Pace Resources, Inc. v. Shrewsbury Tp., No. 86-5210

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtSTAPLETON
Citation808 F.2d 1023
PartiesPACE RESOURCES, INC., Appellant, v. SHREWSBURY TOWNSHIP, O'Keefe, John J. Nace, Clarence E. Dutton, John D. Malone, Gilbert G. Solomon, William J. Nielsen, Carl Grim, Richard M. McKay, Ronald and Spangler, Larry C.
Decision Date12 January 1987
Docket NumberNo. 86-5210

Page 1023

808 F.2d 1023
PACE RESOURCES, INC., Appellant,
v.
SHREWSBURY TOWNSHIP, O'Keefe, John J. Nace, Clarence E.
Dutton, John D. Malone, Gilbert G. Solomon,
William J. Nielsen, Carl Grim, Richard
M. McKay, Ronald and Spangler, Larry C.
No. 86-5210.
United States Court of Appeals,
Third Circuit.
Argued Sept. 17, 1986.
Decided Jan. 12, 1987.

Page 1024

Donald L. Reihart (argued), Laucks & Monroe, York, Pa., for appellant.

Gilbert G. Malone (argued), Malone & Neubaum, York, Pa., for appellees.

Before ADAMS * and STAPLETON, Circuit Judges and COWEN, District Judge. **

OPINION OF THE COURT

STAPLETON, Circuit Judge:

In this civil rights action, Pace Resources, Inc. ("Pace") seeks to recover damages for the alleged loss of use of a parcel of real estate owned by it in Shrewsbury Township ("the Township") during a period in which it successfully challenged certain land use restrictions of the Township in a state proceeding. Pace alleges that the Township's restrictions on land use have violated the taking clause of the Fifth

Page 1025

Amendment and the due process clause of the Fourteenth Amendment and that the Township, accordingly, should be held accountable for the economic consequences of the delay occasioned by the Township's promulgation and enforcement of these restrictions. The district court granted the defendants' motion to dismiss. We affirm.

I.

Pace purchased a 145.61 acre tract of land in Shrewsbury Township in May of 1965 for $75,000. Since that time, Pace has attempted to develop an industrial park on this land. In 1973, the Township's Board of Supervisors approved a preliminary development plan for the entire tract and a final plan for six of the 47 proposed lots. These six lots sold promptly and the buyers have erected buildings on four of the six.

In November, 1976, the Township adopted a zoning ordinance and comprehensive plan for land use. The Township zoned all of Pace's land for industrial use. Shortly thereafter, Pace's final plans for an additional six lots received approval. Two years later, however, Township residents raised concerns about possible harmful effects of continued industrial development in their community. The Shrewsbury Township Planning Commission and the Board of Supervisors agreed in November, 1978, to reevaluate the zoning ordinance.

Pace submitted a final development plan for its remaining lots on December 5, 1978. On January 9, 1979, the Board of Supervisors and Township planners reviewed the zoning ordinance and devised proposed amendments. The Township rejected Pace's 1978 final development plan on either January 12 or February 7, 1979, relying on defects in the plan under the 1976 zoning ordinance. In particular, the Township found the plan deficient because it did not survive scrutiny under Section 402 of the ordinance, which allowed approval of on-lot water supply systems only where "the water supply yield is adequate for the type of development proposed" and "the installation of such systems will not endanger or decrease ground water of properties adjacent to the land development." App. at 33. Pace resubmitted a modified version of its plan at a March 7, 1979, joint meeting of the Board of Supervisors and the Township Planning Commission. The plan was again rejected.

On March 12, 1979, the Board of Supervisors adopted the proposed amendments to the zoning ordinance. The amendments rezoned 128 acres from industrial to agricultural and other designations, including 37 acres owned by Pace that were rezoned agricultural. The amendments also established a mandatory special exception procedure for industrial development of land in an industrial park. The amended ordinance requires an applicant for a special exception to show compliance with certain performance standards, one of which is the same adequate water supply requirement set out in the first ordinance at Section 402. The zoning ordinance amendments adopted on March 12, 1979, included numerous other changes in the original ordinance.

On August 6, 1979, Pace initiated a proceeding before the Township's Zoning Hearing Board, contesting rejection of its final plan and challenging the validity of certain provisions of the amended ordinance. The Board's rejection of Pace's contentions led to an appeal and ultimately resulted in a May 23, 1985, 89 Pa.Cmwlth. 468, 492 A.2d 818, Commonwealth Court decision that found the rezoning of Pace's 37 acres to be illegal spot zoning. The court further found that Section 402's adequate water supply requirement (as well as the similar requirement in the amended ordinance) was too vague to meet the requirements of Pennsylvania's Municipalities Planning Code.

Upon termination of the state court proceedings, the matter was remanded to the Township Board of Supervisors with a direction that it grant or deny approval of the plans submitted by Pace in December of 1978 based solely on the ordinance in effect at that time, with Section 402 deleted. App. at 37, 108, 112. Thus, Pace, since the close of the state court proceedings, has had the right to have its 1978 plan

Page 1026

processed under the law as it existed prior to the actions of which it here complains. Significantly, Pace's amended complaint does not allege any wrongful denial of approval following the remand to the Board of Supervisors. In addition to the right to seek approval under the old law, Pace has had the right since May 23, 1985, to develop all of its land for industrial use pursuant to a new plan, submitted for approval under the provisions of the new ordinance, disregarding Section 402 and the rezoning of the 37 acres.

In this federal action, Pace seeks monetary and injunctive relief based on allegations that Township officials, by rejecting Pace's plans and amending the zoning ordinance, have effected a taking of Pace's property and have deprived Pace of property without due process of law. The district court dismissed the suit for failure to state a claim upon which relief could be granted. To evaluate properly Pace's claims for relief under the Constitution and 42 U.S.C. Sec. 1983, it is necessary first to examine carefully the allegations of Pace's complaint and to review the state court decisions.

A. Pace's Allegations

The Pace amended complaint states that "after January 9, 1979, and up to the present, the Defendants adopted the custom and policy of preventing the lawful and reasonable use of Plaintiff's land in Shrewsbury Township." App. at 9. Pace further alleges that "the Defendants imposed administrative burdens, drafted and enacted and enforced discriminatory, unreasonable and arbitrary regulations that inhibit the industrial development in the Township" and that "Defendants specifically conspired to use their official governmental positions and offices to cripple and destroy Plaintiff's industrial development." App. at 9-10. In addition, Pace states that it "has been denied the economically viable use of its property in violation of the just compensation clause of the Fifth Amendment." App. at 11.

These characterizations of the activities of the Township's officials need to be considered in context. First, the allegations are conclusory. The complaint contains no factual allegations supporting some of the sweeping conclusions that otherwise might be legally relevant. Thus, for example, while the complaint refers to "discrimination", it fails to identify any similarly situated property that was treated differently. As we have held on a number of occasions, such conclusory allegations cannot be accepted at face value in this area of the law. See, e.g., Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir.1976); Boykins v. Ambridge Area School Dist., 621 F.2d 75 (3d Cir.1980). The economic drain of civil rights litigation on public resources is simply too great to permit cases to go forward without a more substantial indication that a constitutional violation may have occurred.

Second, the strong language concerning an intent to stop Pace's development is altogether consistent with legitimate actions of a township's legislative body. The complaint in essence alleges that the Township acted to slow industrial development, with knowledge that the value of certain properties, including land owned by Pace, would diminish as a result. The complaint itself states that the Township responded to public concern by taking steps "to prevent change, keep other citizens out of the township, to minimize township services and expenditures and keep taxes down." App. at 9. Thus, it is not alleged that the Township's actions were undertaken out of animosity toward Pace or for other reasons unrelated to land use planning. As Pace candidly conceded at oral argument, this conduct would have occurred regardless of who owned Pace's property so long as they were planning to use the land in the same way. Moreover, there is no allegation that the regulators acted for personal financial gain. 1 Accordingly, this case is far removed

Page 1027

from the situation that this Court faced in Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743 (3d Cir.1982), cert. denied, 456 U.S. 990, 102 S.Ct. 2270, 73 L.Ed.2d 1285 (1982) (allegations that public officials conspired to put plaintiff out of business for private reasons applicable only to him state civil rights claim under due process clause).

Finally, Pace's broad, conclusory allegations must be read together with the complaint's statement that Pace's 37 acres retained a value of $52,000 after the Township zoned them agricultural. This substantial retained value demonstrates that Pace seeks relief because it has been denied the most desirable use of this land, not because it has been denied all use of its property.

B. The Pennsylvania Litigation

The Zoning Hearing Board dismissed Pace's claims on December 22, 1980. Pace then appealed to the Court of Common Pleas of York County. In its opinion that court concluded inter alia that the rezoning did not...

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    ...a regulation's economic impact may be great without rising to the level of a taking. (See Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023, 1031 (3d Cir.), cert. denied, 482 U.S. 906 (1987) (citing Hadacheck v. Sebastian, 239 U.S. 394 (1915) (reduction in value from $800,000 to $6......
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    ...on profitable uses of the property in determining the economic impact of a regulation. Pace Resources, Inc. v. Shrewsbury Township , 808 F.2d 1023, 1031 (3d Cir. 1987) (rezoning reduced value of acreage from $495,600 to $52,000, but no taking found); but see id. at 1031 & n.4 (Pace "has not......
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    • California Court of Appeals
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    ...Sommer & Frates v. Yolo County, supra, 477 U.S. at p. 353, fn. 9, 106 S.Ct. 2561; Pace Resources, Inc. v. Shrewsbury Tp. (3rd Cir.1987) 808 F.2d 1023, 1033-1034; Del Monte Dunes v. City of Monterey (9th Cir.1990) 920 F.2d 1496, 1501; see also Executive 100, Inc. v. Martin County (11th Cir.1......
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121 cases
  • Bernardsville Quarry, Inc. v. Borough of Bernardsville
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    • United States State Supreme Court (New Jersey)
    • July 23, 1992
    ...at Page 239 410-11, 36 S.Ct. at 145, 60 L.Ed. at 356 (permitting reduction from $800,000 to $60,000); Pace Resources, Inc. v. Shrewsbury, 808 F.2d 1023, 1031 (3d Cir.1987) (permitting reduction from $495,600 to $52,000), cert. denied, 482 U.S. 906, 107 S.Ct. 2482, 96 L.Ed.2d 375 (1987); Ket......
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