Frank Perano v. Township of Tilden ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-2393
_____________
FRANK T. PERANO,
d/b/a GSP Management Co,
Appellant,
v.
TOWNSHIP OF TILDEN; TROY R. HATT, INDIVIDUALLY AND IN
HIS CAPACITY AS A TOWNSHIP SUPERVISOR; RUSSELL H. WERLEY,
INDIVIDUALLY AND IN HIS CAPACITY AS A TOWNSHIP SUPERVISOR;
JUDY E. ROMIG, INDIVIDUALLY AND IN HER CAPACITY AS A TOWNSHIP
SUPERVISOR; JOHN YODER, INDIVIDUALLY AND IN HIS CAPACITY
AS A TOWNSHIP ZONING AND CODE ENFORCEMENT OFFICER; CHERYL
HAUS, INDIVIDUALLY AND IN HER CAPACITY AS TOWNSHIP SECRETARY;
CARBON ENGINEERING INC.; RONALD TIRPAK, INDIVIDUALLY AND IN HIS
CAPACITY AS THE TOWNSHIP ENGINEER AND THE MUNICIPAL AUTHORITY
FOR THE TOWNSHIP OF TILDEN
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 09-cv-754)
District Judge: Hon. Joel H. Slomsky
_______________
Submitted Under Third Circuit LAR 34.1(a)
April 12, 2011
Before: FISHER, JORDAN and COWEN, Circuit Judges.
(Filed: April 13, 2011)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Frank T. Perano appeals from an order of the United States District Court for the
Eastern District of Pennsylvania granting motions to dismiss filed by Appellees
Township of Tilden (the “Township” or “Tilden”), Troy R. Hatt, Russell H. Werley, Judy
E. Romig, John Yoder, Cheryl A. Haus, Ron Tirpak, and Carbon Engineering, Inc. (with
the Township, collectively the “Defendants”). For the following reasons, we will affirm.
I. Background1
This case arises out of Perano‟s dealings with the Township over the development
of a mobile home park he owns in Tilden. He began operating the Pleasant Hills Mobile
Home Park (“Pleasant Hills” or the “park”) in 1990 and has expanded it in phases. As
Pleasant Hills grew, Tilden residents expressed increasing opposition. In response, the
Township attempted to amend its zoning ordinances to prevent further development of
the park.
In 1997, Perano sued the Township in state court, challenging the proposed zoning
amendment. In 1999, Perano and the Township entered into a consent order to resolve
the state court litigation (the “Consent Order”). The Consent Order provided that the
Township would use its best efforts to make sewage and water facilities available to the
1
Because we are reviewing the District Court‟s grant of the Defendants‟ motions
to dismiss, we recount the facts as alleged by the non-movant, Perano. In doing so, we
do not imply any view as to whether those allegations are actually true.
2
park. The Township‟s obligation regarding water and sewage was contingent on Perano
receiving final land development approval for Phases VI and VII of Pleasant Hills.
In June 2001, the Township approved Phase VII, and, in July 2006, it
conditionally approved Phase VI.2 The conditional approval required Perano to develop
and install sewage collection and water distribution systems for the park, in accordance
with the Pennsylvania Department of Environmental Protection‟s (“PADEP”) rules and
regulations, to allow connection with the existing systems owned by the Township.
Perano has not completed the water and sewage systems for Phase VI, however,
because of what he alleges is obstructionist and harassing behavior by the Township. He
has catalogued the disputes. He says that the Township took no action to provide public
water to Phase VI. A Township zoning officer inspected Pleasant Hills without notice or
permission and noted several violations, which led the Township to schedule a hearing
regarding the violations. The Township accepted Perano‟s licensing fees in August 2007
without issuing him a license or issuing a denial and refund and then, without giving him
notice or an opportunity to be heard, announced that he was operating the park without a
license. A Township zoning officer issued a stop-work order for any projects at the park
and did not issue any future building permits. The Township sent him a letter saying that
no additional homes could be placed at Pleasant Hills until a license was issued.3 Finally,
2
Why the approvals came in reverse numerical order is not apparent from the
record.
3
An additional basis alleged for the denial of the license was a letter from PADEP
stating that the mobile home park did not have sufficient sewage capacity to
accommodate additional residents. In response, Perano made an open records request for
3
the Township sought to compel him to cede ten acres from the park to the Township for a
sewer easement.
In February 2009, Perano sued the Defendants in the District Court.4 In May
2009, the Defendants moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. In response, Perano moved to amend his complaint. The District Court
granted Perano leave to amend, specifically to allow him to add PADEP as a party and to
supplement factual allegations for his claims under 42 U.S.C. §§ 1983 and 1985.
In September 2009, Perano filed an amended complaint that did not add PADEP
and that substituted a Contract Clause claim for the § 1985 claims. The Defendants again
moved to dismiss. After a March 2010 hearing on the motions to dismiss, the District
Court, in April 2010, ordered the lawsuit dismissed with prejudice. This appeal followed.
all documents provided by PADEP to the Township regarding the park‟s supposedly
insufficient sewage capacity. The Township responded that no such documentation
existed. Perano then submitted to the Township documentation that he says demonstrates
sufficient sewage capacity to allow additional residents to locate homes in the park.
Nevertheless, the Township continued to deny permits.
4
In April 2009, the Township filed a Declaration of Taking in state court to obtain
a perpetual sanitary sewer easement on a portion of Perano‟s property. The state court
denied Perano‟s preliminary objections to the Declaration of Taking, and Perano
appealed. Perano raised the takings issue in the District Court, but the Court determined
that the issue was not ripe because Perano had not exhausted his state court remedies.
Perano does not challenge that determination on appeal.
4
II. Discussion5
Perano argues before us that the District Court erred in dismissing his procedural
due process, substantive due process, Equal Protection, Contract Clause, and conspiracy
claims. He also argues that the District Court erred in denying his request for leave to
further amend and instead dismissing his lawsuit with prejudice.
We review de novo a district court‟s grant of a motion to dismiss under Rule
12(b)(6). In re Adams Golf, Inc. Sec. Litig., 381 F.3d 267, 273 (3d Cir. 2004). We first
accept all well-pleaded factual allegations as true and disregard the plaintiff‟s legal
conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). We
“then determine whether the facts alleged … are sufficient to show that the plaintiff has a
plausible claim for relief.” Id. at 211 (internal quotation marks omitted). To be
“plausible,” the complaint must, through its factual allegations, “permit the court to infer
more than the mere possibility of misconduct.” Id. (internal quotation marks omitted).
We review for abuse of discretion a district court‟s decisions to dismiss a case
with prejudice and to refuse leave to amend a complaint. Ramsgate Ct. Townhome Ass’n
v. West Chester Borough, 313 F.3d 157, 161 (3d Cir. 2002).
A. Procedural Due Process Claim
To make out a procedural due process claim, Perano must show that the
Defendants deprived him of a protected property interest and that the state procedure for
5
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
5
challenging the deprivation was constitutionally inadequate.6 Hill v. Borough of
Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006); Revell v. Port Auth. of N.Y. & N.J., 598
F.3d 128, 138 (3d Cir. 2010). Assuming, as the parties apparently do, that Perano has
been deprived of a protected property interest, our focus is on the state‟s procedures and
whether they are constitutionally adequate.
“[A] state provides constitutionally adequate procedural due process when it
provides reasonable remedies to rectify a legal error by a local administrative body.”
DeBlasio v. Zoning Bd. of Adjustment for Twp. of West Amwell, 53 F.3d 592, 597 (3d Cir.
1995), abrogated in part on other grounds by United Artists Theatre Circuit, Inc. v. Twp.
of Warrington, 316 F.3d 392, 400 (3d Cir. 2003). We have previously upheld as
reasonable Pennsylvania‟s post-deprivation judicial remedies for challenging
administrative land use decisions. See Bello v. Walker, 840 F.2d 1124, 1128 (3d Cir.
1988) (holding that Pennsylvania‟s “judicial mechanism with which to challenge the
administrative decision to deny an application for a building permit” was constitutionally
adequate), abrogated in part on other grounds by United Artists, 316 F.3d at 400.
Moreover, post-deprivation hearings and common law tort remedies can be
constitutionally adequate “where the potential length or severity of the deprivation does
not indicate a likelihood of serious loss and where the procedures … are sufficiently
reliable to minimize the risk of erroneous determination.” Memphis Light, Gas & Water
Div. v. Craft, 436 U.S. 1, 19 (1978); see also Revell, 598 F.3d at 138 (recognizing that, in
6
For purposes of our analysis, we assume without deciding that all the Defendants
qualified as state actors.
6
some circumstances, post-deprivation hearings and common law tort remedies satisfy due
process).
Here, for each of the alleged bad acts by the Defendants, there is a reasonable state
remedy, whether it be under the state‟s Municipalities Planning Code, 53 PA. CON. STAT.
ANN. §§ 10101 et seq., or the Eminent Domain Code, 26 PA. CON. STAT. ANN. §§ 101 et
seq., or through other judicial process. As exemplified by the previous litigation between
Perano and the Township, Perano has avenues for challenging the Defendants‟ actions.
Accordingly, he has failed to state a procedural due process claim.
B. Substantive Due Process Claim
To make out a substantive due process claim, Perano must show that the
Defendants deprived him of a protected property interest and that that deprivation
“shocks the conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008); see also
United Artists, 316 F.3d at 400-02. We again assume arguendo that Perano has been
deprived of a protected property interest and focus on whether the Defendants‟ actions
shock the conscience.
“„[O]nly the most egregious official conduct‟” shocks the conscience. United
Artists, 316 F.3d at 400 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846
(1998)). What is shocking depends on context, id. at 399-400, but, in the land use
context, the standard is sufficiently high to “avoid converting federal courts into super
zoning tribunals,” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004); see
also United Artists, 316 F.3d at 402 (recognizing that the “shocks the conscience”
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standard “prevents [the Court] from being cast in the role of a zoning board of appeals”)
(internal quotation marks omitted).
In Eichenlaub, we held that an inconsistent application of zoning requirements,
unnecessary inspections, delaying permits and approvals, improperly increasing tax
assessments, and “malign[ing] and muzzl[ing]” a property owner were not enough to
shock the conscience when those actions were not coupled with interference with a
constitutionally protected activity or ethnic bias. 385 F.3d at 286. We noted that
complaints related to zoning requirements, inspections, and permits were “frequent in
[land use] planning disputes” and that, while adversely affected property owners can
couch such complaints as abuses of legal authority, the complaints do not rise to the level
of substantive due process violations. Id.
So too here, Perano‟s complaints are of the sort frequently at issue in land use
disputes. He has not alleged any conduct by the Defendants that can be said to shock the
conscience and therefore has failed to state a substantive due process claim.
C. Equal Protection Claim
To make out an Equal Protection claim as a “class of one,” as Perano now
attempts, he must show that he was “intentionally treated differently from others
similarly situated and that there [was] no rational basis for the difference in treatment.”
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Borough of Kutztown,
455 F.3d at 239 (quoting Olech). To be “similarly situated,” parties must be “alike in all
relevant aspects.” Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008)
(internal quotation marks omitted). At the motion to dismiss stage, Perano must allege
8
facts sufficient to make plausible the existence of such similarly situated parties. See
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see also Toussie v. Town Bd. of East
Hampton, 2010 WL 597469, *6 n.3 (E.D.N.Y. Feb. 17, 2010) (viewing Iqbal as
“requir[ing] sufficient factual allegations to make the conclusion of similarly situated
plausible” and noting that pre-Iqbal cases not requiring such “are problematic in view of
Iqbal”).
Here, Perano has simply alleged that he was treated differently from “other
similarly situated residential and commercial developers.” (App. at 51.) Without more
specific factual allegations as to the allegedly similarly situated parties, he has not made
plausible the conclusion that those parties exist and that they are like him in all relevant
aspects. Accordingly, Perano has failed to state an Equal Protection claim.
D. Contract Clause Claim
The Constitution‟s Contract Clause, set forth in Article I, Section 10, provides that
“[n]o State shall … pass any … Law impairing the Obligation of Contracts.” U.S.
CONST. ART. I, § 10. To make out a claim under that clause, Perano must show that “a
change in state law has operated as a substantial impairment of a contractual
relationship.” Transport Workers Union of Am., Local 290 v. SEPTA, 145 F.3d 619, 621
(3d Cir. 1998) (internal quotation marks omitted). A court makes three threshold
inquiries in evaluating a Contract Clause claim: “(1) whether there is a contractual
relationship; (2) whether a change in a law has impaired that contractual relationship; and
(3) whether the impairment is substantial.” Id. Significantly, the claim must rest on an
exercise of legislative power, not the acts of administrative or executive boards or
9
officers. New Orleans Waterworks Co. v. La. Sugar Ref. Co., 125 U.S. 18, 30 (1888); see
also Kinney v. Conn. Judicial Dep’t, 974 F.2d 313, 314 (2d Cir. 1992) (quoting New
Orleans Waterworks and reiterating that violations of the Contract Clause arise from
legislative action).
Here, Perano alleges that the Township‟s actions in enforcing ordinances, issuing
stop work orders, denying permits, and the like have violated the terms of the Consent
Order. However, none of those actions was an exercise of legislative power. Put more
simply, the Township did not change any laws; it merely enforced them in a way that
allegedly impaired Perano‟s rights under the Consent Order. Accordingly, Perano has
failed to state a Contract Clause claim.
E. Conspiracy
To make out a conspiracy claim under § 1983, Perano must show that “persons
acting under color of state law conspired to deprive him of a federally protected right.”
Ridgewood Bd. of Educ. V. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999). As a
threshold matter, however, a § 1983 conspiracy claim only arises when there has been an
actual deprivation of a right. Andree v. Ashland Cnty., 818 F.2d 1306, 1311 (7th Cir.
1987); see also Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990)
(recognizing that deprivation of a right was a necessary predicate to § 1983 conspiracy
liability). Perano has failed to clear that threshold, as he has not shown an actual
deprivation of any federally protected right. Accordingly, he has failed to state a § 1983
conspiracy claim.
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F. Denial of Leave to Amend and Dismissal with Prejudice
“[A] district court has discretion to deny a request to amend if it is apparent from
the record that … the amendment would be futile[.]” Hill v. City of Scranton, 411 F.3d
118, 134 (3d Cir. 2005).
The record before the District Court included Perano‟s original and amended
complaints, his exhibits, his responses to the motions to dismiss, and his arguments at the
March 2010 hearing. The District Court, then, was well-acquainted with Perano‟s
allegations of the Defendants‟ misconduct and had afforded him ample opportunity to
supplement or clarify those allegations. Given that, it was reasonable for the District
Court to conclude that Perano had already presented his most damning allegations and
that no further amendment would cure the factual deficiencies. Accordingly, it was not
an abuse of discretion for the District Court to deny leave to amend and dismiss with
prejudice.
III. Conclusion
For the foregoing reasons, we will affirm the District Court‟s order dismissing
Perano‟s lawsuit with prejudice.
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