# Opposition Brief — Tate v. Kopec

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 956

## Text

Jaf. wan
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Tint
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,

¥.

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

ry
»

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0534%3A3. Public record. Not legal advice.