Levin v. Upper Makefield Township, CIVIL ACTION NO. 99-cv-5313 (E.D. Pa. 2/25/2003)
| Decision Date | 25 February 2003 |
| Docket Number | CIVIL ACTION NO. 99-cv-5313. |
| Parties | BENNETT LEVIN, Plaintiff, v. UPPER MAKEFIELD TOWNSHIP, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
MEMORANDUM
I. FACTUAL BACKGROUND
In June 1997, Bennett Levin ("Plaintiff") contemplated purchasing approximately seven acres of unimproved land ("Property") in Upper Makefield Township ("Township") to construct a single-family dwelling. The Property is flanked by the Delaware River ("River") on one side, and the Delaware Division of the Pennsylvania Canal ("Canal") on the other, and zoned within the Conservation Management Zoning District ("CM") and the Floodplain Zoning District ("Floodplain"). After a preliminary investigation, Plaintiff discovered that a zoning variance was required from the Township before building on the Property, and the prior property owner, Marvin C. Soffen, applied for and was denied a zoning variance on the same property in 1992 (P. Resp., ex. 47 at p. 4). Shortly thereafter, Plaintiff purchased the Property from Mr. Soffen for $60,000 (P. Resp., ex. 55).
On November 24, 1997, Plaintiff submitted a zoning variance application ("Application"),1 which included a request for a hearing before the Zoning Hearing Board ("ZHB").2 On December 17, 1997, the Township held a public meeting, and the Supervisors made a motion authorizing the Solicitor to oppose Plaintiff's Application (P. Resp., ex. 53 at p. 4). Stephen Harris, through his law firm Harris & Harris, personified the Solicitor.
The December 17, 1997 meeting was the first time that many of the Supervisors actually saw Plaintiff's Application, and none claimed to have previously read it (P. Resp., ex. 19 at p. 96-97; ex. 22 at p. 12; ex. 24 at p. 8; ex. 27 at p. 24).3 The motion by the Supervisors to authorize the Solicitor to represent the Township's interest in opposition to the Plaintiff's Application was carried (P. Resp., ex. 53 at p. 4).4 The Supervisors' votes reflected their individual concerns as to: (i) the safety of the inhabitants in Plaintiff's proposed home, and the safety of all subsequent purchasers (Motion, ex. 18 at p. 117-18); (ii) the safety of emergency personnel that might be required to rescue the inhabitants under parlous flood conditions (Motion, ex. 14 at p. 28-29, 58); and (iii) the environmental effect of potential sewage up-rise from the proposed on-site sewage system (Motion, ex. 18 at p. 157; ex. 19 at p. 107; ex. 14 at p. 58).
Thereafter, the ZHB held eight separate evidentiary hearings before rendering a decision on the Application.5 At a public hearing on July 30, 1998, the ZHB held that Plaintiff's Application did not meet the requirements of the Municipalities Planning Code ("MPC"), and rejected the Application by a unanimous 3-0 vote (P. Resp., ex. 13 at p. 2-7).
On September 9, 1998, Plaintiff filed a land-use appeal with the Court of Common Pleas, Bucks County, Pennsylvania, and on October 7, 1998, the Supervisors voted in favor of authorizing Mr. Harris to represent the Township in the appeal before the Court of Common Pleas (Motion, ex. 42 at p. 10). On February 23, 1999, Common Pleas Judge John J. Rufe issued a Memorandum Opinion and Order reversing the ZHB and granting Plaintiff's Application for a zoning variance. Bennett Levin v. Zoning Hearing Board of Upper Makefield Township, Memorandum Opinion and Order (C.C.P. Bucks Cty. February 23, 1999) (Rufe, J.). On May 7, 1999, Judge Rufe issued a second Opinion further establishing the reasoning of his February 23, 1999 initial Memorandum and Order. Bennett Levin v. Zoning Hearing Board of Upper Makefield Township, Opinion (Rufe, J.).
On March 3, 1999, after consideration of Judge Rufe's February 23, 1999 Memorandum Opinion and Order, the Supervisors voted to empower Mr. Harris to file an appeal, on the Township's behalf, to the Commonwealth Court of Pennsylvania (Motion, ex. 46 at p. 7). In an unpublished opinion by Judge Flaherty, the Commonwealth Court affirmed Judge Rufe's Opinion reversing the ZHB's decision to reject Plaintiff's Application. Bennett Levin v. Zoning Hearing Board of Upper Makefield Township, Memorandum Opinion (Pa. Commw. May 11, 2000) (Flaherty, J.).
On May 17, 2000, six days after the Commonwealth Court affirmed Judge Rufe's decision, the Supervisors pondered instituting a change to the Canal Setback Ordinance ("Ordinance"), thereby requiring a 100-foot building setback along the Canal (P. Resp., ex. 50 at p. 7). The Ordinance would have severely limited Plaintiff's ability to develop the Property, and would have required another zoning variance. At the November 1, 2000 Upper Makefield Township Board of Supervisors Meeting, 140 members of the general public, most being directly affected by the potential implications of the Ordinance, came to express their outrage (P. Resp., ex. 51 at p. 1-3).6 Under harsh public scrutiny, the Supervisors abandoned the Ordinance (P. Resp., ex. 51 at p. 2).7
On May 24, 2000, Plaintiff, through his engineer J.G. Park & Associates, Inc., submitted a zoning permit application, a foundation construction permit application, a construction cost estimate, plans for the proposed single-family residence, and plans for the foundation of the proposed single-family residence (P. Resp., ex. 66). Plaintiff paid $2,300 for the foundation building permit (P. Resp., ex. 68).
On June 12, 2000, Mr. Harris filed a Petition for Allowance of Appeal, on behalf of the Township, with the Supreme Court of Pennsylvania. The Township, through Mr. Harris, also notified Plaintiff that it would not issue the foundation or zoning permits until the Supreme Court ruled on the pending appeal. Plaintiff filed for a grading permit on August 23, 2000 (P. Resp., ex. 67), and again was told by the Township that no permits would be issued until the appeal pending before the Pennsylvania Supreme Court was resolved (P. Resp., ex. 49 at p. 2). The Township cashed Plaintiff's $2,300 check before the Supreme Court decided the appeal and before the Township issued any of the permits (P. Resp., ex. 68). On November 9, 2000, the Supreme Court denied allocatur.
The Plaintiff was not issued a foundation permit until November 2001, and a final building permit until February 5, 2002 — almost a year-and-a-half after the Supreme Court denied allocatur (P. Resp., ex. 16 at p. 3). In late-January 2002, the Township required Plaintiff to produce proof of workers' compensation insurance, to complete a "Notice of Intent to Construct and Comply" ("Form"), and to provide the results of a well water test, before issuing the final building permit. Plaintiff contends he need not have workers' compensation insurance, there is no mention of the Form in the Township permit application, and a water well test was already submitted with Plaintiff's original zoning variance application dated November 24, 1997 (P. Resp., ex. 70 at p. 2). Nevertheless, Plaintiff satisfied all of the Township's requests, and was issued a final building permit on February 5, 2002, notwithstanding that Plaintiff's architectural and structural drawings were approved on November 7, 2001 (P. Resp., ex. 70 at p. 2).
I. PROCEDURAL HISTORY
Plaintiff commenced this case by filing a Complaint in the United States District Court for the Eastern District of Pennsylvania (Document No. 1, filed October 26, 1999). Thereafter, Plaintiff filed an Amended Complaint (Document No. 20, filed September 18, 2000), and Defendants' made a Motion to Dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) (Document No. 21, filed October 4, 2000). Defendants' Motion to Dismiss Plaintiff's Amended Complaint was granted in part and denied in part (Document No. 29, filed May 10, 2001), and the following claims remain in this Court:8 (i) compensatory damages, punitive damages, attorneys' fees, and equitable relief for violation of Plaintiff's substantive due process rights pursuant to the Civil Rights Act, 42 U.S.C. § 1983, against the Township, all members of the Board of Supervisors in their individual and official capacities, all members of the ZHB in their individual and official capacity, and the Solicitors, in their individual and official capacities; (ii) compensatory and punitive damages for civil conspiracy against the Township, all members of the Board of Supervisors in their individual and official capacities, the members of the ZHB in their individual and official capacities, and the Solicitors, in their individual and official capacity; and (iii) compensatory and punitive damages for abuse of process against the Township, all members of the Board of Supervisors in their individual and official capacities, and the Solicitors, in their individual and official capacities.
Presently before this court are: (i) Defendants' Motion for Summary Judgment on the aforementioned claims (Document No. 51, filed March 29, 2002); (ii) Plaintiff's Response in Opposition to Defendants' Motion for Summary Judgment (Document No. 53, filed April 12, 2002); (iii) Defendants' Reply in Support of Defendants' Motion for Summary Judgment (Document No. 54, filed April 26, 2002); (iv) Plaintiff's Supplemental Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment (Document No. 59, filed February 10, 2003); and (v) Defendants' Supplemental Memorandum of Law in Support of their Motion for Summary Judgment (Document No. 60, filed February 10, 2003).9
III. DISCUSSION
This Court exercises subject matter jurisdiction over the substantive due process claim pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331, 1343. Examining Bd. of Eng'rs., Architects & Surveyors v. Otero, 426 U.S. 572, 583-84, 96 S. Ct 2264, 2272, 49 L.Ed.2d 65 (1976). Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue...
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