Petition for Writ of Certiorari — Walker v. Bello
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8 8 ve 5 : el ) Suprerge Court, U.S.
FILED
No. 87-1968 JUN 3U 1968
In The JOSEPH F. SPAMAGL, rR.
Re
Supreme Court of the Unite
October Term, 1987
DINO BELLO, an individual, and
SIMMONS PARK PROPERTIES, INC.,
a corporation,
Respondents,
vs.
NORMAN L. WALKER, JOHN E. KANON,
JAMES M. MARTIN, JOSEPH J. URBANOWICZ,
HARRY E. BABINGER, JAMES E. HADSEL,
YVONNE A. RIGATTI, GLENN TRAUTMAN,
WILLIAM W. RUHL, WILLIAM G. DODDS,
PATRICIA M. PRICE, CONCETTA SERDY,
and REID W. McGIBBENY, individuals,
Cross-Petitioners.
DINO BELLO, an individual and
SIMMONS PARK PROPERTIES, INC.,
a corporation,
Respondents,
Vs.
MUNICIPALITY OF BETHEL PARK,
Cross-Petitioners.
On Writ of Certiorari to the United States
Court of Appeals for the Third Circuit
CROSS-PETITION FOR ‘WRIT OF CERTIORARI
fy
VY
Marvin A. FEIN
BaskKIN FLAHERTY ELLIOTT
& Mannrno, P.C.
2900 One Mellon Bank Center
500 Grant Street
Pittsburgh, Pennsylvania 15219
(412) 562-8727
Attorney for Cross-Petitioners
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
or call collect (402) 342-2831
QUESTIONS PRESENTED FOR REVIEW
I. WHETHER ACTION BY LESS THAN A MAJOR-
ITY OF THE MEMBERS OF A MUNICIPAL LEGIS-
LATIVE BODY CAN BE MUNICIPAL POLICY UN-
DER 42 U.S.C. ¢ 1983.
Il. WHETHER POLITICAL OR PERSONAL MO-
TIVES OF A MAJORITY OF THE MEMBERS OF A
MUNICIPAL LEGISLATIVE BODY MAY BE CON-
SIDERED IF THERE IS A RATIONAL BASIS ON
THE RECORD FOR THEIR OFFICIAL ACTIONS.
ii
TABLE OF CONTENTS
Page
Questions Presented for Review i
Table of Contemte .u...ccuieisss eee ii
Table of Authorities ..0 2 iii
Reference to Official and Unofficial Reports 00000000... 2
Statement of the Grounds for Jurisdiction of this
| 5 ENCE EENIN n 2
Constitutional Provisions and Statute Involved ............... 2
Statement of the Case +
Reasons Relied Upon for Allowance of this Petition ... 7
A. A Minority of the Members of Council are not
Municipal Polioymaker® 0 cc ee 7
B. The Circuit Court Misapplied the Rational Rela-
tions Test ..............ccussne eeonnice 10
Conelnsion | .............2eee 15
Appendix
Opinion of the United States Court of Appeals for the
Turd Cireuit WW ae la
Memorandum Orders of the United States District
Court for the Western District of Pennsylvania
June 4, S38 l7a
July 22, SOUP Ww 20a
Report and Recommendation of the Chief Magistrate
of the United States District Court for the Western
District of Pennsylvania .............. Par net aB SD mismo a 22a
Order dated May 5, 1981 of the Court of Common
Pleas of Allegheny County, Pennsylvania oo... 65a
iii
TABLE OF AUTHORITIES
Page
CasEs
Bethel Park Municipal Council v. Simmons Park
Properties, Inc., 448 A.2d 661, 68 Pa. Common-
| eae aer nee 5
Chiplin Enterprises v. City of Lebanon, 712 F.2d
I I SINNED icceie sceneries 13
City of St. Louis v. Praprotnick, — U.S. —, 108 S.
Ce Sim, == kamen — (1968) 8,9
Cloutier v. Town of Epping, 714 F.2d 1184 (1st
I irked et ciscsstensenintiennuscineenanionsstinenierionacanciomactsininemenot 13
Creative Environments, Inc. v. Estabrook, 680
F.2d 822 (1st Cir., 1982) Cert. denied, 459 U.S.
Neen ccaiciechneienannvbmbiokannnienaininiemanins 12,13
Exxon Corp. v. Governor of Maryland, 437 U.S.
117, 98 S.Ct. 2209, 57 L.Ed.2d (1978) —...........-- 11
First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, California,
— U.S. —, 107 S.Ct. 2378, — L.Ed.2d — (1987) ~...... 6
Monell v. New York City Department of Social
Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d
611 (1978) . padtinieidcaclib 5 me 9
Newport v. Fact Concerts, Inc., 453 U.S. 247, 1015
a ore oe cae G1e (leek)... 8
Oklahoma v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427,
85 L.Ed.2d 791 (1985) 0 Soe AS aie Oe ro 9
Owen v. City of Independence, 445 U.S. 622, 100
SOs, 1906, 6 1.06.38 678 (1960) —_____._.. 8
Pembaur v. Cincinnati, 475 U.S. 469, 106 S.Ct.
1292, 89 L.Ed.2d 452 (1986) . didi stiin 10
Quinn v. Bryson, 739 F.2d 8 (1st Cir., .. 1983) ail baiasncintals 13
Rymer v. Douglas County, 764 F.2d 796 (11th Cir.,
SE IE 13
iv
TABLE OF AUTHORITIES—Continued
Page
Scott v. Greenville County, 716 F.2d 1409 (4th
Seis UP | secactecniteciaenseenadha pin tideataasssees 14
Shelton v. City of College Station, 780 F.2d 475
(5th Cir., 1986) Cert. denied 106 S.Ct. 3276 (1986) .. 12
State of Minnesota v. Clover Leaf Creamery
Company, 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.
2d 659 (1981) ..... 11
Village of Arlington Heights v. Metro Housing
Development, 429 U.S. 252, 975 S.Ct. 555, 50
A IE ae ke 12
CONSTITUTIONAL PROVISION
PU nN 2 ee 3
FeperaL Statutes
28 U.S.C. § 1254(1) ten 2
re 5 Ri 4,8,9, 11
Sr ei IE Gai bicenicsenntidinrmeieitieasacianninn is — eo
No. 87-1968
In The
Supreme Court of the United States
October Term, 1987
fy.
DINO BELLO, an individual, and
SIMMONS PARK PROPERTIES, INC.,
a corporation,
Respondents,
vs.
NORMAN L. WALKER, JOHN E. KANON,
JAMES M. MARTIN, JOSEPH J. URBANOWICZ,
HARRY E. BABINGER, JAMES E. HADSEL,
YVONNE A. RIGATTI, GLENN TRAUTMAN,
WILLIAM W. RUHL, WILLIAM G. DODDS,
PATRICIA M. PRICE, CONCETTA SERDY,
and REID W. McGIBBENY, individuals,
Cross-Petitioners.
DINO BELLO, an individual and
SIMMONS PARK PROPERTIES, INC.,
a corporation,
Respondents,
Vs.
MUNICIPALITY OF BETHEL PARK,
Cross-Petitioners.
fy
On Writ of Certiorari to the United States
Court of Appeals for the Third Circuit
CROSS-PETITION FOR WRIT OF CERTIORARI
ry
V
The Cross-Petitioners file the following Cross-Petition
for Writ of Ce tiorari to the Supreme Court of the United
States.
REFERENCE TO OFFICIAL AND
UNOFFICIAL REPORTS
The Opinion of the United States Cireuit Court of
Appeals for the Third Circuit is reported at 840 F.2d 1124.
The Opinion of the District Court has not been reported
in an official or unofficial reporter.
STATEMENT OF THE GROUNDS FOR
JURISDICTION OF THIS COURT
The date of entry of the Opinion of the United
States Court of Appeals for the Third Cireuit is March 1,
1988. <A Petition for Writ of Certiorari was served on
the Cross-Petitioners on June 1, 1988.
This Court has jurisdiction to review the order en-
tered March 1, 1988 pursuant to 28 U.S.C. § 1254(1). This
Cross-Petition has been filed timely pursuant to Rule 19.5
of Rules of the Supreme Court of the United States.
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The Pennsylvania Borough Code, Act of February 1,
1966, P. L. (1965) » No. 581, 53 P.S. 46006
provides in pertinent part:
§ 46006. Duties of Council
It shall be the duty of the borough council:
(3) To enact, revise, repeal and amend such by-
laws, rules, regulations, ordinances and res-
olutions, not inconsistent with the laws of the
Commonwealth of Pennsylvania, as it shall
deem beneficial to the borough and to provide
for the enforcement of the same. The legis-
lative powers of boroughs including capital
expenditures not payable out of current
funds, shall be exercised by or be based on an
ordinance. All other powers shall be exer-
cised by vote of the majority of council pres-
ent at a meeting, unless otherwise provided.
Routine, ministerial or administrative pur-
chases and powers may be made and exercised
by officers or committees, if authority there-
fore was previously given, or if the action is
subsequently ratified by council. Whenever
any action by council shall result in a specific
contract or agreement, such contract or agree-
ment shall be signed by the president of the
borough council.
The Fifth Amendment to the United States Constitu-
tion Provides:
No person shall be held to answer for a capi-
tal, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval
forces, or in the Militia, when in actual serv-
ice in time of War or public danger; nor
shall any person be subject for the same of-
fence to the twice put in jeopardy of life or
limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without
due process of law; nor shall private prop-
erty be taken for public use, without just
compensation.
4
42 U.S.C. § 1983 provides:
Every person who, under color of any stat-
ute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of
Columbia, subjects, or causes to be subjected,
any citizen of the United States or other per-
son within the jurisdiction thereof to the de-
privation of any rights, privileges, or immu-
nities secured by the Constitution and laws,
shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceeding for redress. For the purposes of
this section, any Act of Congress applicable
exclusively to the District of Columbia shall
be considered to be a statute of the District
of Columbia (R.S. § 1979; Dee. 29, 1979, P.L.
96-170, § 1, 93 Stat. 1284).
STATEMENT OF THE CASE
Respondent Dino Bello is the principal shareholder
of Simmons Park Properties, Inc. (“‘Simmons Park’’) also
a respondent in this case (collectively referred to herein
as ‘‘developer’’). Simmons Park owns approximately
33 acres of land in Bethel Park Borough, the municipal
petitioner herein. In July, 1976, Simmons Park sub-
mitted a site plan to Bethel Park for a 254 unit devel-
opment containing townhouses and duplexes which was
divided into five distinct phases. The site pliu was ap-
proved on October 19, 1976 and Simmons Park completed
construction of the 47 units in the first phase in the spring
of 1979. In May, 1979 Simmons Park applied for build-
ing permits to continue developing townhouses in the area
designated as the fifth phase. Bethel Park denied the
application based on the phased site plan and informed
Simmons Park that permission would be granted next
only for the second phase.
Simmons Park did not apply for permission to con-
struct units in the second phase, but instead filed an action
in mandamus on June 8, 1979 in the Court of Common
Pleas of Allegheny County, Pennsylvania seeking issu-
ance of a building permit to construct units in the fifth
phase. Initially, the case was referred by the Court to a
hearing officer who recommended that the request for a
building permit be denied. By order dated March 26, 1980,
a judge overruled that recommendation and instead or-
dered that the building permit be issued. However by
Order dated January 27, 1981, that same judge vacated
that previous order. After final hearing, another judge
on that Court issued a final order requiring Bethel Park
to issue the building permits based on a conclusion
that there was no written agreement between the
developer and the municipality requiring that the
units be developed in phases. An appeai from that
decision by Bethel Park was quashed for failure to per-
feet the appeal properly. Bethel Park Municipal Council
v. Simmons Park Properties, Inc., 448 A.2d 661, 68 Pa.
Commonwealth Ct. 12 (1982).
On September 3, 1980, during the pendency of the
state court action, respondents filed a complaint in the
United States District Court for the Western District of
Pennsylvania against Bethel Park’s council members,
zoning officers and municipal manager secking monetary
damages for violations of due process and equal protec-
tion rights and for violation of antitrust laws. On March
11, 1981, a similar complaint was filed against the munici-
pality.
By Memorandum Order and Report and Recommenda-
tion the District Court’s Chief Magistrate recommended
that summary judgment be granted as to all defendants
on all counts, which recommendation was affirmed by
Order of a District Judge dated June 4, 1987. By Order
dated July 22, 1987, the developer’s motion to vacate which
was based on the subsequent decision of this Court in First
English Evangelical Lutheran Church of Glendale v.
County of Los Angeles, — U.S. —, 1075 S.Ct. 2378, — L.Ed.
2d — (1987) was denied. The developer appealed the
granting of summary judgment to the United States Cir-
euit Court for the Third Circuit.
By Order dated March 1, 1988, the Circuit Court af-
firmed dismissal of the action on procedural due process,
equal protection, taking without just compensation and
anti-trust grounds but reversed and remanded the case
on the substantive due process grounds.
In reversing the District Court on the substantive
due process issue, the Circuit Court disregarded the find-
ing of the District Court that the permit application was
denied based on the phasing requirement, and instead held
that a factfinder must determine whether the permit was
denied for lack of proper phasing or because of the politi-
cal or personal motive of certain municipal council mem-
bers. The Court made no distinction between actions by
less than a majority of the members of council and ac-
tions by a majority of the members of council in their lee-
islative capacity.
-~
On June 1, 1988, the developer filed a Petition for
Writ of Certiorari solely on the issue of whether the Cir-
enit Court erred in ruling against him on the taking with-
out just compensation issue.
co)
REASONS RELIED UPON FOR
THE ALLOWANCE OF THIS PETITION
A. A MINORITY OF THE MEMBERS OF COUN.
CIL ARE NOT MUNICIPAL POLICYMAKERS
This action was filed by a developer against all mem-
bers of a municipal council, two zoning officials, the bor-
ough manager and the municipality charging each of them
inter alia with violating his substantive due process rights
by failing to approve a zoning permit.
In refusing to grant summary judgment for the mu-
nicipality and all officials on the substantive due process
count, the United States Court of Appeals for the Third
Cireuit held,
‘“‘The plaintiffs in this case present evidence from
which a fact finder could reasonably conclude that
certain council members, acting in their capacity as
officers of the municipality improperly interferred
with the process by which the municipality issued
building permits, and that they did so for partisan
political or personal reasons unrelated to the merits
of the application for the permits’’. (emphasis added)
As to the individual defendants, the rationale given
by the Cireuit Court is consistent with prior decisions of
this Court. See Newport v. Fact Concerts, Inc., 453
U.S. 247, 101 S. Ct. 2748, 69 L.Ed.2d 616 (1981);
Owen v. City of Independence, 445 U.S. 622, 100 S. Ct.
1398, 63 L. Ed. 2d 673 (1980). However, there is no sound
legal basis for the Cireuit Court’s holding that the munici-
pality may be bound under 42 U.S.C. § 1983 for a random
act by a minority of the members of council.
As a starting point, the permit was denied by a zoning
officer, solely on the basis of the facts unique to this one
permit application. If that had been the extent of the
municipal involvement in this case, it is clear that the
erroneous denial of the application by that ministerial
officer would not give rise to an action against the munici-
pality under 42 U.S.C. § 1983, City of St. Louis v. Praprot-
nick, — U.S. —, 108 S. Ct. 915, — L.Ed.2d — (1988). How-
ever, here the developer has attempted to come within the
purview of the statute by alleging that municipal policy-
makers, i.e. council members, became involved in the admin-
istrative process and for political or personal reasons per-
suaded the zoning officer to deny the permit. The Cir-
cuit Court’s holding that the council members’ actions, if
they constitute less than a majority, rise to the level of
municipal policy, has never been decided directly by this
Court, but is inconsistent with the rationale and dicta in
prior decisions of this Court.
In the Praprotnick case, supra, this Court held that
the identification of policy making officials is a matter
of state law. Here the municipality is a Borough and
under the Pennsylvania Borough Code, council is the legis-
lative body which may take official action only by vote
Pete Pol ARETE kd Sk en RN te EDR a Biel e e DO
:
3
:
;
3
of the majority of the nine member council. See The
Borough Code, Act of February 1, 1966 P. L. (1965) —
No. 581 53 P.S. § 46006. Thus under State law, the ac-
tions of four council members has no legal effect. How-
ever, the decision of the Cireuit Court gives policy mak-
ing authority to four or less council members.
This departure by the Cireuit Court from what has
been regarded as municipal policy in all Post-Monell v.
New York City Departmeni of Social Services, 436 U.S.
658, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978) decisions is dan-
gerous and needs to be reviewed immediately by this Court.
If the actions of any member of a legislative body can ren-
der a municipality liable under 42 U.S.C. § 1983, then mu-
nicipalities will be vicariously liable for every loose cannon
elected to office. That type of reasoning will insulate
those individual officers from individual liability under
the deep pocket theory of litigation and in most likelihood
will encourage rather than discourage unconstitutional
behavior. Monell, supra and its progeny were not in-
tended to effect that result. Instead, only government
policy promulgated pursuant to the recognized state pro-
cedure which in turn causes a denial of constitutional
rights was intended to provide redress against the munici-
pality.
Here, the purported acts were in reality tortious like
those in Oklahoma v. Tuttle, 471 U.S. 808, 105 S. Ct. 2427,
85 L. Ed. 2d 791 (1985), but the acts were not done by the
officials acting in their official legislative capacity. This
Court held in Praprotnick that a decision of a low ranking
municipal employer does not become elevated to the rank of
municipal policy unless it is approved by the supervising
10
policy maker or it is one of a series of consistent decisions
which manifest a custom or usage. Neither instance is
present here. The supervising policy maker under state
law is council acting as a body, not individual members of
eouncil. Further this denial of a permit was an isolated
incident and there are no allegations that it was part of a
usage or custom.
In Pembauer v. Cincinnati, 475 U.S. 469, 106 S. Ct.
1292, 89 L. Ed. 2d 452 (1986), this Court held that muni-
cipal liability attaches under 42 U.S.C. § 1983 only where
‘‘a deliberate choice to follow a course of action is made
from among various alternatives by the official or officials
responsible for establishing final policy with respect to the
subject matter in question”. 106 S. Ct. at 1300. In dis-
cussing that holding, this Court stated that ‘‘if county
employment policy was set by the Board of County Com-
missioners, only that body’s decision would provide a basis
for county liability”. 106 S. Ct. at 1300, ftn. 12. Thus, this
Court, at least in dictum, has expressly limited municipal
liability for acts of members of the legislative branch to
official acts done as a body. However, given the impor-
tance of this issue to municipalities, it is obvious from the
Third Cireuit’s decision that this issue needs to be ad-
dressed directly by this Court.
B. THE CIRCUIT COURT MISAPPLIED THE RA-
TIONAL RELATIONS TEST
If a majority of the members of council approved the
denial of the permit, the Court below acted improperly in
refusing to grant summary judgment not only as to the
municipality but as to all other defendants as well.
11
The Cireuit Court for the Third Circuit held that the
municipality’s act of withholding building permits would
violate the developer’s substantive due process rights if a
fact-finder found that council members withheld the per-
mits for partisan political or personal reasons; but, if the
council members withheld the permit because of the devel-
oper’s failure to build pursuant to the phasing sequences
set forth in the site plan, that is ‘‘an arguably rational
ground for the denial of the permit’’. By so holding, the
Third Circuit disregarded this Court’s prior rulings in
which the rational relations test was applied and instead
decided that substantive due process cases under 42 U.S.C.
§ 1983 should be decided under tort law rather than consti-
tutional law principles.
In State of Minnesota v. Clover Leaf Creamery Com-
pany, 449 U.S. 456, 101 S. Ct. 715, 66 L. Ed. 2d 659 (1981),
this Court held that a legislative act may not be declared
to be irrational under the Equal Protection Clause if ‘‘it is
evident from all considerations presented to the [legisla-
ture], and those of which we may take judicial notice, that
the question is at least debatable” 101 S.Ct. at 724. This
same standard of review is equally applicable to substan-
tive due process claims. Exxon Corp. v..Governor of
Maryland, 487 U.S. 117, 98 S. Ct. 2207, 57 L. Ed. 2d 91
(1981).
Here the Court found that the plan initially approved
by council had five phases and that building permits were
denied only after the developer deviated from the phasing
schedule. The Court also quoted from the zoning inspec-
tor’s affidavit that the decision to deny the building per-
mits was made by him individually on the basis of the fail-
ure to follow the phasing schedule. Finally, the Court held
12
that failure to build pursuant to the phasing sequence was
an arguably rational ground for the denial of the permit.
Thus, even though the Court found the debatable basis for
council’s action if in fact a majority of the members of
council did act on the zoning permit request, the Court held
that a substantive due process violation could be found.
There is no support for that decision in any zoning
eases decided by this Court. That holding has been re-
jected specifically by this Court in Village of Arlington
Heights v. Metro Housing Development, 429 U.S. 252, 97 S.
Ct. 555, 50 L. Ed. 2d 450 (1977) where this Court held that
denial of a variance was to be reviewed as a legislative act
and that if a rational basis could be found for the denial,
the action of council must be upheld.
Review of zoning decisions by almost every other cir-
cuit court has been restricted to a determination as to
whether there are any possible rational basis for the zon-
ing decision. In Shelton v. City of College Station, 780
F.2d 475 (5th Cir., 1986), cert. denied 106 S. Ct. 3276
(1986), the Court en banc reversed a panel of its Court
which like the Third Cireuit held that it was the function
of a federal court to determine whether there was a factual
basis for denial of zoning approval. Instead the court ex
banc after a lengthy review of the function of a federal
court in the zoning process held that substantive due pro-
cess could be violated only if there was no debatable issue.
The findings of the Third Circuit in this case that phasing
could be a rational basis for the zoning decision would have
led the Fifth Cireuit to uphold the grant of summary judg-
ment for the municipality.
This issue has been decided differently also in the
First Cireuit. In Creative Environments, Inc. v. Esta-
o> sail
13
brook, 680 F.2d 822 (1st Cir. 1982) cert. denied 459 U.S.
989 (1982); Quinn v. Bryson, 739 F.2d 8 (1st Cir., 1984) ;
Cloutier v. Town of Epping, 714 F.2d 1184 (1st Cir., 1983)
and Chiplin Enterprises v. City of Lebanon, 712 F.2d 1524
(1st Cir. 1982), developers were denied use of their land
for long periods of time allegedly as a result of malice and
harassing tacties by public officials against the developers.
Regardless, the Circuit Court dismissed each developer’s
substantive due process claim based on the following rea-
soning :
“Virtually every alleged legal! or procedural error of
a local planning authority or zoning board of appeal
could be brought to a Federal Court on the theory that
the erroneous application of state law amounted to a
taking of property without due process. Neither, Con-
gress nor the courts have, to date, indicated that see-
tion 1983 should have such a reach”. Creative Envir-
onments, Inc. v. Estabrook, 680 F.2d at 831.
In Rymer v. Douglas County, 764 F.2d 796 (11th Cir.,
1985) the Cireuit Court dismissed a complaint in which a
zoning decision was challenged based on allegations tliat
the officials knew or should have known that their decision
was wrong. That is essentially the same allegation as in
this case since the developer has alleged that because phas-
ing was eventually held not to apply that the municipal
officials knew or should have known how the courts would
eventually rule on the phasing issue. The Eleventh Circuit
when faced with that situation rightfully held that uphold-
ing that claim would raise a tort to the stature of a consti-
tutional violation. That is exactly what the Third Cirenit
has done.
The Third Cireuit Court in its decision stated that its
decision was consistent with the decision of the Fourth Cir-
14
euit in Scott v. Greenville County, 716 F.2d 1409 (4th Cir.,
1983). However, even there the Court did not go to the ex-
treme to which the Third Circuit did to intercede in a zon-
ing dispute. In the Scott case, the Court applied correctly
the rational relations test but found that the legislative
body intervened in the municipality’s ministeria! permit
issuance process for racial reasons without any con-
ceivable rational basis. That is far different from a case
where the Cireuit Court specifically finds that the reason
stated by the municipality for its action is a rational
basis for the permit refusal but then holds that a fact
finder may delve into the minds of the officials to deter-
mine whether they had personal or political reasons for the
decision. That holding has not been adopted by any other
Cireuit Court.
Thus, this ease not only presents itself with a situation
where there is a split among the Circuit Courts as to the
manner in which zoning decisions must be reviewed under
the substantive due process clause, but it also is a case
which highlights the fact that the apparently clear direc-
tion which this Court gave to the First, Fifth and Eleventh
Cireuit Courts needs to be more fully amplified so that zon-
ing decisions may be reviewed consistently in the Federal
Court system.
———
Vow’ sabia LRSM a oe»
et te ee ee ed
15
CONCLUSION
For all of the foregoing reasons, the Cross-Petitioners
respectfully request that this Court grant their Cross-Peti-
tion for Writ of Certiorari.
Respectfully submitted,
BaskKIN FLAHERTY ELLIOTT
& Mannino, P.C.
Marvin A. FEIN
2900 One Mellon Bank Center
500 Grant Street
Piitsburgh, Pennsylvania 15219
(412) 562-8727
Attorney for Cross-Petitioners
la
APPENDIX
Opinion and Order of the Third
Cireuit Court of Appeals
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 87-3504 and 87-3505
DINO BELLO, an individual
and
SIMMONS PARK PROPERTIES, INC.,
a corporation,
Ve
NORMAN L. WALKER, JOHN E. KANON, JAMES M.
MARTIN, JOSEPH J. URBANOWICZ, HARRY E.
BABINGER, JAMES E. HADSELL, YVONNE A.
RIGATTI, GLENN TRAUTMAN, WILLIAM W. RUHL,
WILLIAM G. DODDS, PATRICIA M. PRICE,
CONCETTA SERDY, AND REID W. McGIBBENY,
individuals
Dino Bello and Simmons Park Properties, Inc.,
Appellants No. 87-3504
2a
DINO BELLO, an individual
and
SIMMONS PARK PROPERTIES, INC.,
a corporation,
v.
MUNICIPALITY OF BETHEL PARK
Dino Bello and Simmons Park Properties, Ine.,
Appellants No. 87-3505
On Appeal from the United States District
Court for the Western District
of Pennsylvania
(D.C. Civil Nos. 80-1264 & 81-346)
Argued December 15, 1987
Before: SLOVITER and COWEN, Circuit Judges,
and DEBEVOISE, District Judge*
(Filed March 1, 1988)
RICHARD L. ROSENZWEIG (ARGUED)
Rosenzweig & Burton
1603 Law and Finance Building
Pittsburgh, PA 15219
Attorney for Appellants
MARVIN A. FEIN (ARGUED)
Baskin Flaherty Elliott & Mannino
29th Floor, One Melion Bank Center
Pittsburgh, PA 15219
Attorney for Appellees
* The Honorable Dickinson R. Debevoise, United States District
Judge for the District of New Jersey, sitting by designation.
3a
OPINION OF THE COURT
COWEN, Circuit Judge.
These cases arise from a municipality’s delay in issu-
ing a building permit. They require us to decide whether
a person’s constitutional right to due process can be vio-
lated when municipal officials process an application for a
building permit pursuant to a constitutionally adequate
procedure, but deliberately and arbitrarily abuse govern-
ment power to deny the application. We hold that such
acts can violate a person’s right to substantive due pro-
cess. One of the cases also presents the issue whether a
lengthy delay in obtaining a building permit can result in
an unconstitutional taking of property without just com-
pensation. We hold that absent extraordinary cireum-
stances not presented by this case, delays in issuing a
building permit do not result in a ‘‘taking’’ of property
such that just compensation is constitutionally mandated.'
We will reverse the district court’s grant of summary
judgment in favor of defendants as to plaintiffs’ due pro-
cess claims, but will affirm the grant of summary judg-
ment as to the remainder of plaintiffs’ claims.
I.
Plaintiff Dino Bello is the principal stockholder of
Simmons Park Properties, Inc. (‘‘Simmons Park’’), also
a plaintiff in this ease. In July of 1976, Bello and Sim-
mons Park applied to the municipality of Bethel Park for
review and approval of a subdivision plan. The site plan
1. The plaintiffs also claimed that the defendants’ actions vio-
lated their constitutional right to equal protection and federal
antitrust laws. We find these contentions to be without merit
and do not address them in this opinion.
4a
they submitted indicated that the plan had five phases,
numbered I through V, each separated by a boundary line.
The plan was eventually approved, and the plaintiffs
had no difficulty obtaining building permits for phase I
of the project. k'orty-seven housing units, comprising
phase 1, were completed in the spring of 1979. In May
of 1979 the plaintiffs applied for building permits allow-
ing them to commence construction of the housing units
comprising phase V of the project. Norman Walker,
Bethel Park’s Code Enforcement Officer, denied the plain-
tiffs’ application, ostensibly because the plaintiffs sought
to construct phase V of the project before completing
phases I1-IV. The plaintiffs, however, had never agreed
to develop the project in the order suggested by the
phases.
On June 8, 1979, Bello and Simmons Park instituted
an action in mandamus in the Court of Common Pleas
of Allegheny County seeking issuance of the permits and
damages, and a pereiptory judginent. The case was re-
terred to a referee, who filed a tentaiive decision denying
the motion for a peremptory judgment. On March 26,
1980, the court of common pleas granted peremptory judg-
iment. On January 23, 1981, the court vacated its previous
order and adopted the referee’s decision. The court then
held a hearing on the matter and on May 5, 1981, ordered
the municipality to issue the building permits. An appeal
from that order was quashed for failure to preserve ob-
jections.
On September 3, 1980, the plaintiffs filed a complaint
under 42 U.S.C. § 1983 in the United States District Court
for the Western District of Pennsylvania against the indi-
5a
vidual defendants,? and on March 11, 1981, a separate
complaint against the Municipality of Bethel Park. Plain-
tiffs alleged, essentially, that a nuinber of municipal of-
ficials improperly influenced the decision to deny them
building permits. These actions allegedly deprived them
of their constitutional rights to due process and equal
protection, and violated federal antitrust laws. An amend-
ed complaint filed against the individual defendants also
alleged that these actions constituted an unconstitutional
taking of property without just compensation.
The defendants moved for summary judgment on
October 9, 1984, and the motion was referred to a magis-
trate for a report and recommendation. In support of
their motion defendants presented, among other evidence,
the affidavit of defendant Walker. Walker stated that
he individually made the decision to deny the building
permits on the basis that the plaintiffs sought to develop
phase V before phases IJ-IV, and that no other defendant
or town official influenced his decision making process.
In opposition to the motion, the plaintiffs presented
evidence indicating that certain members of the town coun-
cil were strongly opposed to multi-unit housing, including
their project, and that two members of the council had
personal animosity towards one of the plaintiffs’ em-
ployees, Raymond Kirich. In particular, plaintiffs point
2. The individual defendants, and their official Municipality of
Bethel Park positions during the relevant time period are: Nor-
man L. Walker, Code Enforcement Officer; James M. Martin,
Municipal Manager; John E. Kanon, Director of Planning; Joseph
J. Urbanowicz, Harry E. Babinger, James E. Hadsell, Yvonne A.
Rigatti, Glenn Trautmen, William G. Dodds, William W. Ruhl,
Concetta Serdy, Reid W. McGibbeny, and Patricia M. Price, mem-
bers of the Municipal Council.
6a
to the alleged acts and statements of defendants Yvonne
Rigatti, whom Kirich had opposed in a municipal election,
and Joseph Urbanowiecz. According to the affidavits of
Kirich and Bello, various defendant members of the coun-
cil admitted in conversations that Rigatti and Urbanowicz
had pressured them to hinder plaintiffs’ development as
long as Simmons Park employed Kirich. Bello’s affidavit
states that he discussed the matter of the permits with
members of the council who told him that they spoke to
defendant Walker regarding the issuance of the building
permits.
The magistrate filed her report and recommendation
on April 28, 1987, and recommended that the district court
grant defendants’ motion for summary judgment. After
the plaintiffs filed objections to the report and recommen-
dation, and the defendants responded to those objections,
the district court granted the defendants’ motion by order
dated June 4, 1987.
The plaintiffs subsequently filed a motion to vacate
the district court’s order. They argued that in light of
the Supreme Court’s then recent decision in First English
Evangelical Lutheran Church of Glendale v. County of
Los Angeles, California, 107 S.Ct. 2378 (1987), the district
court improperly dismissed their claim that the property
was taken without just compensation. The plaintiffs’
motion to vacate was denied by order dated July 22, 1987.
The plaintiffs have filed a notice of appeal which specifies
that they appeal from the district court’s order of June
4, 1987.
Sposa Alenia Suede aie
Ta
Il.
Our review of a district court’s grant of summary
judgment is plenary, Equimark Commercial Fin. Co. v.
C.1.T. Fin. Servs. Corp., 812 F.2d 141, 142 (3rd Cir. 1987).
ITI.
The first issue presented by this case is whether the
district court properly dismissed plaintiffs’ constitutional
due process claims by way of summary judgment. Plain-
tiffs assert that the defendants’ actions violated their
fourteenth amendment right to both procedural and sub-
stantive due process. We will consider each of these con-
tentions separately.
A.
Plaintiffs argue that Bethel Park’s delay in issuing
them a building permit was a denial of property without
predeprivation due process. See Stana v. School Dist. of
Pittsburgh, 775 F.2d 122, 127-29 (3rd Cir. 1985). How-
ever, the determination whether to issue a building permit
is an administrative decision, and it was the plaintiffs’ de-
cision to invoke that governmental mechanism by applying
for the permit. This case does not involve a pre-depri-
vation denial of property, but rather a decision to deny a
building permit. Nevertheless, the procedure at issue
must comport with constitutional due process.
The issue presented by this case is similar to that
presented in Rog v. Bensalem Twp., 616 F.2d 680 (3d
Cir. 1980), cert. denied, 450 U.S. 1029 (1981). In Rog,
the plaintiff argued that a Pennsylvania municipality’s
administrative land use decision violated his right to pro-
cedural due process. We held that the plaintiff had failed
8a
to set forth a procedural due process claim where he ‘‘set
forth [no] behavioral or structural allegations from which
we can infer that [the] process was unconstitutional.’’ Id.
at 694. We noted that Pennsylvania’s procedures for
challenging zoning ordinances substantially conformed
with the due process guidelines enunciated by the Supreme
Court. Id. at 699.
Here, as in Rogin, Pennsylvania affords a full judicial
mechanism with which to challenge the administrative
decision to deny an application for a building permit. In-
deed, the plaintiff's utilized that mechanism and obtained
a building permit. While the Pennsylvania courts have
ruled that the initial decision to deny the permit was
wrong, the plaintitfs have not and cannot show that the
decision was made pursuant to a constitutionally defective
procedure.
It is the law in this Cireuit that a state provides
adequate due process when it provides ‘‘ ‘reasonable
remedies to rectify a legal error by a local administrative
body.’ ’’? Cohen v. City of Philadelphia, 736 F.2d 81, 86
(3d Cir.), cert. denied, 469 U.S. 1019 (1984) (quoting Cre-
atwe Environments, Inc. v. Estabrook, 680 F.2d 822, 832
n.9 (1st Cir.), cert. denied, 459 U.S. 989 (1982)). Pennsyl-
vania clearly provides such remedies, as this case exempli-
fies,> and therefore plaintiffs’ have no justifiable due pro-
cess claim.
3. The plaintiffs’ claim, to the extent it argues that delays in
Pennsylvania’s judicial process denied them procedural due pro-
cess, points to alleged procedural defects which cannot be at-
tributed to these defendants. Moreover, state judicial delay in
a civil case must be more egregious than the delay in this case to
constitute a denial of procedural due process.
ase
9a
B.
The plaintiffs’ substantive due process claim has
greater merit. Recent decisions of the Supreme Court
and this Circuit have diminished the scope of the right
to substantive due process. See Rogin, 616 F.2d at 689.
Nevertheless, actions aileging violations of the right to
substantive due process remain viable in certain cireum-
stances, and we feel that,such allegations are present in
this case. We will reverse the district court’s grant of
summary judgment on this claim.
The Supreme Court has discussed the scope of the
substantive due process right in a number of recent cases.
In Daniels v. Williams, 474 U.S. 327 (1986), the Court, in
holding that the due process clause was not implicated by
a state’s negligent deprivation of life, liberty or property,
pointed out that the guarantee of due process has his-
toricaily been applied to deliberate decision of government
officials. 7d. at 331. ‘he Court noted that the clause was
‘**<*intended to secure the individual from the arbitrary
exercise of the powers of government,’’’’’ id. (quoting
Hurtado v. California, 110 U.S. 516, 527 (1884) (quoting
Bank of Columbia v. Okely, 4 Wheat. (17. U.S.) 235, 244
(1819))), and distinguish the Daniels case from cases in-
volving an abuse of power.
In the related case of Davidson v. Cannon, 474 US.
(1986), the Court held that mere negligence on the part of
a state does not amount to an abuse of state power such
that constitutioned due process is implicated. Justice
Blackmun, dissenting, noted that he agreed with the ma-
jority’s conclusion that a ‘‘deprivation must contain some
element of abuse of governmental power, for the ‘touch-
10a
stone of due process is protection of the individual against
arbitrary action of the government.’’’ Jd. at 353 (quoting
Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). See also
Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U.S. 252, 263 (1977) (constitutional due process right
to be free of arbitrary or irrational zoning action) ; Pace
Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1034-
35 (3d Cir.), cert. denied, 107 S.Ct. 2482 (1987) (to demon-
strate violation of right to substantive due process, plain-
tiff must show that land use regulation was arbitrary or
irrational). These cases reveal that the deliberate and
arbitrary abuse of government power violates an indi-
vidual’s right to substantive due process.
This analysis is consistent with the Fourth Cireuit’s
decision in Scott v. Greenville County, 716 F.2d 1409 (4th
Cir. 1983). In Scott, the plaintiff claimed that a town
council improperly intervened in the municipality’s deci-
sion whether to issue him a building permit. The Fourth
Circuit held that because Scott was entitled to the building
permit under South Carolina law, and had presented evi-
dence that the council’s interference was motivated by a
lack of impartiality towards him, he had stated a claim
that the municipality’s action violated his right to sub-
stantive due process. /d. at 1417-21.
In this case, the district court distinguished Scott,
and read our decisions in Rogin and Cohen as approving
the approach adopted by the First Cireuit in Chiplin
Enterprises v. City of Lebanon, 712 F.2d 1524 (1st Cir.
1983). In Chiplin, which also involved the denial of a
building permit, the First Circuit held that ‘‘[t]he claim
that denial of a permit was improperly motivated, un-
supported by an allegation of the deprivation of a spe-
Ye < 2 “
Ne tal, Mahe Lied
;
lla
cific constitutional right, simply raises a matter of local
concern, properly and fully reviewable in the state
courts.’’ /d. at 1527. The court stated that a ‘‘mere bad
faith refusal to follow state law in such local administra-
tive matters simply does not amount to a deprivation of
due process where the state courts are available to cor-
rect the error.’’ Jd. at 1528.
Since Rogin and Cohen, we have addressed these is-
sues in Pace Resources Inc. v. Shrewsbury Twp., 808 F.2d
1023 (3d Cir.), cert. denied, 107 S.Ct. 2482 (1987). In that
case we were faced with a claim that a municipality’s
zoning regulation violated the plaintiff’s right to sub-
stantive due process. We held that in such cases the
plaintiff bears the burden of demonstrating that the regu-
lation is arbitrary or irrational. Jd. at 1035. We found
it significant that the municipality could have had rational
reasons for the regulation, and concluded:
Because it appears that on the face of the amend-
ed complaint that the Township decisionmakers could
have had rational reasons for the decisions contested
here and because that complaint alleges no facts sug-
gesting arbitrariness, it fails to state a substantive
due process claim upon which relief can be granted.
Id. at 1036. We noted, however, that the plaintiff in Pace
did ‘‘not present a case involving actions aimed at this
developer for reasons unrelated to land use planning.”’
Td. at 1035.
We need not define, at this juncture, the outer limits
of the showing necessary to demonstrate that a govern-
mental action was arbitrary, irrational, or tainted by im-
proper motive. The plaintiffs in this case presented evi-
12a
dence from which a fact finder could reasonably conclude
that certain council members, acting in their capacity as
officers of the municipality improperly interfered with
the process by which the municipality issued building per-
mits, and that they did so for partisan political or per-
sonal reasons unrelated to the merits of the application
for the permits.4 These actions can have no relationship
to any legitimate governmental objective, and if proven,
are sufficient to establish a substantive due process vio-
lation actionable under section 1983. While the defen-
dants claim that the building permit was denied because
of plaintiffs’ failure to build in numerical sequence, thus
presenting an arguably rational ground for the denial
of the permit, it is the factfinders’ role to resolve this
factual dispute. We will reverse the district court’s grant
of summary judgment on this claim.
IV.
We must also address whether the district court prop-
erly dismissed the plaintiffs’ claim that the delay in issu-
ing the building permit constituted an unconstitutional
taking of property without just compensation.
4. The defendants also argue that the plaintiffs cannot make
out a section 1983 claim against the municipality because they
allege merely a single act—the withholding of a building permit
—and thus cannot establish that the defendants acted pursuant
to a municipal policy. See City of Oklahoma v. Tuttle, 471 U.S.
808 (1985). However, the Supreme Court’s position in Tuttle
was Clarified by Pembauer v. City of Cincinnati, 475 U.S. 469
(1986). Pembaur noted that a single decision can constitute a
“policy” where “a deliberate choice to follow a course of action
is made from among various alternatives by the official or offi-
cials responsible for establishing final policy with respect to the
subject matter in question.” /d. at 483-84. As plaintiffs allege
that such a deliberate choice occurred in this case, we reject the
defendants’ municipal policy argument.
hoe ulti Geta ne: Ons eel
13a
A.
As a preliminary matter, we must determine whether
this issue is properly before us for review. Defendants
argue that because the complaint filed against Bethel
Park did not assert the claim that their property was un-
constitutionally taken without just compensation, the
plaintiffs can not raise this issue on appeal against the
municipality. The defendants also assert that plaintiffs’
counsel waived this issue against the individual defen-
dants when he stated in a brief to the district court:
Plaintiffs have not asserted a claim under the Just
Compensation clause and do not assert that their
property was taken from them by inverse condem-
nation. .. . There are no elements of a taking which
would justify an eminent domain proceeding. No gov-
ernment entity took possession of the land. Neither
in this case could Plaintiffs argue that there was any
restrictive zoning laws or development regulations.
App. at 360-61.
Finally, defendants argue that plaintiffs waived this
argument by filing a defective notice of appeal. They
point out that this argument was only presented to the
district court in the context of the plaintiffs’ motion to
vacate the district court’s order of June 4, 1987, and that
since the notice of appeal filed by the plaintiff refers
only to that order, the plaintiffs have not appealed the
district court’s order of July 22, 1987, denying their mo-
tion to vacate.
The plaintiffs concede in their brief to this Court that
they did not plead this claim against the defendant mu-
nicipality of Bethel Park, and we will thus not consider
the claim against that defendant. The plaintiffs, however,
eimai
l4a
insist that their unconstitutional taking claim against the
individual defendants is properly before us. We agree.
Plaintiffs raised this issue in their complaint against
the individual defendants, and the district judge consid-
ered the merits of this claim in the context of the plain-
tiffs’ motion to vacate the district court’s order granting
summary judgment. Although the plaintiffs, in a brief
to the district court stated that they had not raised such
a claim, they now admit that ‘‘in drafting such brief [we]
erroneously overlooked the Amended Complaint ... which
does plead such a claim.’’ Appellants’ Brief at 18. It
is also significant that the brief at issue was filed prior
to the Supreme Court’s decision in First English Evan-
gelical Lutheran Church of Glendale v. County of Los
Angeles, California, 107 S.Ct. 2378 (1987), which expanded
the ability of property owners to assert claims that their
fifth amendment right to not have property taken with-
out just compensation has been violated. We conclude
that the plaintiffs did not waive this claim against the
individual defendants.
We also find that the plaintiffs’ notice of appeal was
not defective. There is a ‘‘policy of liberal construction
of notices of appeal . .. in situations where the intent
to appeal an unmentioned or mislabeled ruling is apparent
and there is no prejudice to the adverse party.’’ Gooding
v. Warner-Lambert Co., 744 F.2d 354, 357 n4 (1984)
(quoting parenthetically C.A. May Marine Supply Co. v.
Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir.), cert. de-
nied, 454 U.S. 1125 (1981)). In addition, an appeal of a
grant of summary judgment invokes this Court’s juris-
diction over the disposition of all claims in a complaint.
Murray v. Commercial Union Ins. Co. (Commercial), 782
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15a
F.2d 432, 434-35 (3d Cir. 1986). We thus conclude that
the district judge’s orders of June 4, 1987 and July 22,,
1987 are both properly before us.
B.
Turning to the merits of the plaintiffs’ unconstitu-
tional taking claim, it is clear that the plaintiffs have
not and cannot make out a claim that their property was
‘*taken’’ without just compensation. Although the Su-
preme Court in First Evangelical Lutheran Church of
Glendale v. County of Los Angeles, California, 107 S.Ct.
2378 (1987), extended this doctrine to enco:apass actions
seeking damages for a temporary taking, the Court held
that a temporary taking is not different in kind from a
permanent taking when the temporary taking denies a
landowner all use of his property. Jd. at 2388. The Court
noted that it was not addressing the ‘‘quite different ques-
tions that would arise in the case of normal delays in
obtaining building permits, changes in zoning ordinances,
variances, and the like....’’ Jd. at 2389.
As the plaintiffs here were merely denied a particular
building permit, and retained the right to put their land
to a variety of alternative uses, the actions of the defen-
dants can not be said to have denied them all use of their
property. Indeed, they have made no such allegation. We
will affirm the district court’s orders granting the de-
fendants summary judgment on this claim, and denying
the plaintiffs’ motion to vacate the court’s order of sum-
mary judgment.
V.
We will reverse the district court’s order granting
the defendants summary judgment on plaintiffs’ claim
l6a
that they were denied their constitutional right to sub-
stantive due process, and will affirm the district court’s
dismissal of the remainder of the plaintiffs’ claims. Each
party to bear its own costs.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
l7a
IN THE UNITED STATES DISTRICT COURT
| FOR THE WESTERN DISTRICT
OF PENNSYLVANIA
DINO BELLO, an individual and
SIMMONS PARK PROPERTIES,
INC., a corporation,
)
)
)
)
Plaintiffs, )
)
v. ) Civil Action
) No. 80-1264
NORMAN L. WALKER, JOHN E. )
KANON, JAMES M. MARTIN, _ )
JOSEPH J. URBANOWICZ, )
HARRY E. BABINGER, JAMES )
E. HADSELL, YVONNE A. )
RIGATTI, GLENN TRAUTMAN, )
WILLIAM W. RUHL, WILLIAM )
G. DODDS, PATRICIA M. )
PRICE, CONCETTA SERDY, and )
| REID W. McGIBBENY, )
)
)
)
individuals,
om,
Defendants.
- ee
DINO BELLO, an individual, and
SIMMONS PARK PROPERTIES,
INC., a corporation,
)
)
)
)
Plaintiffs, )
)
v. ) Civil Action
) No. 81-346
MUNICIPALITY OF BETHEL )
PARK, .
Defendant. )
18a
MEMORANDUM ORDER
AND NOW, this 4th day of June, 1987, the magistrate
having filed a report and recommendation suggesting that
defendants’ motion for summary judgment be granted, the
plaintiffs having filed objections to that report, the defen-
dants having responded to the objections, and the court
having given the matter due consideration, IT IS OR-
DERED that defendants’ motion for summary judgment
be, and the same hereby is, granted for the following rea-
sons.
1)
3)
4)
We have reviewed the plaintiffs’ objections to the
magistrate’s report and believe that the plaintiffs
merely reiterate arguments presented to, and
properly rejected by, the magistrate. In particu-
lar, we believe that Cohen v. City of Philadelphia,
736 F.2d 81 (3d Cir. 1984), governs this case and,
therefore, is dispositive of the plaintiffs’ due pro-
cess claim. Consequently, plaintiffs’ reliance
upon cases from other Circuits is misplaced.
In addition to the reasons given by the magis-
trate, we believe that the evidence does not estab-
lish the requisite intent for a due process claim.
The uneontradicted evidence establishes that
Walker denied issuance of the building permit
based upon misinterpretation of the site plan. At
best, Walker’s actions constitute a negligent act,
and therefore, do not amount to a deprivation of
property cognizable under § 1988. See Daniels v.
Williams, 474 U.S. —, 88 L.Ed.2d 662 (1986) and
Davidson v. Cannon, 474 U.S. —, 88 L.Ed.2d 677
(1986).
We find no merit in plaintiffs’ challenges to the
magistrate’s analysis of the equal protection
claim.
Accordingly, for the reasons given in the report
and recommendation of the magistrate along with
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the reasons given herein, we will grant the defen-
dants’ motion for summary judgment.
/s/ Gustave Diamond
United States District Judge
20a
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT
OF PENNSYLVANIA
DINO BELLO, an individual and _)
SIMMONS PARK PROPERTY, _ )
INC., a corporation, )
)
Plaintiffs, )
)
v. ) Civil Action
) No. 80-1264
NORMAN L, WALKER, et al., )
)
Defendants. )
DINO BELLO, an individual and)
SIMMONS PARK PROPERTY, _ )
INC., a corporation, )
)
Plaintiffs, )
)
v. ) Civil Action
) No. 81-346
MUNICIPALITY OF BETHEL _ )
PARK, )
MEMORANDUM ORDER
AND NOW, this 22nd day of July, 1987, the plaintiffs
having filed a motion to vacate the order of summary
judgment in light of the recent Supreme Court case of
First English Evangelical Lutheran Church of Glendale,
California v. Los Angeles County, 55 U.S.L.W. 478 (June
9, 1987), the defendants having responded to said motion,
and the court having given the matter due consideration,
IT IS ORDERED that plaintiffs’ motion be, and the same
2la
hereby is, denied for the reasons that First English Evan-
gelical Lutheran Church is wholly inapposite to the case at
bar and therefore, does not offer any basis for vacating
our previous order.
/s/ Gustave Diamond
United States District Judge
ec: Richard L. Rosenzweig, Esq.
1603 Law & Finance Building
Pittsburg, Pa. 15219
Marvin A. Fein, Esq.
Baskin, Flaherty, Elliott & Mannino
One Mellon Bank Center
500 Grant Street, 29th Floor
Pittsburgh, Pa. 15219
22a
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT
OF PENNSYLVANIA
DINO BELLO, an individual, and
SIMMONS PARK PROPERTIES,
INC., a corporation,
Plaintiffs,
Civil Action
No. 80-1264
VS.
)
)
)
)
)
)
NORMAN L. WALKER, JOHN E. )
KANON, JAMES M. MARTIN, )
JOSEPH J. URBANOWICZ, )
HARRY E. BABINGER, JAMES )
EK. HADSELL, YVONNE A. )
RIGATTI, GLENN TRAUTMAN, )
WILLIAM W. RUHL, )
WILLIAM G. DODDS, PATRICLA )
M. PRICE, CONCETTA SERDY, )
and REID W. McGIBBENY, )
individuals, )
)
)
)
’
Defendants
DINO BELLO, an individual, and
SIMMONS PARK PROPERTIES,
INC., a corporation,
Plaintiffs,
Civil Action
No. 81-346
Vs.
MUNICIPALITY OF BETHEL
)
)
)
)
)
)
)
|
PARK, )
)
)
Defendant
23a
MAGISTRATE’S REPORT
AND RECOMMENDATION
I. RECOMMENDATION
It is recommended that plaintiffs’ motion for sum-
mary judgment be denied and that defendants’ motion for
summary judgment be granted.
Il. REPORT
Plaintiffs bring these actions against defendants, the
Municipality of Bethel Park and some of its officials, un-
der the Civil Rights Act of 1871, 42 U.S.C. Section 1983,
alleging this court has jurisdiction under 28 U.S.C. Section
1343(3), and also under the Sherman Act, 15 U.S.C. Sec-
tion 1, and the Clayton Act, 15 U.S.C. Section 15, seeking
damages for alleged delay in issuing a building permit for
plaintiffs’ townhouse development in Bethel Park, Alleg-
heny County, Pennsylvania. Both parties have filed mo-
tions for summary judgment.
Plaintiffs applied for a building permit on May 7,
1979, and when it was not granted they filed a complaint
in mandamus before the Court of Common Pleas of Al-
legheny County, Pennsylvania, on June 8, 1979. On July
20, 1979, defendant Walker, the building inspector for
Bethel Park, advised plaintiff Bello that the permit was
denied because he was seeking to build units located in
phase #5 of the Simmons Park Village Development and
construction of the building in phase #5 was not in accord-
ance with an approved site plan. Plaintiff Bello was ad-
vised that building permits could be issued in phase #2
(Exhibit 13 to plaintiffs’ supplemental brief).
On July 19, 1979, plaintiffs filed an amended com-
plaint in mandamus and an amended motion for peremp-
24a
tory judgment. The case was referred to a referee who
filed a tentative decision denying plaintiffs’ motion for a
peremptory judgment and finding that plaintiffs’ right to
a peremptory judgment and mandamus was not clear. The
referee stated:
In the instant case, the record is confusing and
the plaintiffs’ right to a peremptory judgment is far
rom clear. In fact, if the court were required to de-
cide on the present record whether plaintiff should
be granted a final judgment in mandamus, the court
would rule against plaintiff...
In short, it appears to the court that Walker’s in-
terpretation of the codes is correct and that plaintiffs’
request to build in phase 5 before phase 2 should have
been denied, at least until a revised site plan is ap-
proved.
But even if Walker’s interpretation of the codes
is incorrect, Walker had no clear legal duty, based on
the record as it presently stands, to construe the codes
as not requiring building in accordance with the
phases in the approved site plans. For this reason
mandamus would be denied on the present record.
(Tentative decision of referee attached to ‘‘Defendants’
Response in Opposition to Plaintiffs’ Motion for Partial
Summary Judgment’’).
On March 26, 1980, an order was entered by the
Honorable Judge Watson, in the Court of Common Pleas
of Allegheny County, Pennsylvania, granting plaintiffs’
motion for peremptory judgment in mandamus to have
building permits issued anywhere in phase II of the de-
velopment. The building inspector was directed to issue
any and all permits properly requested by plaintiffs in
accordance with Judge Watson’s opinion. Judge Watson
“0a
found that although the minutes of the planning commis-
sion meeting on August 18, 1976, revealed there had been
a discussion of the development in five phases, the de-
velopment had never been submitted or approved for a
five phase deve!opment to either the planning commission
or the municipal counsel. Instead, plaintiffs had been
persuaded not to develop the project in separate parcels,
but to develop it as a one lot subdivision and to adopt the
condominium method of organization and ownership
(order attached as Exhibit ‘‘A’’ to the complaint). How-
ever on January 23, 1981, Judge Watson entered another
order vacating the opinion and order of March 26, 1980,
and adopting the tentative decision of the court appointed
referee. Subsequently, on May 5, 1981, the Honorable
Nicholas A. Papadakos, another judge of the Court of
Common Pleas of Allegheny County, Pennsyivania, di-
rec‘ed the defendants, Bethel Park Municipal Council; the
Municipality of Bethel Park; James M. Martin, Municipal
Manager; Norman Walker, Code Enforcement Officer;
and John E. Kanon, Planning Director, to issue the build-
ing permits sought by plaintiffs. The court stated:
In this matter, there is no dispute that the munici-
pal council approved a site plan. The only dispute is
whether the grouping of units into five parcels de-
scribed as ‘‘phases’’ binds the plaintiff to develop the
units in the phases as numbered on the plan. This
court can find no evidence besides the plan itself,
which shows the numbered phases, to support defen-
dants’ position of sequential development, nor has any
written agreement or understanding between the
parties been brought to this court’s attention sup-
portive of defendants’ position.
This court, therefore, finds that the numbering
of the five parcels as phases does not limit the plain-
26a
tiff to development of its lots in numerical order of
phases (phase I, then phase II, then phase ITI, ete.).
Rather, this court finds that the adoption by the
municipal council of the entire site plan gives plain-
tiff the right to develop its units as it finds proper.
Furthermore, once defendants approved the site plan,
plaintiff had a clear right to the issuance of building
permits for the units plaintiff desired to develop and
defendants had no discretion in granting or denying
such permits.
(Order and opinion attached to plaintiffs’ affidavit filed
March 11, 1983). On July 27, 1982, the Commonwealth
court quashed defendants’ appeal from Judge Papadakos’
order (Bethel Park, etc. v. Summons Park Properties, 448
A.2d 661 (Pa. Cmwlth. 1982) (copy attached to affidavit
of plaintiff filed March 11, 1983).
In plaintiffs’ supplemental brief they assert that,
‘‘Subsequent to the filing of the complaint, plaintiff Sim-
mons Park Properties, Inc. did seek protection under the
bankruptcy laws at No. 85-1304 Pittsburgh. Plaintiff will
produce evidence that the 214 year delay was the direct
and proximate cause of the need for bankruptcy protection
for Simmons Park Properties, Inc. from ereditors.’’ (p.
26). Plaintiffs also assert in their brief, ‘‘ Plaintiff Dino
Bello, through records and through his own testimony,
will detail the amounts of money spent in order to comply
with the requirements of approval for the development.’’
(p. 27). Plaintiff Bello therefore appears to claim that he
suffered damages as a result of the delay in obtaining the
building permits. Unfortunately, counsel does not seem
to understand that unverified statements contained in a
brief cannot be considered on a motion for summary judg-
ment. Kauffman v. Johnston, 454 F.2d 264 (3r Cir. 1972).
ee ee ee ee ee
a ee a
27a
Plaintiffs’ counsel’s inability to clearly identify their
legai claims and the factual basis for them has made dis-
position of the parties’ pending motions for summary
judgment extremely difficult. On October 11, 1984, the
court ordered plaintiffs to file a response to defendants’
motion for summary judgment and supporting brief with-
in ten days. Subsequently, on August 25, 1985, an order
was entered observing that the court had reviewed the
briefs and ordering plaintiffs to submit a supplemental
brief within fifteen days of the order. Plaintiffs were
required to identify the evidence, if any, creating a ques-
tion of fact as to the issues addressed by the brief. Sub-
sequently, on January 17, 1986, the court ordered the Clerk
of Court to refer this action to a magistrate for report and
recommendation on the pending motions. Oral argument
was scheduled for February 20, 1986. During oral argu-
ment it became clear that defendants’ objections to plain-
tiffs’ ‘‘Counteraffidavit’’, for its ‘ ilure to comply with
Rule 56 (e) of the Federal Rules « Civil Procedure be-
cause it contained conclusory allegations, conclusions of
law, and failed to show that the affidavits made on per-
sonal knowledge, were valid. Therefore, plaintiffs sub-
sequently sought and were granted leave to file another
affidavit which was filed on April 15, 1986. After review-
ing the briefs and other documents submitted in support
of and in opposition to the motions for summary judg-
ment, the magistrate entered a memorandum order on Au-
gust 20, 1986, observing that plaintiffs’ counsel still had
failed to clearly articulate the legal basis for plaintiffs’
claims. The magistrate concluded that plaintiffs appeared
to be admitting that they were not deprived of procedural
due process since there was a procedure to review a zoning
ilies
28a
change, but they appeared to assert that they had been de-
prived of substantive due process. Since the parties’
briefs had not clearly addressed the issues, the magistrate
elected to give them an opportunity to do so. Therefore,
plaintiffs were required to file a brief by September 12,
1986, setting forth the legal basis for their claims that they
were denied equal protection in violation of the Four-
teenth Amendment; that they were denied substantive due
process in violation of the Fourteenth Amendment and
that defendants violated Section 1 of the Sherman Act, 15
U.S.C. Section 1 and Section 4 of the Clayton Act, 15
U.S.C. Section 15. Defendants were ordered to file a re-
sponsive brief by October 6, 1986.
Plaintiffs’ brief was finally received on October 9,
1986. At this late stage plaintiffs were still unwilling to
clearly identify the basis for their claims, stating:
[P)laintiffs do not make any statement with regard
to procedural or substantive process.
Plaintiffs assert a deprivation of due process
based upon the articulation of these concepts in
the application of Section 1983 claims to land use
cases. If it be necessary to characterize the type
of deprivation of due process, it appears more
correct to characterize it as a deprivation of pro-
cedural due process founded upon a baseless with-
holding of a building permit.
(Plaintiffs’ brief received October 9, 1986, p. 5-6).) Plain-
tiffs only references to the facts are contained in plain-
tiffs’ supplemental brief which was filed on October 18,
1985, and plaintiffs’ affidavit which was filed on April
15, 1986. However, in those documents plaintiffs failed to
relate the facts to the legal claims. Therefore it has been
29a
necessary for the magistrate to attempt to determine the
factual basis of each of plaintiffs claims.
Defendants have filed a motion for summary judgment
and plaintiffs have filed a motion for partial summary
judgment. In Celotex Corp. v. Catrett, — U.S. —, 54 L.W.
4775 (June 25, 1986), the Supreme Court held that a
party is entitled to summary judgment where ‘‘The non-
moving party has failed to make a sufficient showing on an
essential element of her case with respect to which she
has the burden of proof.’’ 54 L.W. 4777. The Court stated
‘*One of the principal purposes of the summary judgment
is to isolate and dispose of factually unsupported claims
or defenses, and we think it should be interpreted in a
way that allows it to accomplish this purpose.’’ 54 L.W.
4777. The Court also noted that under Rule 56 a party
may move for summary judgment ‘‘with or without sup-
porting affidavits.’’ In cases ‘‘where the nonmoving party
will bear the burden of proof at trial on a dispositive issue,
a summary judgment motion may properly be made in re-
liance solely on the ‘pleadings, depositions, answers to
interrogatories, and admissions on file.’ ’’ 54 L.W. 4777.
A. Due Process Claim
It is noted that plaintiffs still are unable to advise
the court whether they claim a denial of substantive or
procedural due process although they indicate it is more
likely a procedural due process claim. However, they fail
to articulate the basis for this claim. They do not claim
that they did not have notice of defendant Walker’s rea-
sons for refusing to issue the building permit and it is
noted that Exhibit 13 to plaintiffs’ supplemental brief is
a copy of a letter plaintiffs received from defendant Walk-
30a
er, the building inspector, advising him that the building
permit was being denied because it sought a building per-
mit for units located in phase 5 which was not in ac-
cordance with the approved site plan. They were advised
that building permits may be issued on phase 2. Although
plaintiffs assert that Judge Papadakos ultimately de-
termined that defendant Walker was wrong and that plain-
tiffs were not required to build in phases, plaintiffs make
no claim that they were not advised of the reason for the
denial. Further, plaintiffs make no claim that they did
not have a fair opportunity to present the facts and their
argument in support of their request for the building per-
mit to defendants. Paragraph 25 of plaintiff Bello’s affi-
davit which was filed on April 15, 1986, states:
Beginning in 1975 when I applied for the rezoning
of the property for the Simmons Park Development
and continuing through all of the approvals in 1976
and 1977 and the building in 1978 of 47 units and the
upplication for the additional permits in February
of 1979, I was in constant contact with the members
of the municipal council, John Kanon, James Martin,
Normal [sic] Walker and Martin Marak. I had con-
versations with these people and attended all of the
meetings that led up to and resulted in the approvals
of the plan, the issuance of building permits and the
enforcement of any regulations. I know what site
plans were before them at the time of approval and
was present at the meetings when the approvals were
voted on.
Plaintiff Bello then makes conclusory allegations as to the
defendants’ knowledge with respect to the approval of
plaintiffs’ plan. However, he makes no claim that he was
denied the opportunity to attend any meetings or discuss
his plans with any defendant.
3la
1. Discussion of the Facts
Plaintiffs assert that their primary opponent was
defendant Yvonne A. Rigatti who opposed the townhouse
developments in general prior to her election to municipal
council of Bethel Park. Plaintiffs’ supplemental brief
asserts on page 20 that defendant Rigatti ran for council
in the election of November of 1977. Their supplemental
brief, page 19, avers that she took office as a member of
council in January 1978. They submit documents revealing
that she was opposed to multiple family dwellings in the
area. Exhibit 21A attached to plaintiffs’ brief is a letter
that defendant Rigatti wrote as a private citizen, objecting
to townhouses, claiming that they would damage the resi-
dential character of the neighborhood, would worsen ex-
isting traffic problems and overcrowd the schools.* Plain-
tiffs have submitted minutes of a meeting on March 16,
1976, revealing that Mrs. Rigatti appeared and opposed
plaintiff’s rezoning request to transfer his property from
R2 to R-T (Exhibit 24 to plaintiff’s affidavit). (Plaintiffs
have submitted copies of newspaper articles which shall
not be considered since, in addition to the fact that they
do not meet the requirements of Rule 56(e), they are not
admissible evidence.) Plaintiffs also submit documents
indieating that defendant Rigatti campaigned for election
to counsel on the basis of her objections to further land
Nt is noted that the documents submitted as exhibits to plain-
tiffs’ brief do not appear to be sworn or certified copies as re-
uired by Rule 56. However, defendants have not objected to
them and therefore they will be considered.
2The Third Circuit has recognized that considerations such as
these are proper for local zoning bodies. Rogin v. Bensalem
Tp., 616 F.2d 680, 688-689 (3d Cir. 1980).
32a
development (Exhibits 28, 29, and the last page of Ex-
hibit 33, to Plaintiffs’ Supplemental Brief). However,
the actions she took as a private citizen, prior to her elec-
tion to council, would not be state action for purposes of
liability under Section 1983.
Plaintiffs also submit evidence that after her election
to council defendant Rigatti opposed their development.
In paragraph 14 of plaintiff Bello’s affidavit he avers that
in the fall of 1979 defendant Ruhl, a Bethel Park council-
man, told him that he was having problems because he had
hired Ray Kirich. He told plaintiff that defendants Joe
Urbanowiez, a councilman, and defendant Rigatti did not
like Kirich and were going to ‘‘put pressure on people.’’
Plaintiff also avers that defendant Norman Walker, code
enforcement officer of Bethel Park, told him during a
conversation in July of 1979 at Tony’s Villa that defendants
Rigatti and Urbanowicz did not like Ray Kirich and that
he would have problems as long as he employed Kirich.
In paragraph 14 of his affidavit plaintiff avers that he
had a conversation with defendant Martin at the end of
July of 1979 at Ernie’s Esquire on Route 19 and defendant
Martin told him that he was having problems because he
had hired Kirich stating, ‘‘ Well the counsel lady over there
doesn’t like it.’’ Plaintiff avers that defendant Walker
said, ‘‘Dino, I’m trying not to give you a hard time, I’m
under pressure, I’m at the whim of five of their votes,
at any time they can tell me whether I have a job or
don’t have a job, and I have no choice.’’ In paragraph 22
of his affidavit (page 12) plaintiff Bello asserts that dur-
ing defendant Rigatti’s second campaign for counsel in
April of 1981 she passed out newspaper excerpts wherein
she circled her participation in fighting multiple family
33a
housing and her support of her constituents on matters
of zoning. The affidavit refers to Exhibit 25. The first
page consists of copies of newspaper articles. The other
document is apparently campaign literature circulated by
defendant Rigatti in which she states, ‘‘I have supported
my constituents on matters of zoning. EXAMPLE: Lemon
Tree appeals, Danielson rezoning (Boxer Heights), group
home appeals.’’ It is noted that this document makes no
reference to plaintiff’s development but rather indicates
that defendant Rigatti opposed other developments as well
as Simmons Park. Submitted as Exhibit 28 to plaintiffs’
supplemental brief is what plaintiff asserts is campaign
literature by defendant Rigatti in which she cited as prob-
lems—continuous land development, overcrowded schools,
heavily traveled and poorly maintained roads, inadequate
storm drainage and lack of rapport with constituents. She
noted that her opponent had cast the deciding vote for the
Simmons Park Townhouse Development which was under
construction at that time.
On page 20 of plaintiffs’ supplemental brief they note
that in his deposition defendant Kanon testified on pages
11-14 that after defendant Rigatti obtained a seat on coun-
cil she arranged a site visit to plaintiffs’ development.
After the tour she made comments to Kanon that she did
not like the development (Kanon dep. 14). He further
testified that he recalled defendant Rigatti making public
statements in opposition to the Simmons Park Develop-
ment. In general, she opposed all multi-family develop-
ment and presented a petition against it (Kanon dep. 15).
Plaintiff notes that defendant Walker, in his deposition,
also testified that he presumed defendant Rigatti had re-
34a
quested the tour and that she made a derogatory comment
about the color of the siding during the tour (Walker dep.
15-16). During her deposition defendant Rigatti admitted
that she signed a petition opposing rezoning of plaintiff’s
property and got one other person to sign. (Rigatti dep.
6-9). She also admitted she contributed approximately
$30 to the lawsuit to appeal the rezoning (Rigatti dep. 12).
Plaintiff avers that Exhibit 29 attached to plaintiffs’
supplemental brief is political literature voicing opposi-
tion to plaintiffs’ development which was drafted at a
meeting attended by defendant Rigatti and sent by her
~ neighbor who lives across the street from her, Gwen Auel,
who was her political ally and was running for committee-
man. During Rigatti’s deposition she testified that Auel
lived across the street from her and that she was at Auel’s
house when the document was discussed although she did
not write it. (Rigatti, dep. 28-29). During her deposition
Rigatti acknowledged that the vote of her opponent in
favor of the Simmons Park Development was a campaign
issue for her (Rigatti dep. 35).
While plaintiffs have shown that defendant Rigatti
was strongly opposed to theirs and other multiple family
developments on the ground they would have an adverse
effect on the community, they have not shown specifically
that she played any role in the denial of the building per-
mits. The sole statement in paragraph 14 of the Bello
affidavit that defendant Walker told him that Rigatti did
not like Ray Kirich and that he (Walker) was under
pressure is not sufficient to establish that defendant Rigatti
caused plaintiffs to be denied their building permits.
Further, plaintiffs’ evidence that there were occasions
35a
when council voted on building permits (Exhibits 1, 2, 3)
would not establish that any of the municipal council de-
fendants caused the denial of plaintiffs’ building permits.
The affidavit of defendant Norman Walker avers that he
denied plaintiffs’ building permits based on his under-
standing that ordered phasing was a condition of the ap-
proved site plan and that issuance of the required permits
wonuld contravene the site plan and violate applicable
zoning laws. He avers that the decision to withhold the
permits was not made pursuant to any agreement between
himself and any defendant or any other person and that
it was made solely by him without suggestions, threats,
coercion or intervention by defendants or any other per-
son. Exhibit 2 to plaintiff Bello’s affidavit is a memo
from defendant Martin, the manager, to members of coun-
cil advising them of a change in item 9 of the April 9,
1979, council meeting minutes. The memo reveals that the
application for issuance of building permits by Simmons
Park Village had been granted subject to the stipulation
that the structure and all other structures remain at least
fifteen feet away from any abutting single family areas.
The memo notes that defendant Rigatti seconded the mo-
tion for issuance of a building permit.
While plaintiffs have produced evidence that de-
fendant Rigatti was strongly opposed to their develop-
ment as well as others and that she and defendant Urbano-
wiez did not like plaintiffs’ employee Ray Kirich, they
have failed to offer any evidence which controverts de-
fendant Walker’s affidavit that the decision to withhold
the permits was made solely by him without suggestions,
threats, coercion or intervention by any of the defendants
or any other person. Plaintiff Bello submits as Exhibit
36a
7 to his affidavit a memo from defendants Kanon and
Walker and a Martin Marek to the municipal council dated
April 4, 1979, recommending that plaintiff’s application
to modify his townhouse development be denied. This
memo is dated prior to plaintiff’s May 7, 1979, applica-
tion for building permits which is the basis of this action.
In paragraph 13 on page 7 of his affidavit (there is also
a paragraph 13 on page 6 of the affidavit) plaintiff Bello
asserts that in July of 1979 defendant Walker told him that
Rigatti and Urbanowicz did not like Kirich and that as
long as he employed Kirich he was going to have problems.
This general statement would not appear to be sufficient
to establish that defendants Rigatti and Kirich had any
critical role in the denial of the building permits.
Plaintiffs assert that during her testimony at a
mandamus hearing on July 11, 1979, defendant Patricia
M. Price testified that it was not just Mr. Walker who
was turning down the permits but that everybody on
council needed more answers. A portion of her testimony
is submitted as Exhibit 10 to plaintiff Bello’s affidavit
and it shows that no disposition was taken of plaintiff’s
request for building permits because of confusion. De-
fendant Walker had reported that he would not issue the
building permits yet. She further testified that questions
were raised as to whether plaintiffs were seeking rephasing
or whether it would be a one lot subdivision. This testi-
mony would appear to establish that council at that time
approved of defendant Walker’s decision not to issue the
building permits until further information was obtained.
Submitted as Exhibit 31 to plaintiff Bello’s affidavit
is a memo to members of council from an unidentified in-
37a
dividual indicating that it was the concensus of council that
plaintiffs should comply with Section 61.15—‘‘Site Plans,
of the Zoning Ordinance, or he ean continue with the
original application.’’ This is an extremely ambiguous
statement. It is noted that by this time defendant Walker
had denied plaintiffs’ application for a building permit
and plaintiffs had filed their complaint in mandamus be-
fore the Court of Common Pleas of Allengheny County,
Pennsylvania.
In their supplemental brief, page 8, plaintiffs assert
that during his testimony before the Court of Common
Pleas on July 11, 1979, defendant Walker testified that
he brought the matter of the permits to council and dis-
cussed the permits with planning director John Kanon
(p. 7-8 of plaintiffs’ supplemental brief). Review of that
testimony reveals that Walker testified (p. 159) that he
made a brief presentation to council but that council did
not individually or collectively express an opinion to him
as to whether the permit should be issued (p. 151) and
that although he had discussed the matter with Mr. Kanon,
Mr. Kanon had not given him advice as to whether the
permit should be issued. Plaintiffs’ brief then refers to
the testimony of defendant Urbanowicz of July 11, 1979,
asserting that he testified that defendant Kanon explained
the entire matter to the full council. A copy of that testi-
mony is submitted as Exhibit 4 to plaintiffs’ supplemental
brief. That testimony indicates that Kanon brought some-
thing to the attention of council, but it is not clear what.
Submitted as Exhibit 5 to plaintiffs’ supplemental
brief is the deposition testimony of defendant Concetta
Serdy taken on July 11, 1979, in which she testified that
38a
council had a committee which dealt with building per-
mits. That committee consisted of the entire counsel.
Plaintiffs submitted as Exhibit ‘‘D’’ to plaintiffs’ counter-
affidavit, the testimony of defendant James E. Hadsell,
a member of council, in which he testified that defendant
Walker had advised council of what he considered to be
the problems which would precipitate his failing to issue
building permits. He believed that members of council
might have expressed their personal opinion there was
cause for denial of a permit but that they would leave that
decision to defendant Walker. (Also attached as Exhibit
6 to plaintiffs’ supplemental brief.) Plaintiffs also sub-
mit the testimony of defendant Price as Exhibit 7 to plain-
tiff’s supplemental brief in which he testified there was
a general discussion in which defendant Walker brought
members of council up-to-date on the situation. He did
not recall that any member of council voiced an opinion
that the permit should not be granted under the circum-
stances. Plaintiffs note that defendant Walker testified
in his deposition at pages 6 and 7 that his office was twenty
feet from defendant Kanon’s office, that they had occasion
to work together, and that they consulted each other on
zoning ordinance interpretations and interpretation of
site plans in connection with code enforcement (p. 8 of
plaintiffs’ supplemental brief). Plaintiffs argue that the
existence of the mandamus action brought the entire mat-
ter of the building permits to the attention of council.
However, they still have offered no evidence that the mem-
bers of council denied the building permits.
As to bias of defendant Walker, plaintiff Bello as-
serts in paragraph 21 of his affidavit that defendant
39a
Walker showed favortism to plaintiff’s competitor Brush
Run, by failing to enforce Section G(1) of the PURD
Ordinance which is attached to the affidavit as Exhibit 20.
However, plaintiff admits that Walker testified in his
deposition that he did not enforce the ordinance against
Brush Run because it had been repealed. In paragraph
26 of his affidavit plaintiff avers that, ‘‘[T]he code en-
forcement officer, Walker, caused to be removed the Sim-
mons Park directional signs within the municipality, but
at the same time, permitted directional signs from other
builders to remain on the same utility poles from which
the Simmons Park signs were removed. I personally saw
municipal employees removing Simmons Park directional
signs and leaving the directional signs of Ryan homes and
Washington homes on the same utility poles.’’ Although
plaintiff states that he saw municipal employees removing
plaintiff’s signs, he fails to reveal the basis for his con-
clusion that they were acting pursuant to the directions
of defendant Walker. Therefore. this statement does not
comply with the requirement of Rule 56(e) that an affi-
davit be based upon personal knowledge.
2. Discussion of the Law
In Rogin v. Bensalem Tp.. 616 F.2d 680 (3d Cir.
1980), the court held that the Pennsylvania procedure for
challenging zoning ordinances substantially conforms with
the general due process guidelines enunciated by the Sup-
reme Court. 616 F.2d 695. Therefore, the district court
had properly dismissed a claim by a real estate developer
who had been denied building permits because, after ap-
proval of the plans by the board of supervisors of the
township and after construction of 106 of the planned 557
40a
condominium units had been started, the zoning ordinance
had been amended to reduce the allowable density from
twelve to ten units per acre. The ordinance was again
amended to reduce the density to four units per acre, re-
sulting in limiting the developer to two hundred units
after original approval of 557 units. The developer ap-
pealed the decision of the zoning hearing board to the
Court of Common Pleas seeking a writ of mandamus.
The Court of Common Pleas reversed the zoning hearing
board’s decision and ordered that the permits be issued
because the project was ‘‘substantially undertaken.’’ The
Court of Common Pleas stayed its decision pending
appeal by the zoning board to the Commonwealth court
which had not yet rendered its decision at the time of the
Third Cireuit’s decision. Therefore, at that time the
zoning officer had not yet issued any permits. The court
noted that the developer alleged that the defendants had
conspired to violate its substantive constitutional rights
and that the supervisors had announced publicly that they
would take all steps necessary to stop the construction of
Bensalem Village and similar real estate developments.
The court recognized that limiting population and density
were valid zoning considerations. In that case the super-
visor’s objections to the development were similar to those
of defendant Rigatti in this case. The court held that the
developer had failed to state a procedural due process
claim in regard to the actions of the zoning officer and
the zoning hearing board in refusing to issue the building
permits. The court noted that a developer has due pro-
cess rights in the procedure utilized by a municipality
to issue building permits. However, the developer had
failed to set forth any behavioral or structural allegations
4la
from which it could be inferred that the township’s pro-
cess was unconstitutional. The court then considered the
system enacted by the Pennsylvania legislature for pro-
cessing challenges to zoning ordinances and found that it
substantially conformed with the general due process
guidelines enunciated by the Supreme Court. The court
noted that the Court of Common Pleas had granted the
developer the relief it requested. Although the developer
made a general allegation of denial of due process, it had
made no specific allegations of deficiency in the process.
Therefore, the court concluded that the district court had
properly held that the developer failed to state a colorable
procedural due process claim. That case is relevant here
in that the Court of Common Pleas of Allegheny County
ultimately ordered that plaintiffs were entitled to new
building permits. Plaintiffs here are actually complain-
ing of the time it took for the state system to dispose of
their action. However, the time period for disposition
by the state courts would not create a Section 1983 claim
against municipal officials. The Third Cireuit found that
the state system satisfies due process requirements and
plaintiffs have not alleged any abuse of the state system
by the defendants. |
In Cohen v. City of Philadelphia, 736 F.2d 81 (3d Cir.
1984), the court held that the district court had properly
granted summary judgment for the defendants where the
plaintiff asserted that dismissal of a Philadelphia police
officer and then the refusal to award him backpay after
he was reinstated deprived him of due process in violation
of the Fourteenth Amendment to the United States Con-
stitution. The plaintiff was discharged after evidence
was received that he had participated in a burglary. He
42a
was acquitted of the criminal charges and then appealed
his discharge to the Civil Service Commission which found
there was insufficient evidence to implicate him in crim-
inal activity but determined that he had violated a police
department directive and ordered his reinstatement but
held that it should be without backpay. Although the
plaintiff could then have petitioned for rehearing before
the Civil Service Commission and appealed any decision
of the Commission to the Court of Common Pleas, he
elected not to do so but instead brought an action in fed-
eral court pursuant to Section 1983, asserting that he had
been deprived of property without due process of law.
The district court had granted the defendants’ motion for
summary judgment based upon Parratt v. Taylor, 451
U.S. 527 (1981), which held that when an individual is
deprived of property as a result of a random and unauth-
orized act by a state employee, if the state provides an
adequate post-deprivation remedy, the individual has no
Section 1983 claim for deprivation of due process. The
court found that the failure to award the plaintiff back-
pay was the result of an error of the Commission. How-
ever, in showing that the Commission erred the plaintiff
had shown no more than an unauthorized failure of state
agents to follow prescribed procedures. Under Parratt
those errors would not deprive the plaintiff of due process
as long as the state provided him with the means by which
to receive redress for the deprivation. The Common-
wealth of Pennsylvania had provided for judicial review
of the Commission’s actions. The court stated:
We thus join the First and Seventh Cirenits in
holding that substantive mistakes by administrative
bodies in applying local ordinances do not create a
43a
federal claim so long as correction is available by the
state’s judiciary. Any other holding would lead to
the danger that:
any plaintiff in state court who was asserting a
right within the broadly defined categories of
liberty or property and who lost his case because
the judge made an error could attack the judg-
ment indirectly by suing the judge under section
1983. That would be an intolerable interference
with the orderly operations of the state courts.
Due process is denied in such a case only if the
state fails to provide adequate machinery for the
correction of the inevitable errors that occur in
legal proceedings.
736 F.2d 86. The court concluded that since Pennsylvania
had provided a means to correct the errors which would
sometimes occur at the administrative level, no depriva-
tion without due process of law had occurred. In response
to the plaintiff’s claim that he was being required to ex-
haust state court remedies the court replied that it was
not discussing exhaustion. It was merely holding that the
state had provided the plaintiff with due process by pro-
viding, ‘‘reasonable remedies to rectify a legal error by
a local administrative body.’’ The court concluded:
In this case, the contention is that a state agency
erred in its adjudication of plaintiff’s claim against
the state. There is no claim that the plaintiff did not
have recourse to the state courts, that the agency was
acting according to a state policy in denying plain-
tiff’s claim, or that the state proceeding was consti-
tutionally defective or insufficient. At least under
these circumstances, we believe that Parratt bars this
suit.
In Cohen the plaintiff was discharged from his job
without a hearing upon being charged with a criminal of-
44a
fense, and, after he was acquitted he was reinstated but
was denied backpay. In this case, on the other hand,
plaintiffs’ application for building permits was denied.
At that time state law provided them with two options.
First, they could have appealed the decision of the zoning
officer to the zoning hearing board pursuant to 53 Pa.
Stat. Section 10615 and 10909 and had a hearing pursuant
to Section 10908. However, they took the alternative
action available through 53 Pa. Stat. Section 10909 and
Rule 1091 of the Pennsylvania Rules of Civil Procedure
and brought an action in mandamus in the Court of Com-
mon Pleas. They did ultimately get the relief they sought
in that Judge Papadakos directed the defendants to issue
the building permits. Plaintiff Bello asserts that by the
time the court proceedings were terminated, he was un-
able to proceed with construction because he was required
to file for bankruptcy. However, the delay was due to
the court proceedings rather than any action of the de-
fendants. The defendants would not be personally liable
for the time required for disposition by the state courts.
In Stana v. School District of City of Pittsburgh, 775
F.2d 122 (3d Cir. 1985), the court somewhat limited
Cohen, supra, in holding that if a government entity could
have but did not provide predeprivation procedures, a
Section 1983 action complaining of the lack of procedural
due process may be maintained in federal court, not with-
standing the availability of state judicial routes. In that
ease, the plaintiff, a school teacher, had been removed
from the eligibility list without notice to her. The court
found that under the facts of that case a pretermination
hearing was neither impractical or impossible. The court
held that where the acts complained of are those of an
45a
official in a supervisory position acting within the scope
_of his authority, a government entity can provide some
pre-deprivation process. It is noted that in this case
plaintiffs did not have property taken from them which
they then attempted to reclaim through post-deprivation
procedures. Rather, their application for a building per-
mit was denied. The state system provided two avenues
for them to appeal. Again, it is noted that plaintiffs have
alleged no defect in the state system. In fact, they ob-
tained the relief they sought—an order directing that they
receive the building permits they sought.
In Berlanti v. Bodman, 780 F.2d 296 (3d Cir. 1985),
the court held that a district court had erred in granting
a motion for summary judgment for the defendants based
on Parratt v. Taylor, supra, where the plaintiff alleged
that he was debarred from bidding for public works con-
tracts in New Jersey without adequate notice, hearing or
appropriate enabling legislation. In that case the court
held that where the state officials who debarred the plain-
tiff were highly placed, responsible supervisory officials,
Parratt, which applied to random and unauthorized acts
by lower officials such as prison guards, was not ap-
plicable. The court stated:
[We conclude that in this case the availability of
post-deprivation remedies is irrelevant. As we held
in Stana, ‘‘if the government entity could have, but
did not, provide predeprivation procedures, a § 1983
action complaining of the lack of procedural due
process may be maintained in federal court, not with-
standing the availability of state judicial routes as
well.’’
780 F.2d 301. That case is not relevant here since plain-
tiffs make no challenge to the state system which did pro-
46a
vide a pre-deprivation hearing and through it they did
obtain an order directing they receive the building per-
mits they were seeking.
In Creative Environments, Inc. v. Estabrook, 680
F.2d 822 (1st Cir. 1982), the court held that the district
court had properly granted the defendant’s motion for
summary judgment where the plaintiffs alleged they had
been deprived of due process by officials who rejected
their proposed residential housing development. The
plaintiffs originally filed an action in state court which
they ultimately withdrew. In their federal action under
Section 1983 they claimed they were entitled to approval
upon filing of their plan which complied with reasonable
regulations and bylaws. They complained that their plan
had been disapproved for improper reasons—the officials’
fear of its social effects on the community and the poli-
tical threat of a homeowners association. The court found
that the plaintiffs had failed to allege a constitutional
violation, even assuming they could have shown at trial
that the town engaged in adversarial and even arbitrary
tactics with respect to the plan. The court was willing
to assume that the planning board was seeking to frustrate
the plaintiffs’ efforts to develop its subdivision. Still,
the court found that plaintiffs had failed to allege a con-
stitutional violation. They had failed to show they were
denied a fair and meaningful hearing process. They were
allowed a full public hearing on the plan. The board met
with the plaintiff frequently and each official action by
the board was accompanied by a full statement of reasons.
It appeared that additional judicial review in the state
courts would have been available to the plaintiffs if they
47a
had so elected. Therefore, the plaintiffs had failed to
allege a violation of procedural due process.
In Creative Environments the plaintiffs argued that
they were deprived of due process by the town’s alleged
arbitrary misapplication of state law, which resulted in
denying them their right to conduct a legitimate business
and make a profit. The court stated:
It is not impossible to derive a theoretical basis
: for CEI’s argument from cases such as Monroe v.
; Pape ... and Perry v. Sindermann, ... But were
such a theory to be accepted, any hope of maintaining
a meaningful separation between federal and state
jurisdiction in this and many other areas of law would
be jettisoned. Virtually every alleged legal or pro-
cedural error of a local planning authority or zoning
board of appeal could be brought to a federal court
on the theory that the erroneous application of state
law amounted to a taking of property without due
process. Neither Congress nor the courts have, to
date, indicated that section 1983 should have such a
reach.
; 680 F.2d 831. The court added in a footnote:
Where a state has provided reasonable remedies to
rectify a legal error by a local administrative body
j (and CEI raises no challenge in this case to the con-
; stitutionality of the state subdivision scheme itself),
current authority indicates that due process has been
provided, and that section 1983 is not a means for
litigating the correctness of the state or local admin-
‘ istrative decision in a federal forum ... (‘‘[T]he
existence of an adequate state remedy to redress
property damage inflicted by state officials avoids
the conclusion that there has been any constitutional
deprivation of property without due process of law
within the meaning of the Fourteenth Amendment.’’)
48a
A different situation may be presented in some
instances, particularly in the realm of equal protec-
tion, involving gross abuse of power, invidious dis-
crimination, or fundamentally unfair procedures .. .
But the ordinary state administrative proceeding in-
volving land use or zoning does not present such a
situation, regardless of how disappointed the license
or privilege seeker may feel at being initially turned
down. Thus, where—as here—the state has erected
a complex statutory scheme and provided for avenues
of appeal to the state courts, property is not denied
without due process simply because a local planning
board rejects a proposed development for erroneous
reasons or makes demands which arguably exceed its
authority under the relevant state statutes.
680 I'.2d 832, n. 9. In discussing plaintiffs’ claim that they
were deprived of due process when the planning board
openly interpreted state subdivision laws and a state court
decision in ways which frustrated their large-scale housing
development in order to protect what it viewed as the
town’s basic character, the court stated:
Such a claim is too typical of the run of the mill
dispute between a developer and a town planning
agency, regardless of CEI’s characterizations of it
and of defendants’ alleged mental states, to rise to the
level of a due process violation. The authority cited
by CEI, as well as other cases, all suggest that the
conventional planning dispute—at least when not
tainted with fundamental procedural irregularity,
racial animus, or the like—which takes place within
the framework of an admittedly valid state subdivis-
ion scheme is a matter primarily of concern to the
state and does not implicate the Constitution. This
would be true even were planning officials to clearly
violate, much less ‘‘distort’’ the state scheme under
which they operate. A federal court, after all, ‘‘should
not... sit as a a zoning board of appeals.’’
49a
680 F.2d 833. The Court’s concern in Creative Environ-
men's that zoning disputes could turn the federal courts
into zoning boards of appeals seems particularly apt in
this case. Plaintiffs have produced no evidence of funda-
menial procedural irregularity, racial animus or other
serious constitutional violations. Their proof depends pri-
marily upon alleged motives of a few of the defendants.
In objecting to multi-family developments in general, de-
fendant Rigatti was showing concern for factors which
are properly considered in zoning matters, such as over-
crowding and heavy traffic. See Rogin, supra, at 688. See
also Pace Resources, Inc. v. Shrewsbury Twp., 808 F.2d
1023, 1026 (3d Cir. 1987).
In Cloutier v. Town of Epping, 714 F.2d 1184 (1st Cir.
1983), the district court had properly dismissed a com-
plaint alleging that the plaintiffs were deprived of due
process by the defendants’ revocation of a sewage connec-
tion permit, denial of other permits, and engaging in a
pattern of harassment aimed at retarding or destroying
plaintiffs’ development plans. The plaintiffs claimed that
the defendants engaged in a number of malicious delaying
tacties which impeded their ability to proceed with their
development. They claimed that the defendants deprived
them of their property without due process by adding
years of delay and extra costs. The court noted that a vio-
lation of a state statute does not automatically give rise to
a violation of the Constitution. It also noted that the
plaintiffs’ long list of harassing actions revealed not the
type of egregious behavior that might violate the due pro-
cess clause, but rather, for the most part, disputes over the
interpretation of the state and town zoning laws. As to the
plaintiffs’ claim that they had been deprived of procedural
due process by revocation of the original sewer permit
50a
without first being afforded a hearing, the court replied
that ‘‘full judicial type hearings are not required when
local boards engage in the quasi-legislative task of grant-
ing or revoking zoning or similar types of permits.’’ The
court noted that the plaintiffs had received written notifi-
cation of the revocation and had been invited to discuss
the situation with the commission at its next meeting.
There were also indications in the record that they and
their attorney did at some later time discuss the matter
with the commission. It is noted that in this case plaintiff
Bello admits that he had many meetings with the defen-
dants and makes no claim that he did not have adequate
opportunity to present facts or argue his position to them.
In Chiplin Enterprises v. City of Lebanon, 712 F.2d
1524 (1st Cir. 1983), the court made a comment which ap-
pears to be appropriate to this case.
Chiplin asserts that as it had met all legal re-
quirements for the permit, the town had no valid rea-
son to reject the application. Jt then aims in the gen-
eral direction of the federal Constitution with buck-
shot, stating that this improper denial of a permit
‘‘unlawfully restricted and interfered with plaintiff’s
use and enjoyment of its property,’’ ‘‘interfered with
plaintiff’s prospective economic gain,’’ denied it the
equal opportunity of the law, and took its property
without due processor [sic] just compensation. As
described in its brief to us, the ‘‘gravamen of plain-
tiff’s complaint is that the individuals named as de-
fendants denied the plaintiff due process by malic-
iously denying it a building permit for invalid and
illegal reasons and in bad faith.’’ (Emphasis added).
712 F.2d 1526. In that case the court held that the district
court had properly dismissed a complaint alleging that the
plaintiff had been denied due process as a result of a five
5la
year delay in obtaining a building permit. The plaintiff
argued that because it had met all legal requirements for
the permit, the town had no valid reason to reject the ap-
plication. The court stated:
[P]roperty is not denied without due process simply
because a local planning board rejects a proposed de-
velopment for erroneous reasons or makes demands
which arguably exceed its authority under the rele-
vant state statutes.
712 F.2d 1527. The court added, ‘‘The claim that denial of
the permit was improperly motivated, unsupported by an
allegation of the deprivation of the specific constitutional
right, simply raises a matter of local concern, properly
and fully reviewable in the state courts.’’ 712 F.2d at 1527.
The court also statec:
A mere bad faith refusal to follow state law in such
local administrative matters simply does not amount
to a deprivation of due process where the state courts
are available to correct the error. Absent the allega-
tion of a constitutional violation, no claim has been
stated under section 1983.
712 F.2d 1528. See also, Quinn v. Bryson, 739 F.2d 8 (1st
Cir. 1984) (delay in obtaining land use permits caused
by lisputes with local officials).
Scott v. Greenville County, 716 F.2d 1409 (4th Cir.
1983), cited by plaintiff, would appear to be contrary to
the Third Cireuit decisions of Rogin v. Bensalem Tp.,
supra, and Cohen v. City of Philadelphia, supra, and the
above decisions of the Court of Appeals of the First Cir-
cuit. Apparently the Fourth Circuit is more willing than
the First and Third Circuits to rehear local zoning mat-
ters.
52a
Plaintiffs also cite Three Rivers Cable Vision v. City
of Pittsburgh, 502 F. Supp 1118 (W.D. Pa. 1980). How-
ever, Three Rivers is distinguishable in several respects.
In that case the plaintiffs claimed they were deprived of
due process and equal protection during the bid procure-
ment and the award process of a cable television contract.
They claimed that one of the defendants had been awarded
the contract despite material deficiencies in its bid as a
result of a preconceived and unlawful preference. First,
that case involved bidding for a municipal contract rather
than application of a state zoning law. Further, there was
no showing in that case that the state had established an
administrative procedure to regulate the bidding process,
including the right to a hearing, as Pennsylvania has estab-
lished in zoning matters and which procedure was found
to satisfy due process by the Third Cireuit in Rogin, supra.
In addition, there was no showing in that case that the
plaintiffs had eventually obtained from the state courts
the relief they sought. As has been noted above, the time
for disposition by the state courts of plaintiffs’ mandamus
action would not be attributable to defendants and that is
the only injury alleged by plaintiffs.
B. Plaintiffs’ Equal Protection Claim
Plaintiffs last brief which was filed on October 9,
1986, asserts, ‘‘Plaintiffs theory of denial of equal pro-
tection is not based on any allegation of racial or class-
based discrimination which is the more usual equal pro-
tection theory. Rather, plaintiffs assert that the adverse
treatment they received as permit applicants was due to
illegitimate, political, or at least personal motives which
constituted a purposeful discrimination against a particu-
53a
lar individual violative of the Equal Protection Clause of
the Fourteenth Amendment.’’ As the discussion of the
facts under plaintiffs’ due process claim reveal, plaintiffs’
evidence is directed primarily toward allegedly improper
motives of defendant Rigatti. However, her objections to
multiple family dwellings because of overcrowding, traffic
problems, ete., were legitimate concerns. Further, plain-
tiffs have failed to produce any evidence that defendant
Rigatti caused the denial of their application for bwilding
permits. The affidavit of defendant Norman Walker avers
that he denied plaintiffs’ building permits based on his
understanding that ordered phasing was a condition of the
approved site plan and that issuance of the required per-
mits would contravene the site plan and violate applicable
zoning laws. He avers that the decision to withhold the
permits was not made pursuant to any agreement be-
tween himself and any defendant or any other person and
that it was made solely by him without suggestions,
threats, coercion or intervention by defendants or any
other person. Plaintiffs’ general evidence that there were
oceasions when counsel voted on building permits (Ex-
hibits 1, 2, 3) would not establish that any of the de-
fendants, other than defendant Walker, caused the denial
of plaintiffs’ building permits although there is evidence
that they did approve an application for building permits
during a meeting on April 9, 1979. Exhibit 2 to plaintiff
Bello’s affidavit is a memo from defendant Martin, the
manager, to members of counci! advising them of a change
in item 9 of the April 9, 1979, council meeting minutes.
The memo reveals that the application for issuance of
building permits by Simmons Park Village had been
granted subject to the stipulation that the structure and
h4a
all other structures remain at least fifteen feet away from
ony abutting single family areas. Tiie memo notes that de-
fendant Rigatti seconded the motion for issuance of a
building permit.
Plaintiffs’ equal protection claim was not included in
their original complaint but was included in their amended
complaint which was filed on November 26, 1980. New
Count II alleges a conspiracy to deprive plaintiffs of con-
stitutional rights under color of state law in vio‘ation of
42 U.S.C. Section 1983. In paragraph eight of that count
. plaintiffs make a general allegation that they were denied
equal protection of the laws in violation of the Fourteenth
Amendment to the United States Constitution. However,
the facts supporting that claim appear to be included in
Count If] of the amended complaint which alleges an
‘‘acreement, combination and/or conspiracy and restraint
of trade in violation of 15 U.S.C. Section 1.’? In para-
graph 12 of the complaint plaintiffs allege that defendant
Kanon had a pecuniary interest in other land development
in Bethel Park within the housing area of plaintiffs’ pro-
posed developments and that in those developments side-
walks were waived at the recommendation of defendant
Kanon in his position as planning director of Bethel Park.
Plaintiffs make no reference in their supplemental brief
which was filed on October 9, 1986, or plaintiff Bello’s affi-
davit which was filed on April 15, 1986, to any evidence in
support of their allegation that defendant Kanon had a
pecuniary interest in other land development. Therefore,
they appear to have elected not to proceed on that allega-
tion.
Plaintiffs assert that defendant Walker waived the
building code requirements for the Brush Run townhouse
ea
55a
development, plaintiffs’ competitor, while such require-
ments were enforced against them. First, plaintiffs com-
plain that defendant Walker drafted an ordinance ‘‘Plan-
ned Unit Residential Development Ordinance”’ and that un-
der the original draft which contained a minimum land re-
quirement of thirty contiguous acres, plaintiffs, with
th'rty-three contiguous acres, would qualify and coud be
developed without the necessity of a condominium arrange-
ment which plaintiffs assert would be more cumbersome,
and more difficult to market and administer. Plaintiffs’
brief asserts that plaintiff Bello wou'd testify to this. It is
no‘ed that on a motion for summary judgment, unverified
statements contained in a brief cannot be considered.
Kauffman v. Johnston, 454 F.2d 264 (3d Cir. 1972). In their
brief plaintiffs assert that defendant Kanon redrafted the
ordinance and changed the minimum acreage from thirty
to thirty-five contiguous acres and that the ordinance was
passed in this amended form. Plaintiffs assert that under
the ordinance as amended, they could not develop under
it while Brush Run, with forty-nine acres, could. In their
supplemental brief, page 32, plaintiffs refer to testimony
of defendant Kanon in his deposition at pages 22-24 in
which he admitted that he made several drafts of the
PURD Ordinance, that one of the original drafts required
fifty acres, that it was changed, that Brush Run has forty-
nine acres and that Simmons Park has thirty-three acres.
However, there is no evidence in the record of any benefits
Brush Run enjoyed as a result of being able to develop
pursuant to the ordinance.
Plaintiffs also assert in their brief that the ordinance
‘‘Exhibit 36 to Plaintiffs’ Supplemental Brief’’ required
a full ownership interest in the land to develop as a PURD.
56a
Plaintiff had such full ownership interest but James Cor-
ace had only an option for the Brush Run development.
The ordinance as passed, Exhibit 37, provides that the
applicant need only have a valid option on the land. In
his deposition testimony, page 22, defendant Kanon tes-
tified that he did not recall the change in the draft of the
PURD Ordinance from thirty acres to thirty-five acres.
One of his original drafts had proposed fifty acres. He
testified that since Simmons Park was approved prior to
the adoption of the ordinance, the ordinance was not rele-
vant to the development of Simmons Park (p. 24). Plain-
tiffs have offered no admissible contrary evidence or any
evidence that they were injured by the ordinance. Fur-
ther, the issue would appear to be whether the municipality
had a legitimate reason for adopting the ordinance. See
Pace Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023
(3d Cir. 1987). Plaintiffs also have offered no evidence
as to how they were injured by the provision in the ordi-
nance providing that an applicant need only have a valid
option on land.
Plaintiffs next complain that defendant Kanon re-
quired them to ‘‘help solve the Brush Run water problem’’
(plaintiffs’ supplemental brief, p. 33). In paragraph 18
their complaint, discussed on page 23 of their supplemen-
tal brief, plaintiffs allege that defendants Walker, Kanon
and Martin were under pressure from ‘‘the elected council
persons’’ to find a way to halt plaintiffs’ project. In para-
graph 19 of the complaint discussed on page 24 of the sup-
plemental brief, plaintiffs allege that defendant Kanon told
plaintiffs this matter could easily be ‘‘corrected’’ by apply-
ing to the municipal council for ‘‘rephasing of the develop-
ment.’’ In their brief plaintiffs aver that the discussion
57a
between plaintiff Bello and Kanon would be supported by
plaintiff Bello’s testimony. However, it is again noted that
proffers of testimony cannot be considered on a motion for
summary judgment.
In his affidavit plaintiff Bello states that sometime
after February 1979 he met with defendant Kanon who
suggested that he reapply for rephasing in his develop-
ment. Plaintiff refers to Exhibit 32 to the exhibits to his
supplemental brief which is a memo from defendant Kanon
to municipal council and others dated May 2, 1979, sug-
gesting that plaintiffs’ rephasing be allowed as submitted
provided that plaintiff Bello and his engineer participate
in discussions with the municipal engineer for the express
purpose of finding solutions to drainage problems along
Brush Run Road (Exhibit 32 to plaintiffs’ supplemental
brief). Plaintiffs withdrew their application for rephas-
ing (paragraph 24 of the complaint).
In their supplemental brief, page 33, plaintiffs assert
that the ordinance that was passed, Exhibit 37 to the
supplemental brief, requires inspections by the building
inspector every six months to make certain that construc-
tion is in conformity with the applicable ordinances, para-
graph G, #1 on the second page of Exhibit 37. Plaintiffs
aver that in his deposition, pages 46 through 48 defendant
Kanon testified that Brush Run did not submit to six
month inspections and that part of the ordinance was not
enforced against Brush Run. However, it is again noted
that page 4 of defendants’ Reply Brief Pursuant to Order
dated April 20, 1986, notes that the deposition testimony
attached to plaintiffs’ affidavit establishes that the ordi-
nance had been repealed. Defendant Walker testified in
his deposition that he and others were inspecting Brush
58a
Run during early 1979 (Tr. 20). However, he testified
that after the ordinance was repealed it was not enforced
as to either Simmons Park or Brush Run (page 21). He
denied there was any period of time when Simmons Park
was required to comply with the ordinance and Brush Run
was not (Tr. 22). During his deposition, pages 35-36,
Walker testified that he did not enforce the inspection re-
quirements of the ordinance against Brush Run after the
ordinance had been repealed. Plaintiffs have produced
no evidence of any specific period of time when the ordi-
nance was enforced against them but not against Brush
Run.
In their supplemental brief, page 33, plaintiffs com-
plain that the ordinance requiring a four inch step from
the cellar floor to the garage door was not enforced
against Brush Run although it was enforced against Sim-
mons Park, referring to pages 20 to 25 of the deposition
of defendant Walker. However, Mr. Walker explained
that the ordinance was in effect when plaintiff commenced
construction but by the time Brush Run commenced con-
struction the ordinance had been repealed and neither
Simmons Park nor Brush Run was required to follow it
after repeal (p. 21-22). Plaintiffs have produced no
contrary evidence.
In their supplemental brief plaintiffs assert that
Brush Run spaced studs on two foot centers while Sim-
mons Park spaced studs on sixteen inch centers, referring
to page 26 of defendant Walker’s deposition. They admit
that defendant Walker testified that this was of each
parties’ own choice. In their brief plaintiffs state, ‘‘Al-
though Walker states that this was their own choice, Dino
Bello and Raymond Kirich will testify that Walker re-
59a
quired Simmons Park to build with sixteen inch centers
while permitting Brush Run to build on two foot centers.
This made construction considerably cheaper for Brush
Run and put them in a better competitive situation.’’ As
has a'ready been noted, offers of proof cannot be con-
sidered on a motion for summary judgment. Plaintiff
Bello’s affidavit which was filed on April 15, 1986, made
no reference to this requirement.
In their brief plaintiffs assert that in his deposition
defendant Kanon acknowledged having social lunches with
Jim Corace, the developer of Brush Run, and that he
visited Corace as a social guest in his apartment. This
does not establish a denial of equal protection under the
‘ourteenth Amendment.
Plaintiffs assert in their brief that the cutoff of build-
ing permits te Simmons Park left Brush Run with no
competition in the area for two and a half years. They
assert that Brush Run took advantage of this and adver-
tised that it had the only available townhouses in the area.
A copy of an ad by Brush Run is submitted as Exhibit 38
to plaintiffs’ supplemental brief. This does not establish
that plaintiffs were deprived of equal protection.
Paragraph 27 of plaintiff Bello’s affidavit avers that
‘*municipal officials’? failed to grant any of the 216 sewer
taps allocated in 1985 by the Watershed Authority to
Bethel Park to Simmons Park Development even though
such taps were continually requested by Simmons Park.
The affidavit asserts that the ‘‘municipal officials’? failed
to respond to the requests for sewer taps and failed to
respond to the inquiry as to why no taps were allocated
to Simmons Park. The affidavit states that copies of the
correspondence are attached to the exhibit as Exhibit 32.
60a
That exhibit includes letters from plaintiff to Matthew J.
Krider, Municipal Manager of Bethel Park, who is not a
party to this action.
In matters of zoning great deference is to be accorded
to legislative decisions establishing classifications. Rogin
v. Bensalem Tp., supra, at 687. The court explained the
reason for this deference as follows:
[T]he process of democratic political decisionmaking
often entails the accommodation of competing inter-
ests, and thus necessarily produces laws that burden
some groups and not others. In the absence of spe-
cial justification for more searching judicial examina-
tion—-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 charac-
teristic product of a democratic (perhaps of any)
political system.”’
To prevail on its equal protection claim, Mark-
Garner must persuade us that the passage and appli-
cation to it of the zoning amendments ‘‘so lack ration-
ality that they constitute a constitutionally impermis-
sible denial of equal proection.’’
616 F.2d at 687-688. The court then stated:
Although zoning laws ‘‘must find their justifica-
tion in some aspect of the police power, asserted for
the public welfare,’’ it is well-settled that such meas-
ures are constitutional if they bear a ‘‘substantial re-
lation to the public health, safety morals, or general
welfare.’’... The concept of general welfare has been
broadly construed: ‘*The values it represents are spir-
itual as well as physical, aesthetic as well as monetary.
It is within the power of the legislature to determine
that the community should be beautiful as well as
healthy, spacious as well as clean, well-balanced as
well as carefully patrolled.”’
6la
616 F.2d at 688. The court added:
A quiet pace 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 ... The police power is not
confined to elimination of filth, stench, and unhealthy
places. It is ample to lay out zones where family val-
ues, youth values, and the blessings of quiet seclusion
and clean air make the area a sanctuary for people.
616 F.2d at 688.
In Cook v. City of Price, Carbon Cty., Utah, 566 F.2d
699 (10th Cir. 1977), the court held that the trial court
had not erred in finding that the plaintiff was not deprived
of equal protection by enforcement of the zoning ordinance
' against her but not against others where her violation was
much more serious than the others. The plaintiff had
failed%g show that she was the victim of malicious motive
to injure her or that she was similarly situated to other
violators. a
In this ease plaintiffs’ attempt to show that defendant
Rigatti acted with malicious motive but acually show no
more than that she had legitimate concerns about multi-
family developments. They also fail to show that she
caused the denial of their application for building permits.
As to defendant Walker, who did deny plaintiffs’
application for building permits, plaintiffs have failed
to produce any evidence that they were injured as a result
of being treated different from their competitor, Brush
Run, at any identifiabie time. Therefore as to plaintiffs’
equal protection claim defendants’ motion for summary
judgment should be granted.
62a
C. Conspiracy to Violate the Constitution in Vio-
lation of 42 U.S.C. Section 1983
Plaintiffs’ amended complaint alleges that defendants
Urbanowicz and Rigatti conspired with unidentified other
defendants for the common goal of depriving plaintiffs
of “rights guaranteed to them under Article 1, Section 10
of the United States Constitution, and under the Fifth and
Fourteenth Amendments to the United States Constitu-
tion.” Plaintiffs have produced no evidence of any agree-
ment among any defendants to violate plaintiffs’ constitu-
tional rights. Therefore, as to this claim defendants’ mo-
tion for summary judgment should be granted.
D. Anti-Trust Claims
Finally, plaintiffs assert that defendants have vio-
lated both the Sherman Act, 15 U.S.C. Section 1 and the
Clayton Act, 15 U.S.C. Section 15. The facts set forth
in support of these claims are those discussed under plain-
tiffs’ equal protection claim. As has already been noted,
plaintiffs have failed to show that they were treated dif-
ferent from any other party similarly situated. The ordi-
nance which was originally applied to plaintiffs was re-
scinded and after it was rescinded it was not applied to
either plaintiff or Brush Run. Therefore plaintiffs have
failed to show any agreement or conspiracy in restraint
of trade. The most they have shown is hostility toward
them on the part of defendant Rigatti in that she opposed
muti-family dwellings in general and hostility on the part
of defendants Rigatti and Urbanowicz in that they did
not like one of plaintiffs’ employees, Raymond Kirich.
They have produced no evidence of any agreement among
any of the defendants to reduce competition between plain-
63a
tiffs and Brush Run. Further, under the Hallie v. Eau
Claire, 471 U.S. 34 (1985), municipalities are exempt from
anti-trust liability for activities authorized by state stat-
ute. Pennsylvania law, 53 P.S. Section 10601 authorizes
municipalities in Pennsylvania to “enact, amend and re-
peal zoning ordinances to implement comprehensive plans
and to accomplish any of the purposes of this act.” See-
tion 10603 provides that the zoning ordinances may con-
tain “provisions for the administration and enforcement
of such ordinances” and “Such other provisions as may
be necessary to implement the purposes of this act.” If
defendants can show that their alleged “anticompetitive
activities were authorized by the state ‘pursuant to state
policy to displace competition with regulation or monoply
publie service’” they would be entitled to municipal im-
munity under Hallie. Therefore, as to this claim defen-
dants’ motion for summary judgment should be granted.
E. Plaintiffs’ Motion for Summary Judgment
Plaintiffs’ motion for summary judgment is based on
the fact that Walker’s denial of their application for build-
ing permits was ultimately determined by the state courts
to be in error. That does not establish a violation of the
Constitution. In Pace Resources, Inc. v. Shrewsbury Twp.,
808 F.2d 1023, 1034 (3d Cir. 1987), the court stated:
We conclude at the outset that the district court erred
in holding that it was bound to find a denial of sub-
stantive due process once the Commonwealth Court
termed the Township’s rezoning “arbitrary and un-
justifiably discriminatory.” The issue before that
court and the substantive due process issue presented
to the district court by Pace’s complaint are simply
not the same issue.
64a
Therefore plaintiffs’ motion for summary judgment should
be denied.
In accordance with the Magistrates Act, 28 U.S.C.
Section 636(b)(1)(B) and (C), and Rule 4 of the Local
Rules for Magistrates, the parties are allowed ten (10)
days from the date of service to file objections to this
report and recommendation.
/s/ ILA JEANNE SENSENICH
Chief U.S. Magistrate
Dated: April 28, 1987
ec: The Honorable Gustave Diamond
United States District Judge
Richard L. Rosenzweig, Esquire
Rosenzweig & Burton
1603 Law & Finance Building
Pittsburgh, PA 15219
Marvin A. Fein, Esquire
Richard H. Martin, Esquire
Baskin Flaherty Elliott & Mannino, P.C.
2900 One Mellon Bank Center
Pittsburgh, PA 15219
Anthony J. Martin, Esquire
Monroe Complex Building I
Monroeville, PA 15146
CERTIFIED MAIL, RETURN RECEIPT
REQUESTED
65h
Simmons Park Properties, Inc. v. Bethel Park
Municipal Council, et al.
Mandamus—Building Permit—Phased Development.
1. A mandamus is an extraordinary writ at common
law designed to compel performance of a ministerial act or
mandatory duty where there exists a clear legal right in
the p'aintiff.
2. Where defendant-municipality had approved a
five-phased development but no evidence supported the
conclusion that as a condition of approval such develop-
ment was to be sequential by phases, plaintiff-developer
was entitled to develop the phases in any order and a build-
ing permit should issue accordingly.
(D. E. Williams)
Michael P. Schaefer for plaintiff.
Victor R. Della Donne for defendants.
GD 79-15304. In the Court of Common Pleas of Alle-
gheny County, Civil Division.
OPINION AND ORDER OF COURT
Papapakos, A.J., May 5, 1981.—The matter before the
Court is an action in mandamus brought by Simmons Park
Properties, Inc., (Plaintiff) against the Bethel Park Mu-
nicipal Council; the Municipality of Bethel Park; James M.
Martin, the Municipal Manager; Norman Walker, the Code
Enforcement Officer, and John E. Kanon, the Planning
Director (Defendants). The Complaint and Amended Com-
plaint seek the issuance of certain building permits. Plain-
tiff is record title holder to 33 acres in Bethel Park. Plain-
tiff initially submitted the Simmons Park Village Site
66a
Plan to the Municipality’s Planning Commission in July
of 1976. That plan divides the 33 acre tract into a 254 unit
development of townhouses and duplex residences. The
plans as submitted parcel off the 33 acre tract into five
groupings categorized as ‘‘Phases.’’
After various meetings with the Planning Commission,
approval was given for the Site Plan submitted by Plain-
tiff on August 18, 1976. The Planning Commission also
recommended that the Council of Bethel Park approve the
Site Plan. That body approved the Site Plan on October
19, 1976, and Plaintiff began development of those units in
1979. Plaintiff applied for building permits in May of
1979 to continue development of its Townhouses and was
refused on May 9, 1979, by Defendants upon the contention
that the development was approved as a five phase de-
velopment, and that the applied for building permits were
in an area of the development which was not in what De-
fendants considered to be the second phase. It was from
that decision that Plaintiff timely filed this action in man-
damus on June 8, 1979. A Motion for Peremptory Judg-
emnt was also filed seeking the issuance of the desired
building permits. The Honorable J. Warren Watson, ap-
pointed a Referee in this matter to take any additional tes-
timony and submit proposed findings and conclusions of
law. The Referee filed a tentative decision, recommending
denial of the Peremptory Judgment. By his Opinion and
Order of Court dated March 26, 1980, Judge Watson grant-
ed the Motion for Peremptory Judgment and ordered that
building permits be issued anywhere in Phase II of the
development. On January 23, 1981, Judge Watson vacated
his Opinion and Order of March 26, 1980, and denied Plain-
tiff’s Motion for Peremptory Judgment.
na yen nl fl
67a j
This Court then ordered a hearing pursuant to the
underlying Complaint in Mandamus for March 20, 1981.
At that hearing the parties had the opportunity to present
any testimony and evidence in this matter. During the
hearing it became apparent that the only issue before the
Court was whether the Site Plan as approved by Council
required development in phases in numerical order (Phase
I, then Phase II, then Phase III, ete.). The parties were
then given the opportunity to provide the Court with some
written requirement or written agreement showing that de-
velopment would occur only in order of the phases as num-
bered. Thereupon, Plaintiff and Defendants prepared and
submitted oral and written memoranda in this matter.
A mandamus is an extraordinary writ at common law,
designed to compel performance of a ministerial act or
mandatory duty where there exists a clear legal right in
the Plaintiff, a corresponding duty in the Defendant, and
want of any other adequate and appropriate remedy.
Bronson y Com. Bd. of Probation and Parole, — Pa. S.—,
421 A.2d 1021 (1980); Philadelphia Newspaper Ince. v Je-
rome, 478 Pa. 484, 387 A.2d 425 (1978). <A court of law
of competent jurisdiction issues a mandamus to a public
official directing him to perform a particular duty which
results from his official station or operation of law. Good-
man v Meade, 162 Pa. Super 587, 60 A.2d 577 (1948). A
mandamus will not lie to compel discretionary acts, nor
will it be issued to restrain official duties.
In this matter, there is no dispute that the Municipal
Council approved a Site Plan. The only dispute is whether
the grouping of units into five parcels described as
‘‘Phases”’ binds the Plaintiff to develop the units in the
Phases as numbered on the Plan. This Court can find no
68a
evidence besides the Plan itse!f, which shows the numbered
phases, to support Defendants’ position of sequential de-
velopment. Nor has any written agreement or under-
standing between the parties been brought to this Court’s
attention supportive of Defendants’ position.
This Court, therefore, finds that the numbering of the
five parcels as Phases does not limit the Plaintiff to de-
velopment of its lots in numerical order of Phases. (Phase
I, then Phase II, then Phase ILI, ete.). Rather, this Court
finds that the adoption by the Municipal Council of the
entire Site Plan gives Plaintiff the right to develop its
units as it finds proper. Furthermore, once Defendants
approved the Site Plan, Plaintiff had a clear right to the
issuance of building permits for the units Plaintiff desired
to develop and Defendants had no discretion in granting
or denying such permits.
Accordingly, the following Order of Court is entered:
ORDER OF COURT
Anp Now, to-wit, this 5th day of May, 1981, IT 1s
Heresy OrpERED, ADJUDGED aNp Decreep that the decision
of Bethel Park Municipal Council; the Municipality of
Bethel Park; James M. Martin, Municipal Manager; Nor-
man Walker, Code Enforcement Officer; and John E.
Kanon, Planning Director, (Defendants) refusing to issue
building permits to Simmons Park Properties, Inc. (Plain-
tiff) be, and the same is hereby, REVERSED, and that
the Defendants are directed to issue the desired building
permits.
By tHe Court:
s/ Papapakos, A. J.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.