Petition — Mark-Garner Associates, Inc. v. Bensalem Township
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79-2010 ne
JUN 20 1980
WICHAEL RODAK, JR., CLERR
Supreme Court of ‘the United States
October Term, 1979.
No. 79-
MARK-GARNER ASSOCIATES, INC.,
Petitioner,
v.
BENSALEM TOWNSHIP and STEPHEN J. KELLY, THEODORE
R. ZAJAC, WILLIAM McFADDEN, HERBERT BRADEN,
and DONALD BELL, Individually and in Their Official
Capacities as the Board of Supervisors of Bensalem Township
and STANLEY HOROWITZ, Individually and in His Capacity
as Zoning Officer of Bensalem Township,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.
ROLAND Morais,
THOMAS P. PRESTON,
Duane, Morris & HECKSCHER,
1600 Land Title Building,
Philadelphia, PA 19110
Counsel for Petitioner,
Mark-Garner Associates, Inc.
International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711
‘
. —
INDEX (Continued).
Page
A. Pleadings Must Be Construed in the Light Most
Favorable to the Pleader When They Are Re-
viewed Pursuant to a Motion to Dismiss ...... 16
B. The Court of Appeals Failed to Implement the
Correct Standard of Specificity to Which It Had
Previously Adhered in Helstoski v. Goldstein .. 17
IV. The Court of Appeals Decision That the Township’s
Actions Did Not Constitute a Taking Under the
Fifth Amendment Was in Direct Opposition to
Supreme Court Precedents ..................... 18
A. The Valid Exercise of Local Zoning Power Pre-
supposes a Legitimate State Purpose for the
Zoning Laws and a Limitation on Their Scope.
There Was No Such Purpose or Limitation in
Se SOR. ines cecnasay eee eee 18
B. The Court of Appeals Did Not Follow This
Court's Mandate in Penn Central Transportation
Co. v. New York City That Contentions of an
Unjustifiable Taking Require a Case by Case
Ts TD vice eican vee 20
C. The Line Between Valid Regulation and Uncom-
pensated Taking Was Crossed by the Town-
ship’s Actions in This Case
V. Conclusion
QUESTIONS PRESENTED FOR REVIEW ..........0eeeseeeeeues
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......
eu ccbeeeeaedeeeses
REASONS FOR GRANTING THE WRIT .............000ceeeeees
I. The Court of Appeals Misapplied the Rational Rela-
Il.
Ill.
tion Test When It Formulated a Legitimate Purpose
for the Township Zoning Amendments in Direct
Conflict With Petitioner's Allegations of an Invidious
and Illegitimate Purpose ................ceeeeees
A. The Rational Relation Standard for Constitu-
tional Claims Was Clearly Articulated in Vance
es bea Vela boudvan sce hones
B. The Court of Appeals Erroneously Found That
the First Prong of the Rational Relation Stand-
ard Had Been Satisfied, in Direct Opposition to
the Allegations in Petitioner's Crossclaim .....
C. The Effect of the Court of Appeals Opinion Is to
Eliminate All Challenges to Governmental Au-
thority Over Land Use Regulation by Installing
the Courts as a Super Legislature ............
The Court of Appeals Did Not Address Mark-
Garner's Claim That the Zoning Amendments Were
Used to Discriminate Against a Particular Class of
A rr er ea
The Court of Appeals Failed to Implement the Cor-
rect Standard for the Sufficiency of Pleadings and
Incorrectly Substituted Its Own Conclusions for the
Well-Pleaded Allegations in Petitioner’s Crossclaim
10
ll
12
13
14
16
TABLE OF CITATIONS.
Cases: Page
Agins v. City of Tiburon, — U. S. —, 48 U. S. L. W. 4700
(Teme 10, 1060) ....ccccccccccccccccccsccccccccces 19
Berman v. Parker, 348 U. S. 26 (1954) ........ cece eee eees 21
City of Ann Arbor, Michigan v. Northwest Park Construction
Corp., 280 F. 2d 212 (6th Cir. 1960) ..........--5. .
Eisenstadt v. Baird, 405 U. S. 438 (1972) ........-.e seen 13
Goldblatt v. Hempstead, 369 U. S. 590 (1962) ............ 19, 21
Helstoski v. Goldstein, 552 F. 2d 564 (1977) ..........0055 17
In Re: Appeal by Mark-Garner Associates, Inc. From the
Decision of Bensalem Township Zoning Hearing Board
Sustaining Decision of Zoning Officer of Bensalem Town-
ship, No. 1210 C. D. 1978 (April 8, 1980) ............ 6
Kaiser Aetna v. United States, 444 U. S. 164 (1979) ........ 20
Massachusetts Board of Retirement v. Murgia, 427 U. S. 307
. | Be he errr er re er err rrr e Terre rere 11
Miller v. Schoene, 276 U. S. 272 (1928) ..........eeeeeeee 19
Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922)
10, 19-20, 22
Penn Central Transportation Co. v. New York City, 438 U. S.
i). | nn err rrr reir! err 10, 19, 20, 21
PruneYard Shopping Center v. Robins, — U. 5S. —, 48
U. S. L. W. 4650 (June 9, 1980) .......ccceeeccvoees 18
Scheuer v. Rhoades, 416 U. S. 232 (1974) ...... 1, 10, 12, 13, 16, 17
United States v. Caltex, Inc., 344 U. S. 149 (1952) ......... 21
United States v. Central Eureka Mining Co., 357 U. S. 155
CON. foci sins caeeredaasnahrvewtaar tes yiivescnans 21
Vance v. Bradley, 440 U. S. 93 (1979) ......... ee eee reese 11,14
Village of Euclid v. Ambler Realty Co., 208 U. S. 365
OUND oc cinccctuhvoeseacdeekeiseabecctqanure eas des 10, 18
Williams v. Illinois, 399 U. S. 235 (1970) ............4.. 9, 14,15
Williamson v. Lee Optical Co., 348 U. S. 483 (1955) ....... 11,13
TABLE OF CITATIONS (Continued).
Miscellaneous: Page
Pennsylvania Municipal Planning Code, 53 P. S. § 10508(4) 6
Rule 12(b)(6), Federal Rules of Civil Procedure .......... 1,7
United States Constitution, Fifth Amendment .......... 2, 18,19
United States Constitution, Fourteenth Amendment ........ 2
ee Se Tg | ere oe ne ne ee ee an 1
Oe a re err ge ee cee 2, 6, 11, 16
ee ee CD Cia noch coe sadake eeercl ane. 3, 6, 11
Se OS BPE Opes APY ee aan Neh oan a 3, 6, 11
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.
Petitioner, Mark-Garner Associates, Inc. (“Mark-
Garner” ), requests that a writ of certiorari issue to review
the judgment and opinion of the United States Court of
Appeals for the Third Circuit entered in this case on Feb-
ruary 21, 1980.
OPINIONS BELOW.
The opinion of the Court of Appeals for the Third
Circuit, No. 79-1361, not reported, is set forth in the Ap-
pendix to this Petition at pages Al to A34.
The opinion of the United States District Court for
the Eastern District of Pennsylvania, not reported, is set
forth in the Appendix at pages A35 to A50.
JURISDICTION.
The judgment of the Court of Appeals for the Third
Circuit was entered on February 21, 1980. This Petition is
filed within 120 days of that date, by leave of Justice Bren-
nan granted May 22, 1980. This Court’s jurisdiction is
invoked under 28 U. S. C. § 1254(1).
QUESTIONS PRESENTED FOR REVIEW.
1. Should the Court let a dismissal under Rule
12(b)(6) of the Federal Rules of Civil Procedure stand
where the Court of Appeals erroneously applied the “ra-
tional relation” test by assuming that there was a legiti-
mate purpose behind a local ordinance in direct and
unsupported contradiction to Petitioner’s allegations that
there was an express illegitimate and invidious purpose
motivating the local legislative body?
2 Petition for a Writ of Certiorari
2. Should this Court permit a facially neutral zoning
ordinance to be applied so that it discriminates against a
particular class of real estate developers?
3. May the Petitioner be denied its day in court as a
result of the application by the Court of Appeals of an
erroneous standard of specificity to Petitioner’s Crossclaim
where the standard conflicts with the decision of this Court
in Scheuer v. Rhodes, 416 U. S. 232 (1974), and establishes
an untenable precedent in civil rights litigation?
4, Should this Court allow the Court of Appeals to
sanction the taking of Petitioner’s property without com-
pensation, absent any legitimate state interest for the ac-
tion and without permitting Petitioner to present its claim
in court?
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED.
Amendment V of the United States Constitution pro-
vides in relevant part:
No person shall be . . . deprived of life, liberty,
or property, without due process of law; nor shall
private property be taken for public use, without
just compensation.
Amendment XIV, section 1, of the United States Con-
stitution provides in relevant part:
... No State shall . . . deprive any person of life,
liberty, or property, without due process of law,
nor deny to any person within its jurisdiction the
equal protection of the laws.
42 U.S.C. § 1983 provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
Petition for a Writ of Certiorari 3
State or Territory, subjects, or causes to be sub-
jected, any citizen of the United States or other
person within the jurisdiction thereof to the depri-
vation of any rights, privileges, or immunities se-
cured 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. § 1985(3) provides:
If two or more persons in any state or Terri-
tory conspire . . . for the purpose of depriving,
either directly or indirectly, any person or class
of persons of the equal protection of the laws,
...in any case of conspiracy set forth in this sec-
tion, if one or more persons engaged therein do,
or cause to be done, any act in furtherance of the
object of such conspiracy, whereby another is
injured in his person or property, or deprived of
having and exercising any right or privilege of a
citizen of the United States, the party so injured
or deprived may have an action for the recovery
of damages, occasioned by such injury or depriva-
tion, against any one or more of the conspirators.
42 U.S.C. § 1986 provides:
Every person who, having knowledge that
any of the wrongs conspired to be done, and men-
tioned in section 1985 of this title, are about to be
committed, and having power to prevent or aid
in preventing the commission of the same, neg-
lects or refuses so to do, if such wrongful act be
committed, shall be liable to the party injured,
or his legal representatives, for all damages
caused by such wrongful act, which such person
by reasonable diligence could have prevented;
and such damages may be recovered in an action
on the case...
4 Petition for a Writ of Certiorari
STATEMENT OF THE CASE.
Petitioner Mark-Garner was a real estate developer
in Bensalem Township, Bucks County, Pennsylvania. As
a result of the illegal actions of the Township Board of
Supervisors, who conspired with the Zoning Hearing
Board and Zoning Officer (together referred to as the
“Township defendants”), Petitioner was prevented from
completing a moderate-cost condominium development
known as Bensalem Village. Petitioner ultimately was
put out of business, losing most of its investment in the
project.
Petitioner has contended in the courts below that the
Township defendants violated its constitutional and statu-
tory rights by amending the local zoning ordinance with
the express purpose of preventing the completion of Ben-
salem Village and similar developments, and of putting
Petitioner and others similarly situated out of business.
Petitioner has never been granted the opportunity to pre-
sent its claims, or even to develop evidence to support
those claims. By this petition Mark-Garner seeks review
of the denial of its day in court.
In 1972, Petitioner purchased approximately 50 acres
in Bensalem Township and submitted plans to the Board
of Supervisors for a 557 unit condominium project. On
May 16, 1973 the Board of Supervisors granted final ap-
proval of the plans,’ and Petitioner commenced construc-
tion immediately.
Between May of 1973 and September of 1976 Mark-
Garner constructed and so!ld 106.of the proposed 557
1. As required by Pennsylvania law, Petitioner filed a “Con-
dominium Declaration” and a statement of “Rules and Regulations
for Bensalem Village” after final approval was granted. After the
Declaration was filed and buyers had canine’ in reliance
thereon, Mark-Garner was legally obligated to complete the project
in accordance with its terms.
Petition for a Writ of Certiorari 5
dwelling units. As construction proceeded during this
period, Petitioner repeatedly applied for and received
building permits.
In addition, Mark-Garner made substantial progress
on the common area improvements,” which had been re-
quired by the Township authorities in order to obtain
final plan approval. In total Mark-Garner had invested
more than three million dollars in Bensalem Village by
September of 1976.
On September 24, 1976, Petitioner routinely applied
for 12 building permits, and for the first time its request
was denied. The Township Zoning Officer informed
Mark-Garner that the plan for the Village no longer com-
plied with the Township’s zoning ordinance. That ordi-
nance had been amended to “down zone” the density of
the R-4 District, which applied to this project. The
amendment had been passed approximately one month
after the Supervisors had approved the original plan, and
more than three years prior to the permit denials. This
amended density requirement had never been applied to
Bensalem Village throughout the three year construction
period, although there had been repeated opportunities
to do so. Petitioner appealed the Zoning Officer’s deci-
sion to the Zoning Hearing Board.
Shortly thereafter, the Board of Supervisors again
lowered the permissible density in the R-4 District. As a
result of the two zoning amendments, the total number of
2. These improvements included installation of sanitary sewer
and storm water facilities to service 490 units; installation of 30%
of the required perimeter chain link fence; installation of 30% of
the requisite street lighting; installation of 30% of the requisite
underground electrical and telephone wiring; construction of 45%
of the TV coaxial distribution system; completion of more than 30%
of the landscaping; and completion of recreational facilities capable
of servicing the entire 557 unit project.
6 Petition for a Writ of Certiorari
units that lawfully could be built in Bensalem Village was
reduced from 557 to 200.
Mark-Garner’s appeal to the Zoning Hearing Board
was eventually heard, but only after expensive and time-
consuming delays. The Zoning Hearing Board denied
the appeal, forcing the Petitioner to go to state court for
equitable relief.’ There was no possibility of obtaining
money damages in the state court proceeding.
In February, 1977, a group of homeowners in Ben-
salem Village filed suit in the United States District Court
for the Eastern District of Pennsylvania, seeking to com-
pel completion of the project. Mark-Garner, named as a
defendant, crossclaimed against the Township defendants
(and joined the Zoning Hearing Board as an additional
defendant), basing its Crossclaim on violations of the fifth
and fourteenth amendments to the United States Consti-
tution and on 42 U. S. C. §§ 1983, 1985(3), and 1986.
The constitutional violations by the Township de-
fendants against Mark-Garner were set forth in Petition-
ers Crossclaim with sufficient specificity to put all defend-
ants on notice of the claims against them (the Crossclaim is
included in the Appendix at A51 through A77). Mark-
Garner alleged that the Board of Supervisors amended
the zoning ordinance, and applied it to developers with
final plan approval, with the express purpose and intent of
putting such developers out of business.
In support of this contention the Crossclaim alleged
that the Supervisors openly announced that they would
3. That lawsuit raised a legal question under the Pennsylvania
Municipal Planning Code, 53 P. S. § 10508(4). Although’ Mark-
Garner prevailed at the trial court level, the Pennsylvania Com-
monwealth Court recently reversed that decision in In Re: Appeal
by Mark-Garner Associates, Inc. From the Decision of Bensalem
Township Zoning Hearing Board Sustaining Decision of Zoning
Officer of Bensalem Township, No. 1210 C. D. 1978 (April 8.
1980).
Petition for a Writ of Certiorari 7
take any and all actions necessary to stop Bensalem Village
and other, similar developments. They further an-
nounced, according to the Crossclaim, that they were not
concerned with the legality of such conduct, and if chal-
lenged in court, they would engage in dilatory tactics to
cause excessive delays and legal costs, thereby driving the
developers out of business. In short, the Board of Super-
visors declared open warfare on developers in the Town-
ship, irrespective of the legality of their acts.
Mark-Garner’s Crossclaim alleged that the Super-
visors conspired with the other Township defendants to
accomplish their goal. The Supervisors obtained the Zon-
ing Officer’s cooperation, who rejected Petitioner's applica-
tion for building permits on grounds never previously
applied to Mark-Garner. They also obtained the co-
operation of the Zoning Hearing Board, which delayed
Mark-Garner’s appeal for weeks, and which then ruled
against Petitioner contrary to the advice of its own
Solicitor.
The Township defendants successfully accomplished
their intended result. Mark-Garner was barred from
completing Bensalem Village as originally planned and
approved. This conspiracy exposed Petitioner to suit by
the existing homeowners, and eliminated any possibility
that Mark-Garner could complete the project on a profit-
able basis. Ultimately, Mark-Garner was put out of busi-
ness as a direct result of the illegal acts of the Township
defendants.
Notwithstanding the allegations in Petitioner's Cross-
claim, the district court dismissed it pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. The
district court held that neither the Complaint nor the
Crossclaim was sufficiently specific to state a claim upon
which relief could be granted. A39. However, the dis-
8 Petition for a Writ of Certiorari
trict court did not analyze the Crossclaim separately from
the Complaint to determine if it satisfied the standard of
specificity applicable to civil rights actions. Mark-Garner
took a timely appeal from the district court's decision."
In analyzing the case, the Court of Appeals did not
squarely confront the grounds upon which the district
court had dismissed the case. Rather, it analyzed Peti-
tioner's Crossclaim as if it were a traditional challenge to
the zoning authority of a local governing body, thereby
evading the central issue of the case.
Mark-Garner has never contended that the Board of
Supervisors lacked the authority to enact the kind of zon-
ing amendments involved here. What Petitioner does
contend, and what it has never been given the opportunity
to prove, is that the Township defendants intentionally
set out to put Mark-Garner and other developers out of
business. The announced purpose and intent of the zon-
ing amendments inherently defeats their legitimacy.
Therefore, this use of the zoning power was a clear denial
of Mark-Garner’s constitutional and statutory rights.
4. The plaintiff-homeowners did not appeal the decision of
the district court, and took no part in the proceedings before the
Third Cir-uit Court of Appeals.
Petition for a Writ of Certiorari 9
REASONS FOR GRANTING THE WRIT.
Petitioner Mark-Garner respectfully asserts that its
Petition presents four reasons to grant a writ to review
the decision of the Court of Appeals for the Third Circuit.
First, the Court of Appeals purported to apply this
Court's “rational relation” test to Petitioner’s equal pro-
tection and due process challenges to a local zoning ordi-
nance. However, the Circuit Court assumed satisfaction
of the first prong of that test, i.e., assumed that there was a
legitimate interest underlying the challenged statute.
Petitioner's Crossclaim specifically alleged to the contrary.°
Thus, the decision of the Court of Appeals directly con-
flicts with this Court’s requirement of a two part rational
relation standard of review.
Second, the decision of the Court of Appeals conflicts
with this Court’s holding in Williams v. Illinois, 399 U. S.
235 (1970). There the Court held that the application of
a facially neutral statute disparately weighed on a par-
ticular class and denied that class the equal protection of
the laws. The Court of Appeals did not address that issue,
notwithstanding the detailed allegations in Petitioner's
Crossclaim that the zoning ordinance was intentionally
enacted and implemented to put a specific class of de-
velopers out of business.
Third, the Court of Appeals abandoned the requisite
judicial procedure by exchanging the specific a’iegations
of Petitioner's Crossclaim for its own factual assumptions.
The trial court had dismissed the Crossclaim for lack of
specificity. The Third Circuit did not view the allegations
5. Mark-Garner alleged that the Supervisors openly stated
that they intended to stop this and all other developments by
whatever means possible, regardless of the legality of theu actions.
They further announced that they would use dilatory tactics to
cause delay and excessive legal costs, to discourage sales, and
ultimately to put Petitioner and other developers out of business.
Crossclaim, A66-A68.
10 Petition for a Writ of Certiorari
of the Crossclaim in the light most favorable to Petitioner,
as required by Scheuer v. Rhodes, 416 U. S. 232 (1974),
but instead, created its own underlying purpose for the
zoning amendments. Despite the fact that the underlying
facts were still in dispute, the Circuit Court erroneously
concluded that Petitioner’s Crossclaim could not prevail.
Fourth and finally, the Court of Appeals ignored this
Court's instructions for the review of an alleged unconsti-
tutional taking of private property. The Circuit Court re-
fused to permit Petitioner to develop and present facts
supporting its claim, although Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393 (1922), and Penn Central Transpor-
tation Co. v. New York City, 438 U. S. 104 (1978), require
a factual analysis of a taking claim. Furthermore, the
Court of Appeals again presumed a legitimate state interest
contrary to Petitioner’s allegations, thus overlooking the
seminal inquiry required by Village of Euclid v. Ambler
Realty Co., 272 U. S. 365 (1926), and Pennsylvania Coal
Co., supra.
Each of these considerations is sufficient for the grant-
ing of a writ to review the decision of the court below.
I. The Court of Appeals Misapplied the Rational Relation
Test When It Formulated a Legitimate Purpose for
the Township Zoning Amendments in Direct Conflict
With Petitioner's Allegations of an Invidious and
Illegitimate Purpose.
The Court of Appeals held that the “rational relation”
standard was applicable to all of Mark-Garner’s claims.*
Petitioner does not dispute the appropriateness of that test
6. The Court of Appeals held that Mark-Garner’s allegations
under 42 U. S. C. § 1983 subsumed all the independent, consti-
tutional causes of action. All. It further held that its analysis
of Mark-Garner’s constitutional claims, as applied to the § 1983
cause of action, would be identical for the causes of action under
42 U. S. C. §§ 1985(3) and 1986, and therefore separate analysis
was unnecessary. A31-A32.
Petition for a Writ of Certiorari 11
here. However, in its application the Court of Appeals
has so twisted the standard that it has taken on a new and
disastrous meaning. Under the Court of Appeals formula-
tion the “rational relation” test has become an irrebutable
presumption of validity standard. Such an analysis bears
no relationship to the guidelines estah'ished by this Court,
and must not be permitted to stand.
A. The Rational Relation Standard for Constitutional
Claims Was Clearly Articulated in Vance v.
Bradley.
When confronted with alleged constitutional viola-
tions affecting business or other economic activity, this
Court has consistently applied a two-pronged rational rela-
tion standard to test the validity of the allegation.’ First,
the foundation of the test is whether or not there is a legiti-
mate purpose behind the governmental action. Second,
only if there is a legitimate purpose to the legislation does
the court question whether the state action is “rationally
related to furthering [this] legitimate state interest.”
Vance v. Bradley, 440 U. S. 93, 97 (1979), citing Massa-
chusetts Board of Retirement v. Murgia, 427 U. S. 307,
312 (1976).
7. The Court of Appeals held that Petitioner's equal protec-
tion and substantive due process claims both hinged on a rational
relation test. A12, A16-A17. Its incorrect application of that test
was equally erroneous for both these claims.
8. Vance v. Bradley, supra, was an equal protection case.
However, this Court has made it clear that the rational relation
standard is fundamentally the same in the due process context.
Williamson v. Lee Optical Co., 348 U. S. 483, 488 (1955).
The Court of Appeals quite properly noted that in applying
the rational relation test to a due process claim,
“the focus .. . is not whether the Township has irrationally
distinguished between similarly situated classes [the equal
protection analysis], but whether it was rational for the Town-
ship to have passed the law at all and to have applied it to
Mark-Garner. Al17.
12 Petition for a Writ of Certiorari
The rational relation standard recognizes judicial def-
erence to the legislative and democratic processes. It is
not intended as a complete abdication of the judiciary’s role
in reviewing the complex interrelationship between soci-
ety’s public and private sectors. It is precisely this role
which the Court of Appeals refused to perform in its analy-
sis of Petitioner's Crossclaim.
B. The Court of Appeals Erroneously Found That
the First Prong of the Rational Relation Standard
Had Been Satisfied, in Direct Opposition to the
Allegations in Petitioner’s Crossclaim.
The Court of Appeals erred by failing to consider
whether the first prong of the rational relation test had
been satisfied. The Court of Appeals assumed that since a
local governmental body theoretically could have a valid
purpose for passing zoning legislation, the actions of Ben-
salem Township’s Board of Supervisors must, therefore,
have been valid. This assumption directly contradicted
Petitioner's allegations of an invidious purpose.
Mark-Garner has never been given the opportunity to
prove the merits of its Crossclaim, since the trial court dis-
missed the case for failure to state a claim. Given this
posture, the Court of Appeals was obligated to consider
Petitioner's allegations, and to construe those allegations in
the light most favorable to Mark-Garner. Scheuer v.
Rhodes, 416 U. S, 232, 236 (1974).
If the Circuit Court had applied this principle, it
would have found that Petitioner specifically alleged an
illegitimate purpose for the passage of the zoning amend-
ments. Petitioner's Crossclaim contended that members of
the Board had expressly stated that they were willing to go
to whatever lengths necessary to insure the stoppage of
projects like Bensalem Village.
Petition for a Writ of Certiorari 13
In light of Scheuer v. Rhodes, supra, the Court of
Appeals was not free to speculate on possible legitimate
purposes for the Supervisors’ actions. The Court of Ap-
peals cannot substitute its own perception of a valid state
interest for the purpose expressed by the legislative body.
This Court has held that the rational relation test is
not a judicial rubber stamping device to legitimate all gov-
ernmental action. See Eisenstadt v. Baird, 405 U. S. 438,
447 (1972). Petitioner respectfully submits that the Court
of Appeals erroneously found that the first prong of the
rational relation test had been satisfied by substituting its
own assumptions for Petitioner's allegations. The effect of
that action is to eliminate the very foundation of the ra-
tional relation test.
C. The Effect of the Court of Appeals Opinion Is to
Eliminate All Challenges to Governmental Au-
thority Over Land Use Regulation by Installing
the Courts as a Super Legislature.
The Circuit Court's substitution of its assumption of
a legitimate purpose for the zoning amendments insulates
from review all governmental action for which a court is
able to conceive a proper purpose. Such a procedure has
no legal basis. In effect, it substitutes a court’s judgment
for that of the legislature, a role this Court has unequivo-
cally rejected. Williamson v. Lee Optical Co., supra, 348
U.S. at 488.
The Court of Appeals should not have gone beyond
the facts in Petitioner’s Crossclaim in considering the first
prong of the rational relation test. If the Court of Appeals
is permitted to assume that legislation is based on a legiti-
mate purpose, ignoring allegations to the contrary, then
there is no meaning to the rational relation test. Under
this new irrebutable presumption standard, all legislation
qua legislation is valid.
14 Petition for a Writ of Certiorari
This Court cannot allow the rational relation test to
be emasculated. There must be a meaningful vehicle for
challenging the invalid use of democratic processes for in-
vidious purposes. Petitioner requests that this Court grant
certiorari to review the Circuit Court’s decision on this
issue.
II. The Court of Appeals Did Not Address Mark-Garner’s
Claim That the Zoning Amendments Were Used to
Discriminate Against a Particular Class of Developers.
Vance v. Bradley, supra, and the rational relation test
it articulated, is not controlling on Petitioner’s alternative
equal protection argument. Petitioner does not question
the right of Bensalem Township to pass zoning ordinances
and amendments, once a legitimate purpose for the legisla-
tion has been established. While we believe the Court of
Appeals misapplied the Vance test by assuming a legiti-
mate purpose, it did not deal at all with the argument that
the zoning amendments as applied fell most harshly on a
particular class of developers.
Petitioner contends that the Board of Supervisors im-
plemented the amended zoning ordinance to prohibit the
class of developers with final plan approval from complet-
ing their projects. The zoning law and procedure became
an economic club to drive this class of developers out of
the Township. It is a violation of the equal protection
clause to use an otherwise valid piece of legislation for an
illegal and discriminatory purpose. Williams v. Illinois,
399 U. S. 235 (1970).
In Williams this Court held that the invidious applica-
tion of an otherwise valid statutory sentence violated Mr.
Williams’ equal protection rights. The focal point for
Williams was the “illustory choice” presented to the appel-
lant. While the statutory sanction appeared to extend
equally to all defendants, in reality it fell most harshly on
Petition for a Writ of Certiorari 15
indigent defendants who could not satisfy the financial re-
quirements of the sentence.’ Id. at 242. This Court held
that the effect of the statute was to isolate a particular
category or class of persons and to visit on them a penalty
not inflicted on others. Id. at 242.
Bensalem Township’s Board of Supervisors presented
Petitioner with a comparable “illusory choice”. On the
surface, the Bensalem zoning amendments applied equally
to all developers in R-4 districts, just as the statutory pen-
alty in Williams appeared to be neutral. However, Peti-
tioner’s “choice”, to continue the condominium project as
rezoned, was indeed illusory, as there was no economically
feasible way for Petitioner to continue. The original and
all subsequent investments in the project had relied upon
the approved 557 unit plan. Furthermore, 106 dwellings
had been sold to purchasers relying on a 557 unit project.
Mark-Garner could not develop Bensalem Village unless
it did so pursuant to the original plan approved by the
Township.
Petitioner's Crossclaim alleged precisely the kind of
invidious discrimination against a class which Williams v.
Illinois prohibited. Furthermore, Petitioner alleged that
unlike the situation in Williams, the Township defendants
intentionally wielded the zoning ordinances to accomplish
this discriminatory end. Mark-Garner has a right to at-
tempt to prove these contentions. The Court of Appeals
erred in denying Petitioner this opportunity.
9. Williams involved an indigent defendant who was unable
to pay a statutorily imposed fine and court costs. Under the
statute, the appellant was imprisoned 101 days longer than the
maximum permissible sentence under the law, the additional time
having been imposed to “work off” the fine and costs.
16 Petition for a Writ of Certiorari
III. The Court of Appeals Failed to Implement the Cor-
rect Standard for the Sufficiency of Pleadings and
Incorrectly Substituted Its Own Conclusions for the
Well-Pleaded Allegations in Petitioner's Crossclaim.
A. Pleadings Must Be Construed in the Light Most
Favorable to the Pleader When They Are Re-
viewed Pursuant to a Motion to Dismiss.
This Court has assigned a limited role to the courts
in reviewing the sufficiency of pleadings before them.
Scheuer v. Rhodes, 416 U. S. 232, 236 (1974). The test
outlined by Chief Justice Burger's unanimous opinion in
Scheuer established that the burden of pleading is not a
strenuous one:
The issue is not whether a plaintiff will ulti-
mately prevail, but whether the claimant is en-
titled to offer evidence to support the claims.
Indeed it may appear on the face of the plead-
ings that a recovery is very remote and unlikely
but that is not the test. Moreover, it is well
established that, in passing on a motion to dis-
miss . . . for failure to state a cause of action, the
allegations of the Complaint should be construed
favorably to the pleader.
Id. at 236 (emphasis added).
Contrary to the Scheuer language, the Court of Ap-
peals found that because the petitioner “could not prevail
on any of its § 1983 allegations,” Al2 (emphasis added),
a dismissal of Petitioner's Crossclaim was warranted.
Given the allegations in the Crossclaim, Mark-Garner was
at least entitled to an opportunity to present its case. The
Court of Appeals erred in substituting its own percep-
tions for those in the Crossclaim, and concluding from
those that Mark-Garner could not recover.
Petition for a Writ of Certiorari 17
B. The Court of Appeals Failed to Implement the
Correct Standard of Specificity to Which It Had
Previously Adhered in Helstoski v. Goldstein.
The Court of Appeals also failed to follow its own
precedent for the requisite sufficiency of Petitioner's
pleadings. In Helstoski v. Goldstein, 552 F. 2d 564
(1977) (per curiam), the Court of Appeals held:
The district court dismissed Mr. Helstoski’s com-
plaint before any discovery was had and before
any evidence was received.
Under such circumstances, we must take all of
the well-pleaded allegations of the complaint as
true, construe the complaint in the light most
favorable to the plaintiff, and determine whether,
under any circumstances, the plaintiff might be
entitled to any relief.
Id. at 565 citing Scheuer v. Rhodes, supra.
The Helstoski Court outlined two important consid-
erations. Id. at 565-6. The first centered on the lack of
opportunity afforded the plaintiff to present any evidence
prior to the district court’s dismissal of his claim. The
second was that the district court had interpreted the
applicable precedent in direct contravention to plaintiff's
averments. Therefore, the Court of Appeals remanded
the case for further proceedings.
Petitioners case was in the same posture as Hel-
stoski when it went to the Court of Appeals. Here, how-
ever, the Court of Appeals did not address the procedural
stance of Petitioner's claim, but instead, discussed the
case as if Petitioner had been given the full opportunity
to present its claims.
More importantly, the Court of Appeals could not
have construed the Crossclaim under the Helstoski stand-
18 Petition for a Writ of Certiorari
ard and reached the conclusion it did. Petitioner alleged
that the zoning ordinances were enacted and implemented
for the sole purpose of putting Mark-Garner and other
developers out of business. This is not a “legitimate state
interest” under the rational relation test outlined above.
Therefore, construing the pleadings in the light most fa-
vorable to the pleader, the constitutional claims should
not have been summarily dismissed.
IV. The Court of Appeals Decision That the Township's
Actions Did Not Constitute a Taking Under the Fifth
Amendment Was in Direct Opposition to Supreme
Court Precedents.
There is no question that the Board of Supervisors
of Bensalem Township had the authority to enact a proper
zoning ordinance. The propriety of that ordinance, how-
ever, is strictly limited by the legal principles established
by this Court. The Court of Appeals ignored or mis-
applied those principles with respect to the “taking” issue
under the fifth amendment.
A. The Valid Exercise of Local Zoning Power Pre-
supposes a Legitimate State Purpose for the
Zoning Laws and a Limitation on Their Scope.
There Was No Such Purpose or Limitation in
This Case.
Over 50 years ago this Court established that a zoning
ordinance is constitutionally permissible when the public
interest requires limitations on the use of private property.
Village of Euclid v. Ambler Realty Company, 272 U. S.
365 (1926)."° In order to declare a zoning ordinance
unconstitutional, it must appear that the provision is
10. This principle was recently affirmed in PruneYard Shop-
ping Center v. Robins, — U. S. —, 48 U. S. L. W. 4650 (June 9,
1980).
Petition for a Writ of Certiorari 19
plainly arbitrary and unreasonable, and has no substantial
relation to the public health, safety, morals or general
welfare. Id. at 395." Agins v. City of Tiburon, — U. S.
—, 48 U. S. L. W. 4700, 4701 (June 10, 1980).
This Court has permitted the government to diminish
substantially the value of a private citizen’s property when
the contested statute is founded on a legitimate state in-
terest. E.g., Miller v. Schoene, 276 U. S. 272 (1928);
Goldblatt v. Hempstead, 369 U. S. 590 (1962),
The Court of Appeals did not analyze Petitioner’s
case in light of the principles established by this Court.
Here, Petitioner expressly alleged that the purpose behind
the alteration of the zoning ordinance was not for the
“health, safety or welfare” of the Township’s population.
Penn Central Transportation Co. v. New York City, 438
U. S. 104, 125 (1978). Rather, Petitioner alleged that the
Board of Supervisors campaigned on the promise to halt
all development, whether by legal means or otherwise.
The zoning amendments were intended to accomplish
that goal. Therefore, the purpose behind the zoning was
expressly not a legitimate one, and the amendments could
not have been a proper exercise of the police power.
Furthermore, an otherwise proper regulation may be-
come so intrusive as to constitute a taking. As Justice
Holmes stated in Pennsylvania Coal v. Mahon, 260 U. S.
393 (1922):
The protection of private property in the Fifth
Amendment presupposes that it is wanted for
public use, but provides that it shall not be taken
for such use without compensation... [T]he
11. See, e.g., City of Ann Arbor, Michigan v. Northwest Park
Construction Corp., 280 F, 2d 212 (6th Cir. 1960),
12. There was no challenge in Agins v. City of Tiburon, supra,
to the legitimacy of the purpose underlying the challenged statute.
Id. at 4701 and n. 8.
20 Petition for a Writ of Certiorari
general rule at least is, that while property may
be regulated to a certain extent, if a regulation
goes too far it will be recognized as a taking .. .
[A]s we already have said, this is a question of
degree—and therefore cannot be disposed of by
general propositions.
260 U. S. at 415-16 (emphasis added )."
The decisions above establish a firm directive for the
lower courts: governmental regulations which heavily en-
cumber private property interests should be carefully
scrutinized and reviewed. The Court of Appeals ignored
this directive by failing to consider either the legitimacy
of the underlying purpose or the intrusiveness of the
regulation.
B. The Court of Appeals Did Not Follow This Court's
Mandate in Penn Central Transportation Co. v.
New York City That Contentions of an Unjusti-
fiable Taking Require a Case by Case Factual
Analysis.
In Penn Central Transportation Co. v. New York
City, 438 U. S. 104 (1978), this Court considered whether
a zoning ordinance resulted in a temporary taking of
property without just compensation. 438 U. S. at 107,
119. The opinion set out the proper judicial approach
to these “problem[s] of considerable difficulty”. Id. at
123.
... this Court, quite simply, has been unable to
develop any ‘set formula’ for determining when
‘justice and fairness’ require that economic in-
juries caused by public action be compensated
13. The Court reaffirmed this principle in Kaiser Aetna v,
United States, 444 U. S. 164 (1979).
Petition for a Writ of Certiorari 21
by the government, rather than remain dispro-
portionately concentrated on a few persons... .
Id. at 124.
This Court found the essence of its decisions were “essen-
tially ad hoc, factual inquiries.” Id. at 124."
The Penn Central approach mirrored Justice Holmes’
analysis in Pennsylvania Coal:
When [the diminution in value] reaches a certain
magnitude, in most if not in all cases there must
be an exercise of eminent domain and compen-
sation to sustain the act. So the question de-
pends on the particular facts.... 260 U.S. at
413 (emphasis added )."°
Despite the resounding solidarity of this Court’s hold-
ings, the Court of Appeals affirmed the dismissal of Mark-
Garner's Crossclaim without permitting a hearing on the
merits. Surely, when this Court stated that a “taking”
decision is a “problem of considerable difficulty”, Penn
Central, supra, at 123, it did not envision that a court
would dispose of the issue without permitting some reason-
able presentation of the merits of plaintiff's claims.
Therefore, the Court of Appeals erred in deciding
that Bensalem Township’s ordinance was a valid exercise
of state regulation of private property. The Third Circuit
was not free to make this decision without having a full
record before it.
14, Accord, Goldblatt v. Hempstead, supra; U. S. v. Central
Eureka Mining Company, 357 U. S. 155, 168 (1958). See U. S. v.
Caltex, Inc., 344 U. S. 149, 156 (1952).
15. See also Berman v. Parker, 348 U. S. 26, 32 (1954), (The
definition of the police power depends on the specific facts of each
case); Goldblatt v. Town of Hempstead, supra, at 594, (“There
is no set formula to determine where regulation ends and taking
begins”).
22 Petition for a Writ of Certiorari
C. The Line Between Valid Regulation and Uncom-
pensated Taking Was Crossed by the Township’s
Actions in This Case.
The zoning ordinance’s interference with the Peti-
tioner's property parallels the taking that this Court found
in Pennsylvania Coal, supra. There, Justice Holmes found
a statute unconstitutional which made it commercially
impracticable to remove valuable coal deposits left un-
mined. Id. at 413. Justice Holmes held that:
We are in danger of forgetting that a strong
public desire to improve the public condition is
not enough to warrant achieving the desire by a
shorter cut than the constitutional way of paying
for the change. Id. at 416.
Petitioner has suffered a similar taking under the
Bensalem zoning amendments. The zon’ng amendments
made it commercially impracticable for the Petitioner to
complete his construction, since his entire investment and
legal commitment to the initial 106 homeowners were
both based on a 557 unit development. Indeed, Mark-
Garner was put out of business after thirty years of suc-
cessful operation as a direct result of the confiscatory tak-
ing of Bensalem Village.
Petitiouer respectfully submits that the Constitution
requires that the Township defendants compensate the
Petitioner for the damage incurred as a result of this
taking.
V. Conclusion.
The Court of Appeals totally misapplied or failed to
consider this Court's guidelines on the permissible regu-
lation of private property by government. The “taking”
question was decided without benefit of any presentation
Petition for a Writ of Certiorari 23
of the facts, yet it is clearly a factual inquiry. The
“rational relation” test, as applied to both equal protection
and due process claims, was grievously perverted by the
Third Circuit’s analysis. If permitted to stand, the prec-
edent will effectively eliminate judicial review of legis-
lation which impinges on business or economic activity.
This Court must not permit such a result.
Respectfully submitted,
ROLAND Morais,
THOMAS P, PRESTON,
DvuANnE, Morris & HECKSCHER,
1600 Land Title Building,
100 South Broad Street,
Philadelphia, PA 19110
Counsel for Petitioner,
Mark-Garner Associates, Inc.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
TABLE OF CONTENTS OF APPENDIX
Page
Court of Appeals Opinion
of The Court (No. 79-1361)....;..., Al
District Court Memorandum
Of Decision and O~GOl.«sccvcecsses A35
Answer of Defendant, Mark-
Garner Associates, Inc.
and Cross Claim. *eeef°eee#ee#e#e#e#e#e«¢ *eee#ee#*e# A5l
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 79-1361
SHARON L. ROGIN and MICHAEL R. ROGIN, ANN
MANGANO and WM. MANGANO, JANET CA-
SELLI and CHRISTOPHER CASELLI, BARBARA
UEBERROTH and A. JAMES UEBERROTH, and
MAUREEN BLASIC and JOSEPH BLASIC, indi-
vidually and on behalf of others similarly situated
Uv.
BENSALEM TOWNSHIP and STEPHEN J. KELLY.
THEODORE R. ZAJAC, WILLIAM McFADDEN.
HERBERT BRADEN, and DONALD BELL. indi-
vidually and in their official capacities as the -
BOARD OF SUPERVISORS OF BENSALEM
TOWNSHIP and STANLEY HOROWITZ. individ-
ually and in his capacity as ZONING OFFICER OF
BENSALEM TOWNSHIP and MARK-GARNER
ASSOCIATES, INC.. of Pennsylvania
MARK-GARNER ASSOCIATES. INC.. of Pennsylvania.
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(C. A. No. 77-0557)
Argued October 9. 1979
Before: ADAMS, ROSENN and WEIs. Circuit Judges
(Filed Februarv 21. 1980)
Al
2
THOMAS P. PRESTON (Argued)
MARC D. BROOKMAN
Duane. Morris & Heckscher
Philadelphia, Pennsylvania
Attorney for Appellant
LESLIE G. DIAS (Argued)
HENRY F. HUHN
Bensalem, Pennsylvania
Attorney for Appellees
Bensalem Township, Kelly.
Zajac, McFadden, Braden, Bell
and Horowitz
EMIL F. TOFTEN (Argued)
JOHN POTKAI
Emil F. Toften & Associates
Chalfont, Pennsylvania
Attornevs tor Appellee
Bensalem Township Zoning
Hearing Board
OPINION OF THE COURT
ADAMS, Circuit Judge
A real estate developer has cast an array of federal
constitutional and statutory challenges to the application
of a focal zoning ordinance to a condominium project it
Was in the process of constructing. On this appeal from
the dismissal on the pleadings of the developer's
cross-claims, we are guided by well-settled principles in
allirming the judgment of the district court.
| FACTUAL BACKGROUND
In late 1972, Mark-Garner Associates, Inc., a real
estate developer and the cross-claimant in this case, pur-
chased approximately filtv acres of land in Bensalem
A2
3
Township, Bucks County, Pennsylvania, and drew up
plans to build a 557-unit condominium project to be
known as “Bensalem Village.” On May 16, 1973, the
Board of Supervisors of Bensalem Township granted fi-
nal approval of the plans. In accordance with Pennsylva-
nia law, Mark-Garner then filed a “Condominium Decla-
ration” and a statement of “Rules and Regulations for
Bensalem Village.”! In reliance on the Supervisors’ final
approval of the Bensalem Village plans, construction of
the Village community commenced in the spring of
1973, and continued until September 1976. By the latter
date, 106 of the planned 557 condominium units had
been approved and were under construction, and a ma-
jor portion of the common area improvements had been
completed.”
On September 24, 1976, Mark-Garner applied for
twelve additional building permits. For the first time, its
request was denied.’ The Township Zoning Officer.
Stanley Horowitz, informed the developer that the plan
for Bensalem Village no longer complied with the town-
ship's zoning ordinance, which had been amended in
June 1973. a little over a month after the Supervisors ap-
proved the original plan. The amendment reduced the
allowable density in the R-4 District. the classification
applicable to Bensalem Village. from twelve to ten units
per acre. Mark-Garner appealed the zoning officer's de-
1. 68 Pa. Cons. Stat. Ann. $700,401 (Purdon 1965). For a gen-
eral description and appraisal of the statute. commonly known as
the “Unit Property Act.” see Rosenstein. Inadequacies of Current
Condominium Legislation — A Critical Look at the Pennsylvania
Unit Property Act. 47 Temple L.Q. 635 (1974).
2. The improvements included completion of the storm sew-
ers, sanitu'y sewers, water lines. and service roads. as well as eighty
percent of the underground electric feed lines and telephone trunk
lines.
3. Despite the Supervisors’ general approval of all 557 planned
units, the developer apparently was required to apply periodically
lor the actual building permits as it became ready to build a cluster
Ol Units, ,
A3
4
cision to the Zoning Hearing Board of Bensalem Town-
ship. On October 8, 1976, prior to the date of the hearing
on the appeal, the Board of Supervisors again amended
the ordinance to lower the permissible density in the R-4
District to four units per acre. As a result of the two
amendments, the total number of units that lawfully
could be built in Bensalem Village was reduced from 557
to 200.
After several hearings, the Zoning Hearing Board
denied Mark-Garner’s appeal. The developer appealed
the Board’s decision to the Court of Common Pleas of
Bucks County, and also requested mandamus directing
the Zoning Officer to issue the remaining permits. The
Court reversed the Zoning Hearing Board's decision and
ordered that all remaining permits be issued.* Because
the project was “substantially undertaken,” the Court
concluded, ‘Pennsylvania law prohibited the retroactive
application of the zoning amendments to Bensalem Vil-
lage.’ The Court’s mandate was stayed pending the ap-
4. In re Appeal by Mark-Garner Assocs., Inc.. No.
77-0718-09-5 (Ct. Comm. PI. filed May 18, 1978), reprinted in App.
225.
5. Section 508(4) of the Pennsvivania Municipalities Code, 53
Pa. Cons. Stat. Ann. §10508(4) (Purdon 1972), provides in relevant
part:
When an application for approval of a plat, whether pre-
liminary or final, has been approved or approved subject to
conditions acceptable to the applicant, no subsequent
change or amendment in the zoning, subdivision or other
governing ordinance or plan shall be applied to affect ad-
versely the right of the applicant to commence and to com-
plete any aspect of the approved development in accord-
ance with the terms of such approval within three vears
from such approval. Where final approval is preceded by
preliminary approval, the three-vear period shall be count-
ed from the date of the preliminary approval.
Nhe court held that if'a development project is “substantially under-
taken within the Section 508(4) three vear period the protections of
that Section are invoked and remain in effect until the project is
completed.” In re Appeal by Mark-Garner Assocs., supra note 4, at
1-7,
A4
5
peal by the Zoning Hearing Board to the Commonwealth
Court, which has not yet rendered its decision. As a con-
sequence, the Zoning Officer has issued no permits to
Mark-Garner since September 1976.
The present class action was filed during the pen-
dency of Mark-Garner’s appeal to the Court of Common
Pleas by a group of homeowners who had purchased lots
in Bensalem Village. The complaint requested injunc-
tive relief directing the Zoning Officer to issue the re-
maining permits as well as money damages resulting
trom the delay in construction. Mark-Garner, which was
named as a defendant, cross-claimed for damages, de-
claratory judgment, and injunctive relief against the
Township, the members of the Board of Supervisors, the
Zoning Hearing Board, and the Zoning Officer. The in-
dividual cross-defendants were named in both their offi-
cial and personal capacities. Mark-Garner alleged that
the cross-defendants, acting under color of state law.
conspired to adopt and implement a policy of delay and
cost escalation for the purpose of discouraging construc-
tion of Bensalem Village. The developer claimed that the
value of its property was thereby diminished or de-
stroyed, and that it was denied substantive due process.
procedural due process, equal protection of the laws. and
its rights under state and local statutes. Federal subject
matter jurisdiction was premised both on civil rights
statutes. 42 U.S.C. §$§1983. 1985(3) and 1986 (1976).
and on a purported direct cause of action under the
Fourteenth Amendment.”
Following a motion by the cross-detendants. the dis-
trict court dismissed Mark-Garner’s cross-claim for fail-
ure to state a claim on which relief could be granted.‘
6. Mark-Garner alleged that the district court had jurisdiction
over the federal claims pursuant to 28 U.S.C. §$1331. 1343. 2201
and 2202 (1976). and had pendent jurisdiction over the state
claims.
7. Fed. R. Civ. PL 120b%6).
A5
6
and because the Court of Common Pleas’ decision
rendered the case moot.® Mark-Garner filed a timely ap-
peal. We hold that the case is not moot, but affirm the
district court’s decision that the cross-claim does not
state a cause of action.
Il. MOOTNESS
It was suggested by the district court that
Mark-Garner’s claims were moot because it had received
injunctive relief in the Court of Common Pleas.
Inasmuch as mootness would divest us of jurisdiction to
consider this appeal,” we are obligated to address this is-
sue as a threshold matter.
The present dispute is unlike the traditional line of
mootness cases in which changes extraneous to the ju-
dicial process terminate the legal controversy. '° The dis-
trict court apparently has held that Mark-Garner’s feder-
al civil rights claims are moot because similar claims
based on state law were adjudicated in favor of the devel-
oper in a state tribunal. Such a ruling, we believe, incor-
rectly interprets the law of mootness. !!
8. The district court also dismissed the homeowners’ claim un-
der Rule 12(b)(6). However, the homeowners have not appealed.
9. DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per
curiam); North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per
curiam ).
10. E.g.. County of Los Angeles v. Davis. 440 U.S. 625 (1979)
(case moot because county fire department had not employed the
illegedly discriminatory test for ten years and had fully remedied et-
lects of prior discriminatory use); DeFunis v. Odegaard. 416 U.S.
312 (1974) (case moot because law school applicant challenging ra-
cially preferential admissions policy had been admitted and detend-
ant school acknowledged that. regardless of Court's decision, appli-
cant would continue to be enrolled): Hall v. Beals, 396 U.S. 45
(1969) (per curiam) (case moot because length of challenged voter
residency requirement was shortened by state legislature such that
plaintilfs could have voted in last and all future elections).
11. In fact. there may not be a mootness question in this case
tall, Rather, the actual effect of the Court of Common Pleas’ deci-
¢
A6
7
“!A] case is moot,” the Supreme Court has held.
“when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the out-
come.”!? The Court has developed 4 two-pronged test for
mootness. A case may become moot if (1) “it can be said
with assurance that ‘there is no reasonable expectation
.’ that the alleged violation will recur,” and (2) “in-
terim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.”'”
In the occurrent case, neither prong is satisfied.
The Court of Common Pleas’ judgment determined only
Mark-Garner’s state law claim for injunctive relief: it
was not presented, however, with any federal civil rights
claims or with any claim for damages. Thus, the state
court’s relief cannot be said to have “completely eradi-
cated” the effects of the alleged violation. Nor can it be
said that there has been an “irrevocable eradication”
even of the state law violations, for the Court of Common
Pleas’ decision has been appealed. and thus could be re-
versed by a higher Pennsylvania court. Finally.
inasmuch as the Court of Common Pleas decided only
questions of state law, there is no assurance that the fed-
eral constitutional violations alleged in the cross-claim
will not recur. In short, there are present here “live” ted-
eral constitutional issues that have not been adjudicated
sion might be to preclude Mark-Gardner from suing in federal
court, at least as to the state claims. under the doctrine of res
judicata. Res judicata is an affirmative defense. Fed. R. Civ. P. 8(c).
not a question of jurisdiction. Scholla v. Scholla, 201 F.2d 211. 213
(D.C. Cir. ). cert. denied, 345 U.S. 966 (1953). Because the detend-
ants did not raise the defense in their pleadings. we do not address
the issue..See First Nat'l State Bank of New Jersev v. Common-
wealth Federal Sav. and Loan Ass'n of Norristown. No. 75-1712.
slip op. at 10 (3d Cir. filed Dec. 3. 1979); Sartin v. Comm ’r of Pub.
Safety. 535 F.2d 430. 433 (8th Cir. 1976).
12. Powell v. McCormack. 395 U.S. 486. 496 (1969). quoted in
County of Los Angeles v. Davis. 440 U.S. at 631.
13. County of Los Angeles v. Davis. 440 U.S. at 631.
A7
8
in any other court. And in view of the large amount of
unsettled damages, both parties have a legal interest in
the outcome. Accordingly, we hold that the case is not
moot and proceed to the substantive questions pressed
by Mark-Garner regarding the dismissal of the
cross-claim.
II. SUBSTANTIVE CLAIMS
In reviewing the dismissal on the pleadings for fail-
ure to state a claim, we must take all of the well-pleaded
allegations of the cross-claim as true, construe the
cross-claim in the light most favorable to Mark-Garner,
and determine whether, under any reasonable reading
of the pleadings, the developer might be entitled to
relief. '*
A. Direct Claims for Damages under the Fourteenth
Amendment
Mark-Garner brought several of its claims directly
under the Fourteenth Amendment. These claims —
alleging abridgements of due process and equal protec-
tion — are premised on the assumption that there exists
an implied cause of action for damages under the Four-
14. Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977)
(per curiam). In Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), a
civil rights action, Mr. Chief Justice Burger wrote for a unanimous
Court:
When a federal court reviews the sufficiency of a com-
plaint, before the reception of any evidence either by affi-
davit or admissions, its task is necessarily a limited one.
The issue is not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to
support the claims. Indeed it may appear on the face of the
pleadings that a recovery is verv remote and unlikely but
that is not the test. Moreover, it is well established that. in
passing on a motion to dismiss, whether on the ground of
lack of jurisdiction over the subject matter or for failure to
state a cause of action, the allegations of the complaint
should be ggnstrued favorably to the pleader.
A8
9
teenth Amendment that is wholly independent of statu-
tory authorization. The Supreme Court has not yet de-
cided whether such a cause of action exists.'’ It has
held, however, that there is an implied cause of action
for damages under the Fourth'® and Fifth'’ Amend-
ments. We have declared that such an action exists for
suits brought under the First Amendment,'” but have
reserved the question whether such a cause of action ex-
ists under the Fourteenth Amendment.'®? Other courts
of appeals have held explicitly that there is an implied
cause of action for damages under a number of constitu-
tional provisions.”°
15. In Mt. Healthy School Dist. Bd. of Educ. v. Doyle. 429 U.S.
274. 278 (1977), the Court stated: “The question of whether. . .
we should by analogy to our decision in Bivens. . . imply a cause ol
action directly from the Fourteenth Amendment which would not
be subject to the limitations contained in §1983. is one which has
never been decided by this court. We agree with respondent” that
“it is an extremely important question and one which should not be
decided on this record.” See Lake Countrv Estates, Inc. v. Tahoe Re-
gional Planning Agency. 440 U.S. 391, 398-400 (1979): Aldinger \.
Howard. 427 U.S. 1, 4 n.3 (1976); Citv of Kenosha v. Bruno, 412
U.S. 507, 511-14 (1973). See also Monell v. Dept. of Soc. Servs... 436
U.S. 658. 712-13 (1978) (Powell. J.. concurring).
16. Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 402 U.S. 388 (1971).
17. Davis v. Passman, 99 S. Ct. 2264 (1979).
18. Paton v. LaPrade. 524 F.2d 862. 869-70 (3d Cir. 1975).
19. Gagliardi v. Flint. 564 F.2d 112. 115-16 (3d Cir. 1977).
cert. denied, 438 U.S. 904 (1978). Cf: id. at 117-26 (Gibbons. |].
concurring) (arguing that this Court had previously decided that di-
rect cause of action under Fourteenth Amendment exists — citing
Rotolo v. Borough of Charleroi. 532 F.2d 920. 922 (3d Cir. 1976)
(per curiam); McCullough v. Redevelopment Auth. of Wilkes-
Barre, 522 F.2d 858. 864 (3d Cir. 1975): Alderman v. Philadelphia
Hous. Auth., 496 F.2d 164 (3d Cir.). cert. denied. 419 U.S. 844
(1974)).
20. For an exhaustive listing. see Davis v. Passman. 571 F.2d
793. 807 n.6 (5th Cir. 1978) (en banc) (Goldberg. J.. dissenting)
rev'd, 99 S.Ct. 2264 (1979). Sve also Lehmann. Bivens and its Prog-
eny. 4 Hastings Const. L. Q. 531. 566-68 and nn.226-29 (1977) (col-
lecting district court decisions ).
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10
There is no occasion to decide, in the present case,
whether the Fourteenth Amendment authorizes a direct
cause of action for damages,”' however, because
Mark-Garner has alleged causes of action under §1983
that are identical to its constitutional claims. Indeed,
§ 1983 was designed to afford plaintiffs a cause of action
for constitutional violations on the part of local govern-
mental bodies and other state officials.**
In Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977),
cert. denied, 438 U.S. 904 (1978), two black citizens
brought suit against the City of Pittsburgh as well as two
of its police officers, alleging that the officers abused
them on account of their race. The plaintiffs sought
damages under 42 U.S.C. §§1981, 1983, and 1985 and
under the Fourteenth Amendment. The district court
dismissed the claims against the city on the basis of
Monroe v. Pape, 365 U.S. 167 (1961), in which the Su-
preme Court had held that municipalities were immune
from suit under §1983.7° We affirmed the dismissal of
the claims based on the Fourteenth Amendment and
§§1983 and 1985, but reversed the dismissal of the
claim based on §1981. “In view of our holding in this
case that plaintiffs have stated a cause of action against
the city under 42 U.S.C. §1981,” we concluded, “‘a four-
teenth amendment remedy should not be implied. . . .
If plaintiffs prove the racially motivated deprivations of
21. The opposing sides of the question whether a direct cause
of action under the Fourteenth Amendment exists are set forth in
Gagliardi v. Flint, 564 F.2d 112, 117-26 (3d Cir. 1977) (Gibbons, J..
concurring) (there is such a cause of action) cert. denied, 438 US.
904 (1978). and in Mahone v. Waddle, 564 F.2d 1018, 1052-61 (3d
Cir. 1977). (Garth. J., dissenting in part and concurring in part)
(there is no such cause of action). cert. denied, 438 U.S. 904 (1978).
22. See Monell v. Dept. of Soc. Servs.. 436 U.S. 658 (1978).
23. The Supreme Court subsequently overruled Monroe in
Monell v. Dept. of Soc. Servs.. 436 U.S. 658 (1978). on the ground
that. in the earlier decision, it had misread the legislative history of
$1983.
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11
their rights which they allege, section 1981 will afford
them the redress in federal court which they seek.
Bivens teaches that the existence of an effective and
substantial federal «tatutory remedy for the plaintiffs ob-
viates the need to imply a constitutional remedy on
|their] behalf.”?*
The principle enunciated in Mahone applies to the
present action. Section 1983 affords Mark-Garner reme-
dies at law or equity against the named defendants for
any constitutional violations that can be established.?> It
is now settled that cities and other municipal bodies.
such as the Bensalem Zoning Hearing Board. are “per-
sons” within the meaning of §1983.2° Therefore. it
would be a redundant and wasteful use of judicial re-
sources to permit the adjudication of both direct consti-
tutional and §1983 claims when the latter wholly sub-
sume the former.?‘
B. Section 1983 Claims
The developer alleges that the defendants deprived
it of four constitutional rights for which §1983 author-
24. O64 F.2d at 1024-25 (referring to Bivens v. Six Unknewn
Named Agents of Federal Bureau of Narcotics. 403 U.S. 388.
407-11 (1971) (Harlan, J.. concurring )).
25. Section 1983 provides:
Every person who, under color of any statute. ordinance.
regulation, custom. or usage. of any State or Territory. sub-
jects, or causes to be subjected. anv citizen of the United
States or other person within the jurisdiction thereot to the
deprivation of any rights, privileges. or immunities secured
by the Constitution and laws. shall be liable to the party in-
jured in an action at law, suit in equity. or other proper pro-
ceeding for redress.
26. Monell v. Dept. of Soc. Servs.. 436 US. G38 LOTR) Sex
note 23 supra and accompanving tent.
27. We express no opinion on the issue whether a direct cause
of action under the Fourteenth Amendment would be available m
the absence of an effective federal statutory remedy. See notes 13
and 21 supra.
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12
izes remedial causes of action.*® Specifically, it claims a
denial of equal protection, a deprivation of substantive
due process, that its property was taken without just
compensation, and that it was deprived of procedural
due process. Inasmuch as a reading of well-settled case
law convinces us that Mark-Garner could not prevail on
anv of its §1983 allegations, we hold that the district
court did not err in dismissing them.
|. Equal Protection
Mark-Garner charges that the cross-detendants de-
nied it the equal protection of the laws because they
passed zoning amendments for the purpose of discrimi-
nating against developers that had previously obtained
construction approval for plans of greater density than
that authorized by the amendments. Essentially, the
charge is that the amendments unconstitutionally clas-
sified developers into two groups — those that had ob-
tained construction approval at the time of the passage
of the amendments and those that had not.
The allegations in the cross-claim suggest no basis
lor applying any equal protection standard except the ra-
tional relationship test.*” In applving this test to legisla-
28. See Lynch v. Household Finance Corp., 405 U.S. 538
(1972) (§1983 and its jurisdictional counterpart, 28 U.S.C.
9134303), apply to property as well as personal rights). For a
thoughtful criticism of this expansion of §1983. see H. Friendly.
Federal Jurisdiction: A General View 90-92 (1973).
29. The Supreme Court will review certain equal protection
challenges under more stringent standards — strict and intermedi-
ate scrutiny. The former test — whether the challenged classifica-
tion is necessary to the accomplishment of a compelling state inter-
est — thus far has been reserved for discriminations based on race.
national origin, alienage, and for classifications made on account of
the exercise of a constitutional right by one of the two classes. The
latter category — whether the discrimination substantially furthers
the achievement of an important governmental objective — thus far
has been applied only to classsilications based on gender or illegit-
macy. Fora collection of cases, sce generally G. Gunther. Constitu-
tional Law ch. 1001975 and Supp. 1979).
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13
tion that affects business or other economic activity, the
Supreme Court has accorded great deference to the leg-
islative decision to establish the challenged classifica-
tion. The Court’s most recent statement of the rule was
in Vance v. Bradley, 440 U.S. 93 (1979), a case involving
a challenge to a federal law mandating that participants
in the Foreign Service Retirement System retire at age
sixtv. The Court held that “we will not overturn such a
statute unless the varying treatment of different groups
or persons is so unrelated to the achievement of anv
combination of legitimate purposes that we can onlv
conclude that the legislature’s actions were irrational."*°
Such broad deference is extended to legislative
judgments dealing with business and economic matters
because of the recognition that the process of democrat-
ic political decisionmaking often entails the accommoda-
tion of competing interests, and thus necessarily pro-
duces laws that burden some groups and not others. In
the absence of special justification for more searching
judicial examination — such as an allegation that the
legislative body has classified on the basis of a suspect
characteristic — for a court to undo the fruits of this
process would be “to condemn as unconstitutional the
most characteristic product of a democratic (perhaps of
anv) political system."!
30, 440 US. at 97. See also Dietlenbach v. Attorney General of
Vermont, 604 F.2d 187. 195 (2d Cir. 1979) ("In an economic matter
such as this. we owe an extraordinary deference to state objectives.
almost the equivalent of a strong presumption of constitution-
a
31. Posner, The DeFunis Case and the Constitutionality of
Preferential Treatment of Racial Minorities. 1974 Sup. Ct. Rev. 1.
28. For a marshalling of various criticisms of the rational reiation-
ship test. see generally Bennett. “Mere” Rationality in Constitu-
tional Law: Judicial Review and Democratic Theory. G7 Calit. L.
Rev. 1049 (1979): Ely. Legislative and Administrative Motivation
in Constitutional Law. 79 Yale L.J. 1205 (1970); MeCloskev. Eco-
nomic Due Process and the Supreme Court: Exhumation and
Reburial, 1962 Sup. Ct. Rev. 34: Note. Equal Protection: A Closer
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14
To prevail on its equal protection § claim,
Mark-Garner must persuade us that the passage and ap-
plication to it of the zoning amendments “so lack
rationality that they constitute a constitutionally imper-
missible denial of equal protection.”°? Construing its
cross-claim in the light most favorable to the developer,
we conclude that it cannot discharge this burden.
Although zoning laws ‘must find their justification
in some aspect of the police power, asserted for the pub-
lic welfare,” it is well-settled that such measures are
constitutional if they bear a “substantial relation to the
public health, safety, morals, or general welfare.” Village
of Euclid v. Ambler Realty Co., 288 U.S. 365, 387, 395
(1926). The concept of general welfare has been broadly
construed: “The values it represents are spiritual as well
ius physical, aesthetic as well as monetary. It is within
the power of the legislature to determine that the com-
munity should be beautiful as well as healthy, spacious
as well as clean, well-balanced as well as carefully pa-
trolled.” Berman v. Parker, 348 U.S. 26, 33 (1954).
Relying on these decisions, the Supreme Court, in
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).
upheld a zoning law that defined the term “family” so as
to exclude the plaintiffs — a group of six unrelated col-
lege students who had rented a house in the Village.
Identifying the legitimate governmental purpose, the
Court observed:
A quiet place where yards are wide, people few, and
motor vehicles restricted are legitimate guidelines
in a land-use project addressed to family needs.
This goal is a permissible one within Berman v.
NOTE 31 — (Continued)
Look at Closer Scrutiny, Mich. L. Rev. 771 (1978): Note. Legisla-
fice Purpose, Rationality and Equal Protection, 82 Yale L.J. 123
(1972). But see Linde, Due Process of Lawmaking, 55 Neb. L. Rev.
197 (1976); Posner, supra,
32. New Orleans v. Dukes, 427 U.S. 297. 305 (1976) (per
curiam),
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15
Parker |348 U.S. 26 (1954)]. The police power is
not confined to elimination of filth. stench. and
unhealthy places. It is ample to lav out zones where
family values, youth values, and the blessings of
quiet seclusion and clean air make the area a sanc-
tuary for people.**
Under these standards of rationality and legitimacy
Mark-Garner cannot succeed with its equal protection
claim. The Supervisors legitimately could have conclud-
ed that it was in the best environmental and economic
interests of Bensalem Township to limit the number of
residents and to prevent overcrowding. Reduction of the
allowable density level of the R-4 zoning previously ob-
tained district is a rational and reasonable means to ac-
complish this goal.** That the zoning amendments bur-
den developers who had _ previously obtained
construction approval more than they burden developers
that may, in the future, plan to build in an R-4 zone.
does not, under an equal protection analvsis, vitiate ei-
ther the reasonableness or the legitimacy of the density
restrictions. In passing the amendments, the Supervi-
sors reasonably could have concluded that it was neces-
33. 416 US. at 9.
34. In analyzing this legitimate purpose and rational relation-
ship, we emphasize that we do so only for the purpose of adjudicat-
ing Mark-Garner’s appeal of the dismissal of its § 1983 equal protec-
tion claim: we express no opinion whether the amendments can o1
would withstand all constitutional challenges. For example. suit
might be brought alleging that the amendments were unlawtull
intended to exclude the poor or racial minorities. See. e.g... Warth \
Seldin. 422 U.S. 490 (1975): Village of Arlington Heights v. Metro
politan Hous. Dev. Corp.. 429 U.S. 252 (1977). See generally
Ellickson. Suburban Growth Controls: An Economic and Legal
Analysis. 86 Yale L.J. 385 (1977): Developments in the Law -
Zoning. 91 Harv. L. Rev. 1427. 1624-1708 (1978). Inasmuch as
Mark-Garner has not alleged that the zoning amendments are
unconstitutionally exclusionary. however. we do not address that
question here. See also note 42 infra.
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16
sary to limit growth immediately because the completion
of Bensalem Village, as originally approved, would so
add to both the population and density that the purposes
of the amendments would be frustrated. Inasmuch as
we must defer to that judgment unless we find it to be so
unrelated to the achievement of the Township's objec-
tives as to be irrational*> — and we do not — we hold
that the district court did not err in concluding that
Mark-Garner did not state an equal protection claim un-
der §1983.
2. Substantive Due Process
Zoning laws are most commonly challenged on the
ground that they violate substantive due process. At one
time, the Supreme Court was willing to question the
fairness and wisdom of a particular state statute and, de-
spite disclaimers to the contrary,”® to substitute its judg-
ment about social policy for that of the legislative body. If
the statute, in the Court’s opinion, did not further the
public interest in safety, morals, or welfare, the law was
held to exceed the authority of the legislature and there-
fore to abridge the liberty and property protections of the
due process clause.*’ In more recent years, the Court
has abjured this supervisory role, however, and now ap-
plies virtually the same standard of review under the due
process clause as it does in equal protection cases involv-
35. Vance v. Bradley, 440 U.S. at 97.
36. See, e.g., Lochner v. New York, 198 U.S. 45. 56-57 (1995)
(invalidating state law regulating working hours of bakery emplov-
ees) (“This is not a question of substituting the judgment of the
court for that of the legislature.’’).
37. See, e.g., id. at 58 (“We think the limit of the police power
has been reached and passed in this case. There is. in our judg-
ment, no reasonable foundation for holding this to be necessary or
appropriate as a health law... ."). For a collection of the cases trac-
ing the rise and fall of the substantive due process doctrine. see W.
Lockhart. Y. Kamisar & J. Choper. Constitutional Law 506-48
(1974). See generally McCloskey: supra note 31.
-
A16
17
ing economic classifications.** The test of substantive
due process, as for equal protection, is whether the law
is rationally related to a legitimate state interest. “|T|he
law need not be in every respect logically consistent with
its aims to be constitutional. It is enough that there is an
evil at hand for correction, and that it might be thought
that the particular legislative measure was a rational wav
to correct it.”°? Unlike equal protection, however, the fo-
cus of due process analysis is not whether the Township
has irrationally distinguished between similarly situated
classes, but whether it was irrational for the Township to
have passed the law at all and to have applied it to
Mark-Garner. 7?
As we observed in deciding whether Mark-Garner
stated an equal protection cause of action,?' the Town-
ship has a legitimate interest in controlling population
growth and density and the zoning amendments are a
rational and reasonable means to accomplish that pur-
pose. Therefore, the zoning amendments were not arbi-
trary or irrational and the district court did not err in dis-
missing the §1983 substantive due process claim.”
38. See part 1 supra.
39. Williamson v. Lee Optical Co.. 348 U.S. 483, 487-88
(1955). See Duke Power Co. v. Carolina Environmental Stud\
Group, 438 U.S. 59, 82-84 (1978): Whalen v. Roe. 429 U.S. 589.
596-98 (1977): Ferguson v. Skrupa. 372 U.S. 726 (1963).
40. See Dieffenbach v. Attorney Gen. of Vermont. 604 F.2d
187. 195 (2d Cir. 1979): Note. Equal Protection: A Closer Look «at
Closer Scrutiny, 76 Mich. L. Rev. 771. 831-37 (1978).
41. See part 1 supra.
42. We emphasize again that today's holding is not a general
affirmation of the constitutionality of the Bensalem zoniny ordi-
nance as amended. See note 34 supra. Mark-Garner’s cross-claim
alleged only a violation of the “generous” substantive due process
standard. See Village of Arlington Heights v. Metropolitan Hous
Dev. Corp.. 429 U.S. 252. 263 (1977). It did not claim that the law is
unconstitutionally exclusionary and. indeed. probably could not do
so inasmuch as it may not assert the rights of third-parties and did
not join as cross-plaintiff a person who would allege. for example.
that the law discriminated against him on the basis of race. See id. at
263-64.
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18
3. Taking Without Just Compensation
Although a zoning ordinance or other law comports
with the requirements of substantive due process, it
nonetheless may violate the “taking” clause of the F ifth
Amendment that is applicable to the states through the
Fourteenth Amendment.*? Thus, if an otherwise valid
law severely diminishes the value or impairs the use of a
parcel of land, the state or local government may be con-
stitutionally obligated to compensate the owner?
Mark-Garner predicates the third of its §1983 claims on
the ground that the defendants’ actions uncon-
Stitutionally diminished the value of Bensalem Village
and therefore constituted a taking of its property.
In this regard, the Supreme Court recently ob-
served: “The question of what constitutes a ‘taking’ for
purposes of the Fifth Amendment has proved to be a
problem of considerable difficulty” involving “essentially
ad hoc, factual inquiries.”*5 Two factors appear to be of
more importance to the Court than others. First. if the
law in question applies generally to a broad class of prop-
erties, the Court is likely to sustain it.4° The Court has
stated that zoning laws are the classic example of this
kind of general, social welfare legislation.*” Second, un-
less application of the law destroys or severely dimin-
_ishes the value of the property, the Court will uphold the
43. Chicago. B. & Q.R.R. vy. Chicago, 166 U.S. 226. 235-4]
(1897).
44. Ifa taking is found to have occurred. courts generally will
give the government the option either of abandoning the intrusive
activity (if it is possible to do so) or of paving compensation. See, e.q..
Agins v. City of Tiburon, 24 Cal. 3d 266, 598 P.2d 25. 157 Cal. Kptr.
372 (1979), cert. granted, No. 79-602. 48 U.S.L.W. 3426 (U.S. Jan.
8. 1980): Fred F. French Inv. Co. v. City of New York, 39 N.Y.2d
987. 594-96. 350 N.E.2d 381. 384-86, 385 N.Y.2d 5. 8-9 ( 1976),
45. Penn Cent. Transp. Co. v. New York Citv. 438 U.S. 104.
12'3-24 (1978).
46. Id. at 125.
47. Id.
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19
application. This is true even if the legislation prohibits
“a beneficial use to which individual parcels had pre-
viously been devoted and thus cause|s] substantial indi-
vidualized harm,’”"® haces
Two cases aptly illustrate the Court’s approach to
“taking” questions. Goldblatt v. Hempstead, 369 U.S.
990 (1962), dealt with a challenge to a city ordinance
that banned any excavations below the water table and
which had the effect of preventing the claimant from
continuing a sand and gravel business he had operated
for thirty years. In upholding the application of the ordi-
nance, the Court noted that, as a safety measure, the law
was a valid exercise of the police power.*” It then con-
cluded that, although the ordinance deprived the proper-
ty of its most beneficial use, it was not unconstitutional.
So long as the lot retained value, and there was no indi-
cation to the contrary, the ordinance was valid.°° More
recently, in Penn Central Transportation Co. v. New
York City, 438 U.S. 104 (1978), the Court rejected a
“taking” challenge to New York City’s Landmarks Pres-
ervation Law. The City had declared Grand Central Ter-
minal to be a landmark and invoked the statute to block
construction of a high-rise office building on top of the
Terminal. Application of the law was not a taking, the
Court held, because the “restrictions imposed are sub-
stantially related to the promotion of the general welfare
and not only permit reasonable beneficial use of the
landmark site but also afford appellants opportunities
48. Id. at 126-27 (citing Miller v. Schoene. 276 U-S. 272
(1928) (upholding mandatory removal of diseased cedar trees with-
out compensation for loss of land value); Hadacheck v. Sebastian.
239 U.S. 394 (1915) (upholding law prohibiting claimant from con-
(inuing otherwise lawful brickvard business on ground that legisla-
ture reasonably concluded that continuance was inconsistent with
neighboring uses )).
49, 369 U.S. at 594-96.
50. Id. at 592-94,
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20
further to enhance not only the Terminal site proper but
also other properties.”>!
Applying the principles of these cases to the matter
at hand, we conclude that the district court did not err in
dismissing Mark-Garner’s §1983 “taking” claim. We
have already held that the zoning amendments are valid
exercises of the police power, passed as a means to limit
the number of persons who might move into the area
and to prevent overcrowding.°* The amendments apply
generally to all land within the R-4 zone, not only to
Bensalem Village. The burden of the restrictions, al-
though perhaps affecting Mark-Garner more than other
landowners, is distributed over a substantial portion of
the citizenry. Moreover, the general reduction in popula-
tion density very likely will benefit the developer to some
extent by making the remaining units in Bensalem Vil-
lage more desirable. The first element of the “taking”
calculus therefore operates in favor of validity in this
case. In Penn Central, the Supreme Court remarked:
It is, of course, true that the Landmarks Law has a
more severe impact on some landowners than on
51. 438 U.S. at 138, The Court emphasized the importance of
the fact that the law had not severely diminished the economic val-
ue of the Terminal:
We emphasize that our holding today is on the present re-
cord, which in turn is based on Penn Central's present
ability to use the Terminal for its intended purposes and in
a gainful fashion. The city conceded at oral argument that
if appellants can demonstrate at some point in the future
that circumstances have so changed that the Terminal
ceases to be “economically viable,” appellants may obtain
relief.
Id. at n.36. Cf: Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
(1922) (striking down application of statute forbidding coal mining
that could cause subsidence of dwellings because the harm protect-
ed against was not public and law made coal mining commercially
impracticable),
52. See parts 1 & 2 supra.
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21
others, but that in itself does not mean that the law
effects a “taking.” Legislation designed to promote
the general welfare commonly burdens some more
than others . . . [Zjoning laws often affect some
property owners more severely than others but have
not been held to be invalid on that account. For ex-
ample, the property owner in Euclid who wished to
use its property for industrial purposes was affected
far more severely by the ordinance than its neigh-
bors who wished to use their land for residences.
** * Unless we are to reject the judgment of
the New York City Council that the preservation of
landmarks benefits all New York citizens and all
structures, both economically and by improving the
quality of life in the city as a whole — which we are
unwilling to do — we cannot conclude that the own-
ers of the Terminal have in no sense been benefited
by the Landmarks Law. Doubtless appellants be-
lieve they are more burdened than benefited by the
law, but that must have been true, too, of the prop-
erty owners in Miller, Hadacheck, Euclid, and
Goldblatt .**
The second element of the “taking” formula also
supports a conclusion in favor of validity. When as a re-
sult of governmental actions the diminution in the value
of land reaches a “certain magnitude,” the Court has
held that compensation must be paid.°* Although it has
never attempted to delineate what constitutes a “certain
magnitude,” the Court has only required compensation
in cases in which the value of the property was reduced
53. 438 U.S. at 133-35 (citing Miller v. Schoene, 276 U.S. 272
(1928); Hadacheck v. Sebastian, 239 U.S. 394 (1915): Village of
Euclid v. Ambler Realty Co.. 272 U.S. 365 (1926); Goldblatt v.
Hempstead, 369 U.S, 590 (1962)),
54. Pennsvivania Coal Co. v. Mahon, 260 U.S. 393. 413
(1922),
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22
drastically.” In Penn Central, for example, the Court
sustained the application of the Landmarks Preservation
Law despite the fact that the legislation denied the
claimants income that would have been generated by a .
fifty-five story office building in midtown Manhattan.”°
The Court also cited approvingly cases in which the
challenged law had reduced the value of the land by as
much as seventy-five and eighty-seven percent.’
Mark-Garner asserts in its cross-claim that it pur-
chased the land which now comprises Bensalem Village
for approximately $3 million. As a result of the applica-
tion of the zoning amendments, it alleges that the cur-
rent market value of the property is about $2 million. In
view of the Supreme Court’s long-standing tolerance of
much greater diminutions in value, the averments in the
cross-claim do not set forth a colorable claim in this re-
gard.°* Since both elements of the taking calculus weigh
heavily in favor of the constitutionality of the amend-
ments’ application to Bensalem Village, we conclude
that the district court did not err in dismissing
Mark-Garner’s §1983 taking claim.””
55. See. e.g., id. See also Armstrong v. United States. 364 U.S.
40 (1960) (government’s complete destruction of a materialman’s
lien in certain chattels held to constitute a taking).
56. 438 U.S. at 131-32.
57. Id. at 131 (citing Village of Euclid v. Ambler Realty Co..
272 U.S. 365 (1926) (75% diminution); Hadacheck v. Sebastian.
239 U.S. 394 (1915) (87.5% diminution )).
58. We follow the Supreme Court’s caveat in Penn Central, see
note 51 supra, and limit our decision to the facts as alleged in
Mark-Garner's cross-claim.
59. Lake Country Estates. Inc. v. Tahoe Regional Planning
Agency, 440 U.S. 391 (1979), does not alter our analvsis. There. the
Court assumed that the plaintiffs had alleged a colorable “taking”
claim under §1983 so that it could decide the question whether the
Eleventh Amendment bars the federal courts from taking jurisdic-
tion over an action brought against a bi-state commission. Because
it was not raised in the petition for certiorari. the Court specifically
reserved the question of the sufficiency of the complaint. Id. at 397
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23
4. Procedural Due Process
Mark-Garner’s final §1983 theory is that it was de-
nied procedural due process. The developer alleges that
the cross-defendants conspired to Violate its substantive
constitutional rights and that the supervisors announced
publicly that they would take all steps necessary to stop
the construction of Bensalem Village and similar real
estate developments. Mark-Garner does not allege, how-
ever, that the Township’s zoning and appellate proce-
dures are constitutionally deficient or that the
cross-defendants failed to comply with those procedures.
The due process claim against the Board of Supervi-
sors is without merit because, in passing the amend-
ments, the Board was acting in a legislative capacity.
The amendments applied to all property within the R-4
district, not merely to Bensalem Village. They constitute
general statements of Township policy rather than spe-
nll. We have found nothing in Lake Country Estates which sug-
vests that the Court has reconsidered the “taking” analysis set forth
in Penn Central.
The Supreme Court has recently granted certiorari in a case in-
volving a challenge to local land use regulation. In Agins v. City of
Viburon, 24 Cal. 3d 266, 598 P.2d 25, 157 Cal. Rptr. 372 (1979),
cert. granted, No. 79-602, 48 U.S.L.W. 3426 (U.S. Jan. 8. 1980).
the California Supreme Court sustained the dismissal of an inverse
condemnation action for damages against the citv. The court held
that the proper remedy for an unconstitutional taking is a declara-
torv judgment or mandamus forbidding the illegal action. not dam-
ages. An action for damages, reasoned the court. would unduly
usurp the legislative prerogative inasmuch as available alternatives
— declaratory or mandamus relief’ — would permit the city to
choose whether to terminate its application of the ordinance or to
pay compensation. See Fulham & Scharf, Inverse Condemnation:
Its Availability in Challenging the Validity of a Zoning Ordinance.
26 Stan. L.Rev. 1439, 1450-51 (1974). The narrow question pre-
sented in Agins does not appear to be pertinent to the issues in this
case. Of course, we can only speculate whether the Supreme Court,
in the course of adjudicating Tiburon, will render a broader state-
ment about taking challenges to zoning laws.
A23
24
cific applications of policy to a particular landowner, and
therefore can be characterized only as legislative acts.
Long ago, the Supreme Court decided that the protec-
tions of procedural due process do not extend to legisla-
tive actions. In Bi-Metallic Investment Co. v. State
Board of Equalization of Colorado, 239 U.S. 441 (1915),
the Court rejected a landowner’s assertion that he had a
due process right to a hearing before the State Board of
I.qualization voted on an order increasing by forty
percent the valuation for tax purposes of all property in
Denver. Writing for a unanimous Court, Justice Holmes
observed:
Where a rule of conduct applies to more than a few
people it is impracticable that everv one should have
60. General legislation of course can have a differential impact
on certain groups of landowners. For example. an ordinance limit-
ing the height of buildings will affect a landowner who is planning
to build or is constructing a fifty storv building differently than it
will his neighbor who owns a renovated. three-story colonial
townhouse. Similarly, Mark-Garner probably was more severely
burdened by the zoning amendments than were other owners of
land in the R-4 district who possess existing dwellings and who had
ho plans for new construction. That differential impact does not.
however, change the character of the legislative act: nor does it enti-
tle Mark-Garner. in its quest to nullify the legislation. to the protec-
tions of procedural due process. See text infra.
In contrast to legislative action is administrative action — the
scope of which és limited by the due process clause. An example of
an administrative act would be the denial of a variance. because
such an act involves not only general policy considerations but also
application of that policy to an individual landowner. See. e.g..
Vandy v. City of Oakland, 208 Cal. App. 2d 774. 42 Cal. Rptr. 283
(1965); text at pp. 26-30 infra.
Cf: South Gwinnett Venture v. Pruitt. 491 F.2d 5 (3th Cir.) cen
bane) (county planning commission's denial of rezoning application
held quasi-legislative and therefore not subject to procedural due
process review ). cert. denied. 419 U.S. 837 (1974). For a discussion
of the legislative-administrative distinction. see generally. Develop-
ments in the Law, supra note 34. at 1508-13.
A24
25
a direct voice in its adoption. The Constitution does
not require all public acts to be done in town meet-
ing or an assembly of the whole. General statutes
within the state power are passed that affect the
person or property of individuals, sometimes to the
point of ruin, without giving them a chance to be
heard. Their rights are protected in the only way
that they can be in a complex society, by their pow-
er, immediate or remote, over those who make the
rule. . . . There must be a limit to individual argu-
ment in such matters if government is to go on.
Id. at 445. See Eastlake v. Forest City Enterprises, Inc.,
426 U.S. 668 (1976) (city charter provision requiring
proposed land use changes to be ratified by fifty-five
percent of electorate does not violate due process rights
of landowner applying for zoning change).
To provide every person affected by legislation the
various rights encompassed by procedural due process
— including hearings, opportunity for confrontation and
response, clear standards, an impartial arbiter, and pos-
sibly judicial review — would be inconsistent with the
structure of our system of government. The act of leyis-
lating necessarily entails political trading, compromise,
and ad hoc decisionmaking which, in the aggregate,
produce policies that at least approximate a fair and
equitable distribution of social resources and obligations.
Absent an indication that this process inherently
treats a particular class of persons inequitably,"' it is un-
necessary for the courts to intervene because the rela-
tively large number of persons affected works to ensure
that the legislature will not act unreasonably toward the
populace.” In short, the general theory of republican
G1. See generally Ely. The Supreme Court 1977 Term: On Dis-
covering Fundamental Values, 92 Harv. L. Rev. 5 (1978): Ely. To-
ward a Representation-Reinforcing Mode of Judicial Review. 37
Md. L. Rev. 451 (1978).
62. See generally RK. Dahl, A Preface to Democratic Theory
(1956).
A25
26
government is not due process through individual hear-
ings and the application of standards of behavior, but
through elective representation, partisan politics, and
the ultimate sovereignty of the people to vote out of of-
lice those legislators who are unfaithful to the public
will.”’ Inasmuch as the Supervisors, in passing the
zoning amendments, were acting in a legislative capac-
itv. Mark-Garner has no procedural due process claim
against their actions.
We also conclude that Mark-Garner has failed to
state a procedural due process claim in regard to the ac-
tions of the Zoning Officer and Zoning Hearing Board.
Their actions were administrative in nature because
they involved application oi the Township's general
zoning policies — as manifested in the amendments —
to a particular parcel of land. Thus, Mark-Garner is enti-
tled to claim the procedural protections of the due proc-
ess clause in challenging the officials’ refusal to grant it
further building permits. The fatal flaw in the develop-
er’s claim in this respect. however, is that it fails to set
forth any behavioral or structural allegations from which
we can infer that Bensalem’s process was uncon-
stitutional.
Before a governmental body may deprive a land-
owner of a property interest, it must provide due process.
The exact process required varies with the demands of
the particular situation in question.“! A balancing test
has been articulated by the Supreme Court to determine
the requirements of due process for any given situation:
the private interest affected by the governmental action
and the value of additional procedural safeguards are to
be weighed against the fiscal and administrative bur-
dens that additional procedures would impose on the
government.°? The Court has identified the follow ing as
63. See generally Ratner, The Function of the Due Process
Clause, 116 UL Pa. Lo Rev. 1048 (1968).
G4. Morrissey v. Brewer, 408 U.S. 471. 481 (1972).
GS. Mathews v. Eldridge. 424 U.S. 319. 3335 (1976).
A26
27
elements of due process: (1) notice of the basis of the
governmental action; (2) a neutral arbiter; (3) an oppor-
tunity to make an oral presentation; (4) a means of pre-
senting evidence; (5) an opportunity to cross-examine
witnesses or to respond to written evidence; (6) the right
to be represented by counsel; and (7) a decision based
on the record with a statement of reasons for the re-
sult.°° Whether all or any one of these safeguards are re-
quired in a particular situation depends on the outcome
of the balancing test mentioned above.”
In order to resolve this appeal, it is not necessary to
decide exactly which procedural protections are mandat-
ed by due process in this instance. Rather, we hold that
Mark-Garner’s cross-claim, beyond making a general as-
sertion of denial of due process, fails to allege that
Bensalem’s permit and appellate procedures were con-
stitutionally deficient in any way.
The Pennsylvania legislature has enacted a system
for processing challenges to zoning ordinances. The
Zoning Officer, the primary administrator of the ordi-
nance, is charged with execution “in accordance with its
literal terms, and shall not have the power to permit any
construction or any use or change of use which does not
conform to the zoning ordinance.”® The inflexible min-
isterial nature of the Zoning Officer’s role is mitigated by
the zoning appeals process. A landowner who wishes to
challenge the validity of a zoning ordinance or amend-
ment that restricts the use or development of its land
may file a challenge with the Zoning Hearing Board”
and may appeal from any decision by the Zoning Officer
applving the ordinance. ‘’ The latter course may be tak-
en when, as here, the landowner believes that the
66. See J. Nowak. R. Rotunda & J. Young, Constitutional Law
488-503 (1978) and cases collected therein.
G7. See text at note 65 supra.
68. 53 Pa. Cons. Stat. Ann. §106!14 (Purdon 1972).
69. Id. §§$10910. 11003 and 11004.
70. Id. § 10909.
A27
28
Zoning Officer misapplied an applicable rule of law. ‘!
The Zoning Hearing Board is an administra-
tive-adjudicatory agency. Its members must be residents
of the municipality, and are appointed by the Board of
Supervisors for terms of three years.’ Whenever an ap-
peal or challenge to a zoning ordinance is brought to the
Zoning Hearing Board, it is required by statute to con-
duct a hearing on the claim. Section 10908 of the Com-
monwealth’s Municipal Corporations Code mandates
that the Board provide the following procedures: (1) No-
tice must be given to the public, the Zoning Officer, and
the person challenging the ordinance or action. (2) The
Board or hearing officer must conduct the hearings and,
unless the parties waive this right, the Board itself must
make findings and render the decision on the merits. (3)
The Board has the power to administer oaths, and to
compel the appearance of witnesses and the production
of documents requested by the parties. (4) Each party
has the right to be represented by counsel. (5) Each par-
ty has the right to present evidence and argument, and
to cross-examine adverse witnesses. (6) The Board is re-
quired to maintain a record of the proceedings. (7) Ex
parte communication between the Board or the hearing
officer and any party is prohibited. (8) The Board is re-
quired to publish its findings and conclusions within
forty-five days of the last hearing. ’* If the landowner is
dissatisfied with the Board’s decision, it then has the
right to appeal to the Court of Common Pleas. ’* The ap-
71. Id. In this case, Mark-Garner appealed on the ground that
the Zoning Officer had ignored decisions of the Court of Common
Pleas interpreting 53 Pa. Cons. Stat. Ann. §10508(4) (Purdon 1972)
us prohibiting application of the amendments to the Bensalem Vil-
lage development. See note 5 supra. Section 10909 also provides
landowners the right to proceed directly in the Court of Common
Pleas.
72. Id. §10903 (Purdon Supp. 1979).
73. Id. §§10908 and 10910 (Purdon 1972 & Supp. 1979).
74. Id. §§11005(c), 11006(2)(c), 11008 (Purdon 1972 & Supp.
1979).
A28
‘
29
peal may either take the form of direct judicial review of
the Board’s decision, or the court may take new evidence
and enter its own findings of fact after trial de novo.’°
The Court is authorized “to declare any ordinance or
map invalid and to set aside or modify” any action, deci-
sion, or order of the Township, Zoning Officer, or
Zoning Hearing Board.
In Pennsylvania the procedure for challenging
zoning ordinances substantially conforms with the gen-
eral due process guidelines enunciated by the Supreme
Court.‘‘ Mark-Garner acknowledges in its cross-claim
that it submitted to this process — that it received a
hearing, a decision on the merits by the board, and ob-
tained judicial review of that decision. Indeed, on re-
view, the Court of Common Pleas granted the developer
the relief it requested. ’® Although it asserts that it was
denied procedural due process during the course of the
adjudication before the Zoning Hearing Board,
Mark-Garner makes no specific allegation of deficiency
in this process. As a consequence, and in view of the fact
that Pennsylvania’s system of adjudicating zoning chal-
lenges appears to be consistent with the requirements of
due process, the district court did not err in holding that
Mark-Garner fails to state a colorable procedural due
process claim.
C. Sections 1985(3) and 1986
Mark-Garner’s final federal claims arise under two
provisions of the Ku Klux Klan Act of 1871, 42 U.S.C.
§§1985(3) and 1986 (1976). The purpose of this Act was
to place each newly freed black “on an equal footing be-
fore the law with his former master.”’” Section 1985(3)
75. Id. §11010.
76. Id. §11011 (Purdon Supp. 1979). The standards for the ju-
dicial decision are also set forth in this section.
77. See text at notes 64-66 supra.
78. See note 4 and accompanving text supra.
79. Collins v. Hardyman, 341 U.S. 651, 661 (195!).
A29
30
establishes a cause of action against any person who en-
ters into a private conspiracy for the purpose of depriving
the claimant of the equal protection of the laws.*° Sec-
tion 1986 is a companion to §1985(3) and provides the
claimant with a cause of action against any person who,
knowing that a violation of §1985 is about to be commit-
ted and possessing power to prevent its occurrence, fails
to take action to frustrate its execution.”' Because trans-
80. Section 1985(3) provides in relevant part:
81.
If two or more persons in any State or Territory conspire
. . for the purpose of depriving, either directly or indi-
rectly, any person or class of persons of the equal protec-
tion of the laws, or of equal privileges and immunities un-
der the laws; or for the purpose of preventing or hindering
the constituted authorities of any State or Territorv from
giving or securing to all persons within such State or Terri-
tory the equal protection of the laws; . . . in anv case of
conspiracy set forth in this section, if one or more persons
engaged therein do, or cause to be done, any act in further-
ance of the object of such conspiracy, whereby another is
injured in his person or property, or deprived of having and
exercising any right or privilege of a citizen of the United
States, the party so injured or deprived may have an action
for the recovery of damages, occasioned by such injury or
deprivation, against any one or more of the conspirators.
Section 1986 provides:
Every person who, having knowledge that any of the
wrongs conspired to be done, and mentioned in section
1985 of this title, are about to be committed: and having
power to prevent or aid in preventing the commission of
the same, neglects or refuses so to do, if such wrongful act
be committed, shall be liable to’the party injured. or his le-
gal representatives, for all damages caused by such wrong-
ful act, which such person by reasonable diligence could
have prevented; and such damages mayv be recovered in an
action on the case; and any number of persons guilty of
such wrongful neglect or refusal may be joined as defend-
ants in the action; and if the death of any partv be caused
by any such wrongful act and neglect. the legal represen-
tatives of the deceased shall have such action therefor. and
may recover not exceeding $5.000 damages therein. for
the benefit of the widow of the deceased. if there be one.
A30
31
gressions of § 1986 by definition depend on a preexisting
violation of §1985, if the claimant does not set forth a
cause of action under the latter, its claim under the for-
mer necessarily must fail also.®”
The Supreme Court's most thorough discussion of
these sections was in Griffin v. Breckenridge, 403 U.S.
88 (1971). There, several black persons brought suit un-
der §1985(3) alleging that the defendants. a group of
white Mississippians, conspired and acted to deprive the
plaintiffs of their equal rights by beating and threatening
to kill them. The Court rejected the defendants’ argu-
ment that the statute required state action. and inter-
preted it as covering purely private conspiracies as
well."* To eftect Congress’ intent not to embrace all
tortious conspiratorial interferences with the rights of
others, however, the Court held that §1985(3) applied
only to private conspiracies predicated on “racial, or per-
haps otherwise class-based. insidiously discriminatory
animus. "8+
We need not decide today whether §1985(3) em-
braces private conspiracies to discriminate on the basis
and if there be no widow, then for the benefit of the next of
kin of the deceased. But no action under the provisions of
this section shall be sustained which is not commenced
within one year after the cause of action has accrued.
82. Brawer v. Horowitz, 535 F.2d 830. 841 (3d Cir. 1976):
Hahn v, Sargent, 523 F.2d 461. 469-70 ( Ist Cir. 1975). cert. denied.
425 U.S. 904 (1976); Hamilton v. Chaflin. 506 F.2d 904. 914 (5th
Cir. 1975).
83. 403 U.S. at 101. The Court noted that. in light of §1983,
see part B supra, “|tlo read any {state action| requirement into
§1985(3) would. . . deprive that section of all independent effect.”
Id. at 99.
84. Id. at 101-102. The Court specifically reserved the ques-
tion whether a conspiracy motivated by an “invidiously discrimina-
tory intent other than racial bias” would be actionable under
§1985(3). Id. at 102 n.9.
A31
s*
32
of factors other than race."’ At most, that statute pro-
scribes private conspiracies to engage in discrimination
that, but for the lack of state action, would violate the
equal protection clause. Inasmuch as we have already
concluded that the defendants did not deprive
Mark-Garner of equal protection, we hold that the devel-
oper has not stated a cause of action under §§1985(3)
and 1986. Consequently, the district court did not err in
dismissing these claims.
D. Pendent State Claims
Along with the federal civil rights claims.
Mark-Garner asserted several claims based on state and
local law. In United Mine Workers v. Gibbs, 383 U.S.
715. 725 (1966), the Supreme Court declared that feder-
al courts have the power to entertain pendent state
claims if the federal and state claims “derive from a com-
85. Last term. in Great Am Fed. Sav. & Loan Ass'n v.
Novotny, 99 S. Ct. 2345 (1979). the Supreme Court held that a con-
spiracy to deprive a person of a right created by Title VIL. 42 U.S.C.
§2000e (1976), cannot be the basis for a cause of action under
§1985(.3). Compare Glasson v. Louisville. 518 F.2d 899 (6th Cir. )
(§1985(.3) protects against discrimination based on political beliet’s ),
cert, denied, 423 U.S. 930 (1975). with Bellamy v. Mason's Stores.
Inc.. 508 F.2d 504 (4th Cir. 1974) (§1985(:3) does not provide re-
dress for employee discharge because of Ku Klux Klan member-
ship); and Milner v. National School of Health Technology. 409 F.
Supp. 1389. 1395 (E.D.Pa. 1976) (emplovment discrimination
based on gender within purview of §1985(3)) with Cohen v. Hlinois
Inst. of Technology, 524 F.2d 818. 829 (7th Cir.) (§ 1985(3) may not
constitutionally be applied to redress sexual discrimination). cert.
denied, 425 U.S. 943 (1976). Cf: McLellan v. Mississippi Power &
Light Co.. 545 F.2d 919 (Sth Cir. 1977) (en bane) §1985( 3) pro-
Vides redress only for conspiracies to discriminate by violating state
or federal law).
We also have no occasion to decide whether persons acting in
legislative capacities can “conspire” within the meaning of
§$1985(3) and 1986. See Porter v. Bainbridge. 405 F. Supp. 83
(S.D.Ind. 1975).
A32
33
mon nucleus of operative fact” such that the plaintiff
“would ordinarily be expected to try them all in one judi-
cial proceeding.” The Court went on to observe, howev-
er, that “|clertainly, if the federal claims are dismissed
before trial, even though not insubstantial in a jurisdic-
tional sense, the state claims should be dismissed as
well.""° In Rosado v. Wyman, 397 U.S. 397, 402-05
(1970), the Court modified this position somewhat in ap--
proving the district court’s retention of pendent state
claims alter dismissing the federal claims for mootness.
Because the district court had invested substantial time
in the case prior to the federal claims becoming moot,
the Court held that the trial judge had discretion to re-
tain jurisdiction over the remaining state claims."‘
Upon dismissing the federal claims in this action,
the district judge declined to ret»in jurisdiction over the
pendent state claims. In vie’. the fact that the dis-
missal of the federal claims occurred during the plead-
ing stage of the proceedings, we find no abuse of discre-
tion in this regard, and accordingly affirm the district
court's decision.””
IV. CONCLUSION
In the past century the nation has witnessed the
rise and decline of federal judicial protection of rights in-
hering in the ownership of interests in real property. To-
dav, the Supreme Court affords state and local govern-
ments brgad latitude in enacting and implementing
legislation affecting the use of land. Implicit in this def-
crence is the recognition that land-use regulation gener-
86, 383 U.S. at 726.
87, 397 U.S. at 403. See Lentino v. Fringe Emplovee Plans.
Inc., No, 78-1110, slip op. at 6-9 (3d Cir. filed Dec. 18, 1979),
88. Inasmuch as we allirm the district court's decision to dis-
miss the entire cross-claim, there is no occasion to discuss the ques-
tions of Eleventh Amendment immunity of the state officials raised
by the defendants.
A33
34
ally affects a broad spectrum of persons and social inter-
ests, and that local political bodies are better able than
federal courts to assess the benefits and burdens of such
legislation. Thus, absent detects in the process of enact-
ing the legislation, or of manifest irrationality in the re-
sults flowing from that process, courts will uphold state
and local land use regulations against challenges based
on federal constitutional grounds.
Mark-Garner has advanced a broad series of federal
statutory and constitutional challenges to the Town-
ship's retroactive application of the zoning amendments
to the Bensalem Village project. The costs of delay in-
curred by the developer were indeed substantial. Yet,
this factor alone does not permit us to afford relief where
neither Congress nor the Constitution provides a basis
lor such remedial action, Despite its sweeping attempts.
Mark-Garner simply does not state claims that would, if
proved, entitle it to federal statutory or constitutional re-
licl. Therefore. we hold that the district court did not err
in dismissing the federal claims. And. because the trial
judge did not abuse his discretion in dismissing the re-
maining pendent state claims, the judgment of the dis-
trict court will be affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
A34
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHARON L. ROGIN & MICHAEL: CIVIL aCTION
R. ROGIN, ANN MANGANO &
WILLIAM MANGANO, JANET
CASELLI & CHRISTOPHER
CASELLI and MAUREEN
BLASIC & JOSEPH BLASIC
individually and on
behalf of others
similarly situated
Ve
BENSALEM TOWNSHIP and
STEPHEN J. KELLY,
THEODORE R. ZAJAC,
WILLIAM MC FADDEN,
HERBERT BRADEN and
DONALD BELL, individ-
ually and in their offi-
cial capacities as the
Board of Supervisors of
Bensalem Township and
STANLEY HOROWITZ, indi-
vidually and in his
capacity as Zoning
Officer of Bensalem
Township and MARK-GARNER
ASSOCIATES, INC., of
PENNSYLVANIA
NO. 77-557
MEMORANDUM OF DECISION
MC GLYNN, J.
This is another zoning controversy
in which the plaintiffs and defendant
A35
cross-claimant sought to add the leverage
of this court to their dispute with the
township supervisors by alleging that
their constitutional rights were violated
as the result of the denial of additional
building permits.
Plaintiffs are owners of condominium
units in a project known as Bensalem
Village. Defendant cross-claimant is
the developer. The other defendants
are Bensalem Township officials.
In 1973, when the developer obtained
approval for construction of the project,
the zoning ordinance allowed a density
of 12 units per acre. Thereafter,
utilities were installed and a number
of units erected. In the meantime the
zoning ordinance was twice amended by
reducing the density from 12 units to
10 units per acre and then from 10 units
per acre to 4 with the result that if
A36
the developer had been held to the
requirements of the most recent ordinance
Only 200 units would be constructed
instead of 557 as originally contemplated.
The plaintiff unit owners contended
that in such a case their pro rata
contributions to the maintenance of the
common facilities would be drastically
increased and the developer argued that
the new density requirements severely
diminished the value of the project.
Plaintiff and cross-claimant allege
that the defendants' actions deprived
them of their property without due process
Of law and without compensation in
violation of the Fifth and Fourteenth
Amendments of the United States
Constitution. It is also alleged that
the defendants' actions constituted an .
impairment of the contractual obligations
owed to the plaintiffs in violation of
A37
Article I, Section 10, Clause I of the
United States Constitution. Plaintiffs
also claim violation of 42 U.S.C. §§1983
and 1985. Jurisdiction is grounded upon
28 U.S.C. §§1331 and 1343. Plaintiffs
have also asked this court to accept
pendent jurisdiction over a claimed
violation of the Pennsylvania Constitution
and plaintiff's contractual claims against
defendant Mark-Garner.
The difficulty with the plaintiffs'
position is that while they were pursuing
their alleged constitutional claims in
this forum, the Court of Common Pleas
of Bucks County, on appeal, reversed
the action of the Bensalem Zoning Hearing
Board and directed the issuance of the
building permits. (see Appendix attached).
In essence, the court ruled that the
amendments to the Zoning Ordinance were
A38
not applicable to the Bensalem Village
Project Units.
Therefore, plaintiffs have not been
deprived of any property nor have their
contracts been impaired in any way. As
far as the cross-claimant Mark-Garner
is concerned, it received all the process
that was due by following the appeals
procedure and ultimately prevailing.
Therefore, I can perceive no issue
of constitutional dimensions requiring
the intervention of this court.
But even assuming that the decision
of the Bucks County Court of Common Pleas
does not render this case moot,
nevertheless the complaint and cross
Claim must be dismissed for failure to
State a cause of action.
Bearing in mind that in this Circuit
violations of the Civil Rights Act must
A39
be pleaded with specificity Rotolo v.
Borough of Charleroi, 532 F.2d 920 (3rd
Cir. 1976); See also Bethel v. Jendoco
Construction Corp., 570 F.2d 1168 (3rd
Cir. 1978), I will proceed to an
examination of the allegations.
The §1985 Claim
There are four specific elements
which must be shown in order to
successfully state a claim under 42 U.S.C.
§1985: a conspiracy; for the purpose
of depriving another of equal protection
Or equal privileges and immunities; any
act in furtherance of the conspiracy
committed or caused to be committed by
a conspirator; whereby another was injured
in his or her person or property or
deprived of a right of privilege as a
United States citizen. Bethel v. Jendoco
Construction Corp., supra.
A40
The plaintiffs allege that the
supervisors conspired to deprive them
of the use of their property, but the
only action complained of was the failure
of the Zoning Hearing Board to order
the issuance of building permits.
Standing alone, such conduct is not
sufficient to make out a conspiracy to
deprive plaintiffs of their constitutional
rights.
Even if a conspiracy could be shown
to exist, the complainants would still
have to meet the additional burden of
showing a discriminatory purpose.
The language requiring intent
to deprive of equal protection,
or equal privileges and
immunities, means that there
must be some racial, or perhaps
otherwise class-based,
invidiously discriminatory animus
behind the conspirators' action.
The conspiracy, in other words,
must aim at a deprivation of
the equal enjoyment of rights
secured by the law to all.
A4l
Griffin v. Breckenridge, 403 U.S. 88,
102 (1971). A complaint alleging a §1985
violation must clearly show purposeful
and intentional discrimination. Robinson
v. Mc Corkle, 462 F.2d 111 (3d Cir. 1972).
This the plaintiffs and cross-claimant
have failed to do.
Constitutional Claims Under §1983
The plaintiffs contend that their
rights under 519834 have been violated
by the defendants and defendant township.
1. Section 1983. Civil action for
deprivation of rights.
Every person who, under color
of any statute, ordinance, regulation,
custom, or usage, of any State or
Territory, 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 at equity, or
other proper proceeding for redress.
A42
LLL LIF LIE ST
To establish a cause of action under
§1983, the complainants must show that
a constitutional right has been denied,
Adickes.v. S. H. Kress and Company, 398
U.S. 144 (1970).
The plaintiffs allege that the
township and its officials deprived them
of their property and property rights
without due process of law in violation
of the 5th and 14th Amendments to the
United States Constitution.
The whole case of the plaintiff and
the cross-claimant is bottomed on the
"amendment to the zoning ordinance" but
as noted above, those amendments are
not applicable to Bensalem Village by
reason of Section 508(4) of the
Pennsylvania Municipalities Planning
Code (53 P.S. p.508), In Re: Appeal
by Mark-Garner Associates, Inc., etc.,
(App).
A43
But once again, even assuming the
amendments were applicable, the burden
is on the plaintiffs to show that the
zoning ordinance was an improper exercise
of the police power. "An ordinance comes
to the courts clothed with every
presumption of validity." City of Ann
Arbor Michigan v. Northwest Park
Construction, 280 F.2d 212, 223 (6th
Cir. 1960).
The preservation of open space, the
restriction of excessive traffic, and
the prevention of overcrowding are all
legitimate goals, and density ordinances
are reasonable means to accomplish these
goals. Village of Euclid v. Ambler Realty
Co., 272 U.S. 365 (1926); Village of
Belle Terre v. Boraas, 416 U.S. 1 (1974).
In Euclid, supra, it was argued that
the application of the zoning ordinance
A44
greatly reduced land value, yet the Court
upheld the zoning ordinance.
No facts are cited to substantiate
the claim that "the amendments to the
zoning ordinance are clearly arbitrary
and unreasonable and “bear no substantial
relation to the public health, safety,
morals and general welfare." Such broad,
conclusory, factually unsupported
allegations are not sufficient to state
a cause of action. Curtis v. Everette,
489 F.2d 516 (3rd Cir. 1973); Scott v.
University of Delaware, 385 F. Supp.
937 (Del. 1974).
It is further alleged that the
plaintiffs have suffered a constructive
condemnation of their property without
compensation. No taking of plaintiffs'
property has occured. The plaintiffs
are still fully able to enjoy their
Property. Furthermore, zoning ordinances
A45
have been sustained even though they
have an impact on property values. City
of Eastlake v. Forrest City Enterprises,
Inc., 426 U.S. 668 (1976). See also,
Belle Terre, supra; Euclid, supra; Block
v. Hirsh, 256 U.S. 135, 155.
Equal Protection
Plaintiffs, in their complaint, allege
that defendants are depriving them of
equal protection under the law. They
Claim that burdens and disadvantages
imposed on them are not imposed on other
residents of Bensalem Township.2 Cross
Claimant developer alleges unequal
treatment with regard to other developers
in the area. Nowhere, however, do the
parties allege that their development
is being treated differently than any
Other R-4 zoning district under the
2. Paragraph 34 of plaintiffs' complaint.
A46
Bensalem Zoning Ordinance. The
classification of a municipality into
different zoning districts with different
regulations has been upheld since Euclid,
Supra, The parties have alleged no facts
to show that such classifications are
in any way unreasonable or arbitrary
and therefore this claim must fail.
Impairment of Contract
Plaintiffs allege that the municipal
defendants have impaired the contractural
Obligations between themselves and the
developer in violation of the Art. l,
§10, cl. 1 of the United States
Constitution. They claim that this
contractual relationship was based upon
a projected project size which supported
the expectations of the plaintiffs with
regard to the monthly assessments for
the ownership of their individual units.
These monthly assessments were based
A47
upon the anticipated costs of maintaining
the common facilities, said costs to
be shared among five hundred fifty seven
households.
Whether or not there was a definite
contract with regard to the maintenance
costs, this court will not have to decide
since the police power of the state can
impair the obligations of a contract
entered into prior to such an exercise.
Home Building and Loan Association v.
Blaisdell Minn., 290 U.S. 398 (1934);
Koch v. Yunich, 533 F.2d 80 (2d Cir.
1976).
The constititional protection
of the obligation of contracts
is necessarily subject to the
police power of the state, and
therefore a statute passed in
the legitimate exercise of the
police power will be upheld
by the courts, although it
incidently destroys existing
contract rights.
De Paul v. Kauffman, 441 Pa. 386, 399,
A48
272 A.2d 500, 506 (1971) citing Zeuger
Milk Co. v. Pittsburgh School District,
334 Pa. 277, 280, 5 A.2d 885, 886 (1939).
Pendent State Law Claims
In addition to asserting claims under
the federal law, plaintiffs have invoked
this court's pendent jurisdiction to
hear state law claims for breach of
contract and for violation of Art. I, §17
of the Commonwealth of Pennsylvania. 3
Since the impairment of contract issue
has already been dealt with both as a
state and federal claim, the only question
remaining is whether this court should
accept pendent jurisdiction in order
to hear the plaintiffs' claim against
the developer for breach of contract.
3. Art. I, §17. No expost facto law,
nor any law impairing the obligation
of contracts, or making irrevocable
any grant or special privileges or
immunities shall be passed.
A49
Whether or not to hear a pendent state
Claim is left to the court's discretion
and is based on considerations of
"judicial economy, convenience and
fairness to the litigants." United Mine
Workers v. Gibbs, 383 U.S. 715, 726
(1966).
However, since there is no independent
basis for the exercise of féderal
jurisdiction over the parties, the court
will not retain jurisdiction of the
pendent state claims. Aldinger v. Howard,
427 U.S. 1 (1976).
Accordingly, the complaint and cross-
Claim will be dismissed.
A50
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHARON L. ROGIN, et al., CIVIL ACTION
Plaintiffs
BENSALEM TOWNSHIP,et al.,
Ve $
: NO. 77-557
Defendants
ANSWER OF DEFENDANT, MARK-GARNER
ASSOCIATES, INC. AND CROSS CLAIM
42. Admitted.
43. Admitted.
44. Admitted that there will
be an increase in the common expenses.
The total increase will ultimately depend
on the number of dwelling units
constructed.
45. Denied. The defendant,
MARK-GARNER ASSOCIATES, INC., is ready,
willing and able to complete the project
as set forth in the Declaration of
Condominium. The inability of the
A51
defendant to proceed has been caused
by the malicious, arbitrary and capricious
conduct of the defendant, BENSALEM
TOWNSHIP, and the named Supervisors and
the Zoning Hearing Board of Bensalem
Township and its members, Jimmie L.
Stewart and Thomas Walls who have
conspired to deprive the defendant and
plaintiffs of its property and property
rights without due process of law and
in violation of the Fifth and Fourteenth
Amendments of the United States
Constitution and Title 42 of the United
States Code, §§1983, 1985 and 1986.
46. Denied. Defendant, MARK-
GARNER ASSOCIATES, INC., has, is and
has always been ready, willing and able
to proceed with the development and any
legal fees necessitated by this liti-
gation are the direct result of the
illegal, malicious, arbitrary and
A52
capricicus conduct of the Township,
Supervisors, Zoning Board and any of
its members acting in concert to deprive
the defendant, MARK-GARNER ASSOCIATES,
INC., and the plaintiffs of their consti-
tutional and civil rights.
WHEREFORE, defendant requests
that the suit against it be dismissed.
CROSS CLAIM
(Against Defendants in the Above-
Captioned Matter and Additional
Defendants, BENSALEM TOWNSHIP
ZONING HEARING BOARD, JIMMIE L.
STEWART and THOMAS WALLS, Individually)
Jurisdiction
The acts of the defendants as
set forth herein constitute a violation
of Title 42 of the United States Code,
Sections 1983, 1985 and 1986 and the
due process and equal protection
provisions of the Fifth and Fourteenth
Amendments of the Constitution of the
A53
United States. Jurisdiction is conferred
in this Court pursuant to Title 28 of
the United States Code, Sections 1331,
1343, 2201 and 2202 and pursuant to Rule
13 of the Federal Rules of Civil
Procedure. The sum in controversy exceeds
$10,000.00, exclusive of interest and
costs.
Parties
1. The parties to this Cross
Claim are identical to the parties in
the above-captioned matter with the
additional defendants, Bensalem Township
Zoning Hearing Board and its members,
Jimmie L. Stewart and Thomas Walls, who
are named as defendants in this cross
Claim both individually and in their
official capacities.
2. Defendant, Bensalem Township
Zoning Hearing Board, is a separate body
A54
politic with its principal place of
business at 3800 Hulmeville Road,
Cornwells Heights, PA 19020 (hereinafter
called “Board").
3. Jimmie L. Stewart is the
Chairman of the Board appointed by the
Supervisors and is sued in his individual
and official capacity and resides at
281 High Road, Cornwells Heights, PA.
4. Thomas Walls is a member
of the Board appointed by the Supervisors
and is sued in his individual and official
Capacity and resides at 1083 Colonial
Avenue, Cornwells Heights, PA.
CLAIM
Defendant, MARK-GARNER
ASSOCIATES, INC., by its attorneys, brings
this Cross Claim seeking eteitetnacy
and permanent injunctive relief,
declaratory judgment and monetary damages
A55
against the defendants and complains
and alleges as follows:
5. On May 16, 1973, the
Supervisors granted final approval to
the defendant's plan of development known
as "Bensalem Village" for 557 Townhouse
dwelling units to be sold under the
condominium form of ownership.
6. As a requirement of the
final approval, the defendant was required
to enter into an agreement with the
Township guaranteeing the installation
of improvements for the entire development
Of 557 dwelling units in the amount of
$215,000.00, which agreement was executed
by the ‘‘ownship and the defendant.
7. On August 15, 1973, defendant
had recorded its final approved plan
in the Office of the Recording of Deeds
of Bucks County in Plan Book 112, Pages
A56
47 through 50, and an amended plan
approved by the Township was recorded
on December 14, 1973, in Plan Book 117,
Page 21.
8. Pursuant to the provisions
of the "Unit Property Act" of the
Commonwealth of Pennsylvania, which
regulates condominiums, a required
Declaration of Condominium and Rules
and Regulations were recorded in the
aforesaid Office of the Recorder of Deeds
in Deed Book No. 2098, Page 7.
9. In reliance upon the finally
approved plans, and pursuant to validly
issued building permits, construction
of Bensalem Village was commenced in
the Spring of 1973.
10. The defendant has installed
sanitary sewer and storm water facilities
to service 490 dwelling units, which
A57
facilities have been inspected and
approved by the appropriate officers
and officials of the Township and the
Bensalem Township Sewer and Water
Authority, all of which were and are
sized for 557 families.
ll. The defendant has
constructed and installed 30% of the
perimeter chain link fence required with
the final plan approval.
12. Defendant has installed
30% of the street lighting required under
the approved plan.
13. The defendant has installed
30% of the required underground electrical
and telephone wiring.
14. The defendant has
constructed 45% of the TV coaxial
distribution system including an 80 foot
tower, antenna and amplifiers. The
A58
defendant has completed the landscaping
of more than 30% of the development.
15. The defendant has completed
and installed the recreation building,
swimming pool, tennis courts, basketball
court and other facilities to serve the
entire development as approved by the
Township sized for use and support by
557 families.
16. To date, defendant has
expended in excess of $3,000,000.00 in
reliance upon the final plan approval
granted by the Township and the issuance
Of building permits for ground
acquisition, engineering and attorneys'
fees, installation of site improvements.
17. To date defendant has
completed, sold, and settled approximately
106 townhouse units under the condominium
form of ownership out of a total of 557
A59
townhouse dwelling units approved by
the Township. Subsequent to the final
Plan approval granted by the Township
to the defendant for Bensalem Village,
the Township amended the R-4 zoning
Classification, which is the designation
Of the defendants’ lands, from 12 dwelling
units per acre, which is the density
approved for Bensalem Village, down to
10 dwelling units per acre,
18. Since June of 1973 through
September of 1976, the defendant has
been issued from time to time, upon
request, zoning and building permits
for the erection of dwelling units at
Bensalem Village pursuant to the approved
Plan.
19. Since the commencement
of construction through September of
1976, defendant has continually proceeded
with the plan of development constructing
A60
those dwelling units in advance of sales
as permitted by the Construction Lender,
Mid-Atlantic Mortgage Corporation.
20. On September 24, 1976,
in the normal course of business,
defendant applied to Stanley Horowitz,
Zoning Officer of Bensalem Township,
for building and zoning permits for
dwelling units numbers 434 through 439,
and units 445 through 450.
21. Mr. Horowitz thereafter
illegally rejected the defendant's request '
for building permits, having been
instructed to do so by the Township
Supervisors.
22. The notice of rejection
indicated that the defendant did not
meet the requirements of Article 5 Section
522, Subsection 1 of the Bensalem Township
Zoning Ordinance. The rejection further
A61
stated that in order to comply with the
aforesaid Section, the defendant must
reduce the maximum density of dwelling
units from the approved 12 dwelling units
per acre to 10 units per acre. The
defendant was further instructed that
he must submit a new land development
and subdivision plan for approval by
the Township.
23. On or about October of
1976, the Supervisors again amended the
R-4 Zoning Classification by further
reducing the density provisions from
10 dwelling units per acre to 4 dwelling
units per acre. As a result of the notice
of rejection issued by Mr. Horowitz,
the defendant on or about October 12,
1976, filed an appeal with the Zoning
Hearing Board of Bensalem Township from
the aforesaid denial of the request for
zoning and building permits.
A62
OO PT OOD EN BEE ute Fest Gis sarees ae DE SS St a Sf See wt 209 er es or eee Se
24. The Board scheduled a
hearing for the said appeal on the evening
Of November 9, 1976, at which time the
defendant appeared for the purpose of
introducing testimony and concluding
said appeal hearing. The defendant's
case was not reached that evening by
the Zoning Hearing Board and the matter
was scheduled for December 7, 1976.
25. On the evening of December
7, 1976, the defendant's case was heard
commencing at 9:30 P.M. and at 11:00
o'clock P.M. the defendant was informed
that the Board would hear no further
testimony of the defendant's case in
Order that other matters scheduled for
that evening could be heard prior to
the Board's 12:00 P.M. (sic) adjournment
deadline. The terntnarive of the
defendant's case was strenuously objected
to by counsel for the defendant.
A63
26. On December 21, 1976, the
defendant's case was rescheduled at which
time the hearing was completed.
27. As a result of the legal
issues raised at the hearings during
the defendant's case, the Solicitor to
the Board issued an opinion wherein he
advised the Board that the appropriate
legal action would be to grant a reversal
of the zoning officer's actions.
28. Contrary to the advice
of the Board's Solicitor the members
of the Board, Jimmie L. Stewart and Thomas
Walls, at a public meeting held on January
4, 1977, denied defendant's appeal and
Sustained the zoning officer's denial
of the requested building permits.
Civil Rights Violations
29. Plaintiff incorporates
A64
herein by reference thereto the averments
Of paragraphs 5 through 28 above, as
though the same were set forth in full.
30. The defendants, acting
under color of state statute, ordinance
and/or regulation entered into a
continuing combination and conspiracy
among themselves and others unknown to
defendant, MARK-GARNER ASSOCIATES, INC.,
intentionally and purposely, wrongfully,
unlawfully and vindictively violating
defendant's constitutional and civil
rights and, (a) deny the substantive
and procedural protections guaranteed
by the due process clause of the
Fourteenth Amendment of the United States
Constitution and by state and local
statute and ordinances; (b) to diminish
and/or destroy the value of defendant's
property for the use of the construction
of the proposed residential development;
A65
(c) to delay, impede, hinder and prevent
the defendant from exercising its rights
under state and local zoning and related
laws to build and develop residential
community property so as to make the
development of the defendant's project
more costly with the intention thereby
preventing defendant from building the
proposed residential development at the
densities permitted under the zoning
ordinance in effect at the time when
final approvals were granted and when
construction was well under way; all
such acts having been done for the purpose
of denying defendant's constitutional
and civil rights.
31. The defendants, Stephen
J. Kelly, Theodore R. Zajac, William
McFadden, Herbert Braden and Donald Bell,
as individuals and as Township
Supervisors, have openly announced that
A66
each of them, individually and as Township
Supervisors, will take any and all actions
necessary to stop this and other
developments whether such conduct is
unlawful or permissable, and where such
conduct is appealed to the Courts of
the Commonwealth of Pennsylvania, to
engage in dilatory tactics in order to
discourage this and other developments,
if not directly then indirectly, by
causing excessive delays, legal costs,
increasing the amounts of interest and
discouraging sales, thus depriving the
landowner of rights guaranteed by the
Constitution of the United States by
the use of their power as municipal
officials to cause the municipality to
engage in illegal and oppressive behavior
in violation of the statutes of the United
States, those of the Commonwealth of
Pennsylvania and its own Ordinances to
this defendant and to the plaintiffs
A67
herein, full well knowing that each such
act cannot be appealed without bankrupting
the defendant and each plaintiff while |
the defendant Supervisors use the public
treasury of the Township as a defense
fund.
32. Defendants, acting under
color of state law, as more fully
described above, have unlawfully taken
defendant's property without due process
of law and have arbitrarily and
discriminatorily denied defendant the
equal protection of the state and local
zoning and similar laws, all in violation
of plaintiff's rights and privileges
secured by the Constitution of the United
States.
33. Individual defendants had
-at all relevant times knowledge of the
wrongs herein alleged as planned and
done to the defendant and had the power,
A68
under color of state law, to prevent
infliction thereof by the proper use
of their respective positions.
34. Each and all of such
individual defendants failed and refused
to aid defendant or to prevent such wrongs
and still continue to do so, thereby
participating in the continuing infliction
of such violation of the defendant's
rights in intentionally causing the
_ damages to defendant referred to herein.
35. Defendant, in reliance
upon its constitutional rights to have
the local and state laws governing the
building of the proposed residential
development on defendants' property
applied to it equally, fairly and without
discrimination by the Township and Zoning
Hearing Board, and its right not to have
those rights unlawfully interfered with
by defendants has incurred, and unless
A69
defendants are restrained, will continue
to incur great expenses for which it
seeks damages from defendants as set
forth below.
36. All acts of defendants,
individually and/or acting in concert,
were done knowingly and with actual malice
and/or recklessly with the specific
purpose of denying defendant its civil
and constitutional rights under state
and local laws and the Constitution of
the United States.
37. Based on information and
belief, defendant avers that, as a result
of said ccnepasnes, 6cnueaaie unless
restrained by this Court, will continue
to deny defendant its civil and con-
stitutional rights under state and local
laws and the Constitution of the United
States.
A70
38. As a direct result of
defendants’ willful, arbitrary,
capricious, vindictive and unlawful
actions, defendant has suffered and unless
defendants are restrained, will continue
to suffer on a daily basis, irreparable
damage to its business and business
reputation.
39. As a direct result of
defendants’ willful, arbitrary,
capricious, vindictive and unlawful
actions, defendant has suffered and unless
defendants are restrained, will continue
to suffer on a daily basis irreparable
harm in that it is unable to proceed
with its commitments to the owners of
the Bensalem Village development and
is unable to sell the completed units
in Bensalem Village.
40. As a direct result of
defendants' willful, arbitrary,
A71
capricious, vindictive and unlawful
actions, defendant has suffered and unless
defendants are restrained, will continue
to suffer on a daily basis financial
damages for which it claims recovery
against each individual jointly and
severally as follows:
(a) The cost of defendant for
the fair market value of defendant's
property in an amount in excess of
$3,000,000.00.
(b) The difference between
the value of defendant's property with
site plan and zoning approval for the
construction of 557 townhouse dwelling
units and its current fair market value
without that approval in an amount in
excess of $2,000,000.00.
(c) Interest, carrying charges
and increased labor and material costs,
A72
all being incurred and to be incurred
by defendant in the construction of the
development as those expenses have accrued
and will accrue from September 1976 to
present in an amount in excess of
$96,000.00.
(d) Loss of profits caused
by delays in construction and sales
program to date $87,400.00.
(e) Increased costs of
construction to date in excess of
$96,000.00.
(£) Legal expenses in
excess of $50,000.00.
(g) Liability to current
Owners of dwelling units in Bensalem
Village.
(h) Damage to defendant's
business and business reputation as a
A73
developer of residential communities
an amount in excess of $1,000,000.00.
(i) Other direct and
consequential damages, the exact amounts
of which are currently unknown to
defendant, which defendant believes and
therefore avers would exceed $250,000.00.
41. The conduct of defendants
in denying defendant its constitutionally
guaranteed rights was willful, malicious
and vindictive and without any legal
basis whatsoever.
42. Since defendants’ conduct
was of a willful, malicious and unlawful
nature, defendant is entitled to punitive
damages against each individual defendant
in an amount of $250,000.00.
43. Because of the unlawful
nature of defendants’ conduct, defendant
A74
is entitled to reasonable attorneys'
fees and therefore prays for such fees
in the amount of $50,000.00.
Relief Sought
WHEREFORE, defendant requests
that:
A. The Court issue a declaratory
judgment against defendants, declaring
unlawful:
(1) The action by the
zoning officer in failing to issue zoning
and building permits for the previously
approved townhouse dwelling units at
Bensalem Village.
(2) The action of the
Township Supervisors, zoning officer
and Zoning Hearing Board and the
individual defendants, in failing to
issue the defendant's building permits
A75
pursuant to the previously approved plan
Of development.
B. The Court issue a preliminary
and permanent injunction:
(1) Directing the
defendants, and their respective officers,
agents, employees and attorneys and all
persons and/or entities in active concert
Or participation with them to:
(a) Forthwith cease
and thereafter refrain from taking any
action whatsoever for the purpose of
Or with the result of denying defendant's
rights to have the Bensalem Village
development completed.
C. Awarding defendant
compensatory damages against each and
all the individual defendants in excess
of $3,000,000.00 as further outlined
in paragraph 40 of this Cross Claim.
A76
—
D. Awarding to defendant
punitive damages against each and all
the individual defendants for malicious
and unlawful conspiratory acts that they
perpetrated upon defendant in an amount
of $250,000.00 as further outlined in
paragraph 40,
E. Awarding to defendant the
costs and disbursements of this action
as well as reasonable attorney fees in
the amount of $25,000.00.
F. Awarding to defendant such
Other and different relief as the Court
may deem just and equitable.
PECHNER, DORFMAN, WOLFFE, ROUNICK
AND CABOT
BY:
Marc D. Brookman
Lenard L. Wolffe
Attorneys for Defendant
MARK-GARNER ASSOCIATES, INC.
A77
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