McLaughlin v. Forty Fort Borough

• Decision Date: 26 November 2014
• Docket Number: No. 3:13–cv–0016.,3:13–cv–0016.
• Citation: 64 F.Supp.3d 631
• Parties: Jeffrey McLAUGHLIN, et al., Plaintiffs, v. FORTY FORT BOROUGH, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

64 F.Supp.3d 631

Jeffrey McLAUGHLIN, et al., Plaintiffs

v.FORTY FORT BOROUGH, et al., Defendants.

No. 3:13–cv–0016.

United States District Court, M.D. Pennsylvania.

Filed Nov. 26, 2014.

William E. Vinsko, Jr., Vinsko & Associates, P.C., Wilkes–Barre, PA, for Plaintiffs.

Harry G. Mahoney, May Mon Post, Deasey, Mahoney, Valentini & North Ltd., Philadelphia, PA, for Defendants.

MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

I. Introduction

Before the Court is a Motion to Dismiss, or in the alternative, for Summary Judgment (Doc. 34) filed by Defendants Forty Fort Borough (the “Borough”) and Forty Fort Zoning Hearing Board (the “Board” or “ZHB”) (collectively, “Forty Fort Defendants”). For the reasons set forth below, Forty Fort Defendants' Motion to Dismiss will be converted into a Motion for Summary Judgment with regard to Plaintiffs' procedural due process claims alleged in Count III and granted. The Court will deny Forty Fort Defendants' Motion to Dismiss with respect to Plaintiffs' equal protection claims alleged in Count II.

II. Procedural History

Plaintiffs Jeffrey McLaughlin and Carol Skrip initiated this action on October 29, 2010 in the Luzerne County Court of Common Pleas. (See Notice of Removal, Doc. 1, ¶¶ 1–3). After they amended their Complaint to allege violations of the Fourteenth Amendment, Forty Fort Defendants removed the matter to federal court. (See id. at ¶¶ 4–5). The Amended Complaint (Doc. 1–2, Ex. C) sought: damages for violations of the Pennsylvania Municipalities Planning Code (“MPC”) and Forty Fort Zoning Ordinances (Count I), enforcement of the MPC and Forty Fort Zoning Ordinances through a mandamus action (Count II), and damages for violations of Plaintiffs' constitutional rights (Count III).

On August 9, 2013, 2013 WL 4069528, this Court granted Forty Fort Defendants' Motion to Dismiss Plaintiffs' Amended Complaint but granted Plaintiffs leave to amend. (Mem. Op., Doc. 22, at 1). Specifically, the Court instructed Plaintiffs to allege: (1) a cause of action against Cynthia Millington Brandreth, Mark Millington, Michelle Millington, and Scott Millington t/d/b/a Compass Rose Group (collectively, “Millington Defendants”) and May Brands, LLC; (2) facts sufficient to make clear whether Plaintiffs had a property interest in their home at any point prior to the due process violations alleged; and (3) facts showing that Forty Fort Defendants treated other similarly situated homeowners more favorably. (Id. at 32–33).

Plaintiffs filed a Second Amended Complaint (Doc. 27) alleging that Millington Defendants and May Brands, LLC violated the MPC and Forty Fort Zoning Ordinances (Count I) and that Forty Fort Defendants violated their Fourteenth Amendment rights to procedural due process (Count II) and equal protection (Count III).¹ Forty Fort Defendants filed a Motion to Dismiss Counts II and III of the Second Amended Complaint, or in the alternative, for Summary Judgment (Doc. 34). Forty Fort Defendants (Docs. 34, 44) and Plaintiffs (Doc. 40) have filed briefs. Millington Defendants and May Brands, LLC have not filed briefs. Discovery is now closed (Doc. 17), and the matter is now ripe for disposition.

III. Statement of Undisputed Material Facts

The following facts are undisputed for the purposes of Forty Fort Defendants' Motion: On December 19, 2000, Millington Defendants purchased property in the Borough. (Pls.' Ex. B, Doc. 28). On February 14, 2005, they filed an application for a zoning permit to erect a structure on their property. (Pls.' Ex. C). Between February 17, 2005 and February 22, 2005 a Public Notice was published in the Citizens' Voice. (Pls.' Exs. F, G). It indicated that the Forty Fort Zoning Hearing Board would be holding a public meeting on March 1, 2005 to hear Millington Defendants' request for a variance. (Id. ).

According to the minutes from the March 1, 2005 meeting, Millington Defendants' property was posted and their neighbors were notified of their application. (Pls.' Ex. H). At the meeting, the Millingtons stated that they intended to build a “Dunkin Donuts / Baskin Robbins” on their property. (Id. ). The minutes indicate that the Chairman of the Board moved to approve the variance, and it is undisputed that the motion passed (Id.; Second Am. Compl. at ¶ 54).

On June 23, 2005, Millington Defendants filed a zoning application to the Borough requesting approval of their Dunkin' Donuts land development plan. (Pls.' Exs. H, N). Reilly Associates, the engineering firm representing Millington Defendants, sent the Borough Planning Commission copies of the “revised Dunkin' Donuts Final Subdivision and Land Development Plan” on July 6, 2005. (Forty Fort Defs.' Ex. 6, Doc. 34–1). On July 12, 2005, Borton Lawson Engineering, the engineering firm retained by the Borough, sent a letter to the Planning Commission stating that it had reviewed the revised Dunkin' Donuts land development plan. (Pls.' Ex. K). The letter indicated,

For the purpose of this review, the plan is being considered for both preliminary and final plan compliance as it is our understanding there was no preliminary plan submission. Accordingly, it is recommended that plans be identified as “preliminary” or as “Preliminary/Final Plan” if deemed appropriate by the Planning Commission.

(Id. at ¶ 1).

On August 9, 2005, the Borough Planning Commission held a meeting in part to discuss the Dunkin' Donuts land development plan. (Pls.' Ex. J). According to the meeting minutes, the Borough Engineer's “Review was discussed and most issues [with the Dunkin' Donuts land development plan] ha[d] been resolved.” (Id. ). The Commission was provided with copies of; (1) the deed for the property, (2) the lease between Millington Defendants and May Brands, LLC to run the Dunkin' Donuts, and (3) letters stating that the property would have access to natural gas and water service. (Id. ). Reilly Associates also informed the Commission that it would soon receive a letter confirming that the property would have access to electricity. (Id. ).

Based on these submissions and representations, the Borough Planning Commission granted conditional approval. (Id. ). According to the meeting minutes, the Commission approved the Dunkin' Donuts land development plan pending:

1. Receipt of a [Pennsylvania Department of Transportation (“PennDOT”) ] Highway Occupancy Permit for the driveway on Wyoming Ave.

2. Final approval of the Sewage Facilities Planning Module by the Pennsylvania [Department of Environmental Protection].

3. Addition of the “mounting curbing” at the rear access ... to the drawings.

(Id. ).

On September 19, 2005, the Borough Council met and discussed the Dunkin' Donuts land development plan. (Pls.' Ex. O). The meeting minutes reflect that the “Council reviewed the plans and discussed issues regarding the plans, architectural drawings, shade trees, layout, landscaping, and historic design.” (Id. ). Following the Council's review, it voted to follow the Planning Commission's recommendation to grant conditional approval. (Id. ). The minutes indicate that the only remaining condition to be satisfied was the receipt of PennDOT approval. (Id. ).

The “Dunkin' Donuts Subdivision” map—that the Borough's Engineer, Planning Commission, and Council approved—is identified as the “Preliminary/Final Subdivision Plan.” (Pls.' Ex. N). On November 9, 2005, the Borough's Code Enforcement Officer issued a building permit for the Dunkin' Donuts land development plan. (Forty Fort Defs.' Ex. 7). On December 14, 2005, Plaintiffs purchased property in the Borough near the Dunkin' Donuts project site. (See Pls.' Exs. A, N). The Dunkin' Donuts opened at the end of May 2006. (Second Am. Compl. at ¶ 101).

IV. Plaintiffs' Equal Protection Allegations

In addition to being a bakery and “drive-in eating and drinking establishment,” between 2009 and 2012, the Dunkin' Donuts became a “manufacturing facility and a full bakery distributor” for “other Dunkin Donuts facilities in the greater Wyoming Valley Area.” (Id. at ¶ ¶ 130–31, 138, 140). To facilitate its manufacturing and distribution, the Dunkin' Donuts loaded “tractor trailers with manufactured bakery products at all hours of the day and night for delivery to other Dunkin' Donuts” facilities. (Id. at ¶ 134). Plaintiffs were also “forced to listen to an extremely loud drive-thru speaker[.]” (Id. at ¶ 144).

According to Plaintiffs, Forty Fort Defendants' handling of the Dunkin' Donuts land development plan violated the MPC and Forty Fort Zoning Ordinances. (Id. at ¶ 185). Plaintiffs allege that they complained about these violations “to the Forty Fort Borough Council in 2009 at Borough meetings, and despite acknowledging that mistakes were made the Defendants, Forty Fort and the ZHB took absolutely no action to address the matter[.]” (Id. at ¶ 207).

Plaintiffs further allege that while their complaints have been ignored, Forty Fort Defendants have addressed similar issues raised by other Borough residents. According to Plaintiffs, “[O]ther residents who had Dunkin' Donuts concerns were ... appeased with changes to the alley behind the Dunkin' Donuts and even off-street parking spaces for certain residents.” (Id. at ¶ 230). In another instance, Plaintiffs assert that Forty Fort Defendants addressed the concerns of other residents who complained about excessive noise from nighttime deliveries at a gas station in the Borough. (Id. at ¶ 154).

V. Standard of Review

a. Motion to Dismiss

A complaint must be dismissed under Fed.R.Civ.P. 12(b)(6), if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiff must aver “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

“Though a complaint ‘does not need detailed factual allegations, ... a formulaic...