De Botton v. Marple Tp., Civ. A. No. 87-3864.

• Decision Date: 22 April 1988
• Docket Number: Civ. A. No. 87-3864.
• Citation: 689 F. Supp. 477
• Parties: Claude de BOTTON v. MARPLE TOWNSHIP, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

689 F. Supp. 477

Claude de BOTTON v. MARPLE TOWNSHIP, et al.

Civ. A. No. 87-3864.

United States District Court, E.D. Pennsylvania.

April 22, 1988.

COPYRIGHT MATERIAL OMITTED

Michael Sklaroff, David L. Cohen, Joanne Phillips, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for plaintiff.

Richard M. Rosenbleeth, James P. Golden, Ann B. Laupheimer, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., Michael F.X. Gillin, Media, Pa., for defendants.

MEMORANDUM

GAWTHROP, District Judge.

Pending before this court is the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), filed by the defendants, Marple Township, the Marple Township Board of Commissioners, James Phillips, Jean Marie Cella, John Butler, Louis Guerrerra, Barry Dozor, Robert Jordan, Pat Keates, Hugo Yannelli, Maureen Fitzpatrick, Bonnie Scott, Robert Haas, Gerald Connors, Richard Worley, Mark Plafker, and Joseph Aloi. For purposes of simplicity, defendants shall be referred to as "Township."

BACKGROUND

Plaintiff, Claude de Botton is the present owner of approximately 17.66 acres of land (tract), located in Marple Township, Delaware County, Pennsylvania. At the time the operative facts in this suit took place, Mr. de Botton was the President of Marple Gardens, Inc., a Pennsylvania corporation that originally owned the tract.

In May of 1980, the tract was zoned R-1, thereby limiting its use to single-family detached dwellings on not less than 12,000 square foot lots. A few days later, Marple Gardens, Inc. filed a curative amendment challenge to the zoning ordinance to permit the construction of a mobile home park on the tract. The Township scheduled hearings on June 24, 1980, and June 30, 1980, to consider the proposed curative amendment. When the Township cancelled these hearings and refused a request to reschedule them, Marple Township, Inc. filed zoning appeal notices with the Delaware Court of Common Pleas in July and August of that year, based upon the Township's denial of his curative amendment.

On February 24, 1984, the Court of Common Pleas directed that a zoning permit for a mobile park home park be issued to Marple Township, Inc. On August 7, 1987, the trial court's decision was affirmed by the Commonwealth Court. On January 27, 1987, the Supreme Court denied the Township's petition for allowance of appeal.

On June 24, 1987, Mr. de Botton filed suit in the United States District Court for the Eastern District of Pennsylvania. He alleges: (1) that the Township violated both his substantive and procedural due process rights under 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments to the United States Constitution; (2) that the Township's actions constituted a taking of property without just compensation; and (3) that the defendants conspired to prohibit mobile home parks in Marple Township, thereby violating 42 U.S.C. § 1985.

DISCUSSION

In considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), I must follow, of course, the accepted maxims that all well-pleaded allegations will be accepted as true, that the complaint should be construed liberally, and in favor of the plaintiff, and that a complaint should not be dismissed unless it appears beyond doubt that no set of facts may be proven which would entitle the plaintiff to the relief requested. Dudosh v. City of Allentown, 629 F.Supp. 849, 850 (E.D.Pa.1985).

I. Are Plaintiff's Claims Barred by the Statute of Limitations?

The Township initially contends that all of Mr. de Botton's claims are barred by the statute of limitations. The applicable statute of limitations for Mr. de Bottom's claims under 42 U.S.C. § 1983 is Pennsylvania's statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Sullivan v. City of Pittsburgh, Pa., 811 F.2d 171 (3d Cir.) cert. denied, ___ U.S. ___, 108 S.Ct. 148, 98 L.Ed.2d 104 (1987). In Pennsylvania, the limitation period is the two-year limitation provided by 42 Pa.Cons. Stat.Ann. § 5524. Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir.), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); Syre v. Commonwealth, 662 F.Supp. 550 (E.D.Pa.1987).

The plaintiff argues that the statute of limitations accrued on January 27, 1987, when the Pennsylvania Supreme Court denied the Township's petition for allowance of appeal. The plaintiff also suggests that, in any case, the two-year limitation is inapplicable to his direct constitutional claims which, he asserts, are governed by the five-year statute of limitations period applicable to proceedings under the Pennsylvania Eminent Domain Code. See: 42 Pa. Cons.Stat.Ann. 5526.

A plaintiff's section 1983 claim accrues on the date he knew or had reason to know of the injury which is the basis for his action. Syre v. Com., 662 F.Supp. 550, 553 (E.D.Pa.1987). In this case, the date implicating the statute of limitations would be June of 1980, when the Township, in effect, denied Mr. de Botton his curative amendment challenge by refusing to hold hearings on the matter. See: Peter Henderson Oil v. City of Port Arthur, Tex., 806 F.2d 1273, 1275 (5th Cir.1987) (section 1983 action accrued date of city ordinance); McMillan v. Goleta Water Dist., 792 F.2d 1453, 1457 (9th Cir.1986), cert. denied ___ U.S. ___, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987)(section 1983 action accrued date Water District issued denial of plaintiff's application); Rodrigues v. Vallage of Larchmont, N.Y., 608 F.Supp. 467, 477 (D.C.N.Y.1985) (denial of zoning variances implicated statute of limitations for section 1983 claim). Cf. Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (claim that government regulation effects taking is only ripe when government entity charged with implementing regulation has reached final decision regarding application of the regulations to the property at issue).

Having determined that the date of the Township's denial constituted the point at which the statute of limitations began to run, the next question becomes whether the subsequent state litigation served to toll the statute. The plaintiff suggests that this is the case, relying upon the "continuing wrong" theory, espoused in Gordon v. City of Warren, 579 F.2d 386, 392 (6th Cir.1978), and Lockary v. Kayfetz, 587 F.Supp. 631 (N.D.Cal.1984). See also: Jackson v. City Council of the City of Charlottesville, VA., 659 F.Supp. 470, 474-75, (W.D.Va.1987) (continued enforcement of zoning ordinance tolled statute of limitations). A continuing wrong theory is available where, as here, an act by a governmental entity actually deprives an individual of use of his property pending court proceedings. Ocean Acres Ltd. v. Dare County Board of Health, 707 F.2d 103, 106 (4th Cir.1983). Mr. de Botton successfully pursued all remedies available to him under Pennsylvania law.¹ His "deprivation, if any, continued until his relief in state court was final ...," Moore v. City of Costa Mesa, 678 F.Supp. 1448, 1449, (1987), that being January 27, 1987, the date the Pennsylvania Supreme Court denied the defendants' appeal.

Accordingly, I hold that Mr. de Botton's claims are not time-barred.

II. Did the Denial of the Curative Amendment Constitute a Taking under the Fifth Amendment?

The defendants argue that because Mr. de Botton was not completely deprived of all use of his tract, his property was not taken within the meaning of the Fifth Amendment. In First English Evangelical Lutheran Church of Glendale v. Lost Angeles City, ___ U.S. ___, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), the Supreme Court held that "temporary" regulatory takings which deny the landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation. 107 S.Ct. at 2388. The Court, however, expressly distinguished this situation from one which "would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances and the like...." 107 S.Ct. at 2389.

Here, Mr. de Botton was not deprived of all uses of his property, since the ordinance permitted the construction of single-family homes on 12,000 square foot lots. His contention that the Township's refusal to permit him to make better use of his land, through the development of a mobile home park, is not sufficient to constitute a taking under the law. See: Bello v. Simmons Park Properties, Inc., 840 F.2d 1124 (3d Cir.1988) (no taking where plaintiffs denied particular building permit but retained right to put land to variety of alternative uses). See also: Pace Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023 (3d Cir.) cert. denied ___ U.S. ___, 107 S.Ct. 2482, 96 L.Ed.2d 375, reh'g denied, ___ U.S. ___, 108 S.Ct. 10, 97 L.Ed.2d 800 (1987).

Accordingly, I will grant the defendants' motion to dismiss on this claim.

III. Has Mr. De Botton Stated A Claim for the Denial of Substantive Due Process?

Where a plaintiff alleges that a municipality's zoning board violated his right to substantive due process, he bears the burden of demonstrating that the governmental action was arbitrary, irrational, or tainted by improper motive. Bello v. Simmons Park Properties, (supra). Thus, plaintiff's complaint must allege facts that would support a finding of arbitrary or irrational legislative action by the Township. Pace Resources, Inc. v. Shrewsbury Twp, 808 F.2d at 1035.

Mr. de Botton alleges facts from which a jury could conclude that the Township acted in an arbitrary or irrational manner, specifically the Township's abrupt cancellation of the hearing on his curative amendment, and the subsequent decision to permit mobile housing in areas outside Mr. de Botton's tract. Although the Township, of course, claims that their actions were done in a completely rational manner, this is a question of fact for the jury to decide. Bello v. Simmons Park Properties, at 1129-30.

I will...