Petition for Writ of Certiorari — Peter Sauers, Petitioner v. Township of Lower Southampton, Pennsylvania

Lo

IN THE -

upreme Court of the aniteb 6tateo

PETERS SAUERS,

Petitioner

TOWNSHIP OF LOWER SOUTHAMPTON

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

PETER SAUERS

Pro Se Petitioner

32 North Westview Avenue

Feasterville, PA 19053

Wright Appellate Services

0307

(215) 733-9870 ' (800) 507-9020 Fax (215) 733-9872

RECEIVED

MAY 152018

OFFICE OF THE CLERK

SUPREME-COUR]; U.S.

71

QUESTION(S) PRESENTED

When the Township granted a variance that

effectively changed a neighboring property's zoning

from "C2 Heavy Commercial" to "R2 -Residential"

without first notifying him, did it deprive Appellant

of rights secured by the United States Constitution,

i.e.,

his right to substantive and procedural due

process under the Fourteenth Amendment to the

United States Constitution,

his right to equal protection of the laws

under the Fourteenth Amendment to the United

States Constitution,

his right under the Fifth Amendment to not

be deprived of property without due process of law,

and

his right under the Fifth Amendment to not

have his property taken for public use without just

compensation?

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TABLE OF AUTHORITIES

Page

CASES

ASHCROFT V. IQBAL, 556 U.S. 662,678

(2009)..........................................................................7

BORMANN V. BD. OF SUPERVISORS, 584

N.W.2D 309, 311 (IOWA 1998)................................13

CITY OF CLEBURNE V. CLEBURNE LIVING

CTR., 473 U.S. 432,439 (1985)................................10

CONGREGATION KOL AMI V. ABINGTON

TwP., 309 F.3D 120, 133 (3D CIR. 2002) ...........10, 11

DEBLASIO V. ZONING BD. OF ADJUSTMENT,

53 F.3D 592, 596-97 (3D CIR. 1995)..........................9

MALLEUS V. GEORGE, 641 F.3D 5601 563 (3D

CIR. 2011)...................................................................7

MAPLE PROPS., INC. V. TWP. OF UPPER

PROVIDENCE, 151 F. APP'X 174, 178 (31)

dR. 2005)................................................................8,9

MATHEWS V. ELDRIDGE, 424 U.S. 319, 333

(1976)..........................................................................9

MORROW V. BALASKI, 719 F.3D 160, 165 (3D

CIR. 2013)...................................................................7

PERANO V. TWP. OF TILDEN, 423 F. APPx

234, 237-38 (3D CIR. 2011)........................................9

PLYLER V. DOE, 457 U.S. 2021 216 (1982)................10

ROGAL V. AM. BROAD. COS., INC., 74 F.31)

401 44-45 (3D CIR. 1996)............................................9

ROGIN V. BENSALEM TOWNSHIP, 616 F.2D

6801 694-95 (3D CIR. 1980)........................................9

U.S. App. LEXIS 507 AND 2018 WL 327246 ............1

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OPINIONS BELOW

The Opinion of the United States Court of

Appeals for the Third Circuit [App. la- 6a] is

unreported but is available at 2018 U.S. App.

LEXIS 507 and 2018 WL 327246. The District

Court's Memorandum and Order [App. 7a-18a] is

unreported but is available at 2016 U.S. Dist.

LEXIS 173751 and 2016 WL 7319679.

JURISDICTION

The Order denying Rehearing and

Rehearing En Banc was entered by the United

States Court of Appeals for the Third Circuit on

March 6, 2018. Pursuant to Supreme Court Rule

13.3, the ninety-day period expires June 4, 2018.

Jurisdiction of the Supreme Court of the United

States is invoked pursuant to 28 U.S.C. § 1254(1).

RELEVANT PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides:

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual

service in time of War or public danger; nor

shall any person be subject for the same

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the United States Constitution, his right under the

Fifth Amendment to not have his property taken

for public use without just compensation and his

right to equal protection of the laws under the

Fourteenth Amendment to the United States

Constitution.

STATEMENT

Statement of Facts

Petitioner/Plaintiff, Peter Sauers, is an adult

person who, for many years, has owned a house

located at 32 N. Westview Avenue on a residential

street located in the Township of Lower

Southampton, County of Bucks, Commonwealth of

Pennsylvania.

Respondent/Defendant, Lower Southampton

Township, is a municipality and a political

subdivision of the Commonwealth of Pennsylvania.

Since 1955, Petitioner's property—located at

32 N. Westview Avenue—and another property

located four doors away on the same street—i.e., 8

N. Westview Avenue—were both zoned as "R2

Residential."

On

September

41

2012,

Respondent/Defendant Lower Southampton

Township, enacted Ordinance No. 558, a Zoning

Ordinance. Pursuant to that ordinance, a large

piece of real estate located to the rear of both 8 and

32 N. Westview Street was zoned as "C2 Heavy

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On June 7, 2016, Respondent/Defendant,

Lower Southampton Township filed a Motion to

Dismiss.

On June 17, 2016, the District Court

conducted a pretrial conference.

On June 21, 2016, the District Court entered

an Order finding the Motion to Dismiss to be

"moot" and permitting Plaintiff/Appellant to file an

Amended Complaint.

On July 15, 2016, Petitioner/Plaintiff filed an

Amended Complaint.

On August 5, 2016, Respondent/Defendant

filed a Second Motion to Dismiss. On October 5,

2016, Petitioner/Plaintiff filed an Answer to the

Second Motion to Dismiss. On November 8, 20161

the District Court conducted Oral Argument on the

Motion to Dismiss.

On December 15, 2016, the District Court

issued an Order and Opinion dismissing the

Amended Complaint.

On January 9, 2017, Petitioner/Plaintiff filed

a Notice of Appeal to the Third Circuit Court of

Appeals.

On January 9, 2018, the Third Circuit Court

of Appeals filed an Opinion in which it affirmed the

District Court's decision.

Petitioner filed a timely Petition for

Rehearing, which the Third Circuit denied on

March 6, 2018.

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elements a plaintiff must plead to state a claim."

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011)

(citation and internal quotation marks omitted).

Then the court must determine if a claim has facial

plausibility, a threshold that can be reached only

when a plaintiff pleads factual content—as opposed

to mere conclusions—allowing the court to "draw

the reasonable inference that the defendant is

liable for the misconduct alleged." Ashcroft v. Iqbal,

556 U.S. 6621 678 (2009). Although the court "must

accept the allegations in the [c]omplaint as true, [it

is] not compelled to accept unsupported conclusions

and unwarranted inferences, or a legal conclusion

couched as a factual allegation." Morrow v. Balaski,

719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v.

MeGreevey, 481 F.3d 187, 195 (3d Cir. 2007))

(internal quotation marks omitted).

I.

Substantive and Procedural Due Process

Petitioner properly pled the allegation that

the Township deprived him of his rights to

substantive and procedural Due Process. The

District Court held that the public record shows

that in 2012, the Township afforded its residents,

including Petitioner, with proper notice of the

enactment of the Zoning Ordinance:

The public record shows that the

Township afforded its residents (including

Petitioner) with the constitutionally required

fair and due process. Specifically, the

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"C2 Heavy Commercial" or the Township's grant

of those variances in 2015. Petitioner alleged that

he was never advised of these applications or of the

dates and times of the allegedly public meetings at

which they would be discussed.

The law provides that state and municipal

officials are constitutionally obliged to offer a

means by which individuals may challenge zoning

restrictions and other adverse land use decisions.

Maple Props., Inc. v. Twp. of Upper Providence,

151 F. App'x 174, 177-78 (3d Cir. 2005), citing

DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592,

596-97 (3d Cir. 1995); Rogin v. Bensalem Township,

616 F.2d 680, 694-95 (3d Cir. 1980). The process

that is "due' in a given situation necessarily differs

based on the particular circumstances. Id.; see also

Rogal v. Am. Broad. Cos., Inc., 74 F.3d 40, 44-45

(3d Cir. 1996). At its core, procedural due process is

the "opportunity to be heard 'at a meaningful time

and in a meaningful manner." Mathews v. Eldridge,

424 U.S. 319, 333 (1976); see also Perano v. Twp. of

Tilden, 423 F. App'x 234, 237-38 (3d Cir. 2011)

(upholding the grant of a motion to dismiss a

procedural due process claim where there existed

adequate state-based "judicial remedies for

challenging administrative land use decisions").

Petitioner insisted that he was given no

notice of the variance applications and, therefore,

no opportunity to be heard to challenge them.

Although the Township alleged that it gave the

notice required under state law, it did not cite to

that law or provide any evidence that it followed its

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ordinances that do not classify by race, alienage, or

national origin, will survive an attack based on the

Equal Protection Clause if the law is " 'reasonable,

not arbitrary' and bears 'a rational relationship to a

(permissible) state objective.' " Village of Belle

Terre v. Boraas, 416 U.S. 11 8 (1974). However, land

use regulations must possess a legitimate interest

in promoting the public health, safety, morals, and

the general welfare of its citizens in order to pass

scrutiny. See Village of Euclid v. Ambler Realty

Co., 272 U.S. 365, 395 (1926) (citation omitted).

Land use ordinances will be deemed "irrational"

when a plaintiff demonstrates either that the state

interest is illegitimate (an ends-focus) or that the

chosen classification is not rationally related to the

interest (a means-focus). Congregation Kol Ami V.

Abington Twp., supra, 309 F.3d at 133 (3d Cir.

2002).

Petitioner has alleged that the Township did,

in fact, treat similarly-situated properties

differently when it granted a variance to build a

driveway on the property located at 8 N. Westview

Avenue. No such permission was granted to any

other property on the street. This Court should

agree that Petitioner has alleged that the Township

deprived him of his right to equal protection under

the law. It should, therefore, grant a Writ of

Certiorari.

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IV.

Takings Claim

The United States Constitution prohibits the

government from taking property for public use

without just compensation. Property for just

compensation purposes means "the group of rights

inhering in the citizens' relation to the physical

thing, as the right to possess, use and dispose of it."

United States v. General Motors Corp., 323 U.S.

373, 378 (1945). The District Court erroneously

dismissed Plaintiffs "takings" claim. Plaintiff

insists that by rezoning a neighboring property, the

Township has lowered the value of his property

and has, therefore, engaged in a "taking." See, e.g.,

Bormann v. Bd. of Supervisors, 584 N.W.2d 309,

311 (Iowa 1998) (holding that when it enacted a

statute immunizing farmers from nuisance suits,

the legislature exceeded its authority by

authorizing the use of property by the applicants in

such a way as to infringe on the rights of

neighboring landowners by allowing the creation of

a nuisance without the payment of just

compensation). Similarly, in the case at bar, when it

authorized the construction of a townhouse

development adjacent to Petitioner's property, the

Township lowered the value of his land without the

payment of just compensation. This Court should

grant a Writ of Certiorari and overturn the

dismissal of Petitioner's "takings" claim.