Opposition — Mark-Garner Associates, Inc. v. Bensalem Township

JUL211980

IN THE MICHAEL RODAK, JR., CLERK |

Supreme Court of the Hnited States

Ocroser Term, 1979

No. 79-2010

MARK-GARNER ASSOCIATES, iNC.,

Petitioner,

vs.

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.

On Petrrion ror A Writ oF CERTIORARI TO THE

Untrep STATEs CouRT OF APPEALS FOR THE THIRD Cracurr

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

HENRY F. HUHN,

LESLIE G. DIAS,

Counsel for Respondents,

3569 Bristol Pike,

Suite 102

Bensalem, Pennsylvania 19020

(215) 639-4727

Pennsylvania Appellate Printing Co.—Call Toll Free—! (800) 526-7560

TABLE OF CONTENTS

Questions Presented for Review .................. 1

Statutory and Ordinance Provisions Involved ........ 2

NN oo aoa cys Seed ached sas ae de 4

Summary of Respondents’ Argument ............... 7

ARGUMENT:

I. The decision of the Third Circuit Court of Appeals

affirming the dismissal of Mark Garner’s crossclaim

EN HALON Go halide Wid ud obo 650 ARMS Ore 8 10

oe i vung bWyd cee seco ns. 10

B. Taking Without Just Compensation ........ 12

C. Substantive Due Process .................. 15

Re ets daha cviakeececsiva 23

Cases CIrep:

Agins v. City of Tiburon,

— US. —, 48 U.S.L.W. 4700 (June 10, 1980) .. 8, 15

Appeal of Central Penn National Bank,

— Pa. Cmwlth. —, 408 A.2d 550 (1979) ........ ll

Appeal of Mark Garner Associates Inc.,

— Pa. Cmwlth. —, 413 A.2d 1142 (1980) ... 6, 11, 15

Beaver v. Borough of Johnsonburg,

375 F. Supp. 326 (W.D. Pa. 1974) ...... Sonar. 7, 12

Bernbaum v. Trussel,

271 F.2d 672 (2nd Cir. 1966) ................. 10

Block v. Hirsh,

FRR GIS OR Sn cs Pec ae 13

TABLE OF CONTENTS

Cases CITED:

City of Ann Arbor, Michigan v. Northwest Park

Construction Corp.,

280 F.2d 212 (6th Cir. 1960) ................ 18

City of Eastlake v. Forest City Enterprises, Inc.,

426 U.S. 668, 96 S. Ct. 2358, 49 L.Ed.2d

ee as 8, 13

Coghlan v. Phillips,

447 F. Supp. 21 (Miss. 1977),

ee er ean ane us 8, 19

Dieffenbach v. Attorney General of Vermont,

604 F.2d 187 (2nd Cir. 1979) ................ 20

Gomez v. Toledo,

— U.S. —, 48 U.S.L.W. 4600 (May 27, 1980) ... 19

Kahlasch v. New York State Thruway Authority,

460 F. Supp. 956 (S.D. N.Y. 1978) .......... 8, 14

Kao v. Red Lion Municipal Authority,

381 F. Supp. 1163 (M.D. Pa. 1974) ......... 8, 13

Kent Island Joint Venture v. Smith,

452 F. Supp. 455 (Maryland 1978) ............ 13

Kopetzke v. County of San Mateo Board of

Supervisors,

396 F. Supp. 1004 (N.D. Cal. 1975) ......... 8, 13

Mosher v. Bierne,

357 F.2d 638 (8th Cir. 1966) ................ 21

Penn Central Transportation Co. v. New York City,

438 U.S. 104, 98 S. Ct. 2646, 57 L.Ed.2d

la SE a Te 8, 14, 15

iii

TABLE OF CONTENTS

Cases CITED:

Studen v. Beebe,

588 F.2d 560 (6th Cir. 1978) ..............-. 10

Village of Belle Terre v. Boraas,

416 U.S. 1, 94S. Ct. 1536, 39 L.Ed.2d 797 (1974) . 13

Village of Euclid v. Ambler Realty Co.,

227 U.S. 365, 47 S. Ct. 114, 71 L.Ed.

8 ae Pe ee ee 7, 10, 13, 14, 15

Wallach v. City of Pagedale, Mo.,

359 F.2d 57 (8th Cir. 1966) ..............00-. 21

Whirl v. Kern,

407 F.2d 781 (5th Cir. 1969) cert. denied,

396 U.S. 901, 90 S. Ct. 210, 24 L.Ed.2d 177 .... 8, 19

Williams v. Illinois,

ee ee Ne i ies cap bie bk eee ees 7, 12

Williamson v. Lee Optical of Oklahoma,

ee ee) ee ere 20

York Township Zoning Board of Adjustment v. Brown,

407 Pa. 649, 182 A.2d 706 (1962) ............ 11

U.S. ConstiTuTION CrreD:

United States Constitution, Fifth Amendment ....... 12

United States Constitution, Fourteenth Amendment ... 5

StTatTuTEs CITED:

I Ok oe pc vain dul van baw ode 6, 8, 19

eo i vie eee R Re eek eee e's 6

ME i or Sd be obo BANC Rabe w cme 6

iv

TABLE OF CONTENTS

PENNSYLVANIA CONSTITUTION CITED:

Pennsylvania Eminent Domain Code,

gg Re eg | Peer Teer eee eee 8, 13, 14

Pennsylvania Municipalities Planning Code,

a NE I a ec kek va vantage eed ei 16

a eg | Se ee ene 2, 11, 21

BE RAR aN re tnaie iene un see 2, 16

De ea 2, 16

Lg RENN ga Se ea Re arte ee 2, 11, 12

ee ee ses ON Ge wk xs BR eK 3, ll

ORDINANCES CITED:

Bensalem Township Subdivision and Land

Development Ordinance ...................... 5, 13

Bensalem Township Zoning Ordinance of 1954,

ms empemeed, Section 10D... ow. ccc ccc se ccees 16

EE Ot oe ret de i of alt 3

Ruxes CIirep:

Federal Rule of Civil Procedure 12(b) .......... 4

QUESTIONS PRESENTED FOR REVIEW

Did the Court of Appeals properly dismiss the cross-

claim challenging the adoption and application of facially

neutral local zoning ordinances to a development which

was partially constructed for failure to state a claim upon

which relief could be granted?

STATUTORY AND ORDINANCE

PROVISIONS INVOLVED

_ 53 P.S. 10508(4) provides in relevant part:

“When an application for approval of a plat, whether

preliminary or final, has been approved or approved

subject to conditions acceptable to the applicant, no

subsequent change or amendment in the zoning, sub-

division or other governing ordinance or plan shall be

applied to affect adversely the right of the applicant

to commence and to complete any aspect of the ap-

proved development in accordance with the terms of

such approval within three years from such approval.”

53 P.S. 10603(4) provides:

“Zoning ordinances may permit, prohibit, regulate, re-

strict and determine:

(4) Density of population and intensity of use.”

53 P.S. 10604(2) provides in relevant part:

“The provisions of zoning ordinances shall be designed:

(2) To prevent .. . overcrowding of land... .”

53 P.S. 10614 provides:

“For the administration of a zoning ordinance, a zon-

ing officer, who may not hold any elective office in

the municipality, shall be appointed. The zoning of-

ficer shall administer the zoning ordinance in accord-

ance 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 ordi-

nance,

53 P.S. 10617 provides:

“In case any building, structure, or land is, or is pro-

posed to be, erected, constructed, reconstructed, al-

tered, converted, maintained or used in violation of

any ordinance enacted under this act or prior enabling

laws, the governing body or, with the approval of the

goveming body, an officer of the municipality, in

addition to other remedies, may institute in the name

of the municipality any appropriate action or proceed-

ing to prevent, restrain, correct or abate such build-

ing, structure or land, or to prevent, in or about such

premises, any act, conduct, business or use constitut-

ing a violation.”

Section 522.1 of the Bensalem Township Zoning Ordi-

nance of 1954, as amended on June 20, 1973 provided:

“For every acre of land within the planned unit prop-

erty development there shall be allowed a maximum

of ten (10) condominium dwelling units within the

development.”

Section 522.1 of the Bensalem Township Zoning Ordi-

nance of 1954, as amended on October 8, 1976 provided:

“For every acre of land within the planned unit prop-

erty development there shall be allowed a maximum

of four (4) condominium dwelling units within the

development.”

4

STATEMENT OF THE CASE

This matter began as a class action civil rights action

brought by residents of a housing development known as

Bensalem Village against 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 and Stanley Horo-

witz, individually and in his capacity as Zoning Officer of

Bensalem Township, and Mark-Garner Associates, Inc. of

Pennsylvania (the developer of Bensalem Village). The

plaintiffs sought declaratory, injunctive and monetary re-

lief. Defendant Mark-Garner (hereinafter, developer)

filed a crossclaim against the other defendants and the

Bensalem Township Zoning Hearing Board and two of

its members both individually and in their official capacity.

The developer also sought declaratory, injunctive and

monetary relief. The municipal defendants (all de-

fendants other than the developer) filed Motions to Dis-

miss plaintiffs’: Complaint and the developer's crossclaim.

The Lower Court heard testimony on March 21 and 22 on

the requests for injunctive relief." On January 12, 1979

the Lower Court (Judge McGlynn) dismissed plaintiffs’

Complaint and the developer's crossclaim. Only the de-

veloper appealed to the Third Circuit Court of Appeals

which affirmed.

Factually, the developer received approval from Ben-

salem Township for a 557 unit condominium development

on or about May 16, 1973. The density (eleven units per

acre) complied with the Zoning Ordincnce at the time

the plan was approved. On June 20, 1973 the allowable

1. It is the respondent’s contention that the Motions to Dismiss

were converted to Motions for Summary Judgment by operation of

F.R.C.P. 12(b).

density in the R-4 District was lowered to ten units per

acre and on October 8, 1976 it was reduced to four units

per acre.” Between May 16, 1973 and September 24,

1976 some of the public improvements and somewhat

over one hundred units were built. On September 24,

1976 and September 29, 1976, defendant Stanley Horowitz

rejected the developer's applications for building permits

because the development did not comply with the Zoning

Ordinance’s amended density requirements (ten units per

acre at that time) nor was there an approved plan filed in

accordance with the Township’s Subdivision and Land

Development Ordinance which had been adopted in De-

cember, 1975. The developer appealed to the Zoning

Hearing Board which, after several hearings, denied the

developer's appeal. The developer then appealed to the

Court of Common Pleas of Bucks County, Pennsylvania,

seeking to overturn the Zoning Hearing Board’s decision.

In addition, the developer also filed a separate mandamus

action.’ While the developer's Zoning Appeal and man-

damus action were pending in the Court of Common Pleas,

the instant action was filed.

The developer's crossclaim alleges the other defend-

ants violated the developer's due process and equal pro-

tection rights under the Fourteenth Amendment of the

United States Constitution and unlawfully took the de-

veloper's property without compensation. The developer

2. It should be pointed out that Bensalem Township did not

enact its Zoning Ordinance until 1954 and, therefore, there were no

density restrictions. Bensalem Township submits that all it has

done is adapt its Zoning Ordinance to changing situations and times.

3. Developer's assertion on page 6 of its Petition for Writ of

Certiorari, that developer sought injunctive relief in the Court of

Common Pleas is false. In the mandamus action, summary judg-

ment in favor of the defendants (respondents Bensalem and Horo-

witz) was recently granted on July 9, 1980.

also claimed violations of 42 U.S.C. 1983, 1985 and 1986.

In addition, the developer claimed that it had been de-

prived of unspecified rights under unspecified state statutes,

local laws and ordinances.

After this action was filed the Court of Common Pleas,

in the Zoning Appeal, ruled that the developer was en-

titled to the permits. The Township appealed the de-

cision, in the Zoning Appeal, to the Commonwealth Court

of Pennsylvania. Thereafter, Judge McGlynn issued his

Order dismissing plaintiff's Complaint and the developer's

crossclaim. As indicated above, the developer's appeal

to the Third Circuit was denied. The Township’s appeal

to the Commonwealth Court of Pennsylvania was sus-

tained (Appeal of Mark Garner Associates, Inc., — Pa.

Cmwlth. —, 413 A.2d 1142 (1980) ) and no appeal has been

taken therefrom.

SUMMARY OF RESPONDENTS ARGUMENT

It is the respondents position that the decision of the

Third Circuit Court of Appeals, affirming the dismissal

of the crossclaim was correct.

The allegations in petitioner's crossclaim, accepted

as true, do not amount to a denial of equal protection. It

is not alleged that the zoning ordinances in question single

out the petitioner’s development, applying equally to all

R-4 Zoning Districts. There are no facts alleged to sup-

port a claim of unequal application of the ordinances and,

in fact, the thrust of petitioner's argument is that the re-

spondents intentionally applied its ordinances to all de-

velopers with final plan approval which application had

a greater impact on those developers with final plan ap-

proval than those without it. Zoning ordinances can

constitutionally have a great impact on property and

property owners. Village of Euclid v. Ambler Realty Co.,

272 U.S. 365, 47 S. Ct. 114, 71 L.Ed. 303 (1926). The

law does not require that a municipality treat differently

developers with final plan approval as opposed to those

property owners who don’t have final plan approval. The

respondents are under applicable Pennsylvania law re-

quired to enforce local ordinances and the failure to do so

could give rise to a civil rights action. Beaver v. Borough

of Johnsonburg, 375 F. Supp. 326 (W.D.Pa. 1974). There

is further no conflict between the Third Circuit's decision

herein and Williams v. Illinois, 399 U.S. 235 (1970) and

any comparison between indigent criminal defendants and

real estate developers is ludicrous.

Further, the allegations in petitioner's crossclaim do

not state a cause of action for the taking of property with-

out compensation. The petitioner can still make use of

its property, building 200 units (at a density of 4 per acre).

Indeed, the crossclaim on its face shows that the property

still has value. Zoning ordinances have been upheld even

though they have a substantial impact on property values,

City of Eastlake v. Forest City Enterprises, Inc., 426 U.S.

668, 96 S. Ct. 2358, 49 L.Ed.2d 132 (1976), and even

though they make property completely unmarketable in

a practical sense. Kopetzke v. County of San Mateo Board

of Supervisors, 396 F. Supp. 1004 (N.D.Cal. 1975). Taking

challenges have been denied ever. when the government

action prohibits a preexisting use. Penn Central Trans-

portation Co. v. New York City, 438 U.S. 104, 98 S. Ct.

2646, 57 L.Ed.2d 631 (1978). Nor is there any require-

ment that there must be a hearing on every alleged taking.

Agins v. City of Tiburon, — U.S. —, 48 U.S.L.W. 4700

(June 10, 1980) (decided on demurrer). In addition,

petitioner has not sought relief under the Pennsylvania

Eminent Domain Code, 26 P.S. 1-101 et seq. Kao v. Red

Lion Municipal Authority, 381 F. Supp. 1163 (M.D.Pa.

1974); Kahlasch v. New York State Thruway Authority,

460 F. Supp. 956 (S.D. N.Y. 1978).

Finally, petitioner's crossclaim was properly held not

to state a cause of action on substantive due process

grounds. Petitioner does not contend that respondents

lack the authority to enact the ordinances in question nor

that the ordinances are on their face unconstitutional.

Indeed, the enabling statute fully recognizes a munici-

palities right to regulate density and prevent overcrowding.

Petitioner's sole argument against the ordinances and their

application is that they were done with an improper

motive. This is not an element of an action under 42

U.S.C. 1983, Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969)

cert. denied, 396 U.S. 901, 90 S. Ct. 210, 24 L.Ed.2d 177,

Coghlan v. Phillips, 447 F. Supp. 21 (Miss. 1977), affd

567 F.2d 652, and an otherwise lawful ordinance does not

9

become unlawful due to an improper motive in its enact-

ment or application. Any other result would have the

Courts inquiring into legislative motivation which not only

would be a great intrusion into the legislative process but

would also be a complete reversal of the rational relation-

ship test.

The Court of Appeals applied the proper standard of

review consistent with this Court's decisions. The pe-

titioner is not entitled to relief since the well pleaded facts

in its crossclaim do not show a violation of its constitutional

rights.

10

ARGUMENT

I. The decision of the Third Circuit Court of Appeals

affirming the dismissal of Mark Garner’s crossclaim

was correct.

A. Equal Protection

Boiled down to its basics, developer alleges that it

was denied equal protection because the amendments to

the Zoning Ordinance, as applied, fell most harshly on a

particular class of developers, to wit, those with final plan

approval. Nowhere is it alleged that the ordinances in

question single out the developer's development and, in

fact, the ordinances apply equally to all R-4 Zoning Dis-

tricts within Bensalem Township. Nor has developer

alleged any facts to support its allegation of unequal ap-

plication of the law. There is no allegation that another

developer in Mark Garner’s situation was granted building

permits, assuming arguendo that such would state a cause

of action for denial of equal protection. See Bernbaum v.

Trussel, 271 F.2d 672, 676 (2nd Cir. 1966). In fact, the

thrust of developer's argument is that the Township in-

tentionally applied its ordinances to all developers with

final plan approval which application had a greater im-

pact on those developers than on developers who had not

secured final plan approval. However, it is obvious since

Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47

S. Ct. 114, 71 L.Ed. 303 (1926) that zoning ordinances

can constitutionally have a great impact on property and

property owners. As the Sixth Circuit stated in Studen v.

Beebe, 588 F.2d 560, 565 (6th Cir. 1978):

“All zoning plans have inherent within them a dis-

crimination between the various land uses permitted

11

thereunder. Under the facts of this case there is no

distinction in treatment between plaintiffs and any

similarly situated property owners. Consequently,

the classification to which plaintiffs have been sub-

jected is that which permeates all zoning, and does

not amount to a denial of equal protection.”

In reality, developer's argument is that developers

with final plan approval must constitutionally be treated

differently. Respondents submit that this is not the law.

Certainly, Pennsylvania has allowed municipalities to ap-

ply ordinances enacted after final plan approval to de-

velopments previously approved. Appeal of Mark Garner

Associates, Inc., — Pa. Cmwlth. —, 413 A.2d 1142 (1980);

Appeal of Central Penn National Bank, — Pa. Cmwlth. —,

408 A.2d 550 (1979); York Township Zoning Board of Ad-

justment v. Brown, 407 Pa. 649, 182 A.2d 706 (1962).

Indeed, the constitutional challenge raised by the de-

veloper in the Pennsylvania courts was denied. Appeal

of Mark Garner, supra.

In the case at bar municipal defendants (and _par-

ticularly, defendant Horowitz, the Township’s Zoning Of-

ficer) consistent with Sections 508(4) and 614 of the

Pennsylvania Municipalities Planning Code, 53 P.S.

10508 (4) and 10614, applied the Zoning Ordinance equally

to all persons in the developer's situation. When the three

year period provided by 53 P.S. 10508(4) ended, changes

in the Zoning Ordinance were applied to developer as

permitted by Pennsylvania law. Indeed, the Zoning Of-

ficer is specifically mandated by statute to “administer the

Zoning Ordinance in accordance with its literal terms,” 53

P.S. 10614, and the Board of Supervisors, as governing

body of the Township, has the power to prevent violations

of local ordinances, 53 P.S. 10617. The failure to enforce

lawful ordinances could give rise to a civil rights action.

12

Beaver v. Borough of Johnsonburg, 375 F. Supp. 326 (W.D.

Pa. 1974).

Petitioner places great reliance on Williams v. Illinois,

399 U.S. 235 (1970), however, it is submitted that com-

paring real estate developers to indigent criminals is

ludicrous. Unlike the indigent in Williams, dev

was not subject to any such illusory choice. Developer

could have completed the development in three years

but chose not to do so. (In fact, developer's construction

lender did not allow the developer to secure more than

twenty-five (25) building permits in advance of sales.)

Further, developer could have locked itself into a guaran-

teed five-hundred (500) units had it filed a simple sketch

plan between June, 1973 and October, 1976. It chose not

to do so. Now, however, developer seeks some sort of

special exemption from an admittedly valid, neutral ordi-

nance despite the fact that any loss suffered by developer

was occasioned by developer's own neglect and/or the

actions of its construction lender. This would seem to be

the opposite of equal protection. Respondents would

submit that there is no inconsistency between Your Court's

opinion in Williams and the Third Circuit's decision herein.

B. Taking Without Just Compensation

It is respondents’ position that their actions did not

constitute a taking of the developer's property under the

Fifth Amendment. Though not specificaliy stated either

in the complaint or the petition, it seems apparent that

the developer's argument is directed toward the 1976

ordinance reducing the permitted density to four units

per acre.‘ It must be remembered that the rejections of

4, Respondents would submit that, as a matter of law, a reduc-

tion in the permitted development from 557 units to 500 units would

not constitute a taking.

13

developer's permit applications by respondent Horowitz

was not based on this ordinance but rather on the 1973

ordinance (reducing the density to ten per acre) and the

1975 Subdivision and Land Development Ordinance. No

plan has been filed pursuant to the 1976 ordinance and,

in fact, petitioners’ Vice President testified that petitioner

was unwilling to submit plans for approval under the 1976

ordinance, though this would have permitted two-hundred

(200) units to be built.

Respondents submit that no taking of the developer's

property has occurred. The developer is still able to use

its property. There is no allegation in developer's cross-

claim that developer has been deprived of all reasonable

use of its property and, in fact, it is admitted that it can

still use its property, Kent Island Joint Venture v. Smith,

452 F. Supp. 455 (Maryland 1978). All that is claimed

is a diminution in value, loss of profits and increased ex-

pense. Zoning Ordinances have been sustained even

though they have an impact on property values City of

Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 96

S. Ct. 2358, 2362; 49 L.Ed.2d 132, 138 (1976); Euclid,

supra; Village of Belle Terre v. Boraas, 416 U.S. 1, 94

S. Ct. 1536, 39 L.Ed.2d 797 (1974); Block v. Hirsh, 256

U.S. 135, 155. In fact, ordinances have been applied even

though they made property completely unmarketable in

a practical sense. Kopetzke v. County of San Mateo Board

of Supervisors, 396 F. Supp. 1004 (N.D. Cal. 1975).

Further, assuming arguendo that a “taking” has oc-

curred, this does not mean that the developer's federal

constitutional rights have been violated, since compensa-

tion is available under Pennsylvania’s Eminent Domain

Code, 26 P.S. 1-101 et seq. Kao v. Red Lion Municipal

Authority, 381 F. Supp. 1163, 1165-66 (M.D. Pa. 1974)

14

and cases cited therein. See also Kahlasch v. New York

State Thruway Authority, 460 F. Supp. 956 (S.D. N.Y.

1978). Developer is in no way precluded from initiating

an appropriate action and seeking relief under the Eminent

Domain Code for compensation. However, at the writing

of this Brief, some forty-six (46) months have passed

since permits were rejected and developer has never

sought relief under the Eminent Domain Code.

It is the respondents position that the District Court

was correct in its statement that:

“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.”

It is submitted that these remain legitimate goals and

a density ordinance is still a reasonable way to accomplish

these goals even though the development has been started."

This is especially so when the developer can comply with

the amended ordinance (i.e., build 200 units) and is, in

fact, not challenging the Zoning Ordinance amendments.

Taken to their logical conclusion, developer's argument

narrows down to the proposition that once a developer

secures final approval it is constitutionally free from any

changes in the Zoning Ordinance. This is clearly not the

law. Euclid, supra.

As Your Honorable Court stated in Penn Central

Transportation Co. v. New York City, 438 U.S. 104, 98

S. Ct. 2646, 57 L.E.2d 631:

5. Petitioner's allegations of an improper motivation will be

addressed infra.

15

“,.. taking’ challenges have also been held to be with-

out merit in a wide variety of situations when the

challenged governmental actions prohibited a bene-

fiicial use to which individual parcels had previously

been devoted and thus caused substantial indivi-

dualized harm.” 438 U.S. 125.

Petitioner, in part, bases its argument on the fact that

its allegation of a taking was dismissed without a hearing,"

allegedly in conflict with this Court’s decision in Penn

Central, supra. Recently, Your Honorable Court in Agins

v. City of Tiburon, — U.S. —, 48 U.S.L.W. 4700 ( June 10,

1980) unanimously determined that an ordinance allowing

between one and five houses on a five acre tract did not

constitute a taking. The interesting thing about Agins,

in addition to the fact that the ordinance therein allowed

a much less intensive use than the ordinance challenged

herein, is the fact that it was decided on a demurrer.

Obviously, therefore, no factual hearing was held. It is

submitted that, accepting as true the allegations of de-

veloper's crossclaim, no hearing was necessary to deter-

mine that no taking had occurred.

C. Substantive Due Process

In addressing this issue, the present status of the

dispute between the developer and the Township must be

stated. It has been held that the Township can consti-

tutionally apply the ordinances enacted after the devel-

oper’s final plan approval to the developer. Appeal of

Mark Garner, supra. Further, the developer “has never

contended that the Board of Supervisors lacked the au-

thority to enact the kind of zoning amendments involved

6. Respondents would submit that this is not what happened.

See note 1, supra.

16

here” (Petition for Writ of Certiorari, p. 8). For that

matter, the developer has never contended that the ordi-

nances reducing the permitted density from twelve units

per acre are on their face unconstitutional. It is also clear

under the enabling statute (Pennsylvania Municipalities

Planning Code, 53 P.S. 10101 et seq.) that “zoning ordi-

nances may permit, prohibit, regulate, restrict and deter-

mine density of population and intensity of use” (53 P.S.

10603(4)) and that “the provisions of zoning ordinances

shall be designed to prevent . . . overcrowding of land”

(53 P.S. 10604(2)). Indeed, Section 100 of the Bensalem

Township Zoning Ordinance provides:

“This Ordinance is enacted for the following purposes:

To promote the health, safety, morals and general

welfare of the inhabitants of Bensalem Township by

lessening congestion in the roads and highways, secur-

ing safety from fire, flood, panic and other dangers;

to protect property and to prevent obstruction of

streams and waterways, providing adequate light and

air; preventing the overcrowding of land; avoiding

undue concentration of population; facilitating ade-

quate provision for transportation, water, sewerage,

schools, parks and other public requirements; con-

serving the value of buildings and encouraging the

most appropriate use of land.” (Emphasis added. )

The minutes of the meeting of June 20, 1973 at which

the ordinance reducing the permitted density to ten per

acre was adopted show that the Board of Supervisors had

input from the public, the Township Planning Commission

and a private planner.’ As to the period after 1973 the

7. These minutes were attached to the respondents’ Motion to

Dismiss filed in the District Court and are found at Pp. 47a-48a of

the Appendix to the Appellants Brief in the Third Circuit.

17

following testimony presented at the hearing on the

preliminary injunction is relevant.

“BY MR. BROOKMAN:

Q. Since 1974 have there been a series of zoning

changes that has, in effect, reduced the density levels

in Bensalem Township?

MR. HUHN: Objection.

THE COURT: Overruled.

THE WITNESS: J don't know what you mean

by series. There have been some.

BY MR. BROOKMAN:

Q. And what were the nature of those amendments

to the zoning ordinance?

A. You are talking about the amendments? There

were reductions in density in all classifications.

Q. And do you recall what the initial densities

were—strike that.

Has there ever been expressed at a public meeting

that you have attended in your official capacity of

why these zoning ordinance amendments were being

passed?

MR. HUHN: Objection.

THE COURT: She can say yes or no.

THE WITNESS: Yes.

BY MR. BROOKMAN:

Q. And what was so expressed?

A. That the densities, the prior densities were just

too high, 12 to the acre, for example.

18

I mean that was the advisements given to the Board

through the Planning Commission to reduce the den-

sities.

Q. Did the Township ever retain the services of

any outside consultants to assist them in making these

determinations?

A. Yes, sir.

Q. Do you recall the name of that consulting firm?

A. Urban Research and Development for one and

the Bucks County Planning Commission.

Q. Do you recall what the recommendations were

of the Urban Research firm?

A. Ido not know. It was to reduce the densities.

I don't remember the exact figures.”

It must also be remembered that:

“An ordinance comes to the courts clothed with every

presumption of validity . . . (Zoning factors are) pri-

marily for legislative concern, unless . . . we have

patently a capricious and irrational invasion of prop-

erty, the merits undebatable by reasonable men, the

action indefensible to any save those whose minds

have been made incandescent by partisan zeal or

pursuit of gain.” City of Ann Arbor, Michigan v.

Northwest Park Construction Corp., 280 F.2d 212,

223 (6th Cir. 1960).

Reading the developer's crossclaim in its best light,

it appears to be developers position that even though

there is no question as to the authority to enact and apply

19

the ordinances nor apparently as to the ordinances validity,

these facially neutral ordinances should not apply to de-

veloper because they were allegedly enacted and applied

with an improper motive or for an improper purpose.*

Interestingly, developer's crossclaim does not seek a dec-

laration that any of the ordinances involved herein be

declared unlawful or unconstitutional. It is respondents’

position that:

“an improper motive or purpose on the part of the

defendants is not an element for a cause of action

under Section 1983, Whirl v. Kern, 407 F.2d 781 (5th

Cir. 1969), cert. denied 396 U.S. 901, 90 S. Ct. 210,

24 L.Ed.2d 177.” Coghlan v. Phillips, 447 F. Supp.

21 (Miss 1977), affd 567 F.2d 652. See also Gomez

v. Toledo, — U.S. —, 48 U.S.L.W. 4600 (May 27,

1980).

In other words, the initial inquiry is whether the con-

duct as alleged violates the Constitution.” Indeed, it is

questionable whether motive itself is important even for

purposes of defense. However, respondents would submit

that an otherwise lawful act does not become unlawful

due to an improper motive. Further, there are sound

policy reasons to avoid such an inquiry into the legislative

motivation. Besides the practical fact that it would often

be impossible to determine the motivation behind the

passage of an ordinance or the enforcement thereof, such

8. This allegation permeates developer's entire petition and is

relied on in each of the arguments contained therein.

9. For reasons cited in Arguments A & B, supra, it is the re-

spondents’ position that the Third Circuit Court of Appeals prop-

erly determined that petitioner had not alleged a violation of its

constitutional rights.

20

an inquiry would represent not only a great intrusion by

the federal courts into the legislative process but would

be a complete reversal of the rational relationship test

and the deference it accords to legislative judgments deal-

ing with business and economic matters.’ Simply stated,

the inquiry is not why the legislature acted as it did, but

whether it had the power to do so.

It should be pointed out that in the case at bar it

would have been factually impossible for the respondents

to have passed the ordinance of June 20, 1973 for any

purpose since only one of the respondents (respondent

Zajac) was on the Board of Supervisors at the time. The

purpose for the enactment of the ordinance of October 8,

1976 is immaterial since permits were not denied on the

basis of that ordinance and, in fact, were denied before

that ordinance was adopted.

As to the application of the ordinance of June 20,

1973 to petitioner, respondents would again assert that

respondent Horowitz was under a statutory obligation to

apply the zoning ordinance in accordance with its literal

terms. Also, it was his testimony that he never spoke to

anyone in the Township, including the Supervisors, before

issuing the rejection to petitioner. (Notes of Testimony,

March 22, 1977, p. 154.) Respondents would suggest that

inquiring into why respondent Horowitz did what he was

lawfully entitled and obligated to do would be inimical

10. This deference is apparent in Dieffenbach v. Attorney Gen-

eneral of Vermont, 604 FDA 187 (2nd Cir. 1979). In that case,

despite the Attorney General’s concession that the law in question

violated the plaintiff's equal protection rights, the Court upheld the

act and, in effect, created or theorized possible purposes for the

act. See also Williamson v. Lee Optical of Oklahoma, 348 U.S. 483

(1955).

21

to the proper functioning of municipal government and,

for that matter, all government.

Contrary to the petitioners assertion, the Court of

Appeals applied the proper standard of review consistent

with Your Honorable Court’s prior holdings. What the

Court of Appeals (and for that matter the District Court )

has held is that, accepting the well pleaded allegations of

developers crossclaim as true, the developer is not entitled

to relief since the allegations of the crossclaim do not

show a deprivation of any federal right."

Respondents believe that the following language from

the decision in Wallach v. City of Pagedale, Mo., 359

F.2d 57, 59 (8th Cir. 1966) is particularly appropriate

herein:

“,..no civil rights action exists by reason of the enforce-

ment of a lawful ordinance.” See also Mosher v.

Bierne, 357 F.2d 638 (8th Cir. 1966).

As Judge McGlynn stated in sustaining the respon-

dents Motion to Dismiss:

“This is another zoning controversy in which the plain-

tiffs and defendants cross-claimant sought to add the

leverage of this Court to their dispute with the Town-

ship Supervisors by alleging that their constitutional

rights were violated as the result of the denial of

additional building permits.” (Appendix to Petition

for Writ of Certiorari Pp. A35-A36.)

11. As indicated supra, the Township's position has already

been sustained in state court, to wit, that Section 508(4) of the

Municipalities Planning Code, 53 P.S. 10508(4) allows the applica-

tion of the later ordinances to the petitioners development. Re-

spondents would submit that inferentially petitioner is attacking the

constitutionality of the Municipalities Planning Code.

22

Having been rebuffed by the state courts,” the de-

veloper’s petition is nothing more than a last ditch effort

to secure unlawful permits so as to complete a develop-

ment which would violate valid ordinances. There is

nothing in this case which would merit granting the peti-

tion.

12. Interestingly, developer never sought relief in the state

courts by way of a variance though arguably this would have been

the procedure by which developer might have secured relief from

the zoning amendments.

23

CONCLUSION

Both the District Court and the Court of Appeals

properly determined that petitioner’s crossclaim did not

state a cause of action. The facts, as alleged, do not amount

to a denial of equal protection or substantive due process

nor do they amount to a taking of petitioner's property

without just compensation. The Court of Appeals’ decision

is not in conflict with the decisions of another Court of

Appeals or of this Court. There are no special and im-

portant reasons for the granting of the petition for writ

of certiorari and respondents respectfully request that the

petition for writ of certiorari be denied.

Respectfully submitted,

HENRY F. HUHN,

LESLIE G. DIAS,

Counsel for Respondents