SMALIS v. CITY OF PITTSBURGH

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANASTASIOS SMALIS, )

)

) 2:19-CV-1609-NR

Plaintiff, )

)

v. )

)

CITY OF PITTSBURGH, et al., )

)

)

Defendants. )

)

MEMORANDUM ORDER1

Plaintiff Anastasios Smalis, proceeding , brings Section 1983 claims for

unlawful takings of his property. Before the Court are Defendants’ motions to dismiss

the fifth amended complaint. ECF 93 (City of Pittsburgh’s motion to dismiss); ECF

110 (Allegheny County’s motion to dismiss). At the outset of this case, Mr. Smalis

was represented by counsel, but Mr. Smalis is now proceeding . ECF 80. As

such, the Court is required to liberally construe his allegations.

, 655 F.3d 333, 339 (3d Cir. 2011), (Sept. 19, 2011) (“The

obligation to liberally construe a litigant’s pleadings is well-established.”).

Even with that benefit, all of Mr. Smalis’s claims fail as a matter of law. So, the Court

grants Defendants’ motions to dismiss for the following reasons.

, Count 1 is time-barred by the applicable statute of limitations.

Count 1 is a facial challenge to a City zoning ordinance that was enacted in 2005 and

which re-zoned certain property that impacted Mr. Smalis’s development plans. ECF

90, ¶ 23 & p. 20. “The length of the statute of limitations for a § 1983 claim is

governed by the personal injury tort law of the state where the cause of action arose.”

, 589 F.3d 626, 634 (3d Cir. 2009). In Pennsylvania, the statute of

1 The Court presumes the parties’ familiarity with the facts, and so will not repeat

them, and will otherwise refer to the relevant factual averments within the analysis.

limitations for personal-injury claims is two years. 42 Pa. Cons. Stat. Ann. § 5524.

Under federal law, a cause of action accrues “when the plaintiff knew or should have

known of the injury upon which its action is based.” , 589 F.3d at 634 (cleaned

up).

“In the context of a facial takings challenge, the limitations period accrues

when the purportedly unconstitutional statute or regulation is enacted or becomes

effective.”

, 659 F.3d 42, 50 (1st Cir. 2011). Here, as alleged, the

zoning ordinance was enacted in 2005. ECF 90, p. 2. That is the relevant accrual

date, and it is also a date that is 14 years before this action was filed. The claim is

therefore time-barred.

To get around the statute of limitations, Mr. Smalis tries to toll it. He asserts

that the City’s actions constitute a continuing violation. ECF 107, p. 20. But even

assuming that this doctrine could apply to a facial challenge to an ordinance,2 Mr.

Smalis cannot rely on it. This is so because the doctrine “does not apply when

plaintiffs are aware of the injury at the time it occurred.”

., 592 F. App’x 81, 85 (3d Cir. 2014) (cleaned up). Mr.

Smalis was aware of the ordinance for many years, as his own allegations reflect.

ECF 90, ¶ 23 (alleging that Mr. Smalis knew of the 2005 zoning ordinance as of 2015).

So, tolling cannot save his claim.

, Count 2 is not ripe. In Count 2, Mr. Smalis asserts an as-applied

challenge to the 2005 zoning ordinance. ECF 90, p. 21. This claim is not ripe because

2 Mr. Smalis cites no cases where a court has applied this tolling doctrine in the

context of a facial constitutional challenge. It would appear to be ill-fitting to such a

claim because the continuing-violation doctrine focuses on the “defendant’s

affirmative acts,” which would appear to be largely irrelevant to a facial challenge.

, No. 99-3216, 1999 WL 1212180, at *2 (E.D. Pa. Dec. 16, 1999),

, 263 F.3d 286 (3d Cir. 2001).

it is not “final.” In , the Supreme Court re-affirmed the

requirement that for an as-applied takings claim to be ripe, it must be final—in other

words, the zoning authority has made a final determination that the ordinance

applies in the way the plaintiff asserts. 139 S. Ct. 2162, 2169 (2019). The finality

burden isn’t heavy, but it still must be satisfied to bring a takings claim in federal

court. , 594 U.S. 474, 479 (2021)

(stating that “ finality” is required to ensure “that a plaintiff has actually been

injured by the Government’s action and is not prematurely suing over a hypothetical

harm” (cleaned up)).

For purposes of finality, “[i]t is well established that, in § 1983 cases involving

land-use decisions, a property owner does not have a ripe claim until the zoning

authorities have had an opportunity to arrive at a final, definitive position regarding

how they will apply the regulations at issue to the particular land in question.”

, 319 F.3d 568, 574 (3d Cir. 2003) (cleaned up) (holding

that the plaintiff’s claim was ripe because the township’s threat to institute state

court litigation threatened a concrete injury). “This finality rule recognizes that, with

respect to zoning disputes, a property owner suffers no mature constitutional injury

until the zoning authority defines the application of the zoning ordinance and defines

the harm to the owner.” , 983 F.2d 1285, 1291

(3d Cir. 1993).

Here, Mr. Smalis has not pled finality for Count 2 against the City because he

has not alleged any facts showing that he applied for and was denied a variance.

, 594 U.S. at 480 (stating that “plaintiff’s failure to properly pursue

administrative procedures may render a claim unripe avenues still remain for the

government to clarify or change its decision.” (emphasis original)); ,

, 6 F.4th 1216, 1229-30 (10th Cir. 2021) (affirming dismissal

of takings claim as unripe because the plaintiff had not obtained a final decision

because it had not submitted a development proposal for the board to review);

, No. 21-61, 2021 WL 4477326,

at *5 (D. Colo. Sept. 30, 2021) (holding takings claim was not ripe because the plaintiff

had not sought a variance); , No. 20-28, 2021 WL

1572563, at *7 (S.D. Ala. Apr. 21, 2021) (same);

, No. 19-100, 2020 WL 6145103, at *4 (C.D. Cal. Oct. 12, 2020)

(same). Mr. Smalis doesn’t allege that he applied for and was denied a variance. As

such, the City’s zoning authority has not had the opportunity to define the application

of the ordinance to Mr. Smalis’s property or define the harm to him. ,

983 F.2d at 1291. Because Mr. Smalis has not pleaded finality, his as-applied

challenge is not ripe.3

, Count 3 is time-barred by the applicable statute of limitations.

In Count 3, Mr. Smalis alleges that the City’s actions in granting a permit to a utility

company to construct electrical poles and wires on his property constitute takings.

ECF 90, p. 22. The gist of this claim is that the permitting of the work to construct

the electrical poles and wires by the City was a taking; this then made it difficult for

him to repair his roof; and when he failed to do that, the City then later condemned

the property.4

3 This isn’t some toothless requirement. Land use is often a back-and-forth process.

Mr. Smalis alleged that he had development plans that were stymied by the re-zoning

ordinance. ECF 90, ¶¶ 23-25. But if he had applied for a variance, he could have

presented those plans to the zoning board, and the board could have provided relief,

or worked with him on certain compromises. Mr. Smalis doesn’t plead that he went

through such a process, and was finally denied. This is also not a pleading oversight;

Mr. Smalis expressly cites and the ripeness requirement in his complaint.

at 26.

4 The Court views this claim as more of an attack on the City’s permitting of the work

of the utility, not the City’s ultimate condemnation action. To the extent that the

claim involves the condemnation actions by the City, it fails as a matter of law. For

purposes of the Takings Clause, “[p]roperty is not ‘taken’ where a city or other

appropriate public authority has acted pursuant to its right and obligation to ensure

As to Mr. Smalis’s claims related to the electrical poles and wires, as discussed

above, the statute of limitations for Section 1983 claims in Pennsylvania is two years.

, 589 F.3d at 634; 42 Pa. Cons. Stat. Ann. § 5524. According to Mr. Smalis,

he first wrote to “Electric Utility” about the wooden cross member that was partially

over the roof of his property on September 8, 2010. ECF 90, ¶ 10. Mr. Smalis also

alleges that the City granted the utility company a permit to install an electrical pole

in 2012. , p. 2 & ¶ 12. As alleged in in the fifth amended complaint, Mr. Smalis

was aware of problems with the electrical poles and wires in question at the latest by

2012, seven years before he filed his first complaint in this case. ECF 1 (filed on

December 13, 2019). Because the statute-of-limitations defense is clear from the face

of the fifth amended complaint, the Court dismisses this claim as time-barred. ,

279 F. Supp. 3d at 578. 5

public safety in remediating a dangerous condition.” .,

No. 23-711, 2023 WL 6609023, at *8 (M.D. Pa. Oct. 10, 2023) (holding that the City

was acting pursuant to its police power when it demolished a condemned building),

, (3d Cir. Nov. 24, 2023).

5 Along with his as-applied challenge to the 2005 zoning ordinance, Mr. Smalis also

makes passing reference to three other possible claims as part of Count 3. To the

extent these are separate claims, they also fail.

First, Mr. Smalis alleges that the City’s installation of a water line through his

property constitutes a taking. ECF 90, ¶ 34. Mr. Smalis asserts he contacted the

Pittsburgh Water & Sewer Authority, the PWSA denied knowledge of the water line,

he submitted a “right to know” law request to the City, and the City never responded.

He alleges that these requests and responses (or lack thereof), taken together,

prove that the City enacted a permanent taking when the PWSA replaced the water

line. To the extent that this is a claim against PWSA, it fails because PWSA is

not a party. Otherwise, the pleading connection between the water line and the City

is too tenuous and speculative to state a claim. Other than a conclusory allegation

that because the PWSA did not know about the water line, it must have been the City

that installed the water line, Mr. Smalis makes no other allegations to support this

purported takings claim.

Second, Mr. Smalis also alleges that the City and the County’s lead-based paint

ordinances are takings. As to the County’s ordinance, the County enacted the

, Count 4 consists of solely state-law claims, and the Court will

not exercise jurisdiction over them. 6 Mr. Smalis claims that the City and County

lead-based paint ordinances violate the Pennsylvania Constitution and the “Home

rule Charter of City of Pittsburgh, Allegheny county[.]” ECF 90, p. 24, ¶ 55

(capitalization original). These are state-law claims. District courts may exercise

supplemental jurisdiction over state-law claims that are related to federal claims. 28

ordinance in question on July 5, 2017, more than two years before this action was

first filed. ECF 1 (filed on December 13, 2019). Thus, any federal takings claim

related to this ordinance is time-barred. As to the City’s ordinance, Mr. Smalis

alleges that it “imposes a severe burden on private property rights” because “[p]rior

to [the] new ordinance City of Pittsburgh did not require [a] permit to paint or

pointing of bricks which now existing paint & brick mortar on plaintiffs building build

in 1960 contain lead interior & exterior including existing brick mortar.” ECF 90, ¶¶

40-41. Mr. Smalis concludes that the ordinance constitutes a taking because his

property contains lead-based paint. at 41. However, Mr. Smalis doesn’t allege

that he was required to perform remediation measures, and therefore suffered any

injury-in-fact. Nor does he allege that he sought some type of variance or special

exemption to limit or reduce any future remediation obligations.

A district court is “not compelled to accept unsupported conclusions and

unwanted inferences[.]” , 481 F.3d 187, 195 (3d Cir. 2007)

(cleaned up). A complaint cannot survive a motion to dismiss if it contains only

“naked assertions devoid of further factual enhancement.” , 556 U.S.

662, 678 (2009) (cleaned up). Even construing Mr. Smalis’s allegations

liberally, the allegations related to the water line and the takings claims for the City

and County lead-based paint ordinances are too conclusory to survive a motion to

dismiss.

6 In Count 1, Mr. Smalis also claims that the City was using his property as a staging

ground for community events and allowing the public to park on his property. ECF

90, ¶¶ 29-30, 39 (“In addition, the City’s occupation or authorizing an uncompensated

physical occupation of plaintiffs’ property’s, constitutes a regulatory taking”). Mr.

Smalis previously brought this same claim as a state trespass claim in a former

action. , No. 15-1412, 2018 WL

889028 (W.D. Pa. Feb. 14, 2018) (Kelly, M.J.). In that case, the Court granted

summary judgment on all of Mr. Smalis’s federal claims and declined to exercise

supplemental jurisdiction over the state-law trespass claim related to the parking

issues. Here, the Court construes this claim as a state-law trespass claim and

declines to exercise supplemental jurisdiction over it.

U.S.C. § 1367. A district court may decline to exercise supplemental jurisdiction,

however, if it has dismissed all federal claims or if the claim raises a “novel or complex

issue of State law[.]” § 1367(c)(1), (3). Here, because the Court is dismissing all

the federal claims in the case, it declines to exercise supplemental jurisdiction over

the state-law claims regarding the lead-based paint ordinances.

* * *

Therefore, after careful consideration, it is hereby ORDERED that

Defendants’ motions to dismiss (ECF 93; ECF 110) are GRANTED. Counts 1 and 3

of the fifth amended complaint (ECF 90) are DISMISSED WITH PREJUDICE.

Counts 2 and 4 of the fifth amended complaint (ECF 90) are DISMISSED

WITHOUT PREJUDICE. The Court does not grant leave to amend, since this is

the sixth version of the complaint, and amendment at this point would be wasteful

and futile. The Clerk of Court shall mark this case as CLOSED.

Date: March 12, 2024 BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge

CC:

Anastasios Smalis

6652 Northumberland St

Pittsburgh, PA 15217