Tucker Industrial Liquid Coatings, Inc. v. Borough of East Berlin , 656 F. App'x 1 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-1329
_____________
TUCKER INDUSTRIAL LIQUID COATINGS, INC.,
Appellant
v.
BOROUGH OF EAST BERLIN;
DAVID RICHARDS, Council Member of Borough of East Berlin;
ROBERT CLAYTON, Council Member of Borough of East Berlin;
DAVID WOODWARD, Council Member of Borough of East Berlin;
CHARLES PHILLIPS, Council Member of Borough of East Berlin;
WILLIAM POWELL, Council Member of Borough of East Berlin;
STANLEY HOLLENBAUGH, Council Member of Borough of East Berlin
______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 11-cv-01416)
District Judge: Honorable John E. Jones III
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Submitted Under Third Circuit LAR 34.1(a)
January 28, 2016
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Before: VANASKIE, SHWARTZ, and RESTREPO, Circuit Judges.
(Filed: August 4, 2016)
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OPINION

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
______________
RESTREPO, Circuit Judge.
Tucker Industrial Liquid Coatings, Inc. (“Tucker” or “Appellant”) appeals two
orders of the District Court. The first order, among other things, granted Appellees’1
motion to dismiss Tucker’s substantive due process claim for failure to state a claim on
which relief can be granted. The second order granted Appellees’ motion for summary
judgment on Tucker’s equal protection claim. For the reasons that follow, we will affirm
both orders.2
I
In 1993, Bernard Tucker and his son Brian Tucker founded Tucker Industrial
Liquid Coatings, Inc., a company specializing in the application of industrial coatings to
component parts manufactured by others. In 1998, Tucker moved to its current location
at 407 North Avenue, East Berlin, Pennsylvania.
In 2002, the Borough of East Berlin (“Borough”) revised its zoning ordinance. As
a result, the North Avenue facility was zoned in a “mixed use” district. “Light industrial
use” – Tucker’s existing use of its property – was only allowed in a “mixed use” district
1
“Appellees” refers to David Richards, Robert Clayton, David Woodward, and
Charles Phillips.
2
We consider the facts alleged in Tucker’s Third Amended Complaint in reviewing
the dismissal of Tucker’s substantive due process claim. We consider the full record in
reviewing Tucker’s equal protection claim, which was resolved at summary judgment.
2
by way of special exception.3 In 2005, Tucker wanted to expand its operations by
building a 20,800 square foot addition on the North Avenue property. Before
construction began, Tucker, through its contractor, asked Borough Manager Michael
Thoman what it needed to do to comply with the Borough’s regulations. Thoman was the
Borough Permit Officer, Code Enforcement Officer, and Zoning Officer at the time.
Tucker applied for, and was ultimately granted, the following: (1) a Borough Building
Permit;4 (2) an Adams County Building Permit; and (3) a Use and Occupancy Permit.5
Thoman determined that these documents were the only documents Tucker needed for
the expansion. After receiving the permits and spending approximately $1,200,000 on
the project, Tucker completed the North Avenue addition in 2006.
In early 2008, Tucker continued its expansion of operations in the Borough by
purchasing the former Tyco facility located on East King Street for approximately
$3,600,000. Tyco previously used the facility to manufacture electronic components for
communications and consumer products, and Tucker wanted to use the facility in the
same way it used the North Avenue facility – to apply industrial coatings to various parts.
Tucker’s tenure in East Berlin was not without its issues. At some point after
3
Though the parties’ briefing does not make this clear, we assume that Tucker’s
light industrial use of the pre-expansion North Avenue facility was “grandfathered in,”
since that use predated the 2002 zoning revisions.
4
Tucker’s application for the Borough Building Permit was not signed by anyone
on behalf of Tucker, and included the wrong business name – Trucker Property LP. In
addition, the Borough Building Permit itself did not indicate that a special exception
would be required, despite that fact that Tucker proposed “light industrial use” in a
“mixed use” zone.
5
The Use and Occupancy permit was not granted until September 25, 2006, which
was some time after Tucker began using and occupying the new addition.
3
Tucker relocated to the North Avenue facility, the Pennsylvania Department of
Environmental Protection (“DEP”) discovered problems at the North Avenue facility,
including surface coating and emissions reporting violations, and failure to obtain a plan
approval and operating permit. To correct these issues, Tucker and the DEP entered into
a Consent Assessment of Civil Penalty on November 27, 2002, whereby Tucker would
pay a civil penalty of $5,500.
The North Avenue facility again came under regulatory scrutiny when the DEP
issued Tucker a notice of violation on May 19, 2008. At issue were VOC emissions, and
the operation of three spray paint booths without the appropriate approvals and operating
permits. On November 14, 2008, Tucker was issued a second notice of violation by the
DEP. To resolve both notices of violation from 2008, Tucker entered into a Consent
Order and Agreement in April 2009. Therein, Tucker agreed, among other things, to pay
a civil penalty of $154,500.
The DEP was not alone in finding fault with Tucker’s operations – several
Borough residents filed numerous Air Quality Complaints with the Borough about
Tucker throughout 2007 and 2008. These complaints, along with similar odor complaints
about other entities, were raised with the Borough Council at their regular meetings. As
was the practice, all odor complaints were collected by the Public Safety Chairman and
forwarded to the DEP.
As a result of an election, the Borough Council membership changed in January
2008. Appellees Richards, Philips, Clayton, and Woodward joined the Borough Council.
During the March 5, 2008 Borough Council meeting the Council, which included
4
Appellees, entertained discussion about odor and air quality concerns throughout the
Borough. A Tucker representative who spoke at the March 2008 meeting declined an
invitation to participate in an informal discussion of the complaints that had been
received to date.
On October 7, 2008, in response to the May 2008 DEP notice discussed above,
Bernard Tucker sent the Borough a letter indicating Tucker had submitted a plan
approval to the DEP’s air quality program. On November 5, 2008, the Borough sent a
letter to the DEP that replied to Tucker’s plan approval application. On November 21,
2008, the DEP responded to the concerns expressed in the Borough’s November 5, 2008
letter. In August 2009, the DEP held a public hearing on Tucker’s proposed plan
approval.
Also in August 2009, the Borough sent Tucker two enforcement notices outlining
alleged violations of the Borough’s zoning ordinance.6 One notice addressed Tucker’s
failure to secure a special exception for light industrial use when it built the addition at
the North Avenue facility. The second notice addressed Tucker’s failure to secure a
special exception for light industrial use of the East King Street (Tyco) facility.
Thereafter, Tucker appealed these enforcement notices to the Zoning Hearing Board and
requested special exceptions to operate the addition to the North Avenue facility and the
East King Street (Tyco) facility for “light industrial uses.” The Zoning Hearing Board
held hearings on these applications on October 27, 2009, December 8, 2009, January 26,
6
Prior to sending these enforcement notices, one of the Appellees visited the DEP
offices on multiple occasions to review Tucker’s DEP file.
5
2010, March 16, 2010, April 13, 2010, April 27, 2010, May 18, 2010, and May 25, 2010.
On July 6, 2010, the Zoning Hearing Board announced its decision and concluded: (1)
Tucker did not have a vested right in the light industrial use of the addition to the North
Avenue facility; (2) Tucker was not entitled to a continuation of Tyco’s non-conforming
light industrial use of the East King Street facility; and (3) Tucker had failed to
demonstrate the right to a special exception for light industrial use at either facility.
On August 5, 2010, Tucker filed a land use appeal from the decision of the Zoning
Hearing Board in the Court of Common Pleas of Adams County, Pennsylvania. On
December 6, 2011, the Court of Common Pleas affirmed in part and reversed in part the
Zoning Hearing Board’s determinations. Specifically, the court: (1) denied Tucker’s
claim that its due process rights to a fair and impartial tribunal were violated; (2) reversed
the Zoning Hearing Board’s determination that Tucker was not entitled to a vested right
in the use of the addition at the North Avenue facility; and (3) affirmed all other findings
and conclusions made by the Zoning Hearing Board.
Tucker commenced this action by filing a Complaint in the United Stated District
Court for the Middle District of Pennsylvania on August 1, 2011. Eventually, Tucker
filed a Third Amended Complaint, which the Appellees moved to dismiss. The District
Court granted the motion with respect to Tucker’s substantive due process claim,
procedural due process claim, and municipal liability claim under Monell v. New York
City Deepartment of Social Services., 436 U.S. 658 (1978). The District Court permitted
Tucker’s equal protection claim to proceed. Following the close of discovery, Appellees
moved for summary judgment on Tucker’s equal protection claim. The District Court
6
granted the motion, thereby terminating Tucker’s last remaining claim. This timely
appeal followed, which challenges the District Court’s dismissal of Tucker’s substantive
due process claim and the grant of summary judgment in favor of Appellees on the equal
protection claim.
II7
Tucker argues that the District Court erred at the motion to dismiss stage because
the court “applied too stringent of a pleading standard and failed to acknowledge that
Tucker properly pled the Appellees’ personal and political animus.” Appellant’s Br. 21.
Tucker also argues that the District erred at the summary judgment stage because the
court “erroneously found no genuine issue of material fact as to Tucker’s equal protection
claim . . . [due to] the court ignor[ing] several key pieces of evidence . . . [and] resolving
[a] credibility dispute . . . .” Id. We disagree, and we will affirm both orders.
A
In dismissing Tucker’s substantive due process claim, the District Court concluded
that “mere interference with the use and enjoyment of the North Avenue property,
7
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s dismissal order de novo. Powell v. Weiss, 757 F.3d
338, 341 (3d Cir. 2014). “In doing so, we ‘accept all factual allegations as true, construe
the complaint in the light most favorable to the plaintiff, and determine whether, under
any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Id.
(quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)).
We also review the District Court’s decision on summary judgment de novo.
Chesapeake Appalachia, LLC v. Scout Petroleum, LLC, 809 F.3d 746, 753 (3d Cir.
2016). Summary judgment is appropriate where, drawing all reasonable inferences in
favor of the non-moving party, “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
7
regardless of the personal or political animus which may have motivated those actions, is
insufficient to state a substantive due process claim.” JA36. In doing so, the District
Court relied on our decisions in Lindquist v. Buckingham Township, 106 F. App’x 768
(3d Cir. 2004) (not precedential), and Eichenlaub v. Township of Indiana, 385 F.3d 274
(3d Cir. 2004). The District Court interpreted both cases as supporting the proposition
that “municipal land use actions or determinations which do not involve ‘allegations of
hostility to constitutionally-protected activity on the premises’ do not come within the
realm of egregious, conscience-shocking behavior that has long been requisite of a
substantive due process claim.” JA36 (quoting Eichenlaub, 385 F.3d at 285). The
District Court found that “[t]he overwhelming weight of decisional law in this Circuit
provides that land use decisions do not rise to the level of a substantive due process
violation unless interference with a constitutionally-protected right, such as the right to
privacy, is the motivation for or the result of the action.” JA38. The District Court
concluded that Tucker did not state a substantive due process violation under this matrix,
and thus found that Appellees were “entitled to the full protections of the doctrine of
qualified immunity.”8 Id.
Tucker argues that the District Court erred in ignoring the Appellees’ personal and
political animus for Tucker, and that we should reverse the District Court’s dismissal of
the substantive due process claim. Appellant’s Br. 22. We find no such error.
8
The District Court also noted that Tucker incorrectly relied on the “improper
motive” test that originated in Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988), was
repeated in DeBlasio v. Zoning Board of Adjustment, 53 F.3d 592 (3d Cir. 1995), but was
ultimately rejected in United Artists Theatre Circuit v. Township of Warrington, 316 F.3d
392 (3d Cir. 2003).
8
To succeed on a § 1983 claim, a plaintiff must “prove two essential elements: (1)
that the conduct complained of was committed by a person acting under color of state
law; and (2) that the conduct deprived the plaintiff of rights, privileges, or immunities
secured by the Constitution or laws of the United States.” Schneyder v. Smith, 653 F.3d
313, 319 (3d Cir. 2011). Under the second element, “[t]o establish a substantive due
process claim, a plaintiff must prove the particular interest at issue is protected by the
substantive due process clause and the government’s deprivation of that protected interest
shocks the conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008).
Tucker begins by stating that “[c]ases involving a real property interest are
‘unquestionably’ fundamental for substantive due process purposes . . . . Thus, the
substantive due process clause protects Tucker’s right to use its real property without
interference from the government.” Appellant’s Br. 24 (citations omitted). Tucker next
argues that “[b]ehavior is conscience shocking when a zoning controversy involves
allegations of ‘hostility to a constitutionally-protected activity on the premises.’” Id. at
25 (quoting Eichenlaub, 385 F.3d at 285). Tucker finally argues that “[u]se and
enjoyment of property is a constitutionally protected activity.” Id. (citing DeBlasio, 53
F.3d at 600-01). Under Tucker’s suggested interpretation of the law outlined above, any
zoning controversy that interfered with the use and enjoyment of property would
automatically shock the conscience. This is not the law.
Rather, Eichenlaub stands for the proposition that uses that implicate a separately
protected constitutional right are analyzed differently than uses that do not implicate a
separately protected constitutional right. 385 F.3d at 285 (citing Assocs. in Obstetrics &
9
Gynecology v. Upper Merion Twp., 270 F. Supp. 2d 633 (E.D. Pa. 2003)). Eichenlaub
recognized that the district court in Associates was correct to analyze the way the zoning
decision in Associates “shock[ed] the conscience” in the context of “judicial decisions
that address[ed] the protection of abortion services,” because abortion is a right that is
constitutionally protected under the Fourteenth Amendment. Id. at 285. Indeed, a later
reference in Eichenlaub makes the importance of the presence or absence of such a
separate constitutional right absolutely clear. In justifying the district court’s finding that
the alleged misconduct did not rise above a typical zoning dispute, in Eichenlaub we
remarked: “The local officials are not accused of seeking to hamper development in order
to interfere with otherwise constitutionally protected activity at the project site, or
because of some bias against an ethnic group.” Id. at 286 (emphasis added).
It is undisputed that Tucker’s use of the property does not implicate a separately
protected constitutional right, and Tucker’s argument that “an extra right such as in
Associates is only required when the dispute revolves around a purported future use,”
Appellant’s Br. 26, is without foundation in law or reason and we reject it.
By way of example, a zoning decision that effectively prevented an owner from
publishing a political newspaper would be analyzed under a framework that took into
account the fact that such a use was separately protected by the First Amendment, while a
zoning decision that effectively prevented an owner from manufacturing playing cards
would be analyzed differently, as there is no separate constitutional protection for
manufacturing playing cards. Both uses can serve as the basis for a substantive due
process claim, however, the “shocks the conscience” standard will be applied differently
10
to the two, as one involves a separately protected constitutional activity and the other
does not. Tucker’s attempt to place all possible land uses on equal constitutional footing
for what “shocks the conscience” is both unpersuasive and contrary to our precedent.
It is true that the “shocks the conscience” test “is not precise” and “varies
depending on the factual context.” Eichenlaub, 385 F.3d at 285 (citations and quotation
marks omitted). However, “[w]hat is clear is that this test is designed to avoid converting
federal courts into super zoning tribunals.” Id. It is the case here, as it was in
Eichenlaub, that “the misconduct alleged . . . does not rise sufficiently above that at issue
in a normal zoning dispute to pass the ‘shocks the conscience test.’” Id. at 286. In the
absence of a separately protected constitutional right, Tucker attempted to meet the
shocks the conscience standard by including an allegation that Appellees were motivated
by “personal and political animus.” JA78. There may be zoning disputes where, in the
absence of a separately protected constitutional right, allegations of personal and political
animus sufficiently shock the conscience in order to state a due process claim. Here,
however, Tucker’s mere inclusion of the phrase “personal and political animus” in the
Complaint is clearly insufficient. As the District Court correctly pointed out, “there is an
absolute dearth of facts within the amended pleading to even inferentially support this
broad assertion.” JA38. In sum, we agree with the District Court that Tucker failed to
state a substantive due process claim, and thus we will affirm its order dismissing
Tucker’s claim.
B
11
To prevail on an equal protection claim under the “class of one” theory relied on
by Tucker, a plaintiff must demonstrate that: (1) it “has been intentionally treated
differently from others similarly situated;” and (2) “that there is no rational basis for the
difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per
curiam). In analyzing Appellee’s summary judgment motion, the District Court held that
Tucker “could be considered similarly situated” in all relevant respects to Pennwood
Products – another business located in East Berlin. JA66-67. The District Court also
held that Tucker “has failed to meet its heavy burden of showing that Defendants had no
rational justification for treating Tucker differently.” JA69.
On appeal, Tucker asserts that “the District Court erred by failing to recognize that
Tucker contests the motives the Appellees asserted and, therefore, a triable issue of
material fact existed as the Appellees were motivated by personal vendettas and not a
legitimate interest.” Appellant’s Br. 27-28. We perceive no such error.
As correctly recognized by the District Court, JA69, a successful class of one
plaintiff must show that any differential treatment it suffered was “irrational and wholly
arbitrary.” Eichenlaub, 785 F.3d at 286 (quoting Olech, 528 U.S. at 564) (internal
quotation marks omitted). “These challenges fail when ‘there is any reasonably
conceivable state of facts that could provide a rational basis for the classification.’”
Highway Materials, Inc. v. Whitemarsh Twp., 386 F. App’x 251, 259 (3d Cir. 2010) (not
precedential) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)).
On the record before the District Court, such a reasonably conceivable state of
facts was present. First, when compared to Pennwood, Tucker received DEP Notices of
12
Violation that were more recent, and more severe. Compare JA1530-37 (showing that
Pennwood’s most recent DEP violation occurred on July 6, 2005, and that no Pennwood
violation resulted in financial penalties or consent agreements), with JA507-12 (Consent
Assessment of Civil Penalty dated November 27, 2002, for Tucker, which resulted in a
$5,500 civil penalty) and JA1053-69 (Consent Order and Agreement dated April 16,
2009, addressing multiple Tucker violations from 2008, which resulted in a $154,500
civil penalty). Second, the Borough received a greater number of odor complaints about
Tucker than Pennwood, and the odor problem with Tucker persisted for a longer period
than the odor problem with Pennwood. Compare JA868-81 (containing thirteen Air
Quality Complaints about Tucker over the course of eight months in 2007 and 2008),
with JA1545-54 (containing ten Air Quality Complaints about Pennwood over the course
of three months in 2007). Third, Appellees had at least some reason to believe that
Tucker, unlike Pennwood, would not readily work with the Borough Council to address
residents’ concerns about odor problems. See JA1008 (Borough Council Meeting
Minutes from March 5, 2008, which reflect that a Tucker representative declined an
invitation to participate in informal discussions about odor complaints received about
Tucker). Accordingly, we cannot say that it was irrational and wholly arbitrary for
Appellees to review Tucker’s DEP file or seek to remediate the impact of Tucker’s light
industrial use in a mixed use zone, particularly where Tucker’s light industrial use of the
property is what caused the environmental issues and served as the basis for the odor
complaints by the Borough residents. Under these circumstances, we agree with the
13
District Court that Appellees were entitled to summary judgment on Tucker’s equal
protection claim.
III
For the foregoing reasons, we will affirm both orders of the District Court.
14