Bello v. Walker, 87-3504

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation840 F.2d 1124
Docket Number87-3505,Nos. 87-3504,No. 87-3505,No. 87-3504,87-3504,s. 87-3504
PartiesDino BELLO, an individual and Simmons Park Properties, Inc., a corporation, v. Norman L. WALKER, John E. Kanon, James M. Martin, Joseph J. Urbanowicz, Harry E. Babinger, James E. Hadsell, Yvonne A. Rigatti, Glenn Trautmen, William W. Ruhl, William G. Dodds, Patricia M. Price, Concetta Serdy, and Reid W. McGibbeny, individuals. Appeal of Dino BELLO and Simmons Park Properties, Inc., AppellantsDino BELLO, an individual and Simmons Park Properties, Inc., a corporation, v. MUNICIPALITY OF BETHEL PARK. Appeal of Dino BELLO and Simmons Park Properties, Inc., Appellants
Decision Date01 March 1988

Richard L. Rosenzweig (argued), Rosenzweig & Burton, Pittsburgh, Pa., for appellants.

Marvin A. Fein (argued), Baskin Flaherty Elliot & Mannino, Pittsburgh, Pa., for appellees.

Before SLOVITER and COWEN, Circuit Judges, and DEBEVOISE, District Judge *.


COWEN, Circuit Judge.

These cases arise from a municipality's delay in issuing a building permit. They require us to decide whether a person's constitutional right to due process can be violated when municipal officials process an application for a building permit pursuant to a constitutionally adequate procedure, but deliberately and arbitrarily abuse government power to deny the application. We hold that such acts can violate a person's right to substantive due process. One of the cases also presents the issue whether a lengthy delay in obtaining a building permit can result in an unconstitutional taking of property without just compensation. We hold that absent extraordinary circumstances not presented by this case, delays in issuing a building permit do not result in a "taking" of property such that just compensation is constitutionally mandated. 1 We will reverse the district court's grant of summary judgment in favor of defendants as to plaintiffs' due process claims, but will affirm the grant of summary judgment as to the remainder of plaintiffs' claims.


Plaintiff Dino Bello is the principal stockholder of Simmons Park Properties, Inc. ("Simmons Park"), also a plaintiff in this case. In July of 1976, Bello and Simmons Park applied to the municipality of Bethel Park for review and approval of a subdivision plan. The site plan they submitted indicated that the plan had five phases, numbered I through V, each separated by a boundary line.

The plan was eventually approved, and the plaintiffs had no difficulty obtaining building permits for phase I of the project. Forty-seven housing units, comprising phase I, were completed in the spring of 1979. In May of 1979 the plaintiffs applied for building permits allowing them to commence construction of the housing units comprising phase V of the project. Norman Walker, Bethel Park's Code Enforcement Officer, denied the plaintiffs' application, ostensibly because the plaintiffs sought to construct phase V of the project before completing phases II-IV. The plaintiffs, however, had never agreed to develop the project in the order suggested by the phases.

On June 8, 1979, Bello and Simmons Park instituted an action in mandamus in the Court of Common Pleas of Allegheny County seeking issuance of the permits and damages, and a peremptory judgment. The case was referred to a referee, who filed a tentative decision denying the motion for a peremptory judgment. On March 26, 1980, the court of common pleas granted peremptory judgment. On January 23, 1981, the court vacated its previous order and adopted the referee's decision. The court then held a hearing on the matter and on May 5, 1981, ordered the municipality to issue the building permits. An appeal from that order was quashed for failure to preserve objections.

On September 3, 1980, the plaintiffs filed a complaint under 42 U.S.C. Sec. 1983 in the United States District Court for the Western District of Pennsylvania against the individual defendants, 2 and on March 11 1981, a separate complaint against the Municipality of Bethel Park. Plaintiffs alleged, essentially, that a number of municipal officials improperly influenced the decision to deny them building permits. These actions allegedly deprived them of their constitutional rights to due process and equal protection, and violated federal antitrust laws. An amended complaint filed against the individual defendants also alleged that these actions constituted an unconstitutional taking of property without just compensation.

The defendants moved for summary judgment on October 9, 1984, and the motion was referred to a magistrate for a report and recommendation. In support of their motion defendants presented, among other evidence, the affidavit of defendant Walker. Walker stated that he individually made the decision to deny the building permits on the basis that the plaintiffs sought to develop phase V before phases II-IV, and that no other defendant or town official influenced his decision making process.

In opposition to the motion, the plaintiffs presented evidence indicating that certain members of the town council were strongly opposed to multi-unit housing, including their project, and that two members of the council had personal animosity towards one of the plaintiffs' employees, Raymond Kirich. In particular, plaintiffs point to the alleged acts and statements of defendants Yvonne Rigatti, whom Kirich had opposed in a municipal election, and Joseph Urbanowicz. According to the affidavits of Kirich and Bello, various defendant members of the council admitted in conversations that Rigatti and Urbanowicz had pressured them to hinder plaintiffs' development as long as Simmons Park employed Kirich. Bello's affidavit states that he discussed the matter of the permits with members of the council who told him that they spoke to defendant Walker regarding the issuance of the building permits.

The magistrate filed her report and recommendation on April 28, 1987, and recommended that the district court grant defendants' motion for summary judgment. After the plaintiffs filed objections to the report and recommendation, and the defendants responded to those objections, the district court granted the defendants' motion by order dated June 4, 1987.

The plaintiffs subsequently filed a motion to vacate the district court's order. They argued that in light of the Supreme Court's then recent decision in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, --- U.S. ----, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), the district court improperly dismissed their claim that their property was taken without just compensation. The plaintiffs' motion to vacate was denied by order dated July 22, 1987. The plaintiffs have filed a notice of appeal which specifies that they appeal from the district court's order of June 4, 1987.


Our review of a district court's grant of summary judgment is plenary. Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 142 (3d Cir.1987).


The first issue presented by this case is whether the district court properly dismissed plaintiffs' constitutional due process claims by way of summary judgment. Plaintiffs assert that the defendants' actions violated their fourteenth amendment right to both procedural and substantive due process. We will consider each of these contentions separately.


Plaintiffs argue that Bethel Park's delay in issuing them a building permit was a denial of property without predeprivation due process. See Stana v. School Dist. of Pittsburgh, 775 F.2d 122, 127-29 (3d Cir.1985). However, the determination whether to issue a building permit is an administrative decision, and it was the plaintiffs' decision to invoke that governmental mechanism by applying for the permit. This case does not involve a pre-deprivation denial of property, but rather a decision to deny a building permit. Nevertheless, the procedure at issue must comport with constitutional due process.

The issue presented by this case is similar to that presented in Rogin v. Bensalem Twp., 616 F.2d 680 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981). In Rogin, the plaintiff argued that a Pennsylvania municipality's administrative land use decision violated his right to procedural due process. We held that the plaintiff had failed to set forth a procedural due process claim where he "set forth [no] behavioral or structural allegations from which we can infer that [the] process was unconstitutional." Id. at 694. We noted that Pennsylvania's procedures for challenging zoning ordinances substantially conformed with the due process guidelines enunciated by the Supreme Court. Id. at 695.

Here, as in Rogin, Pennsylvania affords a full judicial mechanism with which to challenge the administrative decision to deny an application for a building permit. Indeed, the plaintiffs utilized that mechanism and obtained a building permit. While the Pennsylvania courts have ruled that the initial decision to deny the permit was wrong, the plaintiffs have not and cannot show that the decision was made pursuant to a constitutionally defective procedure.

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.' " Cohen v. City of Philadelphia, 736 F.2d 81, 86 (3d Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984) (quoting Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 832 n. 9 (1st Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982)). Pennsylvania clearly provides such remedies, as this case exemplifies, 3 and therefore plaintiffs' have no justifiable due process claim.


The plaintiffs' substantive due process claim has greater merit. Recent decisions of the Supreme Court and this Circuit have diminished...

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