Maple Properties, Inc. v. Township of Upper Providence , 151 F. App'x 174 ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-17-2005
    Maple Prop v. Upper Providence
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 04-4604
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 04-4604
    ____________
    MAPLE PROPERTIES, INC.,
    Appellant
    v.
    TOWNSHIP OF UPPER PROVIDENCE;
    BOARD OF SUPERVISORS OF
    UPPER PROVIDENCE TOWNSHIP;
    JOHN F. PEARSON; ROBERT N. MAUGER;
    HOWARD P. HUBER
    ____________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. No. 00-cv-04838)
    District Judge: Honorable Juan R. Sanchez
    ____________
    Submitted Under Third Circuit LAR 34.1(a)
    September 23, 2005
    Before: ROTH, McKEE and FISHER, Circuit Judges.
    (Filed October 17, 2005)
    ____________
    OPINION OF THE COURT
    ____________
    FISHER, Circuit Judge.
    Maple Properties, Inc. (“Maple”), appeals from the decision of the United States
    District Court for the Eastern District of Pennsylvania, granting summary judgment in
    favor of Upper Providence Township and municipal officials on the company’s claims
    under 
    42 U.S.C. § 1983
     of violations of procedural and substantive due process. Maple
    alleged that Township officials manipulated notice and open meeting requirements in
    order to deprive the company of a reasonable opportunity to challenge a municipal
    ordinance rezoning a parcel of property in which it held an equitable interest. As a result
    of the Township’s action, Maple was prevented from going forward with an anticipated
    development of the parcel and eventually lost its interest in the property.
    The District Court concluded that Pennsylvania law offers an adequate means to
    challenge the zoning decision and that the conduct of the Township did not “shock the
    conscience.” We have jurisdiction pursuant to 
    28 U.S.C. § 1291
    . We will affirm.
    I.
    As we write for the parties, who are familiar with the circumstances underlying
    this case, we will set forth only those facts necessary for our analysis. In April 1998,
    Maple acquired an equitable interest in a parcel of property in Upper Providence
    Township through a conditional agreement of sale with the owner of record. The parcel
    was, at the time, zoned “neighborhood commercial,” permitting a fairly wide range of
    commercial uses. Maple intended to build a retail store on the site, and, on or about
    2
    April 23, 1999, submitted development plans with the Township. The application was
    rejected on April 28, 1999, for noncompliance with certain procedural requirements.
    During the same time, as Maple was preparing and filing its application to develop
    the property, the Township was preparing and considering a proposal that would prevent
    the planned development. Municipal officials had received informal notice of Maple’s
    intentions in March 1999 and soon thereafter suggested that the Township adopt an
    ordinance reclassifying the property as “professional business office,” precluding retail
    development. A similar proposal had been presented by the Township Planning
    Commission in 1997, based on traffic concerns related to the business then operating on
    the property. The proposal had been rejected by the Township Board of Supervisors after
    the owner agreed to execute a restrictive covenant limiting further expansion. The
    restrictions of the covenant, however, did not prohibit the development planned by Maple.
    A renewed proposal to rezone the property to “professional business office” was
    approved by the Township Planning Commission in April 1999. The proposal was placed
    on the agenda of the next meeting of the Board of Supervisors, to be held on May 3,
    1999, and an advertisement of the meeting was published in a local newspaper of general
    circulation on April 16 and 23, 1999. The advertisement quoted the proposed ordinance
    in its entirety and “invited [the public] to attend and express opinions concerning . . .
    enactment of this ordinance.” It is unclear from the record whether notice of the meeting
    3
    and the proposed ordinance was posted on the subject property or provided to either
    Maple or the owner of record.1
    The meeting went forward on May 3, 1999, and the Board of Supervisors
    approved the ordinance. The record does not disclose whether representatives of Maple
    attended the meeting.2
    Maple challenged the validity of the ordinance before the Zoning Hearing Board,
    as permitted under the Pennsylvania Municipalities Planning Code (“MPC”), P A. S TAT.
    A NN. tit. 53, §§ 10101-11202. The company alleged that the Township had failed to
    satisfy several requirements of the Code: to post notice of proposed rezoning
    “conspicuously” on the subject property, see MPC § 609(b), to advertise notice of the
    proposed rezoning in a newspaper of general circulation, see MPC § 610, and to file a
    1
    See P A. S TAT. A NN. tit. 53, § 10609 (requiring that notice of proposed rezoning
    ordinance be posted on the affected tract and delivered to owner of record before
    enactment). The Township asserts in its brief that “[t]he proposal to rezone was . . .
    posted [on the property] and the property owner . . . was given notice of the proposal to
    rezone prior to the rezoning.” (Br. of Appellees at 6.) However, this statement is not
    backed by a citation to the record, and our independent review of the materials submitted
    on appeal do not demonstrate any evidentiary support for the assertion.
    2
    Maple asserts in its brief that it “first learned of the Township’s intent to rezone
    only after the fact.” (Br. of Appellant at 5.) However, again, this statement is not
    supported by a citation to the record, and our independent review of the materials
    submitted on appeal does not reveal any document or testimony suggesting that Maple did
    or did not receive prior notice of the proposal or attend the meeting. If a company
    representative did attend the meeting, he or she did not raise an objection to the
    ordinance.
    4
    copy of the ordinance with the county planning agency within thirty days of enactment,
    see MPC § 609(c).3 The Zoning Hearing Board rejected the challenge in toto.
    Maple appealed to the court of common pleas. In March 2002, the court found
    that the Township had, in fact, failed to file a copy of the ordinance with the county
    within thirty days of enactment and that the ordinance was thus “invalid for lack of strict
    compliance with [section 609(c) of the MPC].” The court further stated that “the
    remaining issues raised by Maple . . . in this appeal lack merit.” It denied the “balance of
    the [appeal].”
    The victory for Maple was, however, Pyrrhic. The sale of agreement under which
    it held its equitable interest had expired and the owner of the parcel had sold the property
    to another developer. The company could no longer exploit the opportunity it had fought
    to preserve.
    Maple sought compensation for its losses under 
    42 U.S.C. § 1983
    , in a complaint
    filed in the United States District Court for the Eastern District of Pennsylvania. It
    alleged that the Township had disregarded open meeting laws and other notice
    requirements, in violation of Maple’s right to procedural due process, and that the
    Township’s zoning decision was “totally irrational” and “applied . . . selectively to
    Maple,” in violation of Maple’s right to substantive due process. Maple also claimed that
    3
    Maple also asserted that the ordinance constituted impermissible “spot zoning”
    and resulted from “improper motive.”
    5
    the procedures for challenging the ordinance before the Zoning Hearing Board – which
    the company had successfully employed – were inadequate to protect its rights because
    they did not provide for the recovery of compensatory damages. Discovery followed, and
    the Township filed a motion for summary judgment in July 2004.
    The District Court granted the motion. It held, citing prior decisions of this Court,4
    that the procedures available under Pennsylvania law to challenge zoning decisions
    constituted constitutional “due process.” It also found, based in part on evidence that
    Township officials were concerned with excessive traffic near the property, that the
    decision to rezone did not “shock the conscience” and did not infringe on Maple’s right to
    substantive due process. This timely appeal followed.
    II.
    The Due Process Clause of the Fourteenth Amendment provides that “[n]o state
    shall . . . deprive any person of . . . property, without due process of law.” 5 U.S. C ONST.
    amend. XIV, § 1. This language offers both procedural and substantive protections. See
    Nicholas v. Pa. State Univ., 
    227 F.3d 133
    , 139 (3d Cir. 2000). In the former sense, it
    ensures that individuals will be afforded an adequate opportunity to challenge
    4
    Midnight Sessions, Ltd. v. City of Philadelphia, 
    945 F.2d 667
     (3d Cir. 1991);
    Rogin v. Bensalem Township, 
    616 F.2d 680
     (3d Cir. 1980).
    5
    We assume without deciding that the equitable interest held by Maple constitutes
    an interest in “property” warranting procedural and substantive due process protection
    and that Maple was deprived of this interest by enactment of the rezoning ordinance. See
    Indep. Enters. Inc. v. Pittsburgh Water & Sewer Auth., 
    103 F.3d 1165
    , 1179 (3d Cir.
    1997).
    6
    deprivations of property by state officials. See, e.g., Midnight Sessions, Ltd. v. City of
    Philadelphia, 
    945 F.2d 667
    , 680 (3d Cir. 1991). In the latter sense, it guarantees that
    certain infringements on property interests, those that are so egregious as to “shock the
    conscience,” will not be permitted under any circumstances, regardless of the procedural
    protections accorded by the state. See United Artists Theatre Circuit, Inc. v. Township of
    Warrington, 
    316 F.3d 392
    , 401-02 (3d Cir. 2003); see also Boyanowski v. Capital Area
    Intermediate Unit, 
    215 F.3d 396
    , 399 (3d Cir. 2000).
    We exercise plenary review of the order of the District Court granting summary
    judgment in favor of the Township on the claims of procedural and substantive due
    process violations. See Gallo v. City of Philadelphia, 
    161 F.3d 217
    , 221 (3d Cir. 1998).
    Summary judgment is appropriate if a review of the record, in a light most favorable to
    the non-moving party, demonstrates that “there is no genuine issue as to any material fact
    and that the moving party is entitled to judgment as a matter of law.” F ED. R. C IV. P.
    56(c); see also Coolspring Stone Supply, Inc. v. Am. States Life Ins. Co., 
    10 F.3d 144
    , 146
    (3d Cir. 1993).
    A.
    State and municipal officials are constitutionally obliged to offer a means by which
    individuals may challenge zoning restrictions and other adverse land use decisions. See
    DeBlasio v. Zoning Bd. of Adjustment, 
    53 F.3d 592
    , 596-97 (3d Cir. 1995); Rogin v.
    Bensalem Township, 
    616 F.2d 680
    , 694-95 (3d Cir. 1980). The process that is “due” in a
    7
    given situation necessarily differs based on the particular circumstances. Id.; see also
    Rogal v. Am. Broad. Cos., Inc., 
    74 F.3d 40
    , 44-45 (3d Cir. 1996). For example, a
    determination of “just compensation” for the condemnation of property must generally be
    preceded by notice and an opportunity for a hearing, see Walker v. City of Hutchinson,
    
    352 U.S. 112
    , 115-16 (1956), while a local agency may deny a license application without
    a hearing so long as prompt administrative or judicial review of the action is available
    thereafter, see Rogin, 
    616 F.2d at 695
    ; see also Cohen v. City of Philadelphia, 
    736 F.2d 81
    , 86 (3d Cir. 1984).
    We need not determine in this case what minimum level of process is
    constitutionally required because, even under the highest standard, Maple has offered
    insufficient evidence to establish a violation of the Fourteenth Amendment. The
    ordinance of which Maple complains was not enacted in secret. It was submitted for
    review at a public meeting of the Township Planning Commission two months before
    enactment. Notice of the proposed ordinance and the meeting at which it would be
    considered was advertised twice in newspapers of general circulation in the month
    preceding the meeting. The meeting itself was open to the public, with an opportunity for
    those who opposed the proposal to be heard.6
    6
    The Township does not argue, and we do not address, whether enactment of the
    ordinance constituted a “legislative” act, for which public notice alone would arguably
    satisfy the dictates of due process. See Rogin, 
    616 F.2d at 693-94
    ; see also Logan v.
    Zimmerman Brush Co., 
    455 U.S. 422
    , 432-33 (1982); Coniston Corp. v. Village of
    Hoffman Estates, 
    844 F.2d 461
    , 468-69 (7th Cir. 1988); cf. Acierno v. Cloutier, 
    40 F.3d 8
    More importantly, there is no competent evidence in the record demonstrating that
    Maple did not receive actual notice of the proposed ordinance or enjoy an opportunity to
    attend the meeting at which it was considered.7 None of the depositions of witnesses and
    parties, none of the documents from the administrative proceedings, and none of the
    decisions of the state and federal courts submitted in this case indicate that Maple was
    unaware of the meeting or that notice was not provided to the company. To the contrary,
    the court of common pleas, in addressing Maple’s zoning appeal, expressly rejected as
    without merit the claim that the Township had failed to post a copy of the ordinance at the
    property and had failed to provide adequate notice of the proposed enactment. The record
    does not support a finding that Maple was not accorded due process prior to the alleged
    deprivation.
    Moreover, Maple enjoyed additional opportunities to challenge the ordinance after
    enactment. The Pennsylvania Municipalities Code allows those aggrieved by a land use
    decision to challenge the action in administrative and judicial proceedings. See P A. S TAT.
    A NN. tit. 53, §§ 10909.1, 11002-A. This Court has previously recognized these
    procedures as a constitutionally adequate means to protect interests in property. Midnight
    597, 610-15 (3d Cir. 1994) (considering whether enactment of zoning ordinance is “to be
    regarded as legislative for immunity purposes”).
    7
    See, e.g., Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322-23 (1986) (“Rule 56(c)
    mandates the entry of summary judgment . . . 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.”).
    9
    Sessions, 
    945 F.2d at 680
    ; Rogin, 
    616 F.2d at 694-95
    . These procedures were available to
    Maple; indeed, they were successfully employed by the company to challenge the
    ordinance at issue in this case.
    That the zoning appeal process does not permit the recovery of compensatory
    damages is immaterial for purposes of assessing compliance with the Due Process Clause.
    The “deprivation” that these procedures are intended to address is the diminution of an
    interest in real estate by virtue of a change in zoning. See 
    id.
     They do not and need not
    also provide redress for consequential losses suffered by the individual as a result of the
    government actions at issue. See Parratt v. Taylor, 
    451 U.S. 527
    , 537 (1981). These
    losses, assuming that they implicate due process protection, may be addressed through
    subsequent proceedings, following conclusion of the zoning appeal.8 See 
    id.
     Maple has
    offered no evidence that it has sought or been denied recourse to state courts to pursue
    these claims. Thus, Maple has not established a due process violation.9
    8
    It may be noted that the Pennsylvania Eminent Domain Code allows landowners
    to seek compensation for a regulatory “taking” of property. See Conroy-Prugh Glass Co.
    v. Dep’t of Transp., 
    321 A.2d 598
    , 600-01 (Pa. 1974) (citing P A. S TAT. A NN. tit. 26,
    § 1-502(e)). We, of course, express no opinion on the applicability of these provisions to
    the case at hand but merely offer them as an example of the post-deprivation procedures
    available under Pennsylvania law.
    9
    See Zinermon v. Burch, 
    494 U.S. 113
    , 126 (1990) (“The constitutional
    violation . . . is not complete when the deprivation occurs; it is not complete unless and
    until the State fails to provide due process.”); see also DeBlasio, 
    53 F.3d at 597
     (“[W]hen
    a state ‘affords a full judicial mechanism with which to challenge the administrative
    decision’ in question, the state provides adequate procedural due process, whether or not
    the plaintiff avails him or herself of the provided appeal mechanism.”) (internal citations
    omitted) (quoting Bello v. Walker, 
    840 F.2d 1124
    , 1128 (3d Cir. 1988)).
    10
    Nor is it relevant if the Township did not, as Maple alleges, follow Pennsylvania
    law in proposing and enacting the ordinance. “A violation of state law is not a denial of
    due process of law.” Coniston Corp. v. Village of Hoffman Estates, 
    844 F.2d 461
    , 468-69
    (7th Cir. 1988); see also Creative Env’ts, Inc. v. Estabrook, 
    680 F.2d 822
    , 833 (1st Cir.
    1982), cited in United Artists, 
    316 F.3d at 402
    . That the Township’s actions may have
    been illegal under Pennsylvania law does not mean that they were unconstitutional under
    the Due Process Clause.
    B.
    Some land use decisions are so egregious that no amount of “process” can suffice
    to honor and restore an individual’s constitutional property rights. See, e.g., United
    Artists, 
    316 F.3d at 401-02
    ; Boyanowski, 
    215 F.3d at 399
    . These situations are often
    typified by corruption, self-dealing, or a concomitant infringement on other fundamental
    individual liberties, resulting in harms that cannot be adequately rectified by pre- or post-
    deprivation proceedings. See Eichenlaub v. Township of Indiana, 
    385 F.3d 274
    , 285-86
    (3d Cir. 2004) (citing Conroe Creosoting Co. v. Montgomery County, 
    249 F.3d 337
     (5th
    Cir. 2001); Assocs. in Obstetrics & Gynecology v. Upper Merion Township, 
    270 F. Supp. 2d 633
     (E.D. Pa. 2003)). Official actions that fall within this category “shock the judicial
    conscience” and are deemed to violate the substantive protections of the Due Process
    Clause. 
    Id.
     (citing County of Sacramento v. Lewis, 
    523 U.S. 833
    , 847 (1998)); see also
    United Artists, 
    316 F.3d at 402
    .
    11
    The Township’s enactment of the zoning ordinance does not rise to this level.
    There is no evidence that individual members of the Township Board of Supervisors
    enjoyed financial gain from the ordinance or that the rezoning decision otherwise
    redounded to their personal advantage. Nor is there any suggestion that Maple suffered
    an infringement of a fundamental liberty as a result of the Township’s action.
    To the contrary, this case involves a fairly run-of-the-mill zoning dispute. Maple
    asserts that the ordinance was irrational in light of land use goals, was passed “in the
    dark” and without a “deliberative process,” and was targeted selectively at Maple to
    preclude the company from making beneficial use of its property. Even if true, these
    allegations do not “shock the conscience.” We have previously recognized that the
    politics and animosities that often animate local decision-making are not matters of
    constitutional concern. See 
    id.
     The conduct of officials in this case may have been
    “unfair” or “improper” from Maple’s perspective, but there is no evidence of the patently
    egregious behavior recognized in prior cases to constitute a substantive due process
    claim. See, e.g., Conroe, 
    249 F.3d at 341-42
     (finding potential violation when official
    summarily authorized “complete dispersal” of company’s assets without legal authority).
    We addressed a similar, and seemingly more offensive, zoning dispute in
    Eichenlaub v. Township of Indiana, 
    385 F.3d 274
     (3d Cir. 2004). The landowners in
    Eichenlaub alleged that the municipality had selectively imposed improper tax
    assessments and “maligned and muzzled” them when they raised objections. See 
    id.
     at
    12
    286. We found that these “complaints are examples of the kind of disagreement that is
    frequent in planning disputes” and, absent “allegation of corruption or self-dealing,” did
    not “shock the conscience.” See 
    id.
     The same situation is presented in this case, and the
    same result must adhere.
    III.
    The evidence of record is insufficient to support a finding of either a procedural or
    substantive violation of the Due Process Clause. Summary judgment was properly
    granted in favor of the Township.
    Accordingly, we will affirm the judgment of the District Court.
    13
    

Document Info

Docket Number: 04-4604

Citation Numbers: 151 F. App'x 174

Judges: Roth, McKee, Fisher

Filed Date: 10/17/2005

Precedential Status: Non-Precedential

Modified Date: 10/19/2024

Authorities (21)

donald-boyanowski-individually-donald-boyanowski-tdba-boyo , 215 F.3d 396 ( 2000 )

Parratt v. Taylor , 101 S. Ct. 1908 ( 1981 )

Zinermon v. Burch , 110 S. Ct. 975 ( 1990 )

cohen-harris-and-cohen-olga-hw-v-city-of-philadelphia-and-green , 736 F.2d 81 ( 1984 )

Independent Enterprises Inc. Thomas Lozecki v. Pittsburgh ... , 103 F.3d 1165 ( 1997 )

County of Sacramento v. Lewis , 118 S. Ct. 1708 ( 1998 )

Creative Environments, Inc. v. Robert Estabrook , 680 F.2d 822 ( 1982 )

james-j-gallo-jr-rose-maria-gallo-v-city-of-philadelphia-renald , 161 F.3d 217 ( 1998 )

Coolspring Stone Supply, Inc. v. American States Life ... , 10 F.3d 144 ( 1993 )

Associates in Obstetrics & Gynecology v. Upper Merion ... , 270 F. Supp. 2d 633 ( 2003 )

midnight-sessions-ltd-ta-after-midnight-baker-ocean-inc-ta-down , 945 F.2d 667 ( 1991 )

w-channing-nicholas-md-v-pennsylvania-state-university-by-its , 227 F.3d 133 ( 2000 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

conroe-creosoting-company-conroe-credit-corporation-hm-hawthorne-lyn , 249 F.3d 337 ( 2001 )

Coniston Corporation v. Village of Hoffman Estates , 844 F.2d 461 ( 1988 )

Owen Rogal, D.D.S. Owen Rogal, D.D.S., P.C. v. American ... , 74 F.3d 40 ( 1996 )

united-artists-theatre-circuit-inc-v-the-township-of-warrington-pa , 316 F.3d 392 ( 2003 )

david-eichenlaub-ike-construction-daniel-eichenlaub-barbara-eichenlaub-v , 385 F.3d 274 ( 2004 )

sharon-l-rogin-and-michael-r-rogin-ann-mangano-and-wm-mangano-janet , 616 F.2d 680 ( 1980 )

alfred-deblasio-v-zoning-board-of-adjustment-for-the-township-of-west , 53 F.3d 592 ( 1995 )

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