Downs v. Borough of Jenkintown

Decision Date22 May 2020
Docket NumberCIVIL ACTION NO. 18-4529
PartiesDAVID B. DOWNS, and MARGARET A. DOWNS, Plaintiffs, v. BOROUGH OF JENKINTOWN, DEBORA PANCOE, RICHARD BUNKER, and GEORGE LOCKE, Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania

DuBois, J.

MEMORANDUM
I. INTRODUCTION

In this case, plaintiffs, David and Margaret Downs, assert that the Borough of Jenkintown ("the Borough") and the individually named defendants retaliated against them by falsely accusing them of violating the Jenkintown Zoning Code ("Zoning Code") as a result of the exercise by plaintiffs of their First Amendment rights. Presently before the Court is defendants' motion for summary judgment. For the reasons set forth below, the motion is granted in part and denied in part.

II. BACKGROUND1
A. The Borough Government and Zoning Code

The Borough is managed by a council of twelve members (the "Borough Council"). Locke Dep. 137:1-138:15. At all relevant times, defendant Debora Pancoe was the President of the Borough Council, Pancoe Dep. 8:10-12, defendant Richard Bunker was the Vice President of the Borough Council, Bunker Dep. 13:17-14:6, and defendant George Locke was the BoroughManager, Locke Dep. 25:25-26:1. Locke testified that he reports to the Borough Council, but primarily answers to the Borough president. Id. at 26:2-5. In addition to his duties as Borough Manager, Locke also handled "code and enforcement, and zoning matters." Id. at 15:7-9.

Pursuant to the Zoning Code, properties zoned in the B-1 Residential District may only operate a "No Impact home-based business." Defs.' Ex. B. Properties zoned in the B-1 Residential District are prohibited from operating an impact home-based business ("impact business"). Defs.' Ex. B. If Locke or a zoning enforcement officer determines that a resident is violating the Zoning Code, he may issue an Official Notice of Zoning Code Violation ("Notice of Violation"). Locke Dep. 36:1-14. A Notice of Violation instructs the resident to cease violating the Zoning Code, and either: (1) inform the Borough, in writing, of the resident's intent to comply, or (2) request a hearing before the Jenkintown Borough Zoning Hearing Board ("Zoning Hearing Board"). Defs.' Ex. B. If a resident does not appeal the Notice of Violation to the Zoning Hearing Board within 30 days of receipt, the resident forfeits the right to challenge the Notice of Violation on the merits, and the Borough may issue a citation. Locke Dep. 46:8-47:2.

Locke testified that he kept the Borough informed of his actions regarding his enforcement of the Zoning Code. Locke Dep. 49:8-19, 63:16-19; Pls.' Ex. 14. Locke, however, has discretion to issue Notices of Violation, and may do so without approval from the Borough Council or individual members of the Borough Council. Locke Dep. 48:15-49:19; Pancoe Dep. 42:25-43:5, 52:13-17; Bunker Dep. 85:10-86:22. Lori Durkin, a former member of the Borough Council, testified that during the time she served on the Council, which ended in November 2016, Locke was "heavily advised" by Pancoe, the Borough President, and Locke would not issue a Notice of Violation without "approval" from Pancoe. Durkin Dep. 34:25-35:5, 57:10-60:23.

B. Plaintiffs' Complaints Against the Glasses

Plaintiffs reside at 301 Runnymede Avenue in the Borough of Jenkintown. Pls.' Counterstatement Facts ¶ 1. In August 2016, Joseph and Christine Glass rented the house next door to the plaintiffs. Id. ¶ 3. Plaintiffs' property and the home the Glasses were renting were zoned in the B-1 Residential District. Id. ¶ 4; Def.' Ex. B. Shortly after the Glasses moved in next door to the plaintiffs, the Borough received at least 20 complaints, from the plaintiffs and other neighbors, that the Glasses were operating an impact business, a construction business, in violation of the Zoning Code for the B-1 Residential District. Locke Dep. 39:18-40:5; Pls.' Ex. 29. On September 6, 2016, after investigating the numerous complaints against the Glasses, Locke issued a Notice of Violation to the Glasses for operating an impact business. Id. at 40:6-16. In response, according to Locke, the Glasses stated "they would stop doing what they were doing that was not allowed," and comply with the Zoning Code. Id.

Locke testified that the Borough "look[s] for voluntary compliance," and "go[es] above and beyond trying to get voluntary compliance" with Notices of Violation. Locke Dep. 40:6-16. To ensure that the Glasses came into compliance with the Zoning Code, Locke and Durkin inspected the Glasses' property and spoke with the Glasses regarding their compliance with the Zoning Code. Locke Dep. 40:20-41:6; Durkin Dep. 23:1-10. Locke gave the Glasses a "checklist to fill out and complete" so they could come into compliance with the Zoning Code. Durkin Dep. 23:1-13; Locke Dep. 38:8-23. Locke concluded that the Glasses complied with the September 6, 2016 Notice of Violation. Pls. Ex. 9; Locke Dep. 43:10-12.

Plaintiffs contended that the Glasses continued to operate an impact business, so they continued to file complaints against them with Locke and the Borough. Pls.' Ex. 10; Pls.'Counterstatement Facts ¶ 12. Plaintiffs "appeared before the Borough Council on multiple occasions[, from 2016 to 2017,] and voiced complaints about the manner in which George Locke and the Borough enforced the zoning code against the Glasses." Pls.' Counterstatement Facts ¶ 21.2 Locke testified that he "didn't enjoy" the way the plaintiffs acted toward him with respect to their complaints about the Glasses. Locke Dep. 84:24-85:17 (stating that he "didn't enjoy," inter alia, the plaintiffs telling him that he was "awful" at his job). Plaintiffs also made 25 separate requests for public information ("Right-to-Know requests") from September 16, 2016 until November 22, 2017, seeking a wide range of information. Pls.' Ex. 15. Locke was aware of these requests and assisted in preparing responses. Locke Dep. 116:10-21.

Ultimately, in "September of 2017, due to her dissatisfaction with the manner in which the Jenkintown Borough Council governed, Ms. Downs entered the Jenkintown Mayor's race as a Democrat and write-in candidate." Pls.' Counterstatement Facts ¶ 22. Mr. Downs supported his wife's campaign for mayor. D. Downs. Dep. 15:19-23, 24:4-17. During Ms. Downs' campaign for mayor, Borough Vice President Bunker made several comments on social media opposing Ms. Downs' candidacy. Pls. Ex. 17. Specifically, Bunker stated that: Ms. Downs would be a "disaster" as a mayor, she "cost the taxpayers of the Borough tens of thousands of dollars on pointless right-to-know requests in her attempt to twist zoning law to run her neighbor out of town," and "she wanted council to lean on police and zoning to unevenly enforce law and code, to mess with her neighbor." Id. The election was held on November 7, 2017. Pancoe Dep. 74:16-17. Ms. Downs was defeated. Pls.' Counterstatement Facts ¶ 33.

C. The Glasses' Complaints About the Plaintiffs

On October 25, 2016, shortly after plaintiffs began complaining that the Glasses were operating an impact business, the Glasses filed their first complaint with the Borough asserting that the plaintiffs were operating an impact business—a landscaping business. Pls.' Ex. 14. Locke investigated the Glasses' complaint against the plaintiffs, and concluded that "the evidence provided [by the Glasses against the plaintiffs] did not rise to the level of operating a business." Id. However, the Glasses "adamantly disagreed" with Locke. Id. Locke directed the Glasses to "report any new activity to the Borough for review." Id. Approximately one year later, on September 20, 2017, during Ms. Downs' campaign for mayor, the Glasses filed a second complaint with the Borough alleging that plaintiffs were operating an impact business. Pls.' Ex. 14. The Glasses filed three additional complaints against plaintiffs on September 25th, 29th, and October 4th, 2017. Id. In support of their complaints, the Glasses submitted photographs and videos that purported to show that plaintiffs were operating an impact business. Id.

Locke testified that, after the Glasses' first complaint against the plaintiffs in October 2016, but before their second complaint in September 2017, Magisterial District Judge Elizabeth McHugh, issued a ruling, which interpreted the definition of an impact business under the Zoning Code in a way that encompassed a broader range of activities. Locke Dep. 52:23-54:2. The plaintiffs deny that any such ruling was made by Judge McHugh, and significantly, no such ruling was included in the record. Pls.' Resp. 24, ¶ 87-89. Locke applied this new interpretation of the Zoning Code by Judge McHugh when he reviewed the Glasses' 2017 complaints against the plaintiffs. Locke Dep. 52:23-54:2.

D. Locke's Response to the Glass' 2017 Complaints About the Plaintiffs

Locke reviewed the evidence submitted by the Glasses that purported to show that plaintiffs were operating an impact business from their home. Pls.' Ex. 14. Locke then sought legal advice from Borough Solicitor Sean Kilkenny regarding whether the evidence against the plaintiffs was sufficient to issue them a Notice of Violation for operating an impact business. Locke Dep. 63:8-15, 66:14-17. Locke was advised that "there was enough evidence" to issue a Notice of Violation to the plaintiffs for operating an impact business. Kilkenny Dep. 17:1-5. Specifically, Kilkenny told Locke that "he had a reasonable basis" to issue the Notice of Violation "based on the evidence and based on Judge McHugh's version of how she was interpreting the Code." Kilkenny Dep. 49:23-50:7.

On October 11, 2017, Locke informed the Borough Council that he believed that the evidence against the plaintiffs was sufficient to issue a Notice of Violation. Pls.' Ex. 14; Locke Dep. 63:16-19. According to Locke, it was his "call" to issue the Notice of Violation to the plaintiffs. Locke Dep. 72:8-10. Additionally, Locke testified that he does not remember Bunker, the Borough...

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