Drummond v. Township
| Decision Date | 22 January 2019 |
| Docket Number | Civil Action No. 18-1127 |
| Citation | 361 F.Supp.3d 466 |
| Parties | William DRUMMOND, GPGC LLC, and Second Amendment Foundation, Inc., Plaintiffs, v. Robinson TOWNSHIP and Mark Dorsey, Robinson Township Zoning Officer, in His Official and Individual Capacities, Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
Alan Gura, Pro Hac Vice, Gura PLLC, Alexandria, VA, James H. McCune, K. Bradley Mellor, Bowles Rice LLP, Canonsburg, PA, for Plaintiffs.
Sean R. Riley, Trisha A. Gill, Litchfield Cavo LLP, Alan T. Shuckrow, Gretchen E. Moore, Michael P. Gaetani, Strassburger, McKenna, Gutnick & Gefsky, Pittsburgh, PA, for Defendants.
Plaintiffs William Drummond and GPGC LLC bring suit on their own behalf and on behalf of their clients and customers. Compl. ¶¶ 1–2, ECF No. 1. Plaintiff Second Amendment Foundation, Inc. (SAF), which has over 650,000 members and supporters across the nation, brings suit on behalf of its members, including Plaintiff Drummond. Id. at ¶ 3. Plaintiffs allege that Defendants, Robinson Township and Zoning Officer Mark Dorsey, infringed Plaintiffs' Second Amendment right to keep and bear arms and Fourteenth Amendment rights to equal protection, property, and livelihood by deliberately stalling Plaintiff Drummond's zoning application in order "to zone the [Greater Pittsburgh Gun Club] out of existence." Id. at 1.
Counts I and II of the Complaint allege that Sections 601 and 311(D), respectively, of the Robinson Township Zoning Ordinance, facially and as applied to Plaintiffs and their customers and members, deprive Plaintiffs and their customers and members of their Second Amendment right. Id. at ¶ 65. Similarly, Count III alleges that Table 208A of the Zoning Ordinance, as applied to Plaintiffs and their customers and members, deprives them of their Second Amendment right. Id. at ¶ 70. Counts IV and Count VI allege that Section 601, facially and as applied to Plaintiffs Drummond and GPGC LLC, violates the Fourteenth Amendment rights to equal protection and to the pursuit of livelihood, respectively. Id. at ¶¶ 73, 79. Finally, Count V alleges that Defendants' course of conduct deprived Plaintiff Drummond of his property interest, thereby violating the Due Process Clause of the Fourteenth Amendment. Id. at ¶¶ 75–76. Plaintiffs request an order permanently enjoining the enforcement of the challenged ordinances and commanding Defendants to issue Plaintiff Drummond all permits necessary for the operation of the Gun Club. Id. at 20. Plaintiffs also request an award of compensatory damages to Plaintiffs Drummond and GPGC LLC, declaratory relief consistent with the permanent injunctions, costs of suit, and attorney fees. Id.
Additionally, Plaintiffs seek a preliminary injunction in this matter. ECF No. 17. Plaintiffs request that the Court enjoin Defendants from enforcing Robinson Township Zoning Ordinance Table 208A and Sections 311(D) and 601 against Plaintiffs' operation and enjoyment of the Gun Club. Id. Plaintiffs also request that the Court command Defendants to issue all permits necessary for the operation of the Gun Club, to which Plaintiff Drummond alleges he would be entitled absent the Defendant Township's adoption of the aforementioned Zoning Ordinance Table and Sections. Id.
Defendants seek dismissal of the Complaint, ECF No. 26, first arguing that Plaintiffs' claims are not ripe. Defs.' Br. 6–8, ECF No. 27. Second, Defendants challenge Counts I and II, as they pertain to Plaintiffs' customers and members, arguing that Plaintiffs failed to properly plead derivative standing. Id. at 8–13. Lastly, Defendants ask the Court to dismiss all counts of the Complaint for failure to state a claim upon which relief can be granted. Id. at 13–20.
For the following reasons, Defendants' Motion to Dismiss will be granted and Plaintiffs' Motion for Preliminary Injunction will be denied as moot.
According to the Complaint, the property at issue, 920 King Road, Bulger, Pennsylvania 15019, consists of 265 acres in a "substantially rural" area. Compl. ¶¶ 11,13, ECF No. 1. In 1967, the property became the site of a gun club called the Greater Pittsburgh Trap & Skeet Club. Id. at ¶ 11. At that time, the property was zoned as "A-1." Id. The gun club, described by Plaintiffs as "operat[ing] as much as any ordinary commercial shooting range," Id. at ¶ 14, engaged in commercial activities such as renting guns to patrons and selling "memberships, range time, firearms, ammunition, targets, food and beverage, and other ordinary goods that might be found at any gun range, as well as shooting training and safety courses." Id. at ¶ 15. Ownership of the gun club changed hands at various points before the gun club ultimately ceased operations in 2008. Id. at ¶¶ 17, 20.
Eight years later, in 2016, Iron City Armory, LLC leased the King Road property with plans to open a new gun club. Id. at ¶ 21. When Iron City Armory entered the lease, the property was zoned as an Interchange Business Development District, or IBD District. Id. at ¶ 23. "Sportsman's Clubs," an undefined term at that time, were permitted principal uses within IBD districts. Id. at ¶ 12. In 2016, Iron City Armory submitted a zoning application to the Defendant Township. Id. at ¶ 22. The Defendant Township approved the application and issued a permit, which allowed Iron City Armory to operate a gun club on the property. Id. However, the permit was issued with restrictions; namely it prohibited "sales, gun testing, rentals, [and] other commercial endeavors," Id.
In December 2017, Iron City Armory announced that it would cease operations the following month and that it would default on its lease. Id. at ¶ 29. Plaintiff Drummond, a citizen of North Carolina, then entered into a ten-year lease of the King Road property with the intention of operating the Greater Pittsburgh Gun Club (referred to hereinafter as "the Gun Club") through GPGC LLC, an entity wholly owned by Plaintiff Drummond. Id. at ¶¶ 30–31. Plaintiff Drummond, through GPGC LLC, planned to run the Gun Club much as the pre-2008 gun club had been, by engaging in commercial shooting range activities. Id. at ¶ 31. Plaintiff Drummond took possession of the King Road property in or around January 2018. Id. at ¶ 32.
According to the Complaint, and supported by attached exhibits, there have been two prior legal challenges related to the operation of a gun club on the King Road property. First, in 1993, a nuisance action was filed in state court by the Defendant Township. Id. at ¶ 18. In that action, the Township sought relief related to "the discharge of automatic weapons ...; the club's hours of operation; and projectiles leaving the premises and striking nearby properties."Id. Additionally, the Township admitted in its complaint that the gun club's operation was lawful under the then-existing Robinson Township Zoning Ordinance, wherein the property was zoned as A-1. Id. ; see also Compl. Ex. A, ¶ 3, ECF No. 1-2. The state court dismissed the case in 1997, nearly four years after it was filed, finding that the gun club did not constitute a nuisance. Compl. ¶ 19, ECF No. 1. That gun club entity ceased operations in 2008. Id. at ¶ 20.
When Iron City Armory opened its gun club in 2016, neighbors of the King Road property appealed the Defendant Township's issuance of the permit to the Zoning Hearing Board. Id. at ¶ 23. The Board granted the appeal, reasoning that "shooting ranges" and "shooting range facilities" were not permitted uses in IBD districts. Id. During the pendency of the appeal, the Township received complaints that Iron City Armory's gun club "was engaging in forbidden commercial activity by selling bottled water, targets, and ammunition to its members." Id. at ¶ 24. In response, the Township served Iron City Armory with a "Notice of Violation/Cease and Desist Order." Id. Additionally, an undercover police operation confirmed the gun club's sale of targets and ammunition, resulting in a second cease and desist order. Id. The Zoning Hearing Board ultimately revoked Iron City Armory's permit, which Iron City Armory appealed. Id. at ¶ 25. The Zoning Hearing Board denied the appeal, finding that Iron City Armory had violated the conditions of the issued permit. Id.
Iron City Armory appealed the Zoning Hearing Board's decisions to the Court of Common Pleas. Id. at ¶ 26. In that appeal, the Zoning Hearing Board admitted that the relevant ordinance "could be read to permit non-commercial gun clubs and shooting ranges in IBD districts." Id. at ¶ 27. Regarding the permit revocation, the court determined that selling bottled water and targets fell "into permissible commercial operations of a gun club and do not violate the restriction" and that the ammunition sales were de minimis. Id. at ¶ 28. Although Iron City Armory prevailed in the appeal, the court cautioned Iron City Armory against selling ammunition in the future, because doing so might run afoul of the permit restrictions. Id. at ¶¶ 26, 28.
When Plaintiff Drummond leased the property, with plans to open his own gun club, in January 2018, the King Road property was still zoned as an IBD district. Id. at ¶ 12. Plaintiff Drummond alleges that, in January 2018, he approached Defendant Mark Dorsey, Robinson Township Zoning Officer, and informed him of his plans for the property. Id. at ¶ 33. Plaintiff Drummond asked Defendant Dorsey about what he needed to do for Plaintiffs Drummond and GPGC LLC to open and operate the Gun Club. Id. On Defendant Dorsey's advice, Plaintiff Drummond wrote and sent a detailed description of his plans for the Gun Club and the King Road property to Defendant Dorsey. Id. at ¶¶ 33–34. Defendant Dorsey did not respond to Plaintiff Drummond, despite "numerous follow-up phone calls." Id. at ¶ 34.
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