establishes Plaintiffs are injured by

“alleged violations of [their] own rights under the ADA and RA.” See Am. Compl. ¶¶ 106-09,

115-18 (“Plaintiffs have expended time and financial resources and have lost the opportunity to

conduct their business and provide a much-needed service.”). Plaintiffs have sufficiently alleged

they were denied the Medical Office Application and Building Permit because of their association

with potential clients who are individuals with disabilities. Plaintiffs also took “certain concrete

steps” toward opening a medical facility to help recovering alcohol and drug addicts by purchasing

the Property and filing the requisite Medical Office Application and Building Permit. The injury

to prospective patients was sufficiently imminent to establish standing in this case. See RHJ Med.

Ctr., Inc., 754 F. Supp. 2d at 743 (finding plaintiff who attempted to open a methadone clinic had

standing to bring claims for injunctive relief where it entered into a ten-year lease, renovated the

building to meet Pennsylvania Department of Health standards, and took steps toward obtaining

the requisite licenses). The Court thus finds Plaintiffs have established standing for damages under

the ADA and RA. See Addiction Specialists, Inc., 411 F.3d at 407 (holding organization had

standing in its own right by way of its association with prospective clients who would qualify as

disabled under ADA); RHJ Medical Ctr., Inc., 754 F. Supp. 2d at 739-40 (stating medical clinic’s

prospective clients were sufficient to establish a relationship for organizational standing).

Defendants’ Motion to Dismiss is denied on this ground.4

4 Defendants argue even if Plaintiffs establish standing by their relationship with the individuals

they will serve, the individuals do not qualify under the ADA and RA because the individuals

“currently engag[e] in the illegal use of drugs.” Defs.’ Mot. to Dismiss 9. Although individuals

using drugs are typically excluded from ADA and RA protections, persons with drug addictions

are entitled to protections offered by the ADA and RA in connection with their attempts to obtain

drug rehabilitation services. See RHJ Med. Ctr., 754 F. Supp. 2d at 749-50. Plaintiffs have alleged

their patients are recovering addicts, see Am. Compl. ¶ 23. Taken as true, these allegations are

sufficient to withstand Defendants’ motion to dismiss. See New Directions Treatment Servs. v.

City of Reading, 490 F.3d 293, 308 (3d Cir. 2007) (stating person who has completed or is currently

participating in rehabilitation program is no longer engaging in drug use and qualifies under ADA

and RA). Because this determination is subject to a factual inquiry, however, Defendants may

reassert this argument at a later stage if warranted. See id. at 310 (stating question of whether drug

use is ongoing problem is a “fact bound inquiry” requiring analysis of treatment protocols).

The Court next turns to Defendants’ argument that Plaintiffs have failed to state a claim

for a violation of their substantive due process and equal protection clause rights under the

Fourteenth Amendment pursuant to 42 U.S.C. § 1983. Section 1983 which creates a statutory

mechanism for private individuals to vindicate their federal constitutional rights.5 See Albright v.

Oliver, 510 U.S.C. 266, 271 (1994) (“Section 1983 is not itself a source of substantive rights, but

merely provides a method for vindicating federal rights elsewhere conferred.” (internal quotation

marks omitted)). To prevail on their claims, Plaintiffs must produce evidence that “a person acting

under color of state law engaged in conduct that violated a right protected by the Constitution or

laws of the United States.” Morrow v. Balaski, 719 F.3d 160, 165-66 (3d Cir. 2013). In evaluating

a § 1983 claim, the Court must first “identify the exact contours of the underlying right said to

have been violated.” Id. at 166 (quoting Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en

banc)). The Court must then “determine whether the plaintiff has alleged a deprivation of a

constitutional right at all.” Id.

Defendants argue because Plaintiffs have failed to plead their § 1983 claims because they

cannot establish an underlying violation of their constitutional rights. Specifically, Defendants

argue Plaintiffs have failed to plead (1) sufficient facts alleging conduct that “shocks the

conscience” on the substantive due process claim, or (2) sufficient facts alleging a similar medical

5 In pertinent part, 42 U.S.C. § 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983.

facility was treated differently than Plaintiffs’ on the equal protection claim. In the Amended

Complaint, Plaintiffs allege Defendants denied their Medical Office Application and Building

Permit because of their bias against recovering alcohol and drug addicts. See, e.g., Am. Compl. ¶

94-98.

The Due Process Clause of the Fourteenth Amendment protects an individual against

arbitrary action of the government. Wolff v. McDonnell, 418 U.S. 539, 558 (1974). The Supreme

Court, however, has “repeatedly emphasized that only the most egregious official conduct can be

said to be arbitrary in the constitutional sense.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 846

(1998) (internal quotation marks omitted). Official conduct is sufficiently egregious only when it

“shocks the conscience.” Id. at 846–47. Application of the “shocks the conscience” standard in the

zoning context prevents federal courts from being cast in the role of a “zoning board of appeals.”

United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA, 316 F.3d 392, 402 (3d Cir. 2003).

“What shocks the conscience, however, is a flexible standard that depends on the factual

context of the particular case at hand.” Assocs. In Obstetrics & Gynecology v. Upper Merion Twp.,

270 F. Supp. 2d 633, 654 (3d Cir. 2003). The determination is not a “precise” or technical exercise,

Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004), and the Third Circuit has

recognized determining whether conduct qualifies as conscience-shocking “varies depending on

the context.” United Artists Theatre Circuit, Inc., 316 F.3d at 399 n.5. The Supreme Court has

noted that “conduct intended to injure in some way unjustifiable by any government interest is the

sort of official action most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849.

The Amended Complaint alleges Defendants denied Plaintiffs’ Medical Office Application

and Building Permit because of their bias against recovering alcohol and drug addicts. See Am.

Compl. ¶ 94-98. Taking the allegations as true, the Court finds Defendants (1) stated—on more

than one occasion—they did not want to have a drug treatment facility at the Property, see id. ¶

29, 34-35, 38; (2) attempted to persuade Plaintiffs to find another location and later prevented

Plaintiffs from acquiring that different location, see id. ¶ 35-43; (3) stated the Township hoped to

build a water park and worried Plaintiffs’ patients “would try to use the water park to take

showers,” see id. ¶ 35; (4) stated they would not have approved the commercial zoning if they

knew that a drug and alcohol operator would buy the Property, see id. ¶ 38; and (5) the ZHB

Solicitor announced he believed the denials were “not really about the parking,” see id. ¶ 60.

Plaintiffs’ allegations of bias and discriminatory animus are even more plausible in light of the

Bucks County Court issuing its decision reversing Defendants’ denials of the Medical Office

Application and the Building Permit. See Pls.’ Suppl. Ex. A.

With these allegations, and drawing all reasonable inferences in Plaintiffs’ favor, the

Amended Complaint has alleged conduct which shocks the conscience because, as alleged,

Defendants’ conduct was intended to injure Plaintiffs and was done with a complete lack of a

legitimate government interest—i.e., discriminatory animus towards Plaintiffs and their potential

clients. See Assocs. In Obstetrics & Gynecology, 270 F. Supp. 2d at 655-56 (stating a plaintiff-

medical provider could assert a substantive due process claim against a township and zoning

hearing board where the plaintiff alleged it was denied a permit to operate an abortion clinic based

on discriminatory animus); E. Rockhill Twp. v. Richard E. Pierson Materials Corp., 386 F. Supp.

3d 493, 500 (E.D. Pa. 2019) (stating shocks the conscience test requires a demonstration of a lack

of a legitimate government purpose); cf. Eichenlaub, 385 F.3d at 286 (stating local officials

accused of denying land use development because of bias against an ethnic group rises to level of

shocking the conscience). Although the Amended Complaint “hint[s] at a possible legitimate

reason” for Defendants’ denials—such as responding to the public interest—at this stage, Plaintiffs

have alleged sufficient facts to proceed to discovery on this claim. Cornell Cos., Inc. v. Borough

of New Morgan, 512 F. Supp. 2d 238, 260-61 (E.D. Pa. 2007) (denying motion to dismiss because

plaintiff alleged non-legitimate government purpose and despite possible legitimate reason for

allegedly discriminatory zoning practices). Defendants’ Motion to Dismiss is therefore denied on

Plaintiffs’ substantive due process claim in Count I.

Turning to the Plaintiffs’ equal protection claim, Defendants argue Plaintiffs have failed to

identify another medical facility that Defendants treated differently than Plaintiffs. To state a

cognizable claim pursuant to the Equal Protection Clause of the Fourteenth Amendment, a plaintiff

must first establish it is similarly situated to other entities. See Cty. Concrete Corp. v. Twp. of

Roxbury, 442 F.3d 159, 171 (3d Cir. 2006) (citing Congregation Kol Ami v. Abington Twp., 309

F.3d 120, 137 (3d Cir. 2002). “Persons are similarly situated under the Equal Protection Clause

when they are alike in all relevant aspects.” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir.

2008) (internal quotations omitted). In Congregation Kol Ami v. Abington Township, the Third

Circuit noted district courts must consider “whether the two entities have the same impact” on the

surrounding community and whether the entities are similar in “scale,” “purpose,” and “intensity”

of land use. 309 F.3d at 139, 142.

In this instance, Plaintiffs concede the Bank and Daybreak are not similar in purpose. See

Pls.’ Resp. in Opp’n to Mot. 18 (“Although the Bank and Daybreak Treatment are clearly

providing different services, they are roughly equivalent.”). The Bank and Daybreak being

“roughly equivalent” does not satisfy the similarly situated test as a matter of law. See Real

Alternatives, Inc. v. Sec’y Dep’t of Health & Human Servs., 867 F.3d 338 (3d Cir. 2017) (finding

secular health clinic opposed to contraceptive health mandate not similarly situated in purpose to

religious entity with same opposition). Other than the Bank, the Amended Complaint does not

identify any other similar medical facilities treated differently than Plaintiffs. As a result, Plaintiffs

have failed to allege the threshold requirement being similarly situated to other entities.

Defendants’ Motion to Dismiss will therefore be granted as to Plaintiffs’ § 1983 equal protection

claim in Count I.

Next, The ZHB and Zoning Officer Scott argue they are entitled to “quasi-judicial”

absolute immunity. The Individual Defendants also make several arguments to dismiss the claims

against them in both their individual and official capacities, including (1) the claims against them

in their official capacities are duplicative of the claims against the Township and ZHB and should

be dismissed; (2) they are not subject to suit under the ADA or RA; and (3) they are entitled to

qualified immunity as to the claims against them in their individual capacities.

Regarding the Individual Defendants’ argument that the claims against them in their

official capacities are duplicative of those against the governmental entities, the Court agrees.

Pursuant to Hafer v. Melo, there is complete symmetry between a governmental entity as a

defendant and the officers who hold positions in that governmental entity in their official

capacities. See 502 U.S. 21, 25 (1991). Plaintiffs’ official capacity claims against Township

Council President Bowen, Township Manager McCauley, and Zoning Officer Scott are duplicative

of claims against the Township and must be dismissed. See A.M. v. Luzerne County Juvenile Det.

Ctr., 372 F.3d 572, 580 (3d Cir. 2004) (“A suit against a governmental official in his or her official

capacity is treated as a suit against the governmental entity itself.”). The Court will dismiss

Plaintiffs’ claims against the Individual Defendants in their official capacities.

Turning to the issue of quasi-judicial immunity, the Court finds ZHB is not entitled to

absolute immunity and reserves ruling on whether Zoning Officer Scott is entitled to absolute

immunity. Judicial immunity is extended to those performing “quasi-judicial functions.” Bass v.

Attardi, 868 F.2d 45, 49–50 (3d Cir. 1989). The Third Circuit has stated members of a zoning

board who are ruling on a zoning permit for a particular piece of property are performing a quasi-

judicial function. See Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Twp., 181 F.3d 403,

409 (3d Cir. 1999) (citing Urbano v. Meneses, 431 A.2d 308, 311 (Pa. Super. Ct. 1981)). A

township and township zoning hearing board, however, are not entitled to absolute immunity. See

Bass, 868 F.2d at 50-51 (stating governmental entity has “no immunity whatsoever”). Therefore,

ZHB is not entitled to absolute immunity and the Court will deny Defendants’ Motion on this

basis.

Regarding the individual capacity claims against Zoning Officer Scott, it is possible he

may be entitled to absolute immunity in his individual capacity. See Bass, 868 F.3d at 50-51

(holding members of planning board were entitled to absolute immunity where their duties were

“so integrally related to the judicial process as to warrant shielding from liability”). The record,

however, is not sufficiently developed to make this determination. See Cleavinger v. Saxner, 474

U.S. 193, 202 (1985) (identifying six characteristics to assist in the inquiry of quasi-judicial

immunity: (1) the need to assure that the individual can perform his functions without harassment

and intimidation; (2) the presence of safeguards that reduce the need for private damages actions

as a means of controlling unconstitutional conduct; (3) insulation from political influence; (4) the

importance of precedent; (5) the adversarial nature of the process; and (6) the correctibility of error

on appeal). The Court reserves ruling on whether Zoning Officer Scott (or any of the other

Individual Defendants) are entitled to absolute quasi-judicial immunity until the record is more

developed.6 See, e.g., Lonzetta Trucking and Excavating Co., 144 F. App’x at 210-11 (determining

6 In Defendants’ brief, they state broadly, “the individual Defendants are entitled to absolute

immunity.” Within the text of the argument, however, Defendants only identify Zoning Officer

Scott and ZHB as being “charged with the enforcement and application of the Township’s Zoning

absolute immunity at the summary judgment stage); Long v. Bristol Twp., No. 10-1069, 2012 WL

2864410, at *1 (E.D. Pa. July 11, 2012) (determining absolute immunity on a summary judgment

record). Defendants’ Motion on this point is thus denied without prejudice as to reassertion.

The Individual Defendants next argue Plaintiffs’ claims against them in their individual

capacities are not cognizable under the ADA or RA. First, the RA applies only to entities that

receive federal financial assistance. See Koslow v. Pennsylvania, 302 F.3d 161, 170 (3d Cir. 2002)

(quoting 29 U.S.C. § 794(a) (providing that the RA applies only to “any program or activity

receiving Federal financial assistance”)). Because Plaintiffs do not allege the Individual

Defendants receive federal financial assistance, the individual capacity RA claims against them

must be dismissed. See Mohney v. Pennsylvania, 809 F. Supp. 2d 384, 392-93 (W.D. Pa. 2011)

(dismissing RA claims against individually named defendants where plaintiffs did not allege they

received federal financial assistance).

Second, under the ADA, the Third Circuit has found there is generally no individual

liability. See Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002) (“[W]e hold that the

individual . . . defendants . . . are not subject to individual liability under . . . the ADA.”). An

exception exists when an individual is sued for prospective injunctive relief. See Koslow, 302 F.3d

at 168 (stating “a person seeking purely prospective relief against state officials for ongoing

violations of federal law may sue under the ‘legal fiction’ of Ex parte Young” 209 U.S. 123, 159–

60 (1908)). Because the Court has dismissed all Plaintiff’s claims for injunctive relief as moot in

light of the Bucks County Court’s decision in the Bucks County Appeals, the exception does not

Ordinance” and making “discretionary determinations” such that they are entitled to absolute

immunity. See Defs.’ Mot. to Dismiss 16. The Court construes the argument for absolute immunity

to apply only to ZHB and Zoning Officer Scott. Insofar as Defendants assert the argument as to

the other Individual Defendants, the Motion is likewise denied without prejudice, as to reassertion.

apply and only Plaintiffs’ claim for damages is at issue—which is non-cognizable. See McQuaid

v. Acts Ret. Cmtys. Southampton Estates, No. 04-3620, 2005 WL 2989642, at *2 (E.D. Pa. 2005)

(dismissing ADA claims against individual defendants because there is no individual liability

under the ADA). Accordingly, Defendants’ Motion will be granted insofar as the ADA claim

seeking damages from the Individual Defendants is dismissed.

For the remaining individual capacity substantive due process claim, the Individual

Defendants argue they are entitled to qualified immunity because their decision was premised on

the language of a lawful ordinance and they were thus not aware their actions deprived Plaintiffs

of their constitutional rights. See Defs.’ Mot. 18. “[Q]ualified immunity protects government

officials from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (internal quotations omitted).

Qualified immunity “protects all but the plainly incompetent or those who knowingly violate the

law.” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015) (internal quotations

omitted). Government officials are not liable under § 1983 “as long as their actions reasonably

could have been thought consistent with the rights they are alleged to have violated.” Kedra v.

Shroeter, 876 F.3d 424, 434 (3d Cir. 2017).

In deciding whether qualified immunity applies, the Court must consider two questions:

“First, the constitutional question is ‘whether the facts that a plaintiff has alleged or shown make

out a violation of a constitutional right’[;] . . . Second, the qualified immunity question is ‘whether

the right at issue was “clearly established” at the time of a defendant’s alleged misconduct.’”

Southerland v. Pennsylvania, 389 F. App’x 166, 170 (3d Cir. 2010) (quoting Pearson v. Callahan,

555 U.S. 223, 232 (2009)). The first prong is a “factual question,” which is appropriate for juries

to decide, while the second prong should be decided by courts. Curley v. Klem, 499 F.3d 199, 211

(3d Cir. 2007).

With respect to the first question, the Amended Complaint alleges the Individual

Defendants exercised their authority to deny the Medical Office Application and the Building

Permit for discriminatory reasons. As discussed, Plaintiffs have alleged sufficient facts to survive

the motion to dismiss stage for their substantive due process claim. Specifically, Plaintiffs allege

the Individual Defendants acted with discriminatory animus in their participation in denying their

permits and stated numerous times, they did not want the proposed treatment center at the Property.

Plaintiffs have also alleged Defendants’ reliance on zoning ordinances was pretextual to their true

bias against Plaintiffs and their prospective clients. See supra (discussion on substantive due

process claim). The Individual Defendants’ alleged conduct, if true, violated Plaintiffs’

constitutional rights. See Pa. Care, LLC v. Borough, No. 10-956, 2011 WL 1135008, at *6 (E.D.

Pa. Mar. 25, 2011) (denying motion to dismiss on the grounds of qualified immunity where the

defendant was alleged to have shut a methadone clinic due to discriminatory animus toward

recovering drug addicts).

Defendants assert, however, Plaintiffs’ substantive due right was not clearly established

because “reasonable members of a municipal governing body in Pennsylvania would not have

known that a decision, based upon the express language of an otherwise lawful Township Zoning

Ordinance and SALDO, to deny a use and occupancy application of a medical office would deprive

Plaintiffs of any constitutional rights.” Defs.’ Mot. to Dismiss 18. This argument is unpersuasive

in light of Plaintiffs’ allegations. Plaintiffs do not allege the Individual Defendants unreasonably

relied on or incorrectly interpreted the land use ordinances. Rather, Plaintiffs allege the reliance

on the ordinances was pretext for the underlying discriminatory animus toward them and their

clients. See Am. Compl. ¶¶ 56, 60, 74. Plaintiffs allege Defendants’ denials of the Medical Office

Application and Building Permit were contradictory to established land use law, and when coupled

with the discriminatory comments and other conduct, show Defendants did not rely on the stated

land use ordinances. See In re Montgomery Cty., 215 F.3d 367, 377 (3d Cir. 2000) (holding

complaint alleging pretext for discriminatory action sufficiently alleged clearly established right

to be free from discrimination and denying qualified immunity at motion to dismiss stage).

Although neutrally applying an ordinance would not violate a clearly established right,

Defendants’ alleged conduct in denying Plaintiffs’ zoning and permits based on irrationality,

arbitrariness, and discrimination, does violate a clearly established right. See United Artists

Theatre Circuit, Inc., 316 F.3d at 398-402 (holding land use decisions violate substantive due

process where governmental conduct “shocks the conscience”); Cty. Concrete Corp., 442 F.3d at

170 (stating improper animus is not a legitimate reason for enacting a zoning ordinance and

violates substantive due process). In this case, the allegations state Defendants acted intentionally

to discriminate against Plaintiffs for their association with patients who suffer and are recovering

from drug and alcohol addiction. Plaintiffs have the right to be free from land zoning decisions

based on discriminatory animus rather than legitimate land zoning purposes. See Cty. Concrete

Corp., 442 F.3d at 170. Defendants are therefore charged with knowledge of Plaintiffs’

fundamental constitutional right in substantive due process. See Assocs. In Obstetrics &

Gynecology, 270 F. Supp. 2d at 661 (“charging” defendants with knowledge of plaintiffs

constitutional rights). Accordingly, because qualified immunity is not clearly established from the

face of the complaint, the Individual Defendants’ qualified immunity argument is denied. See id.

(denying qualified immunity at motion to dismiss stage where complaint alleged defendants

intentionally discriminated against medical clinic).

Nevertheless, because Plaintiffs must still prove that the Individual Defendants violated

their substantive due process rights and defendants may still show their decisions were based on

their interpretations of the zoning ordinances, the Individual Defendants may reassert their

qualified immunity argument at a later date, if necessary. See Stanley v. City of Pittsburgh, 2015

WL 13745262, at *9 (W.D. Pa. Nov. 24, 2015) (rejecting qualified immunity at motion to dismiss

stage because determination of whether a decision occurred with discriminatory or non-

discriminatory motivations is a question of fact) (citing In re Montgomery Cty., 215 F.3d at 377).

The Court will deny the Motion as to Plaintiffs’ substantive due process claim against the

Individual Defendants in their individual capacities.

CONCLUSION

For the above stated reasons, Defendants’ Motion will be granted as to Plaintiffs’ equal

protection claim in Count I, all claims against the Individual Defendants in their official capacities

in Counts I - III, the RA claims against the Individual Defendants in their individual capacities for

damages in Count II, the ADA claims against the Individual Defendants in Count III their

individual capacities for damages, and all claims for injunctive relief in light of the Bucks County

Court’s decision in the Bucks County Appeals. Defendants’ Motion will be denied with respect

to Plaintiffs’ substantive due process claim, the claims against ZHB and Zoning Officer Scott, and

the Individual Defendants in their individual capacities.

An appropriate order follows.

BY THE COURT:

/s/ Juan R. Sánchez.

Juan R. Sánchez, C.J.