Opposition Brief — Tate v. Kopec

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No. 04-1121 | Reems tot UE

MAR 24 2005

In The OFFICE OF THE CLERK |

Supreme Court of the Anited States

*

THORNBURY NOBLE, LTD.,

Petitioner,

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THORNBURY TOWNSHIP, Chester County,

THORNBURY TOWNSHIP BOARD OF

SUPERVISORS, and the Members of the Board of

Supervisors in their Official Capacity: PATRICIA A.

DEWEY, J. CHRISTOPHER LANG, WILLIAM A.

SCHMIDT, JR., CHARLES A.W. WILSON and

ROBERT A. MacDONNELL,

Respondents.

,

vy

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

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BRIEF IN OPPOSITION OF RESPONDENTS

THORNBURY TOWNSHIP BOARD OF

SUPERVISORS, PATRICIA A. DEWEY, J.

CHRISTOPHER LANG, WILLIAM A.

SCHMIDT, JR., CHARLES A.W. WILSON

AND ROBERT A. MacDONNELL

¢

SIANA, BELLWOAR & MCANDREW, LLP

ANDREW J. BELLWOAR, ESQUIRE

Counsel of Record

MICHAEL G. CROTTY, ESQUIRE

941 Pottstown Pike, Suite 200

Chester Springs, PA 19425

(610) 321-5500

Attorneys for Respondents

Thornbury Township Board

of Supervisors, Patricia A. Dewey,

J. Christopher Lang, William A.

Schmidt, Jr., Robert A. MacDonnell

and Charles A.W. Wilson

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTER-STATEMENT OF THE

QUESTION PRESENTED FOR REVIEW

Whether the Third Circuit, in harmony with all other

Circuit Courts that have ruled on the issue, properly held

that Respondents’ conduct did not “shock the conscience”

in a constitutional sense after the Township denied the

deficient land development application of a developer, in

furtherance of legitimate municipal goals.

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF THE QUESTION FOR

BREE V TRG Wy. ..000s0sstsnsnacincensiniepadedegecnie anneal nn anne i

TABLE GP CORUT BIG 6 Ob sssesdsinscerheacs eee aitaeone il

TABLE OF AUT HIGIIRE 6 Sli ssisnsntscsetindsacihnn babecedisivens ili

COUNTER-STATEMENT OF THE CASE................. 1

SUMMARY OF THE ARGUMENT.........................0088 7

REASONS WHY THE PETITION SHOULD BE

PING LGD oo anc <ncis sncinissndisnnecnuieiellneeaiet lula netneneaaann annem ee 8

1. The “shocks the conscience” standard pro-

vides a sufficient basis for Circuit Courts to

decide substantive due process claims in

Ladd 1200 DARRDOUD o.0iidscccccctnecaeseconicamenes 8

2. The Third Circuit’s “shocks the conscience”

analysis comports with Supreme Court Prece-

dent and does not conflict with the decision of

ming Otteet CONE ccsaiiscisccinsemnconaceecners 10

3. Petitioner’s Claim is not ripe .....................008. 18

ONLI vs. scnisosicndckassnanahiuiasnnleelaeamaaruenacenas 19

ili

TABLE OF AUTHORITIES

Page

CASES

Agins v. City of Tiburon, 447 U.S. 255 (1980)..............00 13

Bituminous Materials, Inc. v. Rice County, 126 F.2d

a os aisantishibenlinsdeebbtnnbbeoaneets 12

Bogan v. Scott-Harris, 523 U.S. 44 (1998)... ee 17

Carlino v. Whitpain Investors, 499 Pa. 498, 453

ooo a sau kiiadeaaadeudekidacsscieabanienoesisnesineieen 14

Chesterfield Dev. Corp. v. City of Chesterfield, 963

ER ER EEE BODUIUND Sncccccacesinncnctsessensconereacseasacsoccnnss 11

Cloutier v. Town of Epping, 714 F.2d 1184 (1st Cir.

a De ch es cadabanssanedennhelis 8, 11

Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d

ica as aaa Laticicscdieanansentnietans 17

Conroe Creosoting Co. v. Montgomery County,

Texas, 249 F.3d 337 (5th Cir. 2001)....................seseseeeees 11

Cornneal v. Jackson Township, 2004 WL 790315

RI IEE TUE SID ss, cc caubinssnassnenasaneniodenesaunecsnanennanse 12

County of Sacramento v. Lewis, 523 U.S. 833 (1998) ... 9, 10

Creative Environments, Inc. v. Estabrook, 680 F.2d

i sis cacadnmsnapiedenaspinnsnenbens 15, 16

Crocker v. Hakes, 616 F.2d 237 (5th Cir. 1980)................. 15

Dolan v. City of Tigard, 512 US. 374 (1994)...........0... 9,10

Fagan v. City of Vineland, 22 F.3d 1236 (3d Cir.

TT a es OL calnetbabaniaeeiees 10

First English Evangelical Lutheran Church of Los

Angeles County, 482 U.S. 304, 107 S. Ct. 2378, 96

Nee as amennenagesnatins 13

TABLE OF AUTHORITIES — Continued

Page

Gladwyne Colony, Inc. v. Lower Merion Township,

409 Pa. 441, 187 A.2d 549 (1963)....................0s0cc00 14, 15

Kanter v. Martin County, 929 F. Supp. 1482 (S.D.

Pais IPE aetaiCcseisk Gadhia caatdsncsicsadestdgndnsanaieicore=dansiashabubindaabaes 12

Kent Island Joint Venture v. Smith, 452 F. Supp.

Oe IIE: WI as ctcaktcrschtcdictdcnahiobendaanaenncesedeasmnceiceas 17

Marriott Senior Living Serv., Inc. v. Springfield

Township, 78 F. Supp. 2d 376 (E.D. Pa. 1999).............. 18

Milk Control Comm’n v. Battista, 413 Pa. 652, 198

ee I So cctiacenteinea ied dads on plcrsccessncokaresaiauaneanss 15

Nestor Colon Medina & Sucesores, Inc. v. Custodio,

ee ee Ce ee BR eoncncincsascinscstsaniuvnducdsncenassonaciee 16

Nollan v. California Coastal Comm’n, 483 U.S. 825

RUINED siciaiolakacshusnhensauaeagsecatesnnsenubaianecauisasianmnicacaiunexencaaes 9

Parratt v. Taylor, 451 U.S. 527 (1981)..............ccesesssee sees 17

Paul v. Davis, 424 U.S. 693 (1976)...................ccccsecccsssceeee 15

Pearson v. City of Grant Blanc, 961 F.2d 1211 (6th

Ae, UII wi ciesiasinitccic <canshgunmumloaiiicsateiieisnassdhdibmnatobidaszunianits 8,11

PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28 (1st

AE: BTID sscscsitcsieca cate xncaanceidodetaeeconns seeiboanzintnntsecboncsimemeradwubes 11

Sameric Corp. of Delaware v. City of Philadelphia,

BA Fae Be Ce Bi visien pactnntnescrinuetonrecsancsaessccehnns 12

Screws v. United States, 325 U.S. 91 (1945)... 15

Snowden v. Hughes, 321 U.S. 1 (1944) ..... eee 15

Southern Pacific Transp. Co. v. City of Los Angeles,

Se Wee Pe Ce Ce, TID cece tceiesnniticnnsctcnncnenonnes 8,11

TABLE OF AUTHORITIES — Continued

Page

Thornbury Noble, Ltd. v. Thornbury Township, 112

Fed. Apon. 186 (Bd Cin, 2008) ioc vvicchssssrcscscaastmaion 13, 19

United Artists, Inc. v. Township of Warrington, 316

P.O DOR (OG CAE DOOD) on evccccissccsssccacssnoneconeunas 7, 10, 11, 16

STATUTES |

AE Beis GI Bi ites scrsnansonsadcsinscnnactondacabansulpvaimatienas a aaaaee ae 1

Se We BS OR iis piicssniescesinarenssiicssaniatpcaten meen aeaaee 14

COUNTER-STATEMENT OF THE CASE

Respondent Thornbury Township is a Township of the

Second Class, duly organized under the Pennsylvania

Second Class Township Code, 53 P.S. § 65101 et seg. The

Township is governed by an elected five-member Board of

Supervisors, which is responsible, inter alia, for enacting

and amending zoning ordinances, making final decisions

on land development plans in the Township, and for

rendering decisions on applications for conditional uses in

certain zoning matters.

At all times relevant to this dispute, Petitioner owned

approximately ten acres of land located at the intersection

of Routes 202 and 926 in Thornbury Township, Chester

County, Pennsylvania. Petitioner purchased the property

in the mid-1980’s, as separate four-acre and six-acre

tracts. At the time, the four-acre tract was zoned for

commercial use, while the larger, six-acre tract was zoned

for agricultural/residential use. In the late 1980’s, nearly

three acres of the six-acre tract were rezoned for commer-

cial use at the request of Petitioner, in order that it could

develop a complex of ten office buildings on the land. After

only one of the buildings was built, Petitioner let the

remainder of the project lay dormant for years.

Petitioner then chose to abandon the ten building

office complex plan to instead develop the property as an-

L-shaped retail center. Petitioner submitted a new land

development plan for the retail center in accordance with

the Municipalities Planning Code (“MPC”) and the Town-

ship’s Subdivision and Land Development Ordinance

(“SALDO”). On October 5, 1993, the Township approved

the new land development plan.’ Thereafter, the Board of

Supervisors granted Petitioner’s repeated requests for

extensions to record the plans, and, on March 7, 1995, the

Board ratified the final plans to permit Petitioner to

develop the retail center pursuant to the L-shaped design.

In December 1997, Petitioner once again changed

course. Petitioner chose to do so after failing to secure

potential tenants for its L-shaped development, and after

receiving letters of interest from two grocery chains who

wished Petitioner to develop the property as a 50,000 to

55,000 square foot box shaped supermarket. Given this

interest, Petitioner entered into a non-binding proposal

’ A brief description of the land development process under

Pennsylvania law is pertinent for an analysis of the present matter.

Under the Pennsylvania Second Class Township/Municipalities

Planning Code, a developer can initiate the land development process

by submitting a “sketch plan” to the Township. Petitioner’s App. 135. A

“sketch plan” is an informal draft of the plan to be proposed, which is

voluntarily submitted by a developer to engage the Township in

informal discussions as to the plans. Petitioner’s App. 135. The sketch

plan “does not constitute submission of an application for approval of a

subdivision or land development plan.” Petitioner’s App. 135. In order

to start the formal review process, the developer submits a “preliminary

plan,” which sets forth in detail all required data for the development.

Petitioner’s App. 136. Once a preliminary plan is submitted by a

developer, the Township reviews the plans and provides the developer

with a list of the defects that must be addressed for preliminary plan

approval pursuant to the Municipalities Planning Code and Subdivision

and Land Development Ordinance. Petitioner’s App. 138-39. After the

developer makes all necessary revisions, or alternatively, when the

developer believes its preliminary plans to be complete, the Township

will vote to accept or reject the preliminary plans. Petitioner’s App. 138-

39. If the developer believes that a municipality improperly rejected its

plan after any vote, the developer has the right to appeal that decision

to the Pennsylvania Court of Common Pleas. Thereafter, a land

developer must then submit final plans for further review and approval

by the Township. Petitioner’s App. 142.

3

with one of the grocery chains, Genuardi’s, on December 5,

1997. In this non-binding proposal, Petitioner and Genu-

ardi’s agreed that Petitioner would attempt to secure a

zoning change within twelve months of the date of the

proposal. The zoning change was to be sought by Peti-

tioner because it desired to re-locate the building closer to

the rear property line (i.e., closer to the residential dis-

trict). Petitioner’s proposed relocation would require two

acres of land to be rezoned from residential to commercial,

thereby eliminating any buffer zone between nearby

residences and the proposed supermarket. It merits

emphasis that both Courts below noted that Petitioner

could have built the box-shaped building on the portion of

its property then zoned for commercial use, but instead

sought to shift its development on to the land zoned for

residential use. Petitioner’s stated basis for this en-

croachment was to improve access to the supermarket.

Petitioner presented a sketch plan of the proposed

box-shaped supermarket on December 16, 1997. This

sketch plan laid out a 50,000 to 55,000 square foot box

shaped supermarket in lieu of the previously approved L-

shaped building plans. When Petitioner inquired about the

prospect of rezoning the two acres of land, the Board

advised that it would like to review the plans before

discussing zoning relief.

In early 1998, Petitioner complicated matters by

appointing a new individual to head its development of the

subject property. This individual was inexperienced in

land development projects and proceeded under the

mistaken belief that all necessary approvals were in place

(i.e., under the mistaken belief that Petitioner had ob-

tained final plan approval for its box-shaped design).

Petitioner took no further action until July 7, 1998, when

it presented a different sketch plan to the Board, calling

for a 50,000 square foot grocery store and a 10,000 square

foot drug store in lieu of the L-shaped retail center.

At the July 7, 1998, Township meeting, Petitioner

again raised the issue of rezoning a portion of the subject

property from agricultural/residential to commercial.

During these discussions, one of the Supervisors inquired

as to whether Petitioner had any interest in helping the

Township with an open space contribution to compensate

for the loss of residential zoning. Petitioner responded that

it would consider an open space contribution only if it was

required to do so by the Township Ordinances. As any open

space contribution was voluntary, Petitioner was not

required to provide it, and, indeed, chose not to do so. The

meeting was concluded with no decision as to rezoning

having been made.

At the next public Township meeting on August 4,

1998, Petitioner provided no additional information in

support of its need for rezoning and presented no prelimi-

nary plan. Shortly thereafter, in October 1998, Genuardi’s

withdrew its letter of interest, and Petitioner began

discussions with the other large grocery chain, Super-

Fresh, about the prospect of building a box-shaped grocery

market. Pursuant to the nonbinding agreement entered

into between SuperFresh and Petitioner, SuperFresh was

responsible for securing all government approvals.

On October 6, 1998, Petitioner submitted a document

labeled “Application for Amended Final Plan Approval or,

in the alternative, for a Zoning Map Amendment.” This

submission included- two hand-drawn sketch plans of a

proposed big box supermarket in place of the approved L-

shaped strip retail center. The first sketch plan depicted a

proposed big box supermarket wholly within the commer-

cially zoned tract. The second sketch plan depicted a

proposed supermarket partially on the nearby residential

property, which would require rezoning approximately two

acres of this agricultural/residential tract. The October 6,

1998, submission, however, did not constitute a formal

application for land use approval since the sketch plan did

not include the required fully engineered preliminary

plan. The Township’s Solicitor advised the Township that

was a new plan, presented as a sketch only, and therefore

the Board was not obligated to take any action until a

preliminary plan was filed. Moreover, the Township

engineer reviewed Petitioner’s ‘submissions and deter-

mined, inter alia, that both sketch plans required numer-

ous revisions in order to comply with the Township Zoning

Ordinance.

The sketch plans _were discussed at the Township

Planning Commission on October 14, 1998. Petitioner

advised the Commission that its purpose for attending this

meeting and the Board meeting in November 1998 was to

see if the Board would rezone the tract. The Township

engineer offered his comments at the meeting, and the

Planning Commission members asked Petitioner’s counsel

to submit a plan combining certain aspects of both sketch

plans. However, no such plan was ever presented to the

Township. One of the Supervisors stated that the Board

was not in favor of rezoning the property, which had

previously been rezoned for expanded commercial use.

Petitioner was again advised that it must go through the

proper land development process. Petitioner ignored this

advice.

6

Meanwhile, another developer, R.J. Waters & Associ-

ates, sought to develop a large supermarket on its own

property in Thornbury Township. R.J. Waters applied for

and received approval for its development in properly

submitting its preliminary and final development plans to

the Board in accordance with the well-established land

development process. In addition, Waters agreed to con-

tribute $600,000 to the Township for the express purpose

of purchasing additional open space, since Waters’ devel-

opment project would reduce existing open space in the

Township.

Before the end of March 1999, Petitioner decided to

build the L-shaped strip mall as previously approved. On

April 7, 1999, Petitioner filed an application for a building

permit to construct the L-shaped retail strip center. The

Township issued the permit, and Petitioner built out the

L-shaped strip mall, which is open and operating today.

The District Court for the Eastern District of Penn-

sylvania initially dismissed the Section 1983 claims

against the individual Defendants in their official capaci-

ties, but, in utilizing an “improper motives” analysis,

otherwise denied summary judgment with respect to

Petitioner’s substantive due process claim. Respondents

renewed their Motions for Summary Judgment after the

Third Circuit issued its decision in United Artists, Inc. v.

Township of Warrington, 316 F.3d 392 (3d Cir. 2003), in

which the Third Circuit abrogated the use of the “improper

motives” analysis in favor of the “shocks the conscience”

test in a land use setting. The District Court held that the

actions of Respondents did not satisfy the “shocks the

conscience” standard, and dismissed Petitioner’s remain-

ing claims. The United States Court of Appeals for the

Third Circuit agreed and affirmed the District Court’s

decision. Petitioner sought an en banc rehearing before the

Third Circuit, which was denied. The instant Petition for

Writ of Certiorari followed.

SUMMARY OF THE ARGUMENT

When the Third Circuit decided the case of United

Artists, Inc. v. Township of Warrington, 316 F.3d 392 (3d

Cir. 2003), it brought the Third Circuit into harmony with

all other Circuit Courts that have ruled on the issue of the

appropriate standard to apply in land use disputes when a

developer asserts a Section 1983 civil rights claim based

upon an alleged deprivation of substantive due process

under the Fourteenth Amendment to the U.S. Constitu-

tion. Both the Trial Court and the Third Circuit properly

applied the “shocks the conscience” standard when they

determined that the undisputed facts of record warrant

summary judgment in favor of the individual Township

Supervisors and the Township. Indeed, there is no circuit

split as to this issue, and the adoption of the “shocks the

conscience” standard comports with existing Supreme

Court precedent.

There is no need for further “definitional analysis” to

allow the Circuit Courts of this land to decide substantive

due process claims in land disputes. The Circuit Courts

have appropriately applied the “shocks the conscience”

standard to prevent run-of-the-mill zoning disputes from

being transformed into Federal Constitutional causes of

action. Indeed, the actions of the Supervisors in the case

at bar fall within the “environment of land use planning,”

an area of state law in which the federal courts do not

interfere in the absence of a violation of a constitutionally

protected right.

Moreover, Petitioner grossly mischaracterizes the

nature of the voluntary open space contribution made by

another developer. Respondents did not engage in any

violation of state law, and neither of the lower courts have

so determined. The evidence of record does not support

Petitioner’s characterization, nor does it support that a

voluntary contribution equates to a “zoning for sale.”

Neither of the lower courts have so held.

Lastly, to the extent that Petitioner claims that its

alternative development plan should have been approved,

their claim is not ripe. Petitioner never obtained the

necessary preliminary or final plan approvals for its

proposed development. Accordingly, the instant Writ of

Certiorari should be denied.

REASONS FOR DENYING THE WRIT

1. The “shocks the conscience” standard provides

a sufficient basis for Circuit Courts to decide

substantive due process claims in land use

matters.

While Petitioner argues that there is a need for this

Court “to provide a cogent definitional analysis” of the

standard to be employed in substantive due process

claims, the argument fails for two equally compelling

reasons. First, the Circuit Courts have applied the “shocks

the conscience” standard in land use cases for decades.

See, e.g., Pearson v. City of Grant Blanc, 961 F.2d 1211

(6th Cir. 1992); Southern Pacific Transportation Co. v. Los

Angeles, 922 F.2d 498 (9th Cir. 1990); Cloutier v. Town of

9

Epping, 714 F.2d 1184, 1189 (1st Cir. 1983). The Circuit

Courts have been able to reach their decisions throughout

the years without the “cogent definitional analysis” that

Petitioner believes is so sorely needed in this area of the

law. Petitioner’s claim that a cogent definitional analysis

is needed is belied by the established history of the lower

courts ably reviewing substantive due process claims in

land use matters. Conspicuous by its absence is any

citation to a Circuit Court decision that cries out for

greater guidance.

Second, Petitioner’s argument fails given that this

Court adopted the “shocks the conscience” standard

knowing full well that it is not a precise standard. County

of Sacramento v. Lewis, 523 U.S: 833, 847 (1998) (“[t]he

measure of what is conscience shocking is no calibrated

yard stick.”). Rather, the standard must be applied to each

case independently. Id. at 850. The Court has provided

sufficient guidance as to how the lower courts should

apply the “shocks the conscience” standard, as set forth

below. Petitioner would have this Court reverse the

decades-old case-specific application of the “shocks the

conscience” standard, and replace it with a formulaic, one-

size-fits-all definition. Moreover, Petitioner so argues

without providing any hint as to what new analysis would

be applied.” The “shocks the conscience” standard does not

* Petitioner’s citations to Nollan v. California Coastal Comm’n, 483

U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), and Dolan v. City of

Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994), are

inapposite. Neither of those decisions involved substantive due process

challenges, and indeed, explicitly rejected the notion that those

decisions would apply to substantive due process claims. Nollan, 483

U.S. at 836 n.4 (“[T]here is no reason to believe (and the language of our

cases gives some reason to disbelieve) that so long as the regulation of

- property is at issue the standards for takings challenges, due process

(Continued on following page)

10

need a new definitional analysis, and Petitioner’s request

must be denied.

2. The Third Circuit’s “shocks the conscience”

analysis comports with Supreme Court Prece-

dent and does not conflict with the decision of

any other Court.

The decisions by the Courts below do not conflict with

any decision of this Court, any Court of Appeals, or any

other Court in the United States. Application of the

“shocks the conscience” standard as addressed by the court

below developed out of this Court’s decision in County of

Sacramento v. Lewis, 523 U.S. 833 (1998).

In applying the “shocks the conscience” standard

espoused in Lewis, “only the most egregious official con-

duct can be said to be ‘arbitrary in the constitutional

sense.” Id. at 845-46. The Due Process Clause is violated

by executive action only when it “can properly be charac-

terized as arbitrary, or conscience shocking, in a constitu-

tional sense. Jd. at 845-46 (citation omitted). See also

Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir.

1994) (en banc) (“[T]he substantive component of the Due

Process Clause can only be violated by governmental

employees when their conduct amounts to an abuse of

official power that ‘shocks the conscience.’ ”).

Subsequent to the Lewis decision, the Third Circuit

issued its ruling in United Artists Theatre Circuit, Inc. v.

Township of Warrington, 316 F.3d 392 (3d Cir. 2003), in

challenges, and equal protection challenges are identical.”). See also

Dolan, 512 U.S. at 384 n.5.

11

which it held that the “shocks the conscience” standard

applies in cases involving substantive due process chal-

lenges to municipal land use decisions. The United Artists

decision brought the Third Circuit in line with other

Circuit Courts that have addressed the issue. Jd. at 402.

See, e.g., Conroe Creosoting Co. v. Montgomery County,

Texas, 249 F.3d 337 (5th Cir. 2001) (“Where a state official

deprives a corporation of its property in a manner that

‘shocks the conscience,’ substantive due process may be

violated.”); Pearson v. City of Grant Blanc, 961 F.2d 1211

(6th Cir. 1992) (only actions which “shock the conscience”

may violate substantive due process); Chesterfield Devel-

opment Corp. v. City of Chesterfield, 963 F.2d 1102, 1104-

05 (8th Cir. 1992) (holding that allegations that the city

arbitrarily applied a zoning ordinance were insufficient to

state a substantive due process claim, and stating that the

“decision would be the same even if the City had know-

ingly enforced the invalid zoning ordinance in bad faith

.... A bad-faith violation of state law remains only a

violation of state law.”); PFZ Properties, Inc. v. Rodriguez,

928 F.2d 28, 32 (1st Cir. 1991) (“Even assuming that ARPE

engaged in delaying tactics and refused to issue permits

for the [development] project based on considerations

outside the scope of its jurisdiction under Puerto Rico law,

such practices, without more, do not rise to the level of

violations of the federal constitution under a substantive

due process label.”); Southern Pacific Transportation Co. v.

Los Angeles, 922 F.2d 498 (9th Cir. 1990) (Ninth Circuit

will subject local zoning decisions to substantive due

process review, but the scope of review is that for legisla-

tion, even as to an individual property owner’s claim, and

any relationship to a proper zoning goal, such as prevention

of traffic congestion, will be sufficient); Cloutier v. Town of

Epping, 714 F.2d 1184, 1189 (1st Cir. 1983) (holding that

12

substantive due process is not violated by local zoning

even when accompanied by claims of purposeful malicious

obstruction of a landowner’s rights, that included alleged

abuse of process, perjury, failing to come forward with

material evidence, and giving false information to a state

agency about the plaintiffs).

In applying this standard in the land development

context, the conduct of township officials in denying a land

development plan fails to shock the conscience (even if

motivated by personal animus) when there exists a ra-

tional basis for a land use decision for the denial. See

Sameric Corp. of Delaware v. City of Philadelphia, 142

F.2d 582, 595-96 (3d Cir. 1998) (only relevant inquiry in

the review of a land use decision made by a local govern-

ment agency was whether the decision was rationally

related to land use planning); Bituminous Materials, Inc.

v. Rice County, 126 F.2d 1068, 1070-71 (8th Cir. 1997);

Kantner v. Martin County, 929 F. Supp. 1482 (S.D. Fla.

1996). See also Cornneal v. Jackson Township, 2004 WL

790315, at *2 (3d Cir. April 13, 2004).

In the present matter, both the Third Circuit and the

District Court held that none of the actions taken by the

municipal officials shocked the conscience. Indeed, the

record unquestionably supports those holdings below.

Petitioner inappropriately attacks these decisions on two

grounds: 1) that actions of the Township officials consti-

tuted a violation of state law in violation of their rights to

substantive due process; and 2) that the federal courts

should not have given deference to the conduct of local

municipalities in applying the “shocks the conscience”

standard to the instant matter.

13

i) Acceptance of the voluntary open space

contribution did not constitute a violation

of state law and is not sufficient to “shock

one’s conscience.”

Petitioner has grossly mischaracterized the voluntary aie

open space contribution as a violation of state law. None of

the evidence proffered through discovery supports this

position, and neither the Third Circuit nor the District

Court so determined. As to this issue, the Third Circuit

determined that “the most nefarious interpretation of the

events that transpired before the Board would be that the

Board privileged Water’s zoning request over Noble’s in

exchange for Water’s $600,000 contribution to the Town-

ship for the purchase of open space.” Thornbury Noble, 112

Fed. Appx. 185, 188 (3d Cir. Oct. 18, 2004). The Third

Circuit aptly noted that such “actions of the Board would

still not rise to the level of shocking the conscience because

it is well settled that the preservation of open space is a

legitimate municipal goal.” Id., citing Agins v. City of

Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106

(1980), overruled on other grounds by First English Evan-

gelical Lutheran Church v. Los Angeles County, 482 U.S.

304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987). No state or

federal court has ever held that a municipality is barred

from requesting that a developer voluntarily help reduce

the impact of commercial development as part of the

process of rezoning land from residential/agricultural to

commercial. It thus merits emphasis that the Third

Circuit did not determine that acceptance of the voluntary

open space contribution from Waters was a bribe or was

otherwise in violation of state law.

More to the point, the claim that the Township vio-

lated state law by engaging in “contract zoning” with R.J.

14

Waters is a red herring. Petitioner cannot demonstrate a

violation of its substantive due process rights by alleging

an unlawful transaction between the Township and some

other developer concerning an entirely different property.

Petitioner improperly attempts to fuse concepts of equal

protection (which is not at issue before this Court) with

the substantive due process analysis.’

It is interesting that Petitioner complains about the

“Waters deal,” when the record contains no evidence that

Waters was the victim of “unlawful extortion.” The record

is devoid of any suggestion that the contribution by Waters

to preserve open space was anything but voluntary and

proper. If Petitioner truly believed that the Waters’ ap-

provals were improper, Petitioner could have availed itself

of the appeal procedures available under the Municipali-

ties Planning Code. See, e.g., 53 P.S. § 101006-A “Judicial

Relief (a) In a land use appeal, the court shall have the

power to ... set aside or modify any action, decision or

order of the governing body. . . .” 53 P.S. § 101006-A.

The concept of contractually conditioned zoning was

addressed by the Pennsylvania Supreme Court in Carlino

v. Whitpain Investors, 499 Pa. 498, 453 A.2d 1385 (1982),

where the Court held that agreements between a munici-

pality and a landowner that restrict the use of rezoned

property are unenforceable. Jd. at 1388. Importantly, the

Court distinguished the facts presented in Gladwyne

Colony, Inc. v. Lower Merion Township, 409 Pa. 441, 187

* Petitioner never pursued an equal protection claim in this matter.

Nevertheless, had Petitioner preserved the issue of whether a viable

equal protection claim exists, the record is devoid of evidence that RJ.

Waters was similarly situated or that the Township lacked a rational

basis for treating Petitioner differently than R.J. Waters.

15

A.2d 549 (1963), where the Court upheld an agreement

between a municipality and a landowner whereby the

landowner gave consideration (parkland) to the municipal-

ity in exchange for rezoning.

In the instant case, Petitioner’s contract zoning theory

is flawed for the same reasons stated by the Pennsylvania

Supreme Court in Gladwyne, since Petitioner does not

allege, nor does the record reflect, that the amended

zoning ordinance is arbitrary or unreasonably discrimina-

tory or without substantial relation to the public health,

safety and welfare.‘ Petitioner’s claim of contract zoning is

unsupported and falls of its own weight.

Moreover, Petitioner has cited no caselaw to support

that there is any circuit split or other unresolved issue of

federal law as to whether an alleged violation of state law

can satisfy the “shocks the conscience” standard. The

Circuit Courts are in agreement as to this issue, which

further comports with Supreme Court precedent. “As has

been often stated, ‘(t)he violation of a state statute does

not automatically give rise to a violation of rights secured

by the Constitution.’” Estabrook, 680 F.2d at 833, citing

Crocker v. Hakes, 616 F.2d 237, 239 n.2 (5th Cir. 1980) (per

curiam). See also Paul v. Davis, 424 U.S. 693, 700, 96

S. Ct. 1155, 1160, 47 L. Ed. 2d 405 (1976), quoting Screws

v. United States, 325 U.S. 91, 108-09, 65 S. Ct. 1031, 1038,

89 L. Ed. 1495 (1945) (“Violation of local law does not

necessarily mean that federal rights have been invaded.”);

Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 401, 88

* It should be noted that an amendment to the zoning ordinance is

presumptively valid and that the burden rests heavily upon the

Petitioner to demonstrate that the amendment is unconstitutional.

Milk Control Commission v. Battista, 413 Pa. 652, 198 A.2d 840 (1964).

16

L. Ed. 497 (1944) (“[Nlot every denial of a right conferred

by state law involves a denial of the equal protection of the

laws, even though the denial of the right to one person

may operate to confer it on another.”). Accordingly, Peti-

tioner’s claim that the Township “sold” zoning to another

developer in obtaining an open space preservation fee is

neither a valid characterization of the record and the

holdings below, nor is it a valid basis upon which to

conciude that actions of Respondents shocked the con-

science.

ii) The “shocks the conscience” standard ap-

propriately reflects the wariness of the

federal courts from intervening in local

land use decisions.

The Third Circuit is also in agreement with all other

Circuit Courts that have ruled on the issue as to the

wariness of federal courts in adjudicating the rights and

wrongs of local planning disputes. The United Artists

Court noted that the federal courts should be cautious in

adjudicating the rights and wrongs of local planning

disputes. United Artists, 316 F.3d at 402, citing Creative

Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st

Cir. 1982), and Nestor Colon Medina & Sucesores, Inc. v.

Custodio, 964 F.2d 32, 45-46 (1st Cir. 1992). The court

explained that the “shocks the conscience” standard

“prevents [Federal Courts] from being cast in the role of a

“zoning board of appeals.” United Artists, 316 F.3d at 402.

“It is not enough simply to give these state law claims

constitutional labels such as ‘due process’ or ‘equal protec-

tion’ in order to raise a substantial federal question under

section 1983.” Id. The courts have aptly noted that “every

appeal by a disappointed developer from an adverse ruling

17

by a local planning authority involves some claim that the

authority exceeded, abused, or distorted its legal authority

in some manner... .” Estabrook, 680 F.2d at 833. See also

Coniston Corporation v. Village of Hoffman Estates, 844

F.2d 461 (7th Cir. 1988) (Strong disapproval of federal

courts’ reviewing local zoning matters; any action by the

local legislative body on a zoning matter is legislative, and

thus non-reviewable.).

The inappropriateness of allowing every zoning

dispute to transform into a federal Constitutional claim is

further manifest in that there are adequate state law

remedies to vindicate these claims without resort to a

federal court. See Parratt v. Taylor, 451 U.S. 527, 542, 101

S. Ct. 1908, 1916, 68 L. Ed. 2d 420 (1981). Cf. Kent Island

Joint Venture v. Smith, 452 F. Supp. 455 (D. Md. 1978)

(district court abstaining in case where local officials

approved allegedly “unreasonable” water and sewer rules

in order to frustrate local developer). The reluctance of the

federal courts to interfere with local land use decisions is

further consistent with the absolute immunity afforded to

local authorities in making zoning determinations. Bogan

v. Scott-Harris, 523 U.S. 44, 118 S. Ct. 966, 140 L. Ed. 2d

79 (1998).

Accordingly, the Third Circuit properly applied the

“shocks the conscience” standard in the instant matter.

Petitioner’s Writ of Certiorari should not be granted in

this matter given that there is no dispute between the

Circuits as to this issue, and existing Supreme Court

precedent supports the Third Circuit’s ruling. Thus,

Certiorari should be denied.

18

3. Petitioner’s Claim is not ripe.

Review of the instant matter is further inappropriate

as Petitioner’s claim is not ripe. Following Petitioner’s

decision to abandon the approved office campus concept,

Petitioner obtained final plan approval to construct the L-

shaped retail center. Rather than complete this project,

Petitioner attempted to again change course by proposing

to construct entirely different buildings, i.e., a 50,000

square foot supermarket and a 10,000 square foot drug

store. While Petitioner was certainly free to pursue this

concept, Petitioner failed to submit properly engineered

plans as required by the Pennsylvania Municipalities

Planning Code and the Pennsylvania Subdivision and

Land Development Ordinance. Rather, Petitioner only

submitted sketch plans and nothing more. The identical

error was committed by the plaintiff developer in Marriott

Senior Living Services, Inc. v. Springfield Township, 78

F. Supp. 2d 376 (E.D. Pa. 1999). The Marriott Court held

that plaintiff’s Section 1983 claim was not ripe because

the submission of sketch plans for a proposed land devel-

opment under Pennsylvania law does not provide a mu-

nicipality with an opportunity to review the plan in its

preliminary or final form in accordance with the governing

land use ordinances.°

* The term “sketch plan” is conspicuously absent from Petitioner’s

brief. Petitioner refers only to its “application,” which in reality was

only a sketch plan. As stated supra, the Township is not required to

take any official action on a sketch plan, and such does not satisfy the

requirements of Pennsylvania law in regard to land developments.

Petitioner presented no evidence below that refutes the findings of the

Township Engineer, who identified a multitude of deficiencies with

Petitioner’s incomplete sketch plans.

19

In the absence of a final review or denial of appropri-

ately submitted land development plans of Petitioner by

the municipality, Petitioner’s Section 1983 claim in the

instant case is not ripe for adjudication. Here, Petitioner

had failed to submit any preliminary plans for the box-

shaped development proposal, and did so only in sketch

format. It merits emphasis that the individual in Peti-

tioner’s business who took control of the project had no

experience in the land development procedures and was

under the mistaken belief that final approvals had been

obtained. In reality, however, final approvals had only

been obtained from the L-shaped development, not the

box-shaped design. Accordingly, Petitioner was not entitled

to any plan approvals and Petitioner’s substantive due

process claim is unripe. Thus, Petitioner’s Petition for Writ

of Certiorari should not be granted.

¢

CONCLUSION

Petitioner’s Writ of Certiorari should not be granted in

this matter. The Circuit Courts have appropriately applied

the “shocks the conscience” standard in land use cases for

decades in congruence with Supreme Court precedent.

Additionally, while Petitioner demands a more cogent

standard, the necessity for such is obviated by this Court’s

acknowledgement that “shocks the conscience” is not a

precise standard, but must be applied to each matter

independently.

Moreover, the decision of the Third Circuit in the

Thornbury Noble does not conflict with any other federal

court decisions. Its conclusions as to the application of the

“shocks the conscience” standard and the degree of conduct

20

sufficient to satisfy this standard are well established in

other Circuit Courts and are supported by existing Su-

preme Court precedent. There is no circuit split as to this

issue.

Also, Petitioner grossly mischaracterizes the nature of

the voluntary open space contribution as being a violation

of state law, when in fact neither of the Courts below has

so held. Thus, the basis for Petitioner’s claim on appeal

(i.e., that the municipal officials engaged in conscience

shocking conduct by violating state law) is not supported

by the record and did not constitute the basis for the

decisions below. Lastly, review of the instant matter is

further inappropriate as Petitioner’s claim is not ripe.

Accordingly, the grant of Certiorari is not warranted in

this matter.

Wherefore, for the above reasons the petition for a

writ of certiorari should be denied.

Respectfully submitted,

SIANA, BELLWOAR & MCANDREW, LLP

ANDREW J. BELLWOAR, ESQUIRE

MICHAEL G. CROTTY, ESQUIRE .

Attorneys for Respondents

Thornbury Township Board of

Supervisors, Patricia A. Dewey,

J. Christopher Lang, William A.

Schmidt, Jr., Robert A. MacDonnell

and Charles A.W. Wilson