Acierno v. Cloutier

Decision Date18 October 1994
Docket Number93-7617,No. 93-7617,No. 93-7456,Nos. 93-7456,M,93-7456,s. 93-7456
Citation40 F.3d 597
PartiesFrank E. ACIERNO v. Philip CLOUTIER; Richard Cecil; Robert Powell; Robert Woods; Christopher Roberts; Penrose Hollins; Karen Venezky; New Castle County; Michael Mitchell, Philip Cloutier, Richard Cecil, Robert Powell, Robert Woods, Christopher Roberts, Penrose Hollins and Karen Venezky, Appellants inichael T. Mitchell, Appellant in
CourtU.S. Court of Appeals — Third Circuit

Before: GREENBERG, COWEN and NYGAARD, Circuit Judges.

Submitted in banc August 30, 1994

Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS and McKEE, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

In this action under 42 U.S.C. Sec. 1983, the defendants have appealed the denial of their motions to dismiss on absolute and qualified immunity grounds. These appeals were first heard by a panel of this court, which was bound by Prisco v. United States Dep't of Justice, 851 F.2d 93 (3d Cir.1988), cert. denied, 490 U.S. 1089, 109 S.Ct. 2428, 104 L.Ed.2d 985 (1989). In that case it was held that a defendant may not appeal the denial of a claim of qualified immunity under the collateral order doctrine if the defendant would nevertheless be required to go to trial on a claim for injunctive relief. When the panel opinion was circulated to the full court before publication, the court voted to grant rehearing in banc for the purpose of reconsidering Prisco. Having done so, the full court has decided that Prisco should be overruled. Part IIB of this opinion, which represents the opinion of the court sitting in banc, addresses that issue. The issues addressed in the remainder of this opinion have been considered by the panel only.

In still another chapter in the extensive volume of litigation between Frank Acierno and the members of the New Castle County Council ("County Council") in Delaware concerning Acierno's various development projects, we are called upon to decide whether the members of the County Council are entitled to immunity from suit for their actions of enacting two ordinances which down-zoned Acierno's commercial property. We conclude that both the present and former members of the County Council are immune from suit because the actions they took with respect to Acierno's commercial property were either substantively and procedurally legislative in nature, or did not abrogate a clearly established property interest. Accordingly, we will reverse the district court's denial of the motion for summary judgment made by the present and former members of the County Council on immunity grounds. We will also reverse the district court's order denying First Assistant County Attorney Mitchell's motion to dismiss on immunity grounds.

I.
A. Factual Background

Plaintiff Frank E. Acierno, a real estate developer, purchased a thirty-eight acre parcel of land located in New Castle County, Delaware (the "property") on October 5, 1984 for slightly more than $1,000,000. As of April, 1971, the property had a classification under New Castle County's zoning ordinance as a "diversified planned unit development" ("DPUD"). A major land development plan for the property was approved by the County and recorded on April 11, 1974. The approved record development plan provided for the construction of a 322 unit apartment complex (to be called "The Maples Apartments"), together with the development of .87 acres of land for commercial use.

It is undisputed that Acierno's interest in owning the property was partly by reason of its DPUD zoning classification and the fact that the property was the subject of an approved record development plan. Before closing on the property, Acierno sought and received assurances from the New Castle County Department of Planning ("Department of Planning") regarding the current zoning and record plan status of the property. In response to Acierno's request, the Department of Planning issued a letter opinion which stated the following: "The land is still currently zoned Diversified Planned Unit Development (DPUD). The status of the record plan is that it is current and, therefore, the uses permitted are noted on the plan subject to limitations regarding the density, commercial area, etc." Appendix ("App.") (No. 93-7456) at 131. In reliance on these factors, Acierno paid a premium of approximately $900,000 for the property. At the time of purchase, the description of the property specifically noted that the parcel had been approved by County officials for the construction of 322 apartment units.

In October, 1985, Acierno filed with the Department of Planning a revised development plan for the property, which was now to be known as the "Westhampton project." Thereafter, in December, 1985, the County Council issued a resolution pursuant to section 23-81(21) of the County Code 1 requesting that the Department of Planning provide a recommendation as to whether the existing record plan for the property should be voided. The County Council issued this resolution based on concerns that DPUD rezonings were not being developed in a timely fashion, that the density of housing might adversely impact on the general quality of life in the County, that an updated review of traffic, water, and sewer facilities was necessary, and that the Subdivision Advisory Committee should review the project in light of the character of the existing neighborhood. The record reflects that the project was the only DPUD-zoned property with a record development plan subject to review by the County.

In response to the resolution, the Department of Planning solicited comments from various municipal departments and determined that the property had adequate traffic, water, and sewer capacity. Therefore, the Department of Planning did not make a recommendation that the County Council void the record development plan. Two months later, the then Council Attorney sent a memorandum to the County Council pertaining to the resolution. The memo stated that there was nothing more for the County Council to consider since the voiding provision of the New Castle County Code, Sec. 23-81(21), "indicates that the [Department of Planning] must affirmatively support the voiding of a record plan before Council's discretion comes into being. Without such prerequisite support, Council has no discretion to act. If this were not the case, review by the [Department of Planning] would be meaningless." App. (No. 93-7456) at 140.

On March 11, 1986, then County Council President Karen Peterson informed Acierno that nothing remained for the County Council to consider regarding the resolution and that no further ordinances or resolutions had been proposed concerning the property. Acierno then undertook a revision of the subdivision plan 2 for the property to address concerns raised by the County regarding the planned use for the site. The Department of Planning informed Acierno that his revised and updated subdivision plan for the Westhampton project was approved and recorded on April 18, 1986. A subsequent revised subdivision plan, superseding the April plan, was approved and recorded on December 5, 1986.

During 1987 the County Council revised, updated, and amended the DPUD zoning classification. At the time a workshop concerning the zoning amendment effort was held in October, 1987, the proposed amended DPUD ordinance contained a "savings clause" which provided as follows:

Section 4. This ordinance shall become effective immediately upon its adoption and approval except for rezoning applications currently pending DPUD approval which shall be exempt from the provisions of this ordinance, but subject to the provisions of the Code in effect at the time of rezoning to DPUD.

App. (No. 93-7456) at 92. This proposed DPUD ordinance, known as "Substitute Ordinance No. 1 to Ordinance 87-025," was not enacted into law. In response to suggestions made during the workshop, the savings clause was revised to read as follows:

Section 4. This ordinance shall become effective immediately upon its adoption and approval except for rezoning applications currently pending DPUD approval which shall be exempt from the provisions of this ordinance except Section 23-81(18), but subject to the provisions in the Code in effect at the time of rezoning to DPUD.

App. (No. 93-7456) at 113 (emphasis added). 3 This revised DPUD ordinance, known as "Substitute Ordinance No. 2 to Ordinance 87-025," was adopted into law by the County Council on October 13, 1987. Id. at 93, 113. The language of the savings clause is relevant to this dispute because Acierno alleges that the County Council, through an opinion issued by First Assistant County Attorney Michael T. Mitchell, relied upon the unenacted version to conclude that it had discretion to void Acierno's record development plan.

In 1988, Acierno further revised the Westhampton project subdivision plan and submitted it for County review. In June, 1988, the Department of Planning informed Acierno that the subdivision plan, superseding the December 5, 1986 subdivision plan, was approved and recorded. By December, 1988 when a further revised subdivision plan was approved and recorded, Acierno had spent in excess of $1,000,000 to further his development plans for the property, including expenses for mortgage interest, engineering fees, and real estate taxes. It is not...

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