Opinion
CIVIL ACTION NO. 18-1950
12-04-2018
BROOMALL'S LAKE COUNTRY CLUB v. BOROUGH OF MEDIA, et al.
MEMORANDUM
Plaintiff Broomall's Lake Country Club (BLCC) brings this action under 42 U.S.C. § 1983 and state law against defendants the Borough of Media, the Media Borough Council, individual members of the Media Borough Council, the Solicitor of the Borough of Media, and the Borough Manager (collectively "Borough"). Before the court is the motion of defendants to dismiss the amended complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
The Borough Council member defendants are Brian C. Hall, Paul Robinson, Peter Williamson, Kevin Boyer, Sayer Dixon, Amy Johnson, and Lisa Johnson.
The Solicitor defendant is Michael L. Maddren.
The Borough Manager defendant is Jeffrey A. Smith. --------
I
When reviewing a facial challenge to subject matter jurisdiction under Rule 12(b)(1), the court accepts the plaintiff's allegations as true and draws all inferences in the plaintiff's favor. Turicentro, S.A. v. Am. Airlines, Inc., 303 F.3d 293, 300 & n.4 (3d Cir. 2002). A facial challenge to subject matter jurisdiction is one in which a defendant argues that "the allegations on the face of the complaint, taken as true," are insufficient to invoke the court's jurisdiction. Turicentro, 303 F.3d at 300.
Similarly, when considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the light most favorable to the plaintiff. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008); Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008). We must then determine whether the pleading at issue "contain[s] sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim must do more than raise a "mere possibility of misconduct." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679). Under this standard, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
On a motion to dismiss under Rule 12(b)(6), the court may consider "allegations contained in the complaint, exhibits attached to the complaint, and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citing 5A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)). The court may also consider "matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citing 5B Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)).
II
For present purposes, we accept as true the allegations set forth in the amended complaint. BLCC is a private country club located on Broomall's Lake in the Borough of Media, Delaware County since 1919. On Broomall's Lake there is a dam with a road that provides access to the country club. By 1996, the dam had fallen into disrepair. As a result, the road has been closed to vehicular traffic. BLCC and the Borough disputed which was responsible for repairs to the dam. In December 2006, the Borough filed a complaint in the Court of Common Pleas of Delaware County seeking declaratory judgment that BLCC was responsible for the repairs. BLCC filed an answer and counterclaim asserting that the Borough was responsible. This dispute was resolved in May 2011 with the entry of a stipulated order in which the Borough agreed to make improvements to the dam and the road.
In September 2012, BLCC filed a petition for contempt against the Borough in which BLCC argued that the Borough's plan to improve the road to support only one-way, rather than two-way traffic, violated the stipulated order. The Common Pleas Court found the Borough in contempt and entered a judgment against it in December 2014. The Borough has yet to repair the dam structure or reestablish the street across the dam.
In September 2017, the Borough and the members of the Media Borough Council held a special meeting to "consider drafting an advertisement of an ordinance amending the Borough's zoning map to expand the MERC [municipal, educational, residential and community] use districts." Such an ordinance, if passed, would re-zone BLCC's property from a residential property to a MERC district for public use. The Borough gave the public one-day notice of the special meeting. Although it is not the Borough's usual practice, this short notice complied with the law. However, nothing beyond this very preliminary step has occurred, and no zoning ordinance has been enacted.
BLCC thereafter filed this lawsuit. The amended complaint alleges several constitutional violations under 42 U.S.C. § 1983 based on defendants' "pattern and practice of retaliation against BLCC for engaging in constitutionally protected activity, namely, the filing of a successful contempt petition." According to the BLCC, the pattern and practice of retaliation includes "(1) engaging in delay tactics with regard to repairing the dam structure and the roadway crossing over the dam; (2) refusing to obtain available funding to repair the dam and roadway; and (3) taking steps to re-zone BLCC's property from residential to a MERC district."
Count I alleges defendants violated their right to free speech under the First and Fourteenth Amendments and the Pennsylvania Constitution with this "pattern and practice of retaliation," as well as by denying their members the opportunity to be heard in the special meeting. Count II contends defendants' steps to re-zone BLCC's property are unconstitutional under the Fifth Amendment's Takings Clause, both facially and as applied to BLCC. As to Count III, the amended complaint alleges that defendants' "pattern and practice of retaliation" violated BLCC's substantive due process rights under the Fifth and Fourteenth Amendments and that the efforts to re-zone without allowing BLCC the opportunity to be heard violated BLCC's procedural due process rights. Count IV claims that the retaliation and proposed zoning ordinance violates the Equal Protection Clause of the Fourteenth Amendment. Finally, Counts V through VII set forth state claims including civil conspiracy, breach of contract, and specific performance.
III
We will first address the argument made by defendants under Rule 12(b)(1) that the court cannot exercise subject matter jurisdiction over the zoning-related claims in Counts II through IV because they are not ripe.
Under the United State Constitution, federal courts may only exercise jurisdiction over cases and controversies that are ripe. The courts must avoid "premature adjudication" and entangling themselves in abstract disagreements. Abbott Lab. v. Gardner, 387 U.S. 136, 148 (1967).
The Supreme Court has recognized that facial challenges to regulations are "generally ripe the moment the challenged regulation or ordinance is passed." Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, n. 10 (1997) (citing Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495 (1987)). However, a plaintiff faces an "uphill battle" to prevail on the merits because it is difficult to demonstrate that the "mere enactment" of a regulation has "deprived [a plaintiff] of economically viable use of [his] property." Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, n. 10 (1997) (citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 297 (1981)). The Supreme Court has recognized that underlying facts are particularly important in cases alleging unconstitutional taking of property. Hodel, 452 U.S. at 294-5.
The Supreme Court has also established standards for evaluating ripeness in as-applied challenges to land use decisions. Such cases become ripe only when zoning authorities arrive at a final, definitive position regarding the nature and extent of the impact of the zoning ordinance on the plaintiff's property. Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1291 (3d Cir. 1993) (citing Williamson Planning Comm. v. Hamilton Bank, 473 U.S. 172 (1985) and MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, reh'g denied, 478 U.S. 1035 (1986)). This finality rule recognizes that "zoning is a delicate area where a county's power should not be usurped without giving the county an opportunity to consider concrete facts on the merits prior to a court suit." Taylor, 983 F.2d at 1291, (internal citations omitted). Even land use decisions which cause parties to suffer injuries are not ripe for federal court review until the decision is final. Id. at 1294. This finality rule applies to constitutional land use challenges under the Takings Clause, the Substantive and Procedural Due Process Clause, and the Equal Protection Clause. Id. at 1292.
In Williamson, a local planning commission retroactively applied new regulations and rejected plaintiff's development plan that had previously been approved. Plaintiff brought suit under 42 U.S.C. § 1983 alleging a violation of the Fifth Amendment Takings Clause, and, in the alternative, a Fourteenth Amendment Due Process Clause violation. Williamson, 473 U.S. at 185. The Supreme Court held that the claim was not ripe because plaintiff had sought neither a variance for his property nor compensation for it through the available state procedures. Id. at 193.
In MacDonald, the Supreme Court further developed the ripeness standard with respect to zoning cases. There, the Court held that a plaintiff's takings claim was not ripe for judicial review even after the plaintiff's subdivision plan was rejected by the local planning commission, and plaintiff had appealed the commission's decision and lost. 477 U.S. at 342. The Court explained that the action was still not ripe because plaintiff had not submitted less intensive development plans for the local planning division to consider and possibly approve. Id. at 351-2.
BLCC's constitutional challenges to the proposed zoning ordinance are clearly not ripe under the Supreme Court's analysis in Williams and MacDonald because the proposed ordinance at issue has not become law. As such, a facial challenge to the ordinance is premature. An as-applied challenge similarly lacks ripeness because the Borough has not "render[ed] a final decision on the nature and extent of the impact of the zoning ordinances on [BLCC]'s property" as required by Williams and MacDonald. Taylor, 983 F.2d at 1290. Without a final zoning ordinance, BLCC does not have a ripe constitutional challenge.
In sum, plaintiff's constitutional claims resulting from defendants' efforts to re-zone as described in Counts II, III, and IV are not ripe for adjudication. We therefore cannot exercise subject matter jurisdiction over Count II, or over Counts III and IV to the extent that they allege zoning claims.
IV
BLCC alleges further constitutional violations in Count III under the Due Process Clause and in Count IV under the Equal Protection clause by reiterating defendants' "pattern and practice of retaliation" which includes "(1) engaging in delay tactics with regard to repairing the dam structure and the roadway crossing over the dam; (2) refusing to obtain available funding to repair the dam and roadway; and (3) taking steps to re-zone BLCC's property from residential to a MERC district." To the extent that BLCC describes continued inaction to repair the dam, the matter is ripe and we have subject matter jurisdiction. We must now determine whether BLCC has stated a claim for relief under Rule 12(b)(6).
Plaintiff has brought claims against defendant under 42 U.S.C. § 1983, which reads in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. The statute itself does not create any substantive rights. It simply provides a remedy for vindicating rights established under the Constitution or laws of the United States. Albright v. Oliver, 510 U.S. 266, 271 (1994); Baker v. McCollan, 443 U.S. 137, 144 n. 3, (1979).
In Count III, BLCC asserts that defendants' "pattern and practice of retaliation against BLCC violates BLCC's most fundamental rights so as to violate principles of substantive due process." "To prevail on a substantive due process claim under § 1983, a plaintiff must establish as a threshold matter that he [or she] has a protected property interest in which the Fourteenth Amendment's due process protection applies." Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000). While it is well-settled that certain interests in real property are entitled to substantive due process protection, not all property interests are so protected. Nicholas v. Pa. State Univ., 227 F.3d 133, 140 (3d Cir. 2000) (quoting Reich v. Beharry, 883 F.2d 239, 243 (3d Cir. 1989)). In order to state a substantive due process claim, "a plaintiff must have been deprived of a particular quality of property interest." Id. (quoting DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 598 (3d Cir.1995)). It is important to focus on the allegations in the amended complaint to determine how plaintiff describes the right at stake. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992).
BLCC does not identify specific rights in its amended complaint for the court to consider. This vague, conclusory identification of BLCC's "most fundamental rights" is insufficient to state a claim upon which relief can be granted. Accordingly, we will dismiss the remaining claim in Count III under Rule 12(b)(6).
We next turn to Count IV, in which BLCC claims that defendants violated the Equal Protection Clause with its "retaliatory conduct." The Equal Protection Clause provides ". . . No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. A plaintiff may bring an Equal Protection claim as a "class of one," where plaintiff does not purport to be a member of a protected class or group, by alleging that he "has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). To state a claim under the "class of one" theory, a plaintiff must show that "(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment." Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006). In Hill, the Third Circuit upheld the district court's dismissal of the complaint brought under this theory where plaintiff did not allege the existence of similarly situated individuals. Id. at 240.
BLCC is not a member of a protected class. Thus, BLCC must make an Equal Protection claim under the "class of one" theory, though BLCC erroneously states in its reply brief that it claimed to be a member of a protected class by citing irrelevant paragraphs of its amended complaint. Instead, BLCC's allegation simply recites the elements of an Equal Protection claim with no factual support. BLCC states that defendants denied BLCC "the constitutionally protected rights allowed to others in similar situations" but identifies no parties or treatment to compare. This conclusory allegation cannot make out a "plausible claim for relief." Iqbal, 556 U.S. at 678. Accordingly, we will dismiss the remaining claim in Count IV under Rule 12(b)(6).
V
In Count I, plaintiff alleges that defendants violated BLCC's right of free speech under the First Amendment. Again, BLCC claims defendants engaged in a "pattern and practice of retaliation" which includes "(1) engaging in delay tactics with regard to repairing the dam structure and the roadway crossing over the dam; (2) refusing to obtain available funding to repair the dam and roadway; and (3) taking steps to re-zone BLCC's property from residential to a MERC district" in response to BLCC's successful contempt lawsuit. BLCC also alleges the Borough violated BLCC's free speech rights by denying BLCC an opportunity to be heard in the special meeting held about the zoning ordinance. BLCC appears to be asserting that defendants have not repaired the dam and are considering a zoning ordinance to retaliate against BLCC's 2012 contempt petition and that BLCC's right of speech was directly infringed when its members were given short notice of the special meeting about the zoning ordinance. Based on this understanding, we now consider whether plaintiff has stated a claim upon which relief can be granted under Rule 12(b)(6).
Governments may not "abridge[e] the freedom of speech" under the First Amendment. U.S. Const. amend. 1. However, content-neutral "reasonable time, place or manner restrictions" are permissible. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
In order to state a claim for retaliation in violation of the First Amendment, the plaintiff must allege "(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action." Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). Whether a person of ordinary firmness would be deterred is an objective measure and does not turn on whether the plaintiff was in fact deterred. Mirabella v. Villard, 853 F.3d 641, 650 (3d Cir. 2017).
In order to demonstrate the required causal link, the plaintiff must allege either "(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link." Williamson v. City of Philadelphia, 169 F. Supp. 3d 630, 633-4 (E.D. Pa. 2016) (citing Lauren W. (ex rel. Jean W.) v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).)
BLCC identifies its 2012 contempt petition in the Court of Common Pleas of Delaware County as the First Amendment activity that prompted defendants' retaliation. The right to access the courts is protected under the First Amendment. Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1177 (3d Cir. 1990. Thus, BLCC has satisfied the first prong of the retaliation analysis when reviewing all of defendants' alleged acts of retaliation. While we are skeptical that defendants' inaction to repair the dam and consideration of a zoning ordinance would deter a person of ordinary firmness from exercising his right to access the courts, particularly because BLCC has demonstrated that it was not deterred and has gone to court repeatedly, we will assume for present purposes that BLCC has sufficiently alleged the second prong.
Nonetheless, BLCC has not properly alleged "a causal link between the constitutionally protected conduct and the retaliatory action" for each of its pleaded retaliation claims. Thomas, 463 F.3d at 296. In 2012, BLCC filed a contempt petition, which it identifies as its protected First Amendment activity. BLCC contends that the "pattern and practice" of retaliation includes the Borough's failure to repair the dam. However, this failure long predates BLCC's 2012 contempt petition. The dam had fallen into disrepair by 1996 and the Borough sought declaratory relief in 2006 that BLCC was responsible for the repairs, while BLCC counterclaimed that the Borough was responsible. A stipulated court order in 2011 required the Borough make the repairs. The Court held the Borough in contempt in 2014. Defendants' lack of action has not changed over many years and cannot logically be alleged to have been caused by a contempt petition in 2012 which was filed long after the Borough initiated a declaratory action against BLCC.
BLCC also describes defendants' initial step to re-zone its property as retaliation in violation of the First Amendment. The initial steps, we reiterate, merely concerned the content of an advertisement about a proposed ordinance. BLCC again fails to plead a plausible claim of retaliation because it has not alleged a temporal "causal link" between the initial step to re-zone taken in 2017 and the 2012 contempt petition filed five years earlier.
The situation here is similar to Hammond v. City of Wilkes Barre, F. App'x 806, (3d Cir. 2015). There, plaintiff was a firefighter who sued the City of Wilkes-Barre under § 1983. He claimed that in 2013, the Wilkes-Barre Police Department opened a criminal investigation against him, and that the Human Resources Director brought charges against him, in retaliation for his 2009 lawsuit against the city, and his 2013 deposition testimony for that lawsuit. Id. at 807. The Court concluded that while the plaintiff had otherwise successfully alleged First Amendment retaliation, he had not plausibly described a causal connection. The Court observed that there was no temporal proximity between the 2009 lawsuit and the 2013 investigations because the four year period that had elapsed was simply too long a passage of time. Id. at 808. While the shorter period between the deposition testimony and the investigations may have been probative of causation, the Court concluded that there was no retaliation because defendants were unaware that the deposition testimony had occurred. The Court therefore upheld the district court's dismissal of the complaint.
BLCC further alleges that defendants deprived BLCC and its members of the right to be heard and oppose the proposed zoning ordinance at the special meeting. This suffers from the same deficiencies as BLCC's other First Amendment claims to the extent BLCC intends to plead retaliation. Again, there is no temporal proximity between this meeting and the contempt proceeding several years earlier. BLCC also fails to demonstrate that defendants "abridg[ed] [BLCC's] freedom of speech" because this conclusion is contradicted by the facts in alleged the amended complaint. As BLCC acknowledges, defendants followed the law and provided adequate notice for the special meeting. BLCC's members simply did not take advantage of the opportunity to voice their opinions on the proposed zoning ordinance.
Accordingly, we will dismiss the First Amendment claims in Count I under Rule 12(b)(6).
VI
We turn to BLCC's remaining Counts V through VII, and the Pennsylvania Constitution claim in Count I, which all arise under state law. Congress has authorized district courts under 28 U.S.C. § 1367(a) to exercise supplemental jurisdiction over state claims that are so related to the questions "within [the court's] . . . original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). Under § 1367(c),
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if-28 U.S.C. § 1367(c).
. . .
(3) the district court has dismissed all claims over which it has original jurisdiction[.]
Counts II through IV of BLCC's complaint present federal questions, while Counts V through VII arise under state law and Count I alleges violations of both the federal and Pennsylvania Constitutions. Since we have dismissed all federal claims, we exercise our discretion under § 1367(c) to decline to exercise supplemental jurisdiction over the remaining state law claims.