Summary
finding that issuance of zoning enforcement notices did not interfere with use and enjoyment of property where plaintiffs were not required to take action on their properties and plaintiffs successfully appealed zoning enforcements
Summary of this case from Kriss v. Fayette Cnty.Opinion
3:CV-01-2266.
June 29, 2004
MEMORANDUM
This case presents substantive and procedural due process claims in the context of zoning enforcement actions that terminated in Plaintiffs' favor. Both Plaintiffs and Defendants have moved for summary judgment. Because the statutory scheme for zoning enforcement actions provided Plaintiffs the requisite process for the presentation of a full and complete defense, Defendants are entitled to judgment in their favor on the procedural due process claim. Because the record, viewed in a light most favorable to Plaintiffs, does not show any interference with the use and enjoyment of their property or conscienceshocking conduct on the part of Defendants, summary judgment in Defendants' favor on the substantive due process claim is also warranted. I. Background
Much of the factual background is undisputed, as revealed by Plaintiffs' response to Defendants' Statement of Material Facts filed in compliance with Local Rule of Court 56.1.
Plaintiffs Warren and Jeannine Siegmond are owners of 11.6 acres of land that lies partly in the Township of Lower Towamensing and partly in the Borough of Parryville, Carbon County, Pennsylvania. The portion of the Plaintiffs' property located in Parryville Borough is in an agricultural zoning district as delineated by the Parryville Borough Zoning Ordinance adopted on August 4, 1986.
This case arises from three incidents involving zoning enforcement or property use matters that were adjudicated from April of 1998 until January of 2001. Plaintiffs seek to recover the attorneys' fees and litigation expenses incurred in connection with the property use proceedings. In addition to compensation for these out-of-pocket costs, Plaintiffs seek punitive damages, attorneys' fees, and costs of this suit. Named as Defendants are Richard Fedor, the Zoning Officer for the Borough of Parryville, and the Borough of Parryville.
The first incident concerned various fences and boundary markers erected by Plaintiffs on their property over a period of years. In April of 1998, Fedor sent correspondence and an Enforcement Notice pursuant to the Pennsylvania Municipalities Planning Code, directing Plaintiffs to obtain zoning permits for fences and structures as required by the Parryville Borough Zoning Ordinance. Specifically, by letter dated April 10, 1998, Fedor informed Mr. and Mrs. Siegmond as follows:
It has come to my attention that you have erected several structures adjacent to your existing fence. They include the addition of wooden pallets, the addition of plank boards in excess of ten feet in height and the addition of some type of concrete and metal structure.
Please be advised that Section 7.401 of the Parryville Borough Zoning Ordinance requires a zoning permit to be issued by the zoning officer prior to erecting a structure or altering an existing structure in a major way. All construction activity on your property must be discontinued until a permit is secured.
Therefore, please take a moment to secure the necessary permits. You are hereby given ten (10) days to comply with the regulations and avoid further action by this office.
(Ex. 6, Defs.' Exs. in Supp. of Mot. for Summ. J.) When the Siegmonds did not comply with this directive, Fedor, on April 24, 1998, issued an enforcement notice under § 616.1 of the Pennsylvania Municipalities Planning Code, 53 Pa. Stat. Ann. § 10616.1. The notice advised Plaintiffs of their right to appeal to the Zoning Hearing Board within twenty days. The notice indicated that penalties for violation of the Parryville Borough Zoning Ordinance would not accrue while any appeal was pending with the Zoning Hearing Board.
Plaintiffs timely appealed to the Zoning Hearing Board of the Borough of Parryville to challenge both the legal sufficiency of the Enforcement Notice and the bases for the Zoning Officers' decisions. Specifically, the Siegmonds, through counsel, argued that (a) the Enforcement Notice was not sufficiently specific to adequately apprise them of violations of the zoning ordinance; (b) Fedor had misinterpreted and misapplied the ordinance; (c) Fedor had "irrationally and unreasonably discriminated" against them; (d) Plaintiffs had vested rights in the allegedly infringing structures and fences based upon advice previously given by the Borough Zoning Officer; and (e) the zoning ordinance was unconstitutional on its face and as applied to Plaintiffs. The Siegmonds requested a hearing on their appeal.
Plaintiffs have not offered any evidence that they ceased any activities on their property, such as erection of fences, as a result of the Enforcement Notice. It appears that the fences were built some time before the issuance of the Enforcement Notice and remained in place during the appeal taken by the Siegmonds.
Following several hearings occurring intermittently over a period of about eighteen months, the Zoning Hearing Board affirmed the Enforcement Notice and dismissed the appeal on January 31, 2000. Specifically, the Zoning Hearing Board concluded that a permit was required for the fences erected on the Siegmonds' property, and that the Zoning Officer had correctly cited the Siegmonds.
Plaintiffs timely appealed to the Court of Common Pleas of Carbon County, raising procedural and substantive challenges to the Zoning Hearing Board's decision. In a Memorandum Opinion dated October 31, 2000, the court reversed the decision of the Zoning Hearing Board on the ground that Fedor's Enforcement Notice itself was deficient in failing to provide proper notice of the purported violations of the zoning ordinance. The court, however, did not address question of whether permits had been required for the fences and other structures. Instead, it merely concluded that the Zoning Hearing Board had "committed an error of law and abuse of discretion in sustaining the validity of the enforcement notice." The ruling of October 31, 2000 concluded the first incident underlying Plaintiffs' claims in this litigation.
The second incident arose shortly after the issuance of the April 24, 1998 Zoning Enforcement Notice when the then-current Borough Mayor, Robert H. Bashore, on behalf of the Borough, filed a citation against Plaintiffs. The May 29, 1998 citation alleged that Plaintiffs had constructed a concrete block wall with steel rods which constituted a danger to the welfare of persons. At a hearing held on June 18, 1998, a state district magistrate dismissed this citation on procedural grounds.
The third and final incident concerned a pool shed on Plaintiffs' property. By letter dated December 29, 1998, Fedor informed Plaintiffs as follows:
It has come to my attention that you have erected an accessory structure at 2266 Cherry Hill Road. In reviewing the borough's zoning records, I have found no permits have been issued for this type of construction.
Please be advised that Section 7.401 of the Parryville Borough Zoning Ordinance requires a zoning permit to be issued by the zoning officer prior to erecting a structure or altering an existing structure in a major way. All construction activity on your property must be discontinued until a permit is secured.
Therefore, please take a moment to secure the necessary permits. You are hereby given ten (10) days to comply with the regulations and avoid further action by this office. . . .
(Ex. 13, Defs.' Exs. in Supp. of Mot. for Summ. J.) On January 18, 1999, Fedor issued an Enforcement Notice for the alleged failure to obtain a permit to erect this structure. Plaintiffs responded by filing an appeal with the Zoning Hearing Board, and hired counsel to assist them with the appeal. Hearings were held on May 8 and November 13, 2000. The Zoning Hearing Board unanimously sustained Plaintiffs' appeal on January 31, 2001, finding that the Siegmonds had indeed obtained a permit for the structure from Fedor's predecessor, and repairs made to the pool shed in 1998 did not alter the structure in such a way as to require a new permit.
No evidence has been presented that Plaintiffs ceased any activity on their property as a result of this Enforcement Notice.
Plaintiffs commenced this civil rights action on November 28, 2001. Defendants moved to dismiss on statute of limitations grounds. The Borough of Parryville also sought dismissal on the ground that the Complaint failed to allege a basis for municipal liability under Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658 (1978). By Order dated December 20, 2002, the motion to dismiss was denied. Defendants moved for summary judgment on March 28, 2003, and Plaintiffs moved for summary judgment on April 14, 2003. Briefing is complete and the matter is ripe for decision.
In the course of explaining the reasons for denying the motion to dismiss, I observed that it was doubtful that Plaintiffs had a viable procedural due process claim, citingSameric Corp. of Del., Inc. v. City of Philadelphia, No. Civ. A. 95-7057, 1996 WL 47973, at *4 (E.D. Pa. Feb. 2, 1996),aff'd, 142 F.3d 582 (3d Cir. 1998). I also noted that Plaintiffs had not articulated a specific premise for a substantive due process claim. Because the motion to dismiss did not challenge the viability of Plaintiffs' claims, however, I did not address the substance of those claims.
II. Discussion A. Summary Judgment Standard
Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if proof of its existence or nonexistence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. Cont'l Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). The moving party has the burden of showing the absence of a genuine issue of material fact, but the nonmoving party must present affirmative evidence from which a jury might return a verdict in the nonmoving party's favor. Anderson, 477 U.S. at 256-57. Merely conclusory allegations taken from the pleadings are insufficient to withstand a motion for summary judgment. Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Summary judgment is to be entered, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). B. Substantive Due Process
As recently articulated in Nicolette v. Caruso, 315 F. Supp.2d 710, 721 (W.D. Pa. 2003) (citations omitted):
To state a claim that a municipal land use decision violates substantive due process pursuant to section 1983, plaintiff must meet two requirements. First, plaintiff must allege that the particular property interest at issue is worthy of substantive due process protection. Second, plaintiff must allege that the government's deprivation of that protected property interest "shocks the conscience."
The Siegmonds, citing DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592 (3d Cir. 1995), overruled in part by United Artists Theatre Circuit, Inc. v. Township of Warrington, Pa, 316 F.3d 392 (3d Cir. 2003), explicitly premise their substantive due process claim on the assertion that Defendants interfered "with their property rights." (Pls.' Br. in Supp. of their Mot. for S.J. and in Opp'n to Defs.' Mot. at unnumbered page 11.)
Use and enjoyment of property are indeed interests protected by the substantive component of the Fourteenth Amendment due process clause. See Neiderhiser v. Borough of Berwick, 840 F.2d 213, 218 (3d Cir. 1988); Assocs. in Obstetrics Gynecology v. Upper Merion Township, 270 F. Supp.2d 633, 655 (E.D. Pa. 2003). Conduct that does not interfere with the owners' use and enjoyment of their property, however, is not actionable merely because it is regarded as outrageous or arbitrary. See Indep. Enters. Inc. v. Pittsburgh Water and Sewer Auth., 103 F.3d 1165, 1180 n. 12 (3d Cir. 1997) ("[I]n light of the court's explicit statement in DeBlasio that some `particular quality of property interest' must be infringed before substantive due process protection may be invoked, [case law] cannot be understood as affording substantive due process protection from every arbitrary and irrational governmental act, but only for those that deprive the plaintiff of a fundamental property right `implicitly protected by the Constitution.'" (citation omitted).)
At the summary judgment stage, it is not enough to simply intone that conduct interfered with the use and enjoyment of a property interest. There must be evidence of such an interference.
Thus, in those cases where viable substantive due process claims have been recognized, the plaintiffs have suffered an actual loss of use of their property. For example, in DeBlasio, the plaintiff had been ordered to relocate an alleged non-conforming use on his property. In Nicolette, 315 F. Supp.2d at 715, 723, the plaintiff had been unable to use his property for certain purposes. In Assocs. in Obstetrics Gynecology, the corporation had been required to cease its operations on the property in question.
Here, by way of contrast, the Siegmonds' use and enjoyment of their property was not impaired by any action of either Fedor or the Borough of Parryville. The enforcement notice process employed in this action allowed the structures at issue to remain in place without incurring violations while adjudicating the sufficiency of the notice and the merits of the enforcement actions. At no time were Plaintiffs required to take any action on their properties that diminished their use and enjoyment of it. At all times, the challenged fences, boundary markers, and pool shed remained intact.
In substantive due process cases, damages may properly be measured by the value of the loss of use of property. For example, an inability to use a property as a landfill causes measurable damages in the form of lost profits. In other cases, damages may be measured by a diminution in property value. But, in this case, Plaintiffs do not claim any damages based upon the lost use of their property or an impairment of its value. Instead, Plaintiffs seek to recover the litigation fees and expenses incurred in defending against the enforcement actions. Plaintiffs have not cited any authority that the substantive component of the due process clause protects a person from having to defend against zoning enforcement and property use proceedings. Nor have Plaintiffs cited any authority that the challenged conduct interfered with interests of a quality protected by the concept of substantive due process. Thus, their substantive due process claim lacks viability.
Plaintiffs' claim is more akin to one for malicious use of civil process, rather than a deprivation of a property interest protected by the Fourteenth Amendment. In other words, plaintiffs appear to be complaining about the wrongful initiation of civil and criminal process. In an analogous context, the Court has held that a § 1983 malicious prosecution claim must be based on an alleged violation of a constitutional amendment that affords "an explicit textual source of constitutional protection against a particular sort of government behavior," and may not be based upon a "generalized notion of substantive due process." Albright v. Oliver, 510 U.S. 266, 273 (1994) (internal quotation marks omitted). The reasoning of Albright with respect to § 1983 malicious prosecution claims plainly covers Plaintiffs' complaint about the Mayor's citation, and would appear to apply with equal force to § 1983 suits for malicious use of civil process. See Hassoun v. Cimmino, 126 F. Supp.2d 353, 363 n. 12 (D.N.J. 2000). That is, a plaintiff may not bring a civil rights action based solely on the assertion that a government officer had acted without probable cause and maliciously in commencing a proceeding against the plaintiff. Plaintiff, instead, must allege that the proceeding in question caused the interference with an explicit right, such as the Fourth Amendment right to be free from an unreasonable seizure of the person or of property. No such claim is made here. Moreover, Plaintiffs do not seek to recover damages to property or to recoup an impairment in the value of property. Instead, Plaintiffs advance only a substantive due process claim to recover the legal fees and expenses they incurred in defending against the actions initiated against them. Such losses are not embraced by a constitutional tort absent conduct that abridged a specific constitutional protection. This does not mean that Plaintiffs have no recourse. Pennsylvania law affords a remedy for malicious use of process. Plaintiffs, however, did not assert a claim under the Pennsylvania codification of the tort of malicious use of process found at 42 Pa. Cons. Stat. Ann. § 8351. In any event, because Plaintiffs have not asserted that they are pursuing a malicious use of civil process claim in this civil rights action, there is no need to address the question of whether such a claim may be pursued as a substantive due process violation alone.
Even if a property interest of the quality protected by the substantive component of the due process clause was at issue here, Defendants would be entitled to judgment in their favor because Plaintiffs have not produced evidence sufficient to enable a jury to find liability on that basis. Relying on County of Sacramento v. Lewis, 523 U.S. 833 (1998), the Third Circuit has held that in order for executive action in land use disputes to violate substantive due process, such action must shock the conscience. United Artists, 316 F.3d at 399-400. Plaintiffs concede that they must adduce sufficient evidence to at least infer that the conduct at issue is conscience-shocking. (Pls.' Br. at unnumbered p. 11.)
The application of this standard depends on each factual context. See Lewis, 523 U.S. at 850 ("Rules of due process are not . . . subject to mechanical application in unfamiliar territory."); United Artists, 316 F.3d at 399-400 ("[T]he meaning of this [shocks the conscience] standard varies depending on the factual context."). It is clear, however, that in any context, "[t]he `shocks the conscience' standard encompasses `only the most egregious official conduct.'" United Artists, 316 F.3d at 400 (quotingLewis, 523 U.S. at 846).
It can also be said that, as a general rule, actions that suggest "a bad motive" or are found to be "senseless and spiteful" are insufficient to shock the conscience. Levin v. Upper Makefield Township, No. 99-CV-5313, 2003 U.S. Dist. LEXIS 3213, at *33 (E.D. Pa. Feb. 25, 2003), aff'd, 90 Fed. Appx. 653, 2004 U.S. App. LEXIS 4457 (3d Cir. 2004). In United Artists, the Third Circuit held that "improper motive" alone is insufficient to satisfy the conscience-shocking standard. 316 F.3d at 400. Even illegal practices by a Township regarding its handling of land-use matters have been found to fail to state a cognizable substantive due process claim. Sauers v. Bensalem Township, No. 01-CV-5759, 2003 U.S. Dist. LEXIS 4706, at *7-9 (E.D. Pa. Mar. 5, 2003). There must be an absence of any rational connection between the challenged conduct and land use regulation.
As suggested by the Honorable Sylvia H. Rambo of this Court:
[T]o survive summary judgment under the "shocks the conscience" test, rather than the "improper motive" test, the [plaintiffs] must have adduced evidence from which a reasonable jury could conclude that the Board's actions did not serve any rational land use purpose. As a result, unless the evidence indicates that the challenged decision is completely unrelated in any way to a rational land use goal, there is no violation of substantive due process. The corollary of that rule being that where the locality's decision is related in any way to some rational goal, then no due process violation occurs even if the locality may have exceeded the scope of its jurisdiction.Corneal v. Jackson Township, 313 F. Supp.2d 457, 466 (M.D. Pa. 2003) (footnote and citation omitted), aff'd, 94 Fed. Appx. 76 (3d Cir. 2004).
In the present case, Defendants' actions fail to rise to the level of egregiousness required to satisfy the conscience-shocking standard. At most, the evidence suggests that Fedor may have had an improper motive — based on a deterioration in the personal relationship between Plaintiffs and Fedor — in taking enforcement actions against Plaintiffs. Improper motive resulting from personal animus, however, is insufficient in itself to be conscience-shocking. See Corneal v. Jackson Township, 94 Fed. Appx. 76, 78, 2004 U.S. App. LEXIS 7198 (3d Cir. 2004) ("Although some conduct may evidence personal animus — such as [name] calling . . . — under United Artists, mere improper motives are not consciousshocking."); Fred's Modern Contracting, Inc. v. Horsham Township, Civ. A. No. 02-CV-0918, 2004 U.S. Dist. LEXIS 5490, at *21-23 (E.D. Pa. Mar. 29, 2004).
Plaintiffs and Defendants dispute whether Fedor had improper motives in issuing Enforcement Orders against Plaintiffs. (See Defs.' Statement of Material Facts ¶¶ 38, 39; Pls.' Resp. to Defs.' Statement of Material Facts ¶¶ 38, 39.) In particular, Plaintiffs allege the following:
29. In his deposition, Zoning Officer Fedor stated that prior to 1998, he "was friends with them (Siegmonds), yes, just like anybody else in the Borough."
30. In his deposition, Zoning Officer Fedor stated that the relationship with the Siegmonds changed due to Mr. Siegmond [sic] attempt to control Council and all members of the borough as well as Mr. Siegmond's berating of Fedor's Father[.]
31. In his deposition, Zoning Officer Fedor stated that Mr. Siegmond has a problem with his neighbors and demanded that Borough Council pass an ordinance against his neighbors' barking dogs, and that Mr. Siegmond became irate because he didn't get his way, and that Mr. Siegmond berated Fedor's Father.
32. In his deposition, Zoning Officer Fedor stated that after the berating incident, he "had nothing to do with" Siegmond. . . .
33. Zoning Officer Fedor did not personally witness the "berating incident".
34. In his deposition, Zoning Officer Fedor stated that Mr. Siegmond has a way of trying to belittle people for no reason whatsoever.
35. In his deposition, Zoning Officer Fedor stated that Mr. Siegmond "acted like a jerk, in plain English[.]"
36. In his deposition, Zoning Officer Fedor stated that Mr. Siegmond "always tries to intimidate everyone."
37. In his deposition, Zoning Officer Fedor admitted that he had asked the Zoning Board to remove Mrs. Siegmond from the Zoning Hearing Board.
(Pls.' Statement of Material Facts ¶¶ 29-37 (citations omitted).) Plaintiffs' assertions have been accepted as true for purposes of determining whether a rational jury could find that Fedor's conduct shocked the conscience.
Moreover, the challenged decisions were plainly related to rational land use goals. All three incidents were based on alleged violations of the Parryville Borough Zoning Ordinance or the existence of a structure that purportedly endangered the welfare of persons. There is no evidence that the cited provisions of the Zoning Ordinance or the protection of public welfare either were utilized solely to single out Plaintiffs or were irrational. The Borough has a legitimate interest in land use planning. See Blain v. Township of Radnor, No. Civ. A. 02-CV-6684, 2004 WL 1151727, at *6 (E.D. Pa. May 21, 2004). Although the enforcement actions against Plaintiffs in this case may have been based on a mixture of legitimate and illegitimate motives, such mixed motives alone are not sufficient to establish a violation of substantive due process. Corneal, 313 F. Supp.2d at 467-68. As further noted in Blain, redress can be sought in state courts for arbitrary or capricious zoning enforcement actions:
Substantive due process is an outer limit on the legitimacy of governmental action. It does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit seeking review of administrative action. Substantive due process standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.Blain, 2004 WL 1151727, at *6 (quoting Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999)). Indeed, Plaintiffs in this case did secure redress from the state courts.
The Third Circuit has stated that "[l]and-use decisions are matters of local concern and such disputes should not be transformed into substantive due process claims based only on allegations that government officials acted with `improper' motives." United Artists, 316 F.3d at 402. Moreover, the fact that the deficiency of the first enforcement notice may have been patent does not mean that Fedor's conduct was so egregious as to be conscience-shocking. It was clearly related to land use regulation, and, therefore, no substantive due process violation may be discerned here. So, too, the May 1998 citation and the January, 1999 notice of enforcement were related to land use regulation, and Plaintiffs are not entitled to relief as to those matters. Accordingly, Defendants' Motion for Summary Judgment on the substantive due process claim will be granted.
C. Procedural Due Process
As this Court previously has noted, "the Third Circuit has determined that Pennsylvania's scheme for challenging zoning determinations satisfie[s] procedural due process." Omnipoint Communications, Inc. v. Penn Forest Township, 42 F. Supp.2d 493, 507 (M.D. Pa. 1999). See also Rogin v. Bensalem Township, 616 F.2d 680, 695 (3d Cir. 1980); Dev. Group, L.L.C. v. Franklin Township Bd. of Supervisors, No. 03-2936, 2003 U.S. Dist. LEXIS 18042, at *23 (E.D. Pa. Sept. 24, 2003); Tri-County Concerned Citizens Ass'n v. Carr, No. 98-CV-4184, 2001 U.S. Dist. LEXIS 14933, at *15 (E.D. Pa. Sept. 18, 2001). Thus, Plaintiffs may not maintain their claim for violation of procedural due process rights. Accordingly, Defendants' Motion for Summary Judgment on the procedural due process claim will be granted.
III. Conclusion
Defendants' Motion for Summary Judgment on the substantive due process claim will be granted because Defendants' actions did not interfere with Plaintiffs' use and enjoyment of their property and, in any event, fail to satisfy the conscience-shocking standard. Defendants' Motion for Summary Judgment on the procedural due process claim will be granted because procedural due process is satisfied by Pennsylvania's scheme for challenging zoning enforcement actions. An appropriate Order follows.
ORDER
NOW, THIS 29th DAY OF JUNE, 2004, for the reasons set forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:1. Defendants' Motion for Summary Judgment (Dkt. Entry 32) is GRANTED.
2. Plaintiffs' Motion for Summary Judgment (Dkt. Entry 36) is DENIED.
3. The Clerk of Court is directed to enter judgment in favor of Defendants and to mark this matter CLOSED.