Opinion
CIVIL ACTION NO. 02-cv-0918
March 29, 2004
MEMORANDUM ORDER
Presently before the Court is Defendant, Horsham Township's, Motion for Summary Judgment, (Doc. No. 13). For the following reasons, Defendant's Motion will be granted.
Michael McGee, Township Manager, was also named as a Defendant in his individual capacity. However, Plaintiff subsequently agreed to McGee's dismissal from this lawsuit. (Doc. No. 6.)
I. BACKGROUND
Plaintiffs are Fred's Modern Contracting, Inc., a Pennsylvania Corporation specializing in landscape services, and Fred Giovinazzo, shareholder and president of Fred's Modern Contracting, Inc. (Compl. at ¶ 1.) Defendant is Horsham Township, Pennsylvania. (Compl. at ¶ 2.) Plaintiff brings this action under 42 U.S.C. § 1983, alleging violations of procedural and substantive due process. Plaintiff also alleges common law conspiracy.
Plaintiff Giovinazzo is the sole shareholder of Fred's Modern Contracting, Inc. Use of "Plaintiff" refers to Giovinazzo.
Beginning in 1997, Plaintiff sought Defendant's permission to make changes to his property located at 136 Horsham Road, Horsham Township, Montgomery County, Pennsylvania. The land encompasses 1.41 acres and includes a two and one-half story rental property. (Compl. at ¶ 5.) The property was zoned as part of a General Commercial and Highway Commercial District. (Id. at ¶ 6.) Defendant informed Plaintiff that in order to receive the requisite permission to make changes on the property, Plaintiff would have to seek approval for "`conditional use' from the Board of Supervisors and was required to submit plans for the use of the Property." (Id. at ¶ 9.) Plaintiff submitted his original application to Defendant on August 11, 1997. (Giovinazzo Dep. at 105.) The original application sought permission "to use the Property as an office and workshop area to support his landscaping business." (Compl. at ¶ 10.) The application also detailed Plaintiffs plans to raze the existing structure and replace it with a new structure to house the landscaping business. At that time, Plaintiff also signed a standard waiver that relieved Defendant from its obligation to provide Plaintiff with a response within the requisite ninety-day period. (Pls.' Mot. for Partial Summ. J., Ex. C, "Application for Review of Development Plan".)
The waiver states:
We understand that the time necessary for adequate review of this pl . . . [illegible] . . . including review of plan revisions that may be required for compliance wi . . . [illegible] . . . Zoning or Subdivision regulations, may exceed the 90-day review period prescribed by the Municipalities Planning Code, Act 247.
In recognition of the above, we hereby waive the 90-day review limit with the understanding that we may revoke this waiver at any time in the future, upon 30-days written notice to the Township.
(Pls.' Mot. for Partial Summ. J., Ex. C, "Application for Review of Development Plan".)
The Township Engineer subsequently informed Plaintiff that an area of the property was within the 100-year floodplain, as delineated by the Federal Emergency Management Agency ("FEMA"), and that landfill had been placed within a portion of that floodplain, in violation of FEMA's provisions. (Compl. at ¶ 12.) Plaintiff states that from the late 1970s until 1997, Plaintiff, with the permission of the then-owner of the 136 Horsham Road property, Charles Brooks, dumped landfill onto the property. (Giovinazzo Dep. at ¶¶ 22-23.) At some point during the late 1980s, the Township contacted Brooks and instructed him to remove the landfill located in the floodplain. Plaintiff met with a Township representative, learned which portion of the lot was within the floodplain, and removed the landfill from that area. According to Plaintiff, the issue was resolved within a matter of weeks. (Id. at 34-36.)
Sometime prior to submitting his first application in August 11, 1997, Plaintiff purchased the 136 Horsham Road property from Brooks for $135,000. (Giovinazzo Dep. at 63-64.) Between February and April 1998, Defendant held hearings before the Board of Supervisors on Plaintiff's application for conditional use. In May 1998, Defendant granted Plaintiff use of the property, conditioned on "Giovinazzo removing a portion of the fill located on the property on or before October 30, 1998." (Pls.' Br. and Resp. to Def.'s Mot. for Summ. J. at 8.) Then, as is customary, Defendant forwarded Plaintiffs conditional use application to FEMA. Plaintiff claims that Defendant was then obligated to request a Eetter of Map Revision ("EOMR") from FEMA so that the floodplain restrictions could be lifted, but failed to do so. (Compl. at ¶¶ 20-21.)
In May 1999, Plaintiff requested to meet with Township personnel to discuss the LOMR and other details that would enable him to utilize the property. (Id. at ¶¶ 23-24.) Plaintiff claims that Defendant's Solicitor sent Plaintiff's attorney a letter stating: "The Township is not inclined to meet with Mr. Giovinazzo. If Mr. Giovinazzo is unhappy with the conditions of the Conditional Use approval, he can apply for an amendment, and we will hold a hearing. Otherwise, Council will insist on compliance with the conditions." (Id. at ¶ 25.)
Plaintiff alleges that from 1997 through March 2001, he was billed for "costs and fees ostensibly incurred by Horsham related to the review of the plans for Giovinazzo's use of the Property by Horsham's consultants." (Id. at ¶ 28.) Plaintiff claims to have disputed these fees, but it is unclear precisely when he notified Defendant of this dispute. In March 2001, Plaintiff submitted a new plan for Defendant's review. Plaintiff claims that the March 2001 plan eliminated any development on the floodplain, so as to avoid potential problems with FEMA. (Id. at ¶¶ 29-31.) In April 2001, Defendant informed Plaintiff that his plans would not be accepted or reviewed until the fees and costs were resolved. (Id. at ¶ 33.) Plaintiff emphasizes that Pennsylvania's Municipalities Planning Code ("MPC") permits applicants to avoid denial of their applications due to pending fees, if they dispute the fees within fourteen days of receiving the bill. However, Plaintiff does not claim that he notified Defendant within the requisite fourteen-day period.
Fifty-three PA. CONS. STAT. § 10503 provides, in part:
In the event the applicant disputes the amount of any such review fees, the applicant shall, within 14 days of the applicant's receipt of the bill, notify the municipality that such fees are disputed, in which case the municipality shall not delay or disapprove a subdivision or land development application due to the applicant's request over disputed fees.
53 PA. CONS. STAT. § 10503(1)(i).
On July 23, 2001, Plaintiff advised Defendant that his application was deemed approved because Defendant had failed to "review or provide substantive comments on the plan submitted by Giovinazzo within the 90 days prescribed for a substantive review." (Compl. at ¶ 38.) Defendant claimed that the plan was not deemed approved because Plaintiff had signed a waiver when he submitted the original plan in August 1997, and informed Plaintiff's counsel that if Plaintiff wished to revoke the waiver, he should do so in writing. (Letter from Rice to Logan of 8/3/01; Def.'s Ex. X.) Defendant scheduled review hearings for December 4, 2001, and January 28, 2002, and ultimately denied Plaintiff's March 2001 plan on February 13, 2002. (Br. in Supp. of Pls.' Mot. for Partial Summ. J. at unnumbered 5.) Plaintiff maintains that the plan was deemed approved because Defendant failed to meet the ninety-day deadline. Plaintiff alleges that Defendant's actions have prevented him from using his own property. Plaintiff's two count Complaint alleges violations of procedural and substantive due process in Count I, and common law conspiracy in Count II.
II. LEGAL STANDARD
We apply the familiar standard applicable to the consideration of a motion for summary judgement. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). In considering a motion for summary judgment, "a court does not resolve factual disputes or make credibility determinations, and must view facts and inferences in the light most favorable to the party opposing the motion." Siegel Transfer. Inc. v. Carrier Express. Inc., 54 F.3d 1125, 1127 (3d Cir. 1995). The moving party bears the burden of proving that no genuine issue of material fact is in dispute. Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). Once the moving party has carried its initial burden, to prevent summary judgment the non-moving party "may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial." FED. R. Civ. P. 56(e).
III. DISCUSSION
Defendant's Motion for Summary Judgment addresses Plaintiff's claims of procedural and substantive due process, as well as common law conspiracy. We will discuss each in turn.
A. Procedural Due Process
Plaintiff claims that his procedural due process rights have been violated because "the MPC provides no remedy for a `deemed approval'." (Pls.' Br. and Resp. to Def.'s Mot. for Summ. J. at 6.) We disagree. InDeBlasio v. Zoning Bd. of Adjustment, the Third Circuit held that in order to establish a procedural due process violation, the plaintiff would have to establish that "a person acting under color of state law deprived him of a protected property interest" and that "the state procedure for challenging the deprivation does not satisfy the requirements of procedural due process." 53 F.3d 592, 597 (3d Cir. 1995) (citing Midnight Sessions. Ltd. v. City of Phila., 945 F.2d 667, 680 (3d Cir. 1991)). In Bello v. Walker, the Third Circuit addressed the requirements of constitutionally adequate procedural due process: "It is the law in this Circuit that a state provides adequate due process when it provides `reasonable remedies to rectify a legal error by a local administrative body.'" 840 F.2d 1124, 1128 (3d Cir. 1988) (quoting Cohen v. City of Phila, 736 F.2d 81, 86 (3d Cir. 1984)). We conclude that Pennsylvania provides such remedies, but Plaintiff simply chose not to pursue them. Id. ("Pennsylvania affords a full judicial mechanism with which to challenge the administrative decision to deny an application for a building permit.")
Plaintiff argues that these procedural protections are not available in his case because section 508 of the MPC, has "no available appeal procedure because the approval [is] automatic." (Pls.' Br. and Resp. to Def.'s Mot. for Summ. J. at 5.) In support of this contention, Plaintiff cites Borough of Plum v. Tresco, 606 A.2d 951 ( Pa. Commw. 1992). However, the court in Plum does not state that a landowner has no right to appeal under section 508, but rather a landowner invoking section 508 is not required to appeal because the deemed approval is automatic when a violation occurs. Id. at 953. Plaintiff has brought the instant case to this Court, seeking enforcement of section 508 by combining that relief with an action under § 1983. Alternatively, Plaintiff could have chosen a state forum for his land use appeal. The MPC specifically provides for appeals to the Court of Common Pleas for individuals seeking to challenge a municipality's land use decision. 53 PA. CONS. STAT. §§ 11001-A, 11002-A. In any event, we are satisfied that Plaintiff has reasonable remedies available to him, such that no procedural due process violation could exist. Accordingly, we will grant Defendant's Motion for Summary Judgment as it relates to Plaintiffs claims of procedural due process violations.
Section 508 states, in part:
(2) When the application is not approved in terms as filed the decision shall specify the defects found in the application and describe the requirements which have not been met and shall, in each case, cite to the provisions of the statute or ordinance relied upon.
(3) Failure of the governing body or agency to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented unless the applicant has agreed in writing to an extension of time or change in the prescribed manner of presentation of communication of the decision, in which case, failure to meet the extended time or change in manner of presentation of communication shall have like effect.
53 PA. CONS. STAT. § 10508(2)-(3).
B. Substantive Due Process
Plaintiff claims that Defendant violated his substantive due process rights. In Levin v. Upper Makefield Township, the district court observed that "[a] successful substantive due process challenge to an executive act requires the Plaintiff to prove: (i) an interest protected by the Fourteenth Amendment's Due Process Clause; and (ii) [that] the government's deprivation of that protected interest `shocks-the-conscience.'" Civ. A. No. 99-5313, 2003 WL 21652301, at *4 (E.D. Pa. Feb. 25, 2003) (citing County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)). As to the first prong, it is apparent that Plaintiff's allegations suggest that Defendant has denied him "use and enjoyment of property." Id. (citing DeBlasio, 53 F.3d at 600-01).
As to the second prong, Plaintiff alleges that the following three acts shock the conscience:
1. The Township never communicated with Giovinazzo about communications with FEMA;
2. The Township intentionally concealed its decision to cease review of Giovinazzo's application; and
3. The Township's animus toward Giovinazzo.
(Pls.' Br. and Resp. to Def.'s Mot. for Summ. J. at 8, 10, 13.)
The Third Circuit adopted the shocks-the-conscience standard for substantive due process claims involving disputes between landowners and zoning boards in the case of United Artists Theatre Circuit. Inc. v. Township of Warrington, Pa., 316 F.3d 392 (3d Cir. 2003). In reaching its conclusion, the court looked to Supreme Court precedent involving substantive due process and observed: "`[T]he core of the concept of due process is `protection against arbitrary action' and that `only the most egregious official conduct can be said to be arbitrary in the constitutional sense.'" Id. at 399 (quoting Lewis, 523 U.S. at 846). TheUnited Artist court further noted that "the measure of what is conscience-shocking is no calibrated yard stick" and "[d]eliberate indifference that shocks in one environment may not be so patently egregious in another." Id. (quoting Lewis, 523 U.S. at 847, 850 (internal citations omitted)).
The meaning of what shocks the conscience "varies depending on the factual context." Id. at 399-400. In defining the shocks-the-conscience standard, the Third Circuit's former standard in land-use regulation cases, the improper motives test, is instructive. In Bello, the Third Circuit stated that under the improper motives test, a plaintiff had to show that "the officials' decision to deprive the Plaintiff of a property interest . . . was arbitrary, irrational, or tainted with improper motive." Levin, 2003 WL 21652301, at *7 (citing Bello, 840 F.2d at 1129). When overruling Bello with its decision in United Artists, the Third Circuit stated that "its previous land-use regulations rulings are irreconcilable with the Supreme Court's substantive due process analysis . . . and that the `less demanding improper motive test for governmental behavior,' is no longer applicable." Levin, 2003 WL 21652301, at *7 (citing United Artists, 316 F.3d at 400).
Precedent that provides general boundaries for determining what shocks the conscience is also instructive. In Levin, the court found that (i) the Township purposely delayed in issuing a final building permit to the Plaintiff, even after the Pennsylvania Supreme Court denied allocatur on the Township's appeals; (ii) the Township's act of cashing Plaintiffs $2,300 permit fee before issuing any of the requested permits was "dubious"; and (iii) Township officials' proposed ordinance was drafted with the sole intent of restricting Plaintiff from building on his property. 2003 WL 21652301, at *9. In granting summary judgment for the Township, theLevin court concluded that the record pointed to improper motive, but not conscience-shocking behavior. Id. At the summary judgment stage, we must view the facts in a light most favorable to the Plaintiff, the non-moving party. Even under such an analysis, we cannot conclude that Defendant's actions rise to the level of conscience-shocking behavior required for a substantive due process violation.
1. Correspondences with FEMA
Plaintiff's first substantive due process claim is that Defendant failed to inform him that FEMA had concluded that "no conditional Letter of Map Revision was necessary for Giovinazzo to utilize his property." (Pls.' Br. and Resp. to Def.'s Mot. for Summ. J. at 9.) According to Plaintiff, in May 1998, Defendant granted Plaintiff use of the property, conditioned on "Giovinazzo removing a portion of the fill located on the property on or before October 30, 1998." (Id. at 8.) Then, as is customary, Defendant forwarded Plaintiff's conditional use application to FEMA. According to Plaintiff, FEMA then advised Defendant that "in the event the Conditional Use affected FEMA's flood plan delineation, a `Letter of Map Revision' ("LOMR") would be required and that only [Defendant], not [Plaintiff] could request a LOMR." (Id.) In a letter dated October 20, 1998, FEMA informed Defendant that the landfill needed to be removed from the property in order to avoid a "potential floodway violation." (Letter from Frengs to McGee of 10/20/98 at unnumbered 2; Def.'s Ex. P.) The letter goes on to state that after removing the landfill, "the township will not need to make any official request for a conditional LOMR for this case." (Id.) However, FEMA also stated that Plaintiff "may still be subjected to flood insurance purchase requirements. . . .[and Plaintiff] may obtain a LOMR-based on Fill (LOMR-F) to remove the property from the 1% annual chance floodplain, thus ending the Federal flood insurance purchase requirements." (Id.) Plaintiff alleges, and Defendant does not disagree, that Defendant failed to inform Plaintiff that "no conditional Letter of Map Revision was necessary for Giovinazzo to utilize his property" and that Defendant "remained mute while the October deadline for satisfaction of the `conditions' to use the property passed." (Pls.' Br. and Resp. to Def.'s Mot. for Summ. J. at 9.) Plaintiff alleges that Defendant's failure to keep him informed of information from FEMA caused Plaintiff to miss the October 30, 1998, conditional use deadline set by Defendant and that these acts "shock the conscience." (Id.) Even if we assume that Plaintiff is correct in his statement that no LOMR was necessary, and that Defendant failed to relay that information to Plaintiff, we cannot agree that this act rises to the level of conscience-shocking behavior envisioned by the United Artist standard. At its worst, Defendant's behavior might indicate an improper motive, which is no longer sufficient for a substantive due process claim.
FEMA also explained the purpose of the LOMR-F:
A LOMR-F is an official document issued by FEMA that officially removes a property or parcel from the 1% annual chance floodplain, if data supporting the removal are submitted. To obtain necessary supporting data, Mr. Giovinazzo may need to retain the services of a land surveyor or engineer. FEMA then, will issue a LOMR-F as appropriate, if [certain conditions are met]. . . . FEMA charges a $400 fee for the engineering review of a LOMR-F request.
(Letter from Frengs to McGee of 10/20/98 at unnumbered 2; Def.'s Ex. P.)
While FEMA's letter of October 20, 1998 suggests that no LOMR is necessary, it also states that Plaintiffs may need a LOMR-F. For the purposes of our analysis, it is not necessary to distinguish between the two documents.
2. Refusal to Review Applications
Next Plaintiff states that the "Township intentionally concealed its decision to cease review of Giovinazzo's Application." (Id. at 10.) According to Plaintiff, in a letter from McGee to Rice, dated October 18, 1999, McGee stated: "In an attempt to halt any additional fees that would need to be absorbed by the Taxpayers, I am directing Russ Dunlevy to cease any reviews of materials on behalf of Giovinazzo's application at this time, pending further direction from you." (Id. at 11 (citing Ex. D; Dunlevy Dep. Ex. 1).) Plaintiff states that the permit pending on October 18, 1999, was never issued. Plaintiff claims that this directive remained in place until October 31, 2001, and that on March 2001, Plaintiff submitted new plans for consideration, not knowing that Defendant would not review them. (Id.)
We note that Plaintiff claims that Defendant never informed him that his applications would not be reviewed until the fees were paid. However, the April 10, 2001 letter from Plaintiff's attorney to Rice clearly indicates that Plaintiff was aware of that decision. "Fred Giovinazzo recently filed with Horsham Township a revised set of plans for review for his land development, only to be advised that the plans will not be accepted or reviewed unless significant fees are paid." (Eetter from Logan to Rice of 4/10/01, Def.'s Ex. U.)
The fees cited in McGee's letter refer to aged balances that Plaintiff owed Defendant for costs associated with previous application requests. As allowed under the MPC, 53 PA. CONS. STAT. § 10503, and the Subdivision and Land Development Ordinance ("SALDO") for Horsham Township, Defendant may charge reasonable fees for plan review. In May 1999, Defendant mailed Plaintiff a reminder that his bill was past due and notified Plaintiff that Defendant had begun applying finance charges toward Plaintiff's account. By April 17, 2001, Plaintiff's outstanding balance for these fees was $4,242.03. (Letter from Rice to Logan of 4/17/01; Def.'s Ex. V.) Plaintiff does not dispute that Defendant had the right to collect fees for plan review, but claims that Defendant can site no legal authority that allows a township to refuse to review plans submitted by an individual whose bill is past due. Plaintiff also points out that "the Township has finally admitted that Giovinazzo was correct in his challenge to many of the invoices." (Pls.' Br. and Resp. to Def.'s Mot. for Summ. J. at 12.) Even if we accept that some of the invoices were in error, it does not follow that Defendant should have continued to review Plaintiffs plans, despite his overdue balance. Given that Defendant provides a plausible explanation for its actions, (Plaintiff was indeed past due on at least some of his bills), we cannot agree that Defendant's response to Plaintiff's delinquency was conscience-shocking or even unreasonable.
We note that Plaintiff's Complaint references the MPC provision that prevents a township from denying review of an applicant who has disputed fees within fourteen days of receiving his or her bill, and that Plaintiff never indicated that he had met the fourteen-day deadline. Plaintiff's Response to Defendant's Motion for Summary Judgment makes no mention of the MPC provision and does not contend that Plaintiff disputed the fees within the requisite fourteen days.
We further note that 53 PA. CONS. STAT. § 10503 provides a safe harbor for those applicants who want to dispute the costs and fees without facing denial of an application for overdue balances. This provision implies that the township has the right to refuse applications from applicants whose bills are overdue.
Plaintiff admits that as of January 30, 2003, fees have not been paid. (Br. in Supp. of Pls.' Mot. for Summ. J. at unnumbered 5.)
3. Animus Toward Giovinazzo
Finally, Plaintiff alleges that the Township's animus toward Plaintiff Giovinazzo was conscience-shocking. In support of this contention, Plaintiff states that McGee "told [Plaintiff] that he would never get his application for land development approved." (Id. at 13.) However, this statement distorts the truth. According to Plaintiffs deposition testimony, what McGee actually stated was that "some people could get this approved in three months; others will never get it approved." (Id. (citing Giovinazzo Dep. at 75-76).) Plaintiff claims that this statement, in addition to the other allegations discussed herein, amount to a violation of substantive due process. Again, we disagree. InAmerican Marine Rail NJ, LLC v. City of Bayonne, the district court concluded that the holdings in Levin and Grimm v. Sweeney, 249 F. Supp.2d 571 (E.D. Pa. 2003) (borough's numerous citations against individual who had brought suit against borough were supported by ample evidence and did not shock the conscience), "demonstrate that improper motives, particularly personal animus toward a plaintiff, do not shock the conscience for constitutional purposes." 289 F. Supp.2d 569, 584 (D.N.J. 2003) (emphasis added). In the instant case, we are not persuaded that McGee's statement, even if interpreted as Plaintiff suggests, rises to a level of animus that shocks the conscience.
In United Artists, the court warned that: "Land-use decisions are matters of local concern, and such disputes should not be transformed into substantive due process claims based only on allegations that government officials acted with `improper' motives." 316 F.3d at 402. Plaintiff addresses this concern by claiming that he is not complaining about the result, but the process. (Pls.' Br. and Resp. to Def.'s Mot. for Summ. J. at 7.) However, by requesting that we declare Plaintiff's 2001 plans unconditionally approved (Compl. at ¶ 57(c)), and enjoin Defendant from denying building permits (Compl. at ¶ 57(f)), Plaintiff is in fact complaining about the result. Accordingly, we will grant Defendant's Motion for Summary Judgment as it relates to Plaintiff's substantive due process claims.
C. Common Law Conspiracy
Defendant argues, and Plaintiff apparently does not disagree, that because Michael McGee was dismissed from this lawsuit, leaving Horsham Township as the sole Defendant, Plaintiff cannot proceed with the conspiracy claim. Horsham Township cannot conspire with itself, and it is well-established that a government entity cannot conspire with its agents if those agents are acting in their official capacity. Robison v. Canterbury Village. Inc., 848 F.2d 424, 431 (3d Cir. 1988) (affirming the district court's holding that a corporation cannot conspire with its president): see also Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972) ("[W]here challenged conduct is essentially a single act of discrimination by a single business entity, the fact that two or more agents participated in the decision or in the act itself will not normally constituted the conspiracy contemplated by [§ 1983(5)].") Accordingly, we will grant Defendant's Motion for Summary Judgment as to Count II of the Complaint.
IV. CONCLUSION
For the foregoing reasons Defendant's Motion for Summary Judgment will be granted. An appropriate Order follows.
AND NOW, this 29th day of March, upon consideration of Defendant's Motion for Summary Judgment (Doc. No. 13), and all papers filed in support thereof and opposition thereto, it is hereby ORDERED that Defendant's Motion is GRANTED.
IT IS SO ORDERED.