Acierno v. Cloutier

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
10-18-1994
Acierno v. Cloutier
Precedential or Non-Precedential:
Docket 93-7456
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Recommended Citation
"Acierno v. Cloutier" (1994). 1994 Decisions. Paper 160.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 93-7456 & 93-7617
FRANK E. ACIERNO
v.
PHILIP CLOUTIER; RICHARD CECIL; ROBERT POWELL;
ROBERT WOODS; CHRISTOPHER ROBERTS; PENROSE HOLLINS;
KAREN VENEZKY; NEW CASTLE COUNTY; MICHAEL MITCHELL,
Philip Cloutier, Richard Cecil,
Robert Powell, Robert Woods,
Christopher Roberts, Penrose
Hollins and Karen Venezky,
Appellants in No. 93-7456
Michael T. Mitchell,
Appellant in No. 93-7617
Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 92-00385)
Argued March 25, 1994
Before: GREENBERG, COWEN and NYGAARD
Circuit Judges
Submitted in banc August 30, 1994
Before: SLOVITER, Chief Judge, BECKER, STAPLETON,
MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN,
NYGAARD, ALITO, ROTH, LEWIS and McKEE
Circuit Judges
(Opinion Filed: October 18, 1994)
Collins J. Seitz, Jr.
Connolly, Bove, Lodge & Hutz
1220 Market Building
P.O. Box 2207
Wilmington, DE 19899
COUNSEL FOR APPELLANTS
PHILIP CLOUTIER, RICHARD CECIL,
ROBERT POWELL, ROBERT WOODS,
CHRISTOPHER ROBERTS, PENROSE
HOLLINS, KAREN VENEZKY AND
NEW CASTLE COUNTY
Barry M. Willoughby
Young, Conaway, Stargatt & Taylor
P.O. Box 391
Rodney Square North, 11th Floor
Wilmington, DE 19899-0391
COUNSEL FOR APPELLANT
MICHAEL T. MITCHELL
Thomas S. Neuberger
Suite 702
200 West Ninth Street
Ninth Street Plaza
Wilmington, DE 19801-1646
John J. Yannacone
Yannacone, Fay, Baldo & Daly
200 East State Street, Suite 107
Media, PA 19063
COUNSEL FOR APPELLEE
FRANK E. ACIERNO
OPINION OF THE COURT
COWEN, Circuit Judge.
In this action under 42 U.S.C. § 1983, the defendants
have appealed the denial of their motions to dismiss on absolute
and qualified immunity grounds. These appeals were first heard
by a panel of this court, which was bound by Prisco v. United
States Dep't of Justice, 851 F.2d 93 (3d Cir. 1988), cert.
denied, 490 U.S. 1089 (1989). In that case it was held that a
defendant may not appeal the denial of a claim of qualified
immunity under the collateral order doctrine if the defendant
would nevertheless be required to go to trial on a claim for
injunctive relief. When the panel opinion was circulated to the
full court before publication, the court voted to grant rehearing
in banc for the purpose of reconsidering Prisco. Having done so,
the full court has decided that Prisco should be overruled. Part
IIB of this opinion, which represents the opinion of the court
sitting in banc, addresses that issue. The issues addressed in
the remainder of this opinion have been considered by the panel
only.
In still another chapter in the extensive volume of
litigation between Frank Acierno and the members of the New
Castle County Council ("County Council") in Delaware concerning
Acierno's various development projects, we are called upon to
decide whether the members of the County Council are entitled to
immunity from suit for their actions of enacting two ordinances
which down-zoned Acierno's commercial property. We conclude that
both the present and former members of the County Council are
immune from suit because the actions they took with respect to
Acierno's commercial property were either substantively and
procedurally legislative in nature, or did not abrogate a clearly
established property interest. Accordingly, we will reverse the
district court's denial of the motion for summary judgment made
by the present and former members of the County Council on
immunity grounds. We will also reverse the district court's
order denying First Assistant County Attorney Mitchell's motion
to dismiss on immunity grounds.
I.
A. Factual Background
Plaintiff Frank E. Acierno, a real estate developer,
purchased a thirty-eight acre parcel of land located in New
Castle County, Delaware (the "property") on October 5, 1984 for
slightly more than $1,000,000. As of April, 1971, the property
had a classification under New Castle County's zoning ordinance
as a "diversified planned unit development" ("DPUD"). A major
land development plan for the property was approved by the County
and recorded on April 11, 1974. The approved record development
plan provided for the construction of a 322 unit apartment
complex (to be called "The Maples Apartments"), together with the
development of .87 acres of land for commercial use.
It is undisputed that Acierno's interest in owning the
property was partly by reason of its DPUD zoning classification
and the fact that the property was the subject of an approved
record development plan. Before closing on the property, Acierno
sought and received assurances from the New Castle County
Department of Planning ("Department of Planning") regarding the
current zoning and record plan status of the property. In
response to Acierno's request, the Department of Planning issued
a letter opinion which stated the following: "The land is still
currently zoned Diversified Planned Unit Development (DPUD). The
status of the record plan is that it is current and, therefore,
the uses permitted are noted on the plan subject to limitations
regarding the density, commercial area, etc." Appendix ("App.")
(No. 93-7456) at 131. In reliance on these factors, Acierno paid
a premium of approximately $900,000 for the property. At the
time of purchase, the description of the property specifically
noted that the parcel had been approved by County officials for
the construction of 322 apartment units.
In October, 1985, Acierno filed with the Department of
Planning a revised development plan for the property, which was
now to be known as the "Westhampton project." Thereafter, in
December, 1985, the County Council issued a resolution pursuant
to section 23-81(21) of the County Code1 requesting that the
Department of Planning provide a recommendation as to whether the
existing record plan for the property should be voided. The
County Council issued this resolution based on concerns that DPUD
rezonings were not being developed in a timely fashion, that the
density of housing might adversely impact on the general quality
of life in the County, that an updated review of traffic, water,
1
. Then County Code § 23-81(21) provided in relevant part as
follows:
If construction has not been completed within . . . five (5)
years after the date of approval of the record
development plan for the [planned unit development
("PUD")] or the date of approval of the record
development plan of the last stage of PUD, if submitted
in stages, whichever is longer, then the approval shall
be voidable at the discretion of county council, upon
recommendation of the department of planning.
New Castle County, Del., Code § 23-81(21) (repealed 1987); App.
(No. 93-7456) at 355.
and sewer facilities was necessary, and that the Subdivision
Advisory Committee should review the project in light of the
character of the existing neighborhood. The record reflects that
the project was the only DPUD-zoned property with a record
development plan subject to review by the County.
In response to the resolution, the Department of
Planning solicited comments from various municipal departments
and determined that the property had adequate traffic, water, and
sewer capacity. Therefore, the Department of Planning did not
make a recommendation that the County Council void the record
development plan. Two months later, the then Council Attorney
sent a memorandum to the County Council pertaining to the
resolution. The memo stated that there was nothing more for the
County Council to consider since the voiding provision of the New
Castle County Code, § 23-81(21), "indicates that the [Department
of Planning] must affirmatively support the voiding of a record
plan before Council's discretion comes into being. Without such
prerequisite support, Council has no discretion to act. If this
were not the case, review by the [Department of Planning] would
be meaningless." App. (No. 93-7456) at 140.
On March 11, 1986, then County Council President Karen
Peterson informed Acierno that nothing remained for the County
Council to consider regarding the resolution and that no further
ordinances or resolutions had been proposed concerning the
property. Acierno then undertook a revision of the subdivision
plan2 for the property to address concerns raised by the County
regarding the planned use for the site. The Department of
Planning informed Acierno that his revised and updated
subdivision plan for the Westhampton project was approved and
recorded on April 18, 1986. A subsequent revised subdivision
plan, superseding the April plan, was approved and recorded on
December 5, 1986.
During 1987 the County Council revised, updated, and
amended the DPUD zoning classification. At the time a workshop
concerning the zoning amendment effort was held in October, 1987,
the proposed amended DPUD ordinance contained a "savings clause"
which provided as follows:
Section 4. This ordinance shall become effective
immediately upon its adoption and approval except for
rezoning applications currently pending DPUD approval
which shall be exempt from the provisions of this
ordinance, but subject to the provisions of the Code in
effect at the time of rezoning to DPUD.
App. (No. 93-7456) at 92. This proposed DPUD ordinance, known as
"Substitute Ordinance No. 1 to Ordinance 87-025," was not enacted
into law. In response to suggestions made during the workshop,
the savings clause was revised to read as follows:
Section 4. This ordinance shall become effective
immediately upon its adoption and approval except for
rezoning applications currently pending DPUD approval
which shall be exempt from the provisions of this
ordinance except Section 23-81(18), but subject to the
provisions in the Code in effect at the time of
rezoning to DPUD.
2
. The County Code distinguishes between a "record plan" and
major and minor "subdivision plans." See New Castle County,
Del., Code § 20-3 (defining these terms).
App. (No. 93-7456) at 113 (emphasis added).3 This revised DPUD
ordinance, known as "Substitute Ordinance No. 2 to Ordinance 87-
025," was adopted into law by the County Council on October 13,
1987. Id. at 93, 113. The language of the savings clause is
relevant to this dispute because Acierno alleges that the County
Council, through an opinion issued by First Assistant County
Attorney Michael T. Mitchell, relied upon the unenacted version
to conclude that it had discretion to void Acierno's record
development plan.
In 1988, Acierno further revised the Westhampton
project subdivision plan and submitted it for County review. In
June, 1988, the Department of Planning informed Acierno that the
subdivision plan, superseding the December 5, 1986 subdivision
plan, was approved and recorded. By December, 1988 when a
further revised subdivision plan was approved and recorded,
Acierno had spent in excess of $1,000,000 to further his
development plans for the property, including expenses for
mortgage interest, engineering fees, and real estate taxes. It
is not disputed, however, that Acierno never obtained a building
3
. Current County Code § 23-81(18) allows a landowner with DPUD-
zoned property 10 years from the date of the original rezoning
ordinance to develop the parcel as proposed. If the property has
not been fully developed at the end of the 10 year sunsetting
period, the landowner must submit current support facilities
information establishing the adequacy of these facilities in the
opinion of the Department of Planning in order to continue with
the development as approved. New Castle County, Del., Code § 23-
81(18). This provision replaced former County Code § 23-81(21),
which provided a five year window after the date of the approval
of the PUD record development plan before the County Council had
discretion to void the record plan. Id. § 23-81(21) (repealed
1987); see supra note 1.
permit from the County allowing him to start construction of the
Westhampton project.
The County Council again introduced a resolution in
April, 1991 requesting the Department of Planning's
recommendation whether to void the existing record development
plan for the property. The record reflects that the County
Council had concerns similar to those present when a voiding
resolution had been introduced in December, 1985. Acting upon
this resolution and enclosing a copy of the December, 1988
subdivision plan, the then Director of the Department of Planning
contacted the Delaware Department of Transportation for comments
concerning road access and traffic impact.
In a memorandum to the County Council dated May 22,
1991, the then Director advised the County Council that
Subdivision Advisory Committee members had been asked to comment
on the Westhampton project and to identify any issues that might
preclude development of the site as depicted by the record
development and subdivision plans. The memo stated that various
government agencies had identified deficiencies in the
subdivision plan, but acknowledged that the situation could be
remedied by Acierno through voluntary revisions to the plan. In
fact, Acierno responded to the Department of Planning by letter
dated May 29, 1991 that he intended to cooperate in order to
address and resolve any deficiencies. By June, 1991, Acierno had
submitted a wetlands delineation report, thereby fulfilling one
of the cited deficiencies.
Defendant-appellant Michael T. Mitchell, First
Assistant County Attorney, was also involved in reviewing the
voiding resolution proposed in April, 1991. He provided a legal
memorandum to the County Council on July 2, 1991 which set forth
his opinion as to whether the Council had authority to void
Acierno's approved record development plan. Mitchell's opinion
concluded that the County Council had discretion to void the
record development plan for the Westhampton project upon
recommendation by the Department of Planning because the old
five-year sunsetting provision of the County Code, repealed § 23-
81(21), applied rather than the newly enacted ten-year sunsetting
provision, § 23-81(18). In coming to this conclusion, Mitchell
relied upon the unenacted savings clause contained in Substitute
Ordinance No. 1 to Ordinance 87-025, rather than the enacted
savings clause which was introduced as part of Substitute No. 2
to that ordinance.
From May, 1991 through April, 1992 Acierno proceeded
with his development efforts by attempting to remedy the
purported deficiencies in the Westhampton plan. Some changes in
the proposed development were incorporated into a revised plan
which was submitted to the Department of Planning for review and
approval. The Department of Planning allegedly informed Acierno
in September, 1991 that he had complied with all material
deficiencies contained in the May 22, 1991 memorandum from the
Department of Planning to the County Council. The County Council
tabled the resolution to void Acierno's record development plan
in September, 1991.
The resolution was reexamined the next Spring. In a
letter to the County Council dated April 2, 1992, the Department
of Planning indicated that Acierno had submitted a new
subdivision plan which resolved the wetlands, fire prevention,
and a majority of the public works concerns. The traffic and
road access issues were the only remaining deficiencies that had
not been completely resolved. The Department of Planning
concluded:
In summary, it would appear that the only remaining
issue with respect to our memorandum of May 22, 1991,
is access through the Oakwood Hills subdivision. The
Department has been given no indication that the
applicant will voluntarily remove this access from the
plan. Further, we see no evidence that any meaningful
dialogue is ongoing between the applicant and community
to find a compromise position. Should [the County]
Council be of the opinion that this issue warrants
voiding of the plan, the Department would recommend
that it proceed with action on [the voiding resolution]
as this appears to be the only method of bringing
closure on this issue.
App. (No. 93-7456) at 39.
After notice and a public hearing, on April 14, 1992
the County Council enacted Ordinance 91-190 voiding the approved
record development plan and related subdivision plans for the
property. The next day, defendant-appellant Philip Cloutier,
then a member of the County Council, informed the Director of
Planning that he intended to introduce an ordinance to rezone the
property from DPUD back to R-2, its residential zoning
classification prior to its rezoning to DPUD in 1971. As
required by statute, legal notice of the proposed zoning
ordinance was published on June 20, 1992; below the title of the
proposed ordinance contained in the notice was bracketed language
indicating that enactment would rezone the property from DPUD to
an R-2 zoning classification.
A statutorily required public hearing was held before
the Department of Planning and Planning Board on July 7, 1992
concerning the proposed rezoning ordinance. Two weeks later, the
Department of Planning recommended the adoption of a substitute
ordinance which would rezone the property from DPUD to an R-1-B
classification instead of an R-2 classification. The R-1-B
zoning classification, which requires an average minimum lot size
of 15,000 square feet, is less restrictive than the R-2 zoning
classification, which requires an average minimum lot size of
21,780 square feet. Compare New Castle County, Del., Code § 23-
39(3) (the R-1-B residence district requires a minimum lot area
of 15,000 square feet) with id. § 23-39(6) (the R-2 residence
district requires a one-half acre or 21,780 square feet minimum
lot area).
On September 9, 1992 the County Council enacted
Substitute No. 1 to Ordinance No. 92-119 rezoning the property
from DPUD to an R-1-B zoning classification. This action was
taken even though all public notices concerning the rezoning had
indicated that upon enactment the property would be rezoned from
DPUD to an R-2 classification. The effect of the rezoning was
that Acierno had to suspend his plans to develop a large
apartment building on the property because the R-1-B zoning
classification permits only a variety of less intensive uses.
The district court made a finding of fact that Acierno had spent
more than $1,000,000 pursuing his plan to develop the property.4
B. Procedural Background
Acierno filed a complaint on July 1, 1992 in the United
States District Court for the District of Delaware alleging that
the defendants, through the voiding of his approved record
development plan and the rezoning of his property, violated his
constitutional rights. The original complaint named as
defendants the County and present and former members of the
County Council.5 The complaint was subsequently amended in
April, 1993 to include First Assistant County Attorney Michael T.
Mitchell as a party defendant.
The amended complaint contains two counts. In count
one, Acierno seeks compensatory damages and injunctive relief
against all defendants pursuant to 42 U.S.C. § 1983.
Specifically, Acierno alleges that the defendants violated his
equal protection and procedural and substantive due process
rights by down-zoning his property. In count two, Acierno seeks
4
. The district court did not clarify whether this figure of
$1,000,000 includes the premium of $900,000 that it found Acierno
paid for the property in reliance on the existing DPUD zoning
classification and approved record development plan when he
purchased the property in 1984. In light of our disposition of
these appeals, resolution of this factual ambiguity is not
necessary and in no way impacts on our decision in this case.
5
. The defendants who are presently serving as members of the
County Council are Richard Cecil, Robert Woods, Christopher
Roberts, Penrose Hollins, and Karen Venezky. The defendants who
are former members of the County Council are Philip Cloutier and
Robert Powell.
injunctive relief against the County under an equitable estoppel
theory.
The present and former County Council members had filed
an answer to the original complaint in which they allege defenses
of legislative and qualified immunity. These defendants and the
County filed a motion for summary judgment on December 4, 1992.
After the filing of various motions and responses which are not
relevant to this appeal, the district court made a determination
to treat the motion by the defendants other than Mitchell as a
motion for partial summary judgment. In a Memorandum Opinion and
Order dated June 9, 1993, the district court granted the motion
for summary judgment on Acierno's procedural due process claim,6
but denied the motion as to the substantive due process and equal
protection claims. See Acierno v. Cloutier, No. 92-385, 1993 WL
215133, at *23-26 (D. Del. June 9, 1993), aff'd in part, rev'd in
part, __ F.3d __, 1994 WL 319783 (3d Cir., Jul 07, 1994) (No. 93-
7456, 93-7617), vacated and reh'g in banc granted, __ F.3d __,
1994 WL 401516 (3d Cir., Aug 04, 1994) (No. 93-7456, 93-7617).
The district court also concluded that the defendants were not
entitled to summary judgment with respect to their defenses of
legislative and qualified immunity. Id. at *27-30.
6
. Acierno has not cross-appealed the granting of the
defendants' motion for summary judgment with respect to the
procedural due process claim, and thus, we have no occasion to
address this theory of the complaint in this opinion or to
consider whether we would have had jurisdiction over a cross-
appeal.
The district court separately addressed the defenses of
legislative and qualified immunity. The district court
articulated a two-part test for entitlement to legislative
immunity which requires that the action taken be legislative in
nature rather than administrative, and that the action be taken
in accordance with statutory procedures. Id. at *27. The court
concluded that the enactment of the two ordinances which down-
zoned Acierno's property was administrative, rather than
legislative, because the two ordinances were directed at a single
property owner and not the community at large. Id. The court
further held that the members of the County Council were not
entitled to legislative immunity because they did not strictly
comply with Delaware law when rezoning the property from DPUD to
an R-1-B zoning classification. Id. at *27-29.
Turning to the defense of qualified immunity, the
district court concluded that because Acierno had a vested right
to develop his property pursuant to the DPUD zoning
classification and approved record plan, see id. at *9-19, which
was clearly established by Delaware state law at the time of the
rezoning decisions, no reasonable official would have believed
that the rezoning actions were lawful. Id. at *29. In rejecting
the qualified immunity defense, the district court also found
that a reasonable official would have known that the voiding of
the record plan was precluded by County law. Id. Thus, the
district court decided that the members of the County Council
were not entitled to immunity from suit.
Defendant Mitchell filed a motion to dismiss the
amended complaint on the grounds that it fails to state
cognizable due process and equal protection claims against him
and that he is entitled to qualified immunity from suit. The
district court rejected Mitchell's motion to dismiss in a
separate Memorandum Opinion and Order dated September 1, 1993.
Acierno v. Cloutier, No. 92-385, slip op. at 13-19 (D. Del. Sept.
1, 1993). Addressing the defense of qualified immunity, the
district court denied Mitchell's motion because it found that
Mitchell had knowingly, or through his own incompetence, relied
on unadopted legislation when issuing his legal opinion as to
whether the County Council had authority to void the approved
record development plan. Id., slip op. at 19-20.
II.
A. Jurisdiction of the District Court
Plaintiff Acierno filed this action pursuant to 42
U.S.C. § 1983 alleging that the defendants violated his
constitutional rights by down-zoning his property. Thus, the
district court had subject matter jurisdiction over the federal
question claims by virtue of 28 U.S.C. §§ 1331 and 1343. It had
supplemental jurisdiction over the state law claim under 28
U.S.C. § 1367. In these appeals, the members of the County
Council and defendant Mitchell contend that the district court
improperly denied their motions to dismiss or for summary
judgment on the grounds of immunity from suit.
B. Appellate Jurisdiction
Ordinarily we do not have appellate jurisdiction to
review district court orders denying motions to dismiss or for
summary judgment because there is no final order within the
meaning of 28 U.S.C. § 1291. W.D.D., Inc. v. Thornbury Township,
850 F.2d 170, 171 (3d Cir.) (in banc) (per curiam), cert. denied,
488 U.S. 892, 109 S. Ct. 228 (1988). The Supreme Court, however,
has held that courts of appeals have appellate jurisdiction under
the "collateral order" doctrine of Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949), to consider
whether a defendant is entitled to absolute immunity from suit.
Nixon v. Fitzgerald, 457 U.S. 731, 741-43, 102 S. Ct. 2690, 2697-
98 (1982); see also Schrob v. Catterson, 967 F.2d 929, 934 (3d
Cir. 1992) ("Schrob II"); Schrob v. Catterson, 948 F.2d 1402,
1406-07 (3d Cir. 1991) ("Schrob I"). This principle of appellate
jurisdiction has been extended to orders rejecting a defendant's
entitlement to qualified immunity from suit to the extent that
the decision turns on issues of law. Mitchell v. Forsyth, 472
U.S. 511, 524-30, 105 S. Ct. 2806, 2814-17 (1985); see also
Kulwicki v. Dawson, 969 F.2d 1454, 1459-61 (3d Cir. 1992).
In adhering to this theory of appellate jurisdiction,
we have recognized that an order denying a defense of immunity is
reviewable before trial because entitlement to "immunity from
federal claims encompasses not only immunity from liability, but
also immunity from suit." Brown v. Grabowski, 922 F.2d 1097,
1105 (3d Cir. 1990), cert. denied, 501 U.S. 1218, 111 S. Ct. 2827
(1991). See also Federal Ins. Co. v. Richard I. Rubin & Co., 12
F.3d 1270, 1281 (3d Cir. 1993) (sovereign immunity is an immunity
from trial), cert. denied, __ U.S. __, 114 S. Ct. 2101 (1994).
The Supreme Court has instructed that the first step in reviewing
a district court's qualified immunity decision is to determine
whether the plaintiff has "allege[d] the violation of a clearly
established constitutional right" at all. Siegert v. Gilley, 500
U.S. 226, __, 111 S. Ct. 1789, 1793 (1991); see also D.R. by L.R.
v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364,
1368 (3d Cir. 1992) (in banc), cert. denied, __ U.S. __, 113 S.
Ct. 1045 (1993). This threshold inquiry requires us to determine
whether the constitutional right asserted by Acierno was
"``clearly established' at the time the defendants acted," and
whether Acierno "has asserted a violation of a constitutional
right at all." Siegert, 500 U.S. at 232, 111 S. Ct. at 1793.7
7
. The Supreme Court's majority opinion in Siegert, when read as
a whole, seems to suggest that where practicable or expedient an
appellate court should first address whether the plaintiff has
alleged a cognizable constitutional claim at all, before turning
to the question of whether the constitutional right asserted was
"clearly established" at the time the defendant acted. 500 U.S.
at 232-33, 111 S. Ct. at 1793-94. In fact, we have emphasized
this aspect of the Siegert decision in a subsequent case where we
decided to address all plaintiffs' allegations of constitutional
error as a predicate question to whether the constitutional
rights were "clearly established" at the time the defendant
acted. See D.R. by L.R., 972 F.2d at 1368. Nevertheless,
concurring in the judgment in Siegert, Justice Kennedy recognized
that in certain cases, like the one before the Supreme Court in
that case, it is an "altogether normal procedure" for the court
of appeals to decide the case "on the ground that appear[s] to
offer the most direct and appropriate resolution," 500 U.S. at
235, 111 S. Ct. at 1795 (Kennedy, J, concurring in the judgment),
which in difficult constitutional cases will sometimes be whether
the constitutional right was "clearly established" at the time
the defendant acted. Furthermore, the majority opinion in
Siegert does not state that courts of appeals must always as an
initial inquiry address whether a constitutional violation has
The present case involves two appeals: (1) the
defendants who are current and former members of the County
Council have appealed the district court's order denying their
motion for summary judgment insofar as the court rejected their
defenses of legislative and qualified immunity from suit; and (2)
defendant Mitchell has appealed the district court order denying
his motion to dismiss insofar as the court rejected his defense
of qualified immunity from suit. Although all parties agree that
we have jurisdiction under the collateral order doctrine to
consider the issues of legislative and qualified immunity, they
disagree on the scope of our appellate jurisdiction.
The Nixon case makes clear that we have appellate
jurisdiction to consider whether the former members of the County
Council are entitled to absolute legislative immunity. 457 U.S.
at 741-43, 102 S. Ct. at 2697-98; see also Schrob I, 948 F.2d at
(..continued)
been alleged by the plaintiff. In fact, in cases decided after
both Siegert and D.R. by L.R., we have opted to address whether
the constitutional right asserted was "clearly established" at
the time the defendant acted, without initially deciding whether
a constitutional violation was alleged at all. See Rappa v. New
Castle County, 18 F.3d 1043, 1077-79 (3d Cir. 1994); Abdul-Akbar
v. Watson, 4 F.3d 195, 201-05 (3d Cir. 1993).
In cases such as the present one, where the court would be
required to undertake a detailed analysis of unreported and
undeveloped state and county law issues in order to determine
whether a cognizable constitutional claim was alleged at all, we
believe a more prudent course is to first address whether the
constitutional right asserted by the plaintiff was "clearly
established" at the time the defendant acted. We will follow
such a course in this case because, as will be explained infra,
the state and county law issues which we would need to decide in
order to determine whether Acierno possessed a vested right to
develop his commercial property before the rezoning ordinances
were passed are particularly difficult and undeveloped.
1406-07; Venen v. Sweet, 758 F.2d 117, 121-22 (3d Cir. 1985);
Forsyth v. Kleindienst, 599 F.2d 1203, 1207-09 (3d Cir. 1979),
cert. denied, 453 U.S. 913, 101 S. Ct. 3147 (1981). The scope of
our jurisdiction to consider the issues of qualified immunity,
and legislative immunity as concerns the present members of the
County Council, is a more complex question, however, especially
in light of the fact that Acierno seeks prospective injunctive
relief against several of the defendants. When deciding the
appealability of qualified immunity issues in Mitchell, a case in
which only monetary damages were sought, the Supreme Court
expressly left open the question whether a case involving claims
for injunctive relief would change the equation. 472 U.S. at 519
n.5, 105 S. Ct. at 2812 n.5. We subsequently addressed that
question and held that the denial of a defendant's claim to
entitlement to qualified immunity is not immediately appealable
when the plaintiff has requested injunctive relief. Prisco v.
United States Dep't of Justice, 851 F.2d 93, 95-96 (3d Cir.
1988), cert. denied, 490 U.S. 1089, 109 S. Ct. 2428 (1989).
As a result, plaintiff Acierno submits that we must
dismiss these appeals insofar as they involve present County
Council members Cecil, Woods, Roberts, Hollins, and Venezky, and
First Assistant County Attorney Mitchell, because he seeks
prospective injunctive relief against these parties. With
respect to former County Council members Cloutier and Powell,
against whom it is impossible to obtain prospective injunctive
relief, Acierno concedes that the order denying their motion for
summary judgment on legislative and qualified immunity grounds is
immediately appealable.
The present members of the County Council argue that
Prisco was wrongly decided. They bring to our attention the
prevailing rule among all of our sister courts of appeals that,
despite the existence of a request for injunctive relief, pre-
trial orders denying a defendant's entitlement to qualified
immunity are immediately appealable. See Burns v. County of
Cambria, Pa., 971 F.2d 1015, 1019-20 (3d Cir. 1992)(canvassing
cases from the nine circuits which disagree with Prisco), cert.
denied, __ U.S. __, 113 S. Ct. 1049 (1993). Defendants who are
present members of the County Council insist that Prisco should
be overruled because it undermines the policy rationale behind
appeals where immunity was pled and, additionally, because of the
ease with which the Prisco rule can be invoked to circumvent a
defendant's right to an immediate appeal. On the other hand,
Acierno asserts that the long-standing policy of preventing
piece-meal appeals still warrants adherence to the Prisco rule
and that a careful review by the appellate courts of the request
for injunctive relief would prevent any abuse of the rule by
plaintiffs.
Since a panel does not have the occasion to reconsider
a prior panel opinion and is bound to follow our precedent, it is
only now, sitting in banc, that we may reexamine the rationale of
Prisco. See Internal Operating Procedures, United States Court
of Appeals for the Third Circuit, Rule 9.1 (prior reported
opinions can be overruled only by the court sitting in banc). In
light of recent opinions which call into question the continued
vitality of Prisco, we now consider whether the Prisco rule
should meet its demise. At stake in these proceedings is whether
we should now hear the appeals of the present County Council
members or, alternatively, dismiss their appeals for lack of an
appealable order as they involve issues of whether these members
(against whom injunctive relief is sought) are entitled to
absolute or qualified immunity.
In Prisco, we recognized that a suit seeking both
prospective relief and money damages does not end for a party
successfully asserting a defense of either absolute or qualified
immunity.8 Prisco, 851 F.2d at 96. We observed that the policy
8
. Specifically, we held, "that in an action in which claims for
prospective relief remain pending, a party against whom they
remain pending may not appeal from the denial of a motion for
summary judgment on immunity grounds." Prisco, 851 F.2d at 96
(footnote omitted). Although the Prisco case did not explicitly
involve an issue of absolute immunity, its holding extends to
absolute as well as qualified immunity. Defendants argue that we
were incorrect in asserting such a broad proposition of law in
light of Supreme Court of Virginia v. Consumers Union of United
States, Inc., 446 U.S. 719, 731-34, 100 S. Ct. 1967, 1974-75
(1980). Defendants read Consumers Union as standing for the
proposition that legislative immunity confers an immunity from
suit for both injunctive relief as well as damages. See also
Spallone v. United States, 493 U.S. 265, 278, 110 S. Ct. 625, 633
(1990) (indicating that it had been previously decided in
Consumers Union that legislative immunity extends to actions for
both damages and injunctive relief). We note that the Supreme
Court has never held that legislative immunity applies to both
claims for damages and injunctive relief. A close reading of
Consumers Union indicates that the Supreme Court merely pointed
to an obvious circuit split which existed at the time and, we
believe, remains unresolved today. There are at least two
courts of appeals that have suggested that the Supreme Court has
definitively spoken on this issue and has held that absolute
immunity is a bar to injunctive relief. See Risser v. Thompson,
930 F.2d 549, 551 (7th Cir.), cert. denied, 112 S. Ct. 180
(1991); Alia v. Michigan Supreme Court, 906 F.2d 1100, 1102 (6th
rationale for granting qualified immunity is that, "we do not
want officials to make discretionary decisions with one wary eye
on their pocketbook." Prisco, 851 F.2d at 95. We then concluded
that such a rationale does not apply to suits for injunctive
relief. Id. In our discussion, we balanced the marginal benefit
to a government official from an interlocutory appeal on the
issue of damages against the systemic harms of permitting piece-
meal interlocutory review of discrete issues in a case which will
be ongoing. Prisco, 851 F.2d at 96. We must now reassess our
prior analysis and determine whether the balance that existed at
the time of Prisco is still valid today.
In Siegert v. Gilley, the Supreme Court reaffirmed the
principle that "[o]ne of the purposes of immunity, absolute or
qualified, is to spare a defendant not only unwarranted
liability, but unwarranted demands customarily imposed upon those
defending a long drawn out lawsuit." Siegert, 500 U.S. 226, 232,
111 S. Ct. 1789, 1793 (1991). We note that Prisco tends to
minimize this strong public policy reason which favors
jurisdiction over interlocutory immunity appeals.
(..continued)
Cir. 1990). However, a substantial number of courts of appeals,
including the Third Circuit, believe the issue is unresolved by
the Supreme Court, and have held that absolute immunity is a bar
to damages only, and not to prospective or injunctive relief.
See Schrob II, 967 F.2d at 939 (3d Cir. 1992); Fry v. Melaragno,
939 F.2d 832, 839 (9th Cir. 1991); Chrissy F. v. Mississippi
Dep't of Public Welfare, 925 F.2d 844, 849 (5th Cir. 1991), cert.
denied, 114 S. Ct. 1336 (1994); Executive 100, Inc. v. Martin
County, 922 F.2d 1536, 1539 (11th Cir.), cert. denied, 112 S. Ct.
55 (1991); Schloss v. Bouse, 876 F.2d 287, 292 (2nd Cir. 1989).
In Schrob II, this Court reviewed authority from other
courts of appeals that struck the balance in favor of recognizing
appellate jurisdiction even where injunctive relief claims are
present. The Schrob II panel noted that other courts of appeals
have "criticized Prisco for qualitatively equating the burdens
associated with defending against a suit for money damages with
the burdens associated with defending a suit for injunctive
relief." Schrob II, 967 F.2d at 940. See also Burns, 971 F.2d
at 1020 (expressing "dissatisfaction with the Prisco rule"). As
other courts have observed, even though injunctive relief claims
may continue after appeal, "considerable differences [exist] in
both time and expense in defending a case that involves both
damages and equitable relief as contrasted to a case that
involves equitable relief alone." Young v. Lynch, 846 F.2d 960,
962 (4th Cir. 1988). See also DiMartini v. Ferrin, 889 F.2d 922,
925 (9th Cir. 1989), amended, 906 F.2d 465 (9th Cir. 1990), cert.
denied, 501 U.S. 1204, 111 S. Ct. 2796 (1991).
As the Court of Appeals for the Seventh Circuit
explained in Scott v. Lacy, 811 F.2d 1153, 1153-54 (7th Cir.
1987), "a public official who is a defendant in a suit [for
injunctive relief] is not ``on trial' at all. The suit seeks
relief against him in his official capacity; he need not attend
the trial, which will be conducted by attorneys representing the
governmental body." Indeed, a suit against elected officials in
their official capacity is functionally a suit against the
government entity.
The procedure dictated by Prisco undermines the reasons
for recognizing qualified immunity -- to permit a public servant
to concentrate on official duties without the distraction and
worries which are the inevitable consequence of disruptive
litigation. While a defendant who loses a claim for injunctive
relief is simply ordered to refrain from taking certain action in
his or her official capacity, an official who is denied qualified
immunity must be concerned with personal liability without the
right of appeal, to which he or she would otherwise have been
entitled. See Kennedy v. City of Cleveland, 797 F.2d 297, 306
(6th Cir. 1986)("The exposure to personal liability in damages
and the potential need for retention of private counsel to
protect against that risk is quite different from the problem
faced by an official who is charged only in an official
capacity.").
The instant case highlights the inconsistency of the
Prisco decision with the public policy furthered by interlocutory
review of immunity determinations. The former County Council
members, who no longer have official duties that would be subject
to disruption by the litigation, would be spared further
involvement, while the present Council members would be forced to
go forward with their official duties still burdened by the
distraction and worries of the litigation. This is directly
contrary to the policy behind the immunity doctrine of protecting
the present elected officials from suit and possible personal
liability when making discretionary decisions. Additionally, as
noted in Schrob II, a plaintiff "can easily circumvent a
defendant's right to immediate appeal simply by adding a claim
for equitable relief." Schrob II, 967 F.2d at 940.
We believe that a balancing approach similar to the one
we used to decide Prisco still has merit today. However, after
carefully re-examining the policy and practical considerations of
such a rule, we conclude that Prisco failed to give adequate
weight to the benefits derived by public officials of being freed
from the unpleasantries and demands on their time due to
continued litigation. Prisco also weighs too heavily the harms
associated with interlocutory appeals. We therefore overrule
Prisco.
In addition to arguing that Prisco was wrongly decided,
Mitchell also seeks to distinguish Prisco by arguing that Acierno
has made no viable claim for injunctive relief against him.
Assuming arguendo that a claim for injunctive relief was made
against Mitchell, we nonetheless have appellate jurisdiction to
consider whether Mitchell was entitled to dismissal on qualified
immunity grounds in light of the above discussion which overrules
Prisco.
In sum, we have appellate jurisdiction to consider
whether the present and former members of the County Council are
entitled to absolute legislative and qualified immunity from
suit. We also have appellate jurisdiction to consider whether
the district court erred in denying First Assistant County
Attorney Mitchell's motion to dismiss on qualified immunity
grounds.9 In our consideration of the qualified immunity issue
as it relates to the substantive due process claim, we will first
determine whether plaintiff Acierno has asserted a violation of a
clearly established constitutional right at all.
III.
In this case we must decide whether the district court
correctly denied the members of the County Council's motion for
summary judgment on legislative and qualified immunity grounds,
and First Assistant County Attorney Mitchell's motion to dismiss
on qualified immunity grounds. Because "[t]his appeal presents a
purely legal question concerning the scope of the immunity
doctrine," we exercise plenary review over the district court's
denial of the summary judgment motion on legislative immunity
grounds. Donivan v. Dallastown Borough, 835 F.2d 486, 487 (3d
Cir. 1987), cert. denied, 485 U.S. 1035, 108 S. Ct. 1596 (1988).
9
. With these appeals, the defendants argue that the district
court erred as a matter of law in failing to grant their motion
for summary judgment as to Acierno's claim alleging a violation
of the Equal Protection Clause of the Fourteenth Amendment. It
is not clear from the district court's opinion that the
defendants argued that they are entitled to absolute legislative
immunity or qualified immunity with respect to this allegation.
Furthermore, in their brief submitted to this court the
defendants did not argue that their immunity defenses also
relieve them of liability on the equal protection claim.
Accordingly, because our jurisdiction is limited to addressing
the defenses of legislative and qualified immunity for the
members of the County Council and Mitchell, we do not express any
opinion concerning whether Acierno possesses a viable claim for a
violation of the Equal Protection Clause or whether there are
immunity defenses for any of the defendants to such a claim.
We also exercise plenary review over the denial of the
summary judgment motion and motion to dismiss on qualified
immunity grounds because this issue presents a "purely legal"
question. Burns, 971 F.2d at 1020; Lee v. Mihalich, 847 F.2d 66,
67 (3d Cir. 1988). To the extent that the district court
interpreted state and county law in determining whether Acierno
had a vested right to develop the property, the district court is
not entitled to any deference. Salve Regina College v. Russell,
499 U.S. 225, 231, 111 S. Ct. 1217, 1221 (1991); cf. Grimes v.
Vitalink Communications Corp., 17 F.3d 1553, 1557 (3d Cir. 1994).
Thus, the determinations regarding state and county law necessary
to decide whether the defendants are entitled to qualified
immunity will be reviewed de novo. Salve Regina College, 499
U.S. at 231, 111 S. Ct. at 1221.
IV.
A.
We first address the issue of whether the members of
the County Council are entitled to absolute legislative immunity
for their actions because in the event we agree with their
position, such a ruling would obviate the need for evaluating
their claim to entitlement to qualified immunity. The Supreme
Court has held that individual members of state legislatures are
absolutely immune from suit for damages under 42 U.S.C. § 1983
when conducting legitimate legislative activity. Tenney v.
Brandhove, 341 U.S. 367, 376-79, 71 S. Ct. 783, 788-89 (1951).
After the Supreme Court extended this protection of absolute
immunity to regional legislators functioning in a capacity
comparable to that of members of a state legislature, Lake
Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S.
391, 402-06, 99 S. Ct. 1171, 1178-79 (1979), we further extended
it to protect members of local legislative bodies for actions
taken in a purely legislative capacity. Aitchison v. Raffiani,
708 F.2d 96, 98-99 (3d Cir. 1983); see also Ryan v. Burlington
County, N.J., 889 F.2d 1286, 1290 (3d Cir. 1989).10
The County Council, whose members are elected, is a
local governmental body that has been given a combination of
legislative and administrative powers. See Del. Code Ann. tit.
9, §§ 1146, 4901 (1989). "It is only with respect to the
legislative powers delegated to them by the state legislatures
that the members of local governing boards are entitled to
absolute immunity." Ryan, 889 F.2d at 1290. Thus, our task in
making this immunity determination requires us to examine whether
the members of the County Council were acting in an
administrative or legislative capacity when they enacted the
ordinances down-zoning Acierno's property. Abraham v. Pekarski,
10
. In Bass v. Attardi, 868 F.2d 45, 49-50 (3d Cir. 1989), we
held that members of a municipal planning board, acting pursuant
to their governmental function as defined by state statute when
making land use decisions, were absolutely immune in their
individual capacities from a damage suit brought under 42 U.S.C.
§ 1983. Acierno does not allege that the members of the County
Council were acting in a non-governmental function, e.g., outside
of powers delegated to them by state law, when they enacted the
two ordinances which down-zoned his property. Therefore, for
purposes of deciding this case, we will assume without deciding
that the members of the County Council were acting within their
statutorily defined governmental function when the two ordinances
were enacted.
728 F.2d 167, 174 (3d Cir.), cert. denied, 467 U.S. 1242, 104 S.
Ct. 3513 (1984).
We have established a two-part test to determine
whether actions are to be regarded as legislative for immunity
purposes: (1) the action must be "substantively" legislative,
which requires that it involve a policy-making or line-drawing
decision; and (2) the action must be "procedurally" legislative,
which requires that it be undertaken through established
legislative procedures. Ryan, 889 F.2d at 1290-91. In order to
provide a further inquiry to help define the first part of the
Ryan test, we stated that decisions affecting a single individual
or a small number of people do not implicate legislative power
and, thus, such actions are administrative in nature. Id. at
1291. Furthermore, in prior cases we have indicated that such an
inquiry is an appropriate factor to consider when determining
whether an action is legislative or administrative, see Donivan,
835 F.2d at 488; Rogin v. Bensalem Township, 616 F.2d 680, 693-94
(3d Cir. 1980), cert. denied, 450 U.S. 1029, 101 S. Ct. 1737
(1981), but we have not held this inquiry to be conclusive.
When the district court conducted its analysis under
the first part of the Ryan test, it focused only on the factor of
whether the action was directed toward a single individual or the
community at large. The district court stated, "legislative acts
are those which apply generally to the entire community, whereas
acts specifically directed at one or a few individuals are
executive or administrative acts." Acierno v. Cloutier, No. 92-
385, 1993 WL 215133, at *27 (D. Del. June 9, 1993).11 Based on
the fact that passage of the two ordinances did not rezone any
other landowner's property, the district court held that the
County Council's actions with respect to Acierno's property were
administrative in nature. Id.
We believe the district court erred in its application
of the "substantive prong" of the Ryan test by placing too much
emphasis on the factor of whether the action was directed at a
single individual or the community at large. It is difficult to
find fault with the district court, however, because we concede
that the prior decisions of this court are somewhat unclear as to
what are the relevant factors, and how much weight each should be
given, in deciding whether zoning and other land use actions are
substantively legislative or administrative in nature.
Furthermore, there is a consistent thread running through the
case law which indicates that courts often point to the narrow
target of an action as indicative of an administrative, rather
than legislative, act. See, e.g., Cutting v. Muzzey, 724 F.2d
259, 261 (1st Cir. 1984)(planning board's decision "to insist on
completion of a particular road before granting approval of a
specific proposed subdivision" was an action based on specific
11
. The district court cited the following cases for this
proposition: Donivan, 835 F.2d at 488; Rogin, 616 F.2d at 693;
Ryan v. Burlington County, N.J., 708 F. Supp. 623, 640 (D.N.J.),
aff'd, 889 F.2d 1286 (3d Cir. 1989); and de Botton v. Marple
Township, 689 F. Supp. 477, 482-83 (E.D. Pa. 1988). As we
already stated, in Donivan and Rogin we did rely in part on this
factor, but we did not hold that this inquiry is dispositive of
the administrative/legislative determination.
rather than legislative facts tending to single out specific
individuals and affect them differently than others; thus, the
action was administrative rather than legislative in nature);
Scott v. Greenville County, 716 F.2d 1409, 1422-23 (4th Cir.
1983)(county council members who reviewed a specific building
permit application assumed a non-legislative role); Jodeco, Inc.
v. Hann, 674 F. Supp. 488, 495 (D.N.J. 1987)("Official acts
affecting the community at-large might tip the balance in favor
of a finding of legislative conduct, while acts directed at one
or a few individuals might be dispositive of executive or
administrative conduct.").
In Jodeco, the district court commented that there was
no definitive standard in this circuit for distinguishing between
legislative and non-legislative actions. 674 F. Supp. at 494-95.
Although in Ryan we clarified the test somewhat by indicating
that actions must be both substantively and procedurally
legislative in nature in order to be entitled to absolute
immunity, we believe that the "substantive prong" of the standard
requires further elaboration. To fill the gap which has been
left open in our prior cases dealing with legislative immunity,
we repeat the standard employed by the district court in Jodeco:
[In order to distinguish] legislative from non-
legislative functions, . . . the appropriate inquiry
[is] whether the conduct of the defendant zoning
officials involved either the enactment or amendment of
zoning legislation or simply the enforcement of already
existing zoning laws. Acts performed pursuant to the
former are legislative in character and the officials
performing them are entitled to absolute immunity,
while acts performed pursuant to the latter are
administrative, executive, or ministerial and the
officials performing them may only receive the
protection of qualified immunity. Factored into this
equation should be the impact that such official
conduct has on the citizens of the municipality.
Official acts affecting the community at-large might
tip the balance in favor of a finding of legislative
conduct, while acts directed at one or a few
individuals might be dispositive of executive or
administrative conduct.
674 F. Supp. at 494-95. We have previously cited with approval
the court's analysis in Jodeco concluding that members of
planning boards in New Jersey are entitled to absolute immunity
because their responsibilities "are so integrally related to the
judicial process . . . ." Id. at 496. See Bass v. Attardi, 868
F.2d 45, 50 (3d Cir. 1989). Likewise, we now adopt the court's
analysis of the legislative/administrative determination as our
own.
In the present case, the members of the County Council
acted to down-zone Acierno's property through two separate,
albeit related, actions. The first action was the enactment of
an ordinance on April 14, 1992 voiding the approved record
development plan and related subdivision plans for the property.
The second action was the enactment of an ordinance on September
9, 1992 rezoning the property from DPUD to an R-1-B zoning
classification. Accordingly, we must consider each of these
actions under the standard articulated above.
The enactment of the ordinance voiding the
approved record development plan was undertaken by the County
Council pursuant to the authority of the sunsetting provision of
the County Code, § 23-81(18), which allows the Council to revoke
development rights after the passage of ten years to ensure that
facilities and infrastructure are sufficient. This ordinance was
passed in an effort to facilitate enforcement of existing zoning
laws, not to facilitate enactment or amendment of new zoning laws
involving broad-based policy or line-drawing determinations.
Furthermore, the ordinance affected only one piece of property,
and thus was aimed at only one landowner, Frank Acierno. We thus
conclude that the County Council's enactment of Ordinance 91-190
on April 14, 1992, which voided the approved record development
plan and related subdivision plans for the property, was an
administrative, not legislative, action. The members of the
County Council are not entitled to legislative immunity with
respect to this action.12
We now turn to the County Council's second action, the
enactment of Substitute 1 to Ordinance 92-119 which rezoned the
property from DPUD to an R-1-B zoning classification. This
action of rezoning the property was undertaken pursuant to the
legislative powers delegated to the County Council under Delaware
state law. See Del. Code Ann. tit. 9, §§ 2601-2614 (1989 & Supp.
1992). Furthermore, the rezoning of the property was
accomplished through the ordinance procedure, which we have found
necessary in order for the action to be substantively legislative
in character. Donivan, 835 F.2d at 488-89. If not for the fact
12
. The parties disagree as to whether the entire rezoning
process, which involved the enactment of the two ordinances, was
accomplished consistently with all the procedures required by
state law. In light of our conclusion that the enactment of
Ordinance 91-190 was not substantively legislative in character,
we need not address whether this action also violated the
"procedural prong" of the Ryan test.
that the ordinance was aimed at one parcel of property and one
landowner, the action would appear to be substantively
legislative, not administrative, in nature.
Nevertheless, this case requires us to address the
difficult question of whether a rezoning action that is otherwise
substantively legislative in character is removed from the scope
of actions protected by the absolute immunity doctrine merely
because it was directed at one parcel of property. In Ryan, we
did state that "[w]here the decision affects a small number or a
single individual, the legislative power is not implicated, and
the act takes on the nature of administration." 889 F.2d at
1291. However, we did not intend this consideration as a bright-
line rule which automatically overrides other important
indications that an action is substantively legislative in
character. Rather, we intended this consideration as a factor
that is usually important but may not be dispositive of the
administrative/legislative outcome. This reading of Ryan is
confirmed by the manner in which the Ryan court applied its test.
While noting that the decision at issue "did not affect the
community as a whole," the court went on to state that "[t]his is
a strong indication that legislative line-drawing was not
implicated." Id. Therefore, the Ryan court itself did not apply
the factor that the decision was directed at a single individual
or a small group as a dispositive consideration which trumps
other relevant factors.
Although we have indicated that the factor of an action
being directed at one property or one landowner is an important
consideration, other courts have concluded that the rezoning of a
single parcel of land to a less intensive use through the
enactment of an ordinance is legislative activity. See Fralin &
Waldron, Inc. v. County of Henrico, Va., 474 F. Supp. 1315, 1320-
21 (E.D. Va. 1979)(members of planning board were engaged in
legislation when acting to rezone a single parcel of property);
Shellburne, Inc. v. New Castle County, 293 F. Supp. 237, 244 (D.
Del. 1968)("the members of the County Council were acting within
the scope of legitimate legislative activity when they voted to
rezone plaintiff's property"). Delaware state law is to the same
effect. See Shellburne, Inc. v. Buck, 240 A.2d 757, 758 (Del.
1968). Furthermore, the cases in which the factor of the zoning
ordinance being directed at only a single or few property owners
has been dispositive of the administrative/legislative
determination generally have been variance or special exception
decisions, not rezoning decisions. See, e.g., Rogin, 616 F.2d at
693 n.60 (denial of use variance); Cutting, 724 F.2d at 261
(subdivision approval); Scott, 716 F.2d at 1422-23 (denial of
building permit); Jodeco, 674 F. Supp. at 496 (denial of variance
applications).
Finally, we also believe that the members of a county
legislature who enact a rezoning ordinance affecting only one
property or landowner may still be acting in a policy-making or
line-drawing manner. In the present case, the subject property
consisted of thirty-eight acres of unimproved land with an
approved development plan calling for 322 apartment units and
some commercial use. Through the normal review process, specific
concerns arose such as whether the development plan complied with
wetlands regulations, the fire prevention code, and public works
regulations, and that the project as planned may pose serious
traffic and road access problems. In response to these concerns
and, ultimately, Acierno's failure to address all of them
adequately in a timely fashion, the County Council acted to
regulate the intensity of development on this fairly large parcel
of land by passing the rezoning ordinance.
Under these circumstances, a blind adherence to the
principle that legislation affecting a single property or owner
is administrative rather than legislative would eviscerate the
overarching aim of protecting local legislators from suit under
the absolute immunity doctrine when they make broad policy
decisions to further the communities in which they serve.
Therefore, we hold that the members of the County Council in
enacting Substitute 1 to Ordinance 92-119, which rezoned the
property from DPUD to an R-1-B zoning classification, were acting
in a substantively legislative manner. Nevertheless, as we made
clear in Ryan, the members of the County Council are not entitled
to absolute legislative immunity for this action unless it was
also procedurally legislative. 889 F.2d at 1290-91.
The enactment of Substitute 1 to Ordinance 92-119 was
procedurally legislative if it was undertaken through established
legislative procedures. Id. That is, the members of the County
Council are entitled to absolute immunity for this action if they
followed "the statutory procedures specified for such action."
Abraham, 728 F.2d at 174. Addressing the "procedural prong" of
the Ryan test, the district court held that the members of the
County Council failed to comply with specified statutory
procedures in rezoning the property from DPUD to an R-1-B zoning
classification. Acierno v. Cloutier, No. 92-385, 1993 WL 215133,
at *27 (D. Del. June 9, 1993). Specifically, the district court
found that the County Council violated title 9, section 1152(b)
of the Delaware Code by enacting an ordinance which had been
"amended as to [a] matter of substance which [was] not embraced
within the title of the ordinance" without subjecting the
ordinance "to all of the procedures . . . required in the case of
a newly introduced ordinance." Id. at *28 (quoting Del. Code
Ann. tit. 9, § 1152(b)).
Acierno took issue with the procedure employed to
rezone his property because the County Council ultimately adopted
an ordinance rezoning the property to an R-1-B classification,
while bracketed language below the title of the originally
proposed ordinance, for which the County Council had complied
with all requisite procedures, stated that the ordinance would
rezone the property to an R-2 classification. In the district
court, the members of the County Council argued that this change
did not affect the title of the ordinance and, in any event, was
not a material amendment because the R-1-B zoning classification
is less restrictive than the R-2 zoning classification. The
district court rejected these arguments because the very purpose
of the ordinance was to change the zoning classification, and
because the actual language which was changed was part of the
title of the ordinance and was not for informational purposes
only.
On appeal, the members of the County Council argue that
the district court's "technical objection" to the allegedly
deficient notice does not prevent members of municipal
legislative bodies from establishing legislative immunity. We
reject the notion that our decision in Abraham stands for the
broad proposition that a mere technical violation of the
statutory procedures specified for legislative action, by itself,
converts an otherwise legislative action into an administrative
action. Rather, in Abraham, we looked to the failure to follow
procedures established by state law, which were required to be
followed in order to legislate, as indicative that a township
board had invoked its managerial powers in dismissing an
employee. 728 F.2d at 174-75. Thus, we viewed the compliance
with statutory procedures as a prerequisite for finding an action
legislative in character, but we did not hold that a mere
technical violation of a statutory procedure would have the
effect of converting an otherwise legislative action into an
administrative action to which absolute immunity does not apply.
Addressing the "procedural prong" of the immunity
determination, in Ryan we stated that "[t]his principle requires
that constitutionally accepted procedures of enacting the
legislation must be followed in order to assure that the act is a
legitimate, reasoned decision representing the will of the people
which the governing body has been chosen to serve." 889 F.2d at
1291. In the present case, it is undisputed that the members of
the County Council followed all the statutory procedures required
in order to enact an ordinance: (1) a legal notice of the
proposed zoning ordinance was published; (2) a public hearing was
held before the Department of Planning and Planning Board; and
(3) the adopted ordinance, though amended during the Planning
Board hearing, was enacted by vote at a public meeting of the
County Council. Even though the version of the ordinance
ultimately enacted, Substitute 1 to Ordinance 92-119, was not
formally put through all the statutory procedures after the
amendment was agreed upon at the public hearing held before the
Department of Planning and Planning Board, we believe that the
members of the County Council engaged in legislative activity and
took the steps necessary to rezone the property in compliance
with Delaware law.
We also believe there to be an important distinction
between general adherence to legislative procedure for the
purposes of taking legislative action as a matter of federal law,
as opposed to full compliance with all technical requirements for
such legislative action to be valid under state or county law.
It may well be that if in fact state law required the substitute
to the originally proposed ordinance to also go through all the
statutorily required notice procedures and hearings, then Acierno
would be able to successfully attack the validity of Substitute 1
to Ordinance 92-119 in an administrative or state court
proceeding. But the fact that Acierno may have an alternative
remedy based on an alleged failure of the legislative body to
follow state-mandated procedures does not mean that, as a matter
of federal law, the resulting action is transformed from one that
is procedurally legislative into one that is not.
Therefore, we hold that in making the determination of
whether a particular action was procedurally legislative or not,
the court need only be satisfied that the municipal body is
acting pursuant to the basic legislative procedure. In the
present case, we find no indication in the record that the
members of the County Council bypassed state-mandated procedures
in bad faith when enacting Substitute 1 to Ordinance 92-119.
Rather, the record reflects that the County Council followed the
ordinance procedure, published notice of its intended action, and
held the appropriate public hearings before enacting the rezoning
ordinance. Consequently, we hold that the district court erred
in holding that a possible violation of the publication notice
requirement destroyed the legislative character of the County
Council's act of enacting Substitute 1 to Ordinance 92-119.13
13
. The members of the County Council also argue that their
action of rezoning the property did not violate the "procedural
prong" of the Ryan test (1) because that portion of the ordinance
which indicated the precise zone the property would be changed to
was not part of the title of the ordinance, and thus was not a
material alteration; (2) because Acierno does not have standing
to complain since he attended and participated in the public
hearings; (3) because he was not prejudiced since the R-1-B
zoning classification allows for more intensive development than
the R-2 zoning classification; and (4) because the remedy that
the district court's ruling would require -- a return to the
Planning Board for review and subsequent republication -- would
be unnecessarily duplicative since it made the recommendation
that the proposed ordinance be amended in the first place. In
light of our conclusion that the enactment of Substitute 1 to
Ordinance 92-119 was procedurally legislative, we need not
address these contentions.
In sum, we conclude that the members of the County
Council are entitled to absolute legislative immunity for
rezoning Acierno's property through the enactment of Substitute 1
to Ordinance 92-119 because that action was substantively and
procedurally legislative in character. Nevertheless, the members
of the County Council are not entitled to legislative immunity
for the enactment of Ordinance 91-190, which voided the approved
record development plan and related subdivision plans for the
property, because that action was administrative in nature, not
legislative. We will reverse in part, and affirm in part, that
part of the district court's order denying the defendants' motion
for summary judgment on legislative immunity grounds. Therefore,
we must address whether the members of the County Council are
entitled to protection under the more limited doctrine of
qualified immunity for their action voiding the approved record
development plan for the property.
B.
Addressing the defendants' claim of entitlement to
qualified immunity from suit requires us to determine whether
Acierno possessed a "clearly established" constitutional right to
develop his property which was abrogated by the County Council
through the action of voiding his record development plan and
subdivision plan. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S. Ct. 2727, 2738 (1982). In his amended complaint, Acierno
alleges that he had a vested right to develop the property
pursuant to the DPUD zoning classification and the approved
record development plan. The district court agreed with Acierno
and found that his vested right to develop the property arose
from independent Delaware state and County law sources. However,
our review of County law and Delaware state law reveals that if
Acierno did possess a vested right to develop his property as
zoned, that right was not so "clearly established" as to strip
the members of the County Council and First Assistant County
Attorney Mitchell from an entitlement to qualified immunity.
Thus, we will reverse the district court's denial of the
defendants' motion for summary judgment on qualified immunity
grounds for the members of the County Council, and its denial of
Mitchell's motion to dismiss on qualified immunity grounds.
When considering whether members of local legislative
bodies are entitled to immunity from suit, we have recognized
that there is a compelling need for such a protective doctrine
because of the severe chilling effect numerous suits for damages
would have on prospective officials. See Jodeco, Inc. v. Hann,
674 F. Supp. 488, 493 (D.N.J. 1987)(cited with approval in Bass
v. Attardi, 868 F.2d 45, 49-50 (3d Cir. 1989)). We also believe
that adherence to the immunity doctrine is necessary in order to
allow elected and appointed officials to make intelligent land
use decisions without the constant fear of litigation infecting
the decision-making process. Bass, 868 F.2d at 50 n.11 (quoting
Anastasio v. Planning Bd., 209 N.J. Super. 499, 526, 507 A.2d
1194, 1208, certification denied, 107 N.J. 46, 526 A.2d 136
(1986)). Recognizing similar concerns, the Supreme Court has
indicated that the qualified immunity defense has evolved to
provide "ample protection to all but the plainly incompetent or
those who knowingly violate the law." Malley v. Briggs, 475 U.S.
335, 341, 106 S. Ct. 1092, 1096 (1986); see also Schrob I, 948
F.2d 1402, 1421 (3d Cir. 1991).
In Harlow v. Fitzgerald, the Supreme Court announced
that the test for determining whether government officials are
entitled to qualified immunity for their actions involves an
objective, rather than subjective, inquiry. 457 U.S. at 815-18,
102 S. Ct. at 2736-38. The Supreme Court stated, "government
officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Id. at 818, 102 S. Ct. at 2738; see also Burns v. County
of Cambria, Pa., 971 F.2d 1015, 1021 (3d Cir. 1992), cert.
denied, __ U.S. __, 113 S. Ct. 1049 (1993).
Subsequently, the Supreme Court has clarified that the
first inquiry in considering a claim to entitlement to qualified
immunity is to examine whether the plaintiff has "allege[d] the
violation of a clearly established constitutional right."
Siegert v. Gilley, 500 U.S. 226, 231, 111 S. Ct. 1789, 1793
(1991); see supra note 7. In a recent discussion of the "clearly
established" right aspect of the qualified immunity
determination, we stated:
The right an official is alleged to have violated must
have been "clearly established" in a "particularized"
sense. Anderson v. Creighton, 483 U.S. [635,] 640, 107
S. Ct. [3034,] 3039 [(1987)]. That is, "[t]he contours
of the right must be sufficiently clear that a
reasonable official would understand that what he is
doing violates that right." Id. Thus, qualified
immunity does not apply if "reasonable officials in the
defendants' position at the relevant time could have
believed, in light of what was in the decided case law,
that their conduct would be unlawful." Good v. Dauphin
County Social Servs. for Children and Youth, 891 F.2d
1087, 1092 (3d Cir. 1989).
Abdul-Akbar v. Watson, 4 F.3d 195, 202 (3d Cir. 1993).
When complaining of a violation of substantive due
process rights, a plaintiff must prove that the governmental
authority acted to "infringe[] a property interest encompassed by
the Fourteenth Amendment." Midnight Sessions, Ltd. v. City of
Philadelphia, 945 F.2d 667, 679 (3d Cir. 1991), cert. denied, __
U.S. __, 112 S. Ct. 1668 (1992). As the Supreme Court has
previously stated:
Property interests, of course, are not created by the
Constitution. Rather they are created and their
dimensions are defined by existing rules or
understandings that stem from an independent source
such as state law--rules or understandings that secure
certain benefits and that support claims of entitlement
to those benefits.
Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709
(1972).
Thus, as the district court did in this case, when
analyzing substantive due process claims courts are required to
turn to state and local law to determine whether the plaintiff
possessed a property interest which was abrogated by the
governmental action. The question of whether the property
interest requirement has been met is generally a matter of law
for the court to decide. RRI Realty Corp. v. Incorporated
Village of Southampton, 870 F.2d 911, 918 (2d Cir.), cert.
denied, 493 U.S. 893, 110 S. Ct. 240 (1989).
In denying the defendants their claim to entitlement to
qualified immunity, the district court first found that Acierno
had a protected property interest. The court concluded that
Acierno had a protected property interest in both the approved
record development plan and the DPUD zoning classification, and
that this property interest was independently derived from both
New Castle County and Delaware state law sources. Since the
district court addressed Acierno's property interest as arising
from these independent sources, we will follow suit in our
discussion.
The district court first determined that Acierno had a
vested right pursuant to County law. For purposes of this
analysis, the court assumed that the County Council had relied
upon the repealed "five-year sunset provision" of the County
Code, § 23-81(21)(repealed 1987), as the authority for its power
to void the record development plan. Assuming that provision was
properly applied, the district court concluded that it gave
Acierno "a legitimate claim of entitlement to the continuing
validity of the record plan and the zoning classification to
which it related, and to develop the [p]roperty consistent
therewith." Acierno v. Cloutier, No. 92-385, 1993 WL 215133, at
*10 (D. Del. June 9, 1993). The district court reached this
conclusion on the grounds that as a factual matter the record
plan which was voided in April, 1992 was the subdivision plan
approved and recorded in December, 1988, and that the County
Council had no discretion whatsoever to act until, at the
earliest, the expiration of the five-year sunset period.
First, the district court indicated that by reason of a
legal memorandum issued in 1986, the County Council knew that its
discretion to void a record plan did not even come into existence
until the Planning Department made such a recommendation. The
district court concluded that Acierno had a property interest
arising from a legitimate claim of absolute entitlement to
develop the property consistent with the approved record plan and
DPUD zoning classification during the five-year sunset period
beginning from the date the plan was approved in December, 1988.
In addition, the court concluded that he had a property interest
arising from a legitimate claim of entitlement to develop the
property without interference from the County after the
expiration of the five-year sunset period but before the Planning
Department made a formal recommendation to void the record plan.
Finally, the court determined that if the repealed five-year
sunset provision did not apply, but rather the ten-year sunset
provision contained in current County Code § 23-81(18) was
applicable, Acierno had a property interest arising from a
legitimate claim of entitlement to develop the property without
interference from the County because the current ten-year sunset
provision contains no language providing the County with
authority to void record development plans.
The defendants argue that the district court's analysis
is flawed because a landowner does not obtain a vested right to
develop property before acquiring a building permit and
commencing construction through some ground-breaking activity.
Furthermore, they contend that the district court failed to
appreciate the important distinction between Acierno's record
development plan, originally recorded in 1974, and the
subsequently filed subdivision plans which were submitted and
recorded in 1986 and 1988. The defendants argue that the five-
year sunset provision governs, and that if the five-year sunset
provision had been applied from the date the PUD record
development plan was approved in 1974, the district court would
have concluded that Acierno had no vested right to develop his
property based on County law because the County properly
exercised its discretion to void the record development plan well
after the five-year sunset period expired in 1979.
The district court also found that Acierno had acquired
a property interest under the applicable Delaware state law
doctrines of vested rights and equitable estoppel. The
defendants argued in the district court that Delaware follows the
majority rule of state courts and requires a developer to obtain
a building permit and to commence some ground breaking activity
before a vested right to develop attaches. This rule of vested
rights, which is known as the "permit plus rule," was recognized
by the Delaware Supreme Court:
It is generally recognized that the issuance of a
building permit does not, alone, confer any right
against a later zoning change. Otherwise stated, a
permit is not per se protected against a zoning change
subsequently adopted. The acquisition of vested rights
requires more. As of the time of the zoning change,
there must have been a substantial change of position,
expenditures, or incurrence of obligations, made
lawfully and in good faith under the permit, before the
land owner becomes entitled to complete the
construction and to use the premises for a purpose
prohibited by a subsequent zoning change. This is the
rule supported by a great majority of the cases.
Shellburne, Inc. v. Roberts, 224 A.2d 250, 254 (Del. 1966).
Apparently seizing on the Delaware Supreme Court's
inclusion of the word "alone," the district court read this
passage as indicating that the vested rights rule in Delaware
does not preclude property owners from acquiring a vested right
to develop as long as there has been a substantial change of
position or expenditure, even though they have not obtained a
building permit. In support of this interpretation of the
Delaware rule, the district court turned to several cases in
which the Delaware courts had subsequently applied the vested
rights and equitable estoppel doctrines "to a broad range of
circumstances." Acierno v. Cloutier, No. 92-385, 1993 WL 215133,
at *12 (D. Del. June 9, 1993).
In particular, the district court focused on two
unreported cases from the lower state courts which it read as
refuting the defendants' contention that under Delaware law a
landowner has no vested right to continue development after an
adverse zoning change unless prior to the change he had obtained
a building permit and materially changed his position in reliance
thereon. See Wilmington Materials, Inc. v. Town of Middleton,
Civ. A. No. 10392, 1988 WL 135507, at *6-9 (Del. Ch. Dec. 16,
1988)(relying on the equitable estoppel and vested rights
doctrines, the court enjoined town from enforcing a zoning
amendment to prevent the development of a property even though no
permit had been issued); New Castle County v. Mitchell, Civ. A.
No. 6231, 1981 WL 15144, at *3-7 (Del. Ch. Nov. 25, 1981)(because
property owner had begun renovations to make his property
suitable for an adult entertainment center and had applied for a
building permit before the planned location was rezoned to a
classification in which such uses were not allowed, the court
determined that the property owner had acquired a vested right
and that the principle of equitable estoppel entitled the
plaintiff to continue his business at that location).
The district court then discussed an unpublished
criminal decision in order to refute the defendants' claim that
the above unpublished cases are inconsistent with Shellburne and
other relevant Delaware Supreme Court precedent. See State v.
Raley, Cr. A. No. S90-07-0002, 1991 WL 18114 (Del. Super. Ct.
Feb. 8, 1991), aff'd without opinion, 604 A.2d 418 (Del. 1991).14
The defendants argue on appeal that the common law rule
of vested rights set forth in Shellburne, the "permit plus" rule,
is the law of Delaware and a majority of other states. While a
minority of jurisdictions confer a vested right at the time
application for a building permit is made, a majority of states
have adopted the view that a developer must possess a building
permit and make a substantial change in position or expenditures,
14
. In Raley, the state charged the defendant with violating
certain Delaware Marina Facility Regulations enacted after he
received an administrative permit. Citing Wilmington Materials
and Mitchell, the court concluded that the vested rights doctrine
in Delaware did not give the defendant a constitutional right to
develop the marine facility as planned under the prior
regulations.
or incur substantial obligations in reliance thereon, in order
for rights to vest. 4 Arden H. Rathkopf et al., Rathkopf's The
Law of Zoning and Planning § 50.03, at 50-12, 50-25 (4th ed.
1975). Moreover, in some states specific statutes, regulations,
or zoning ordinances themselves confer rights upon developers
already engaged in developing their property to remain exempt
from zoning code or regulations changes for a period of time and
to acquire vested rights by subsequent action. Id. § 50.02, at
50-5 to -9.
The defendants further contend that the "permit plus"
rule adopted by the Delaware Supreme Court in Shellburne has been
reaffirmed by that court and several lower state courts. See
Mayor of New Castle v. Rollins Outdoor Advertising, Inc., 475
A.2d 355, 360 (Del. 1984)(in banc)(In Shellburne "we held that a
property owner has no vested right in a zoning classification,
and that a building permit does not, per se, confer any right
against a later zoning change. But we ruled that under certain
circumstances, such as where an owner had made a substantial
change of position or a substantial expenditure, a vested right
arises from good faith reliance upon a building permit."); Miller
v. Board of Adjustment, 521 A.2d 642, 647 (Del. Super. Ct. 1986)
(vested right requires a permit plus a change of position);
Willdel Realty, Inc. v. New Castle County, 270 A.2d 174, 178
(Del. Ch. 1970), aff'd, 281 A.2d 612 (Del. 1971); Barrows v. City
of Lewes, Civ. A. No. 83C-MR 32, slip op. at 3 (Del. Super. Ct.
Mar. 27, 1985)("The issuance of a building permit is the first
prerequisite of such a [vested rights] claim based on financial
detriment. A fortiori, when a building permit is not issued,
indeed, when an application for such a permit is not made,
plaintiff has no right, vested or otherwise, to construct
anything on his property."). The defendants argue that the
district court was obliged to follow the majority vested rights
rule of "permit plus" as articulated by the highest court in
Delaware and not as stated in unreported lower court decisions
which are to the contrary. See Colantuno v. Aetna Ins. Co., 980
F.2d 908, 909 (3d Cir. 1992)("[W]hen federal courts are required
to interpret or apply state law, we consider and accept the
decisions of the state's highest court as the ultimate authority
of state law.").
The defendants characterize the district court's
holding as improperly recognizing that once a property owner has
record development and subdivision plans approved, the
municipality is estopped from enacting any zoning changes which
would abrogate the developer's vested rights even in the absence
of any construction activity or other detrimental reliance.
According to the defendants, recognition of such a vested rights
doctrine is contrary to Delaware law and other reported land use
decisions. See L.M. Everhart Constr., Inc. v. Jefferson County
Planning Comm'n, 2 F.3d 48, 52 (4th Cir. 1993). In L.M. Everhart
Construction, the plaintiff argued that Planning Commission
approval of a subdivision plat created an absolute vested right
to develop the parcel as approved. Rejecting this argument, the
court stated that it was "tantamount to an assertion that, once
approved, a subdivision plat is exempt from all future zoning and
subdivision regulations. We can find no court that has adopted
such a broad conception of vested rights." Id.15
Finally, the defendants also attack the district
court's reliance on the doctrine of equitable estoppel for its
finding that Acierno had a vested right to develop his property
as zoned. They contend that an equitable estoppel claim cannot
form the basis for a legitimate claim of entitlement so as to
support the existence of a property right as required in a § 1983
substantive due process action. In Biser v. Town of Bel Air, 991
F.2d 100 (4th Cir.), cert. denied, __ U.S. __, 114 S. Ct. 182
(1993), the Court of Appeals for the Fourth Circuit addressed
whether a state court order of equity estopping a municipality
from denying a special exception from a zoning ordinance
represented a legal claim of entitlement. The Biser court
rejected the plaintiff's argument that a state court order based
on equitable estoppel could create a state-law property interest:
In order to justify substantive due process protection,
the legal right to a permit must exist before the local
agency denies the permit application -- the claim of
entitlement must come from "an existing legislative or
administrative standard." Dean Tarry Corp. v.
Friedlander, 826 F.2d 210, 213 (2d Cir. 1987)(emphasis
added). Equitable estoppel does not recognize a pre-
15
. The defendants also argue that the district court's
interpretation of the doctrine of vested rights would obviate the
need for a statutory provision enacted by New Castle County which
addresses the rights of developers at the subdivision approval
stage. Under County Code § 23-6, the approval of a subdivision
plan protects the planned development against subsequent zoning
changes for a period of three years. New Castle County, Del.,
Code § 23-6. The ordinance voiding Acierno's record development
plan was enacted in April, 1992, more than three years after the
most recent subdivision plan for the property was approved and
filed in December, 1988.
existing legal right; rather, estoppel bars a defendant
from asserting a legal right that it would otherwise be
entitled to enforce, based on that party's conduct.
991 F.2d at 104.
What the above discussion concerning the district
court's decision and the defendants' arguments on appeal
demonstrates to us is that the vested rights law of both New
Castle County and the State of Delaware at the time the County
Council enacted Ordinance 91-190 was subject to considerable
uncertainty and differing interpretations. While we decline to
take a position as to whether the district court's prediction of
what the Delaware Supreme Court would hold concerning vested
rights, the "permit plus" rule, and equitable estoppel is correct
as a matter of law, we do not believe that Acierno's property
interest was "clearly established" under New Castle County and
Delaware law at the time Ordinance 91-190 was enacted in 1992.
Therefore, even if we were to conclude that the Delaware courts
would agree substantially with the district court's analysis of
vested rights, Acierno's property interest, if any existed, was
not so "clearly established" as to strip the members of the
County Council and Mitchell of their qualified immunity defenses.
In Anderson v. Creighton, the Supreme Court articulated
the "clearly established" standard:
The contours of the [constitutional] right must be
sufficiently clear that a reasonable official would
understand that what he is doing violates that right.
This is not to say that an official action is protected
by qualified immunity unless the very action in
question has previously been held unlawful, but it is
to say that in the light of pre-existing law the
unlawfulness must be apparent.
483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987)(citations
omitted). We further clarified that this qualified immunity
question involves two governing inquiries:
First, in order for the governing law to be
sufficiently well established for immunity to be
denied, it is not necessary that there have been a
previous precedent directly in point . . . . The
ultimate issue is whether, despite the absence of a
case applying established principles to the same facts,
reasonable officials in the defendants' position at the
relevant time could have believed, in light of what was
in the decided case law, that their conduct would be
lawful. Second, even where the officials clearly
should have been aware of the governing legal
principles, they are nevertheless entitled to immunity
if based on the information available to them they
could have believed their conduct would be consistent
with those principles.
Good v. Dauphin County Social Servs. for Children and Youth, 891
F.2d 1087, 1092 (3d Cir. 1989).16
Applying this test in the present case, we need go no
further than the first inquiry because we believe that reasonable
county officials in Delaware charged with legislating and
enforcing the New Castle County zoning scheme in 1992 could have
believed that their action of voiding Acierno's record
development plan was lawful. We come to this conclusion for
several reasons.
First, we agree with the defendants that the highest
court in Delaware has provided no clearer discussion of the
16
. Thus, the doctrine of qualified immunity protects the
actions of municipal officials except when they act in a "plainly
incompetent" manner or when they "knowingly violate the law."
Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096
(1986); see also Abdul-Akbar v. Watson, 4 F.3d 195, 205 (3d Cir.
1993); Schrob v. Catterson, 948 F.2d 1402, 1421 (3d Cir. 1991).
vested rights doctrine since Shellburne, Inc. v. Roberts, and
that case adopts the restrictive, majority rule that vested
rights do not attach without a "permit plus."17 The Delaware
Supreme Court has subsequently reaffirmed the "permit plus" rule.
See Rollins Outdoor Advertising, 475 A.2d at 360. Furthermore,
published decisions of lower state courts in Delaware are to the
same effect. E.g., Miller, 521 A.2d at 647; Shellburne, Inc. v.
Conner, 315 A.2d 620, 622 (Del. Ch. 1974), aff'd, 336 A.2d 568
(Del. 1975). Thus, Mitchell and the members of the County
Council could have reasonably believed that they were lawfully
acting to void Acierno's record development plan because he did
not have a vested right to develop without first obtaining a
building permit.
Second, the district court's analysis ultimately rests
on a belief that the law of vested rights in Delaware has evolved
beyond the "permit plus" rule and now involves a focus on whether
the property owner suffered sufficient substantial reliance to
have development rights vest. Even though the district court's
conclusion was wholly derived from unpublished decisions, we
believe that if the Delaware law has truly developed in this
manner, the discretionary aspect of the determination of whether
rights have vested supports our conclusion that reasonable zoning
17
. Moreover, the case apparently downplays the possibility that
vested rights can attach solely through detrimental reliance,
absent obtaining a building permit: "The plaintiff concedes that
a property owner has no vested right in a zoning classification.
This rule is not changed by financial detriment." Shellburne,
Inc., 224 A.2d at 254 (emphasis added).
officials could have believed that enactment of the voiding
ordinance was a lawful action. We also note that in the very
case the district court relied upon to conclude the Delaware law
had developed in this manner, State v. Raley, Cr. A. No. S90-07-
0002, 1991 WL 18114 (Del. Super. Ct. Feb. 8, 1991), the property
owner had already obtained a permit, which significantly
undermines the court's reliance on this case as a source of
authority for its reading of the law.
Third, the complex nature of the body of law which
underlies the vested rights doctrine leads us to conclude that,
in certain circumstances, even municipal officials who act in an
unlawful manner may have reasonably believed they were acting
lawfully. Commentators have recognized that the subject of
vested rights
is one of the most troublesome areas of land use
regulation . . . . Its solution has required the
reconciliation of the doctrine of separation of powers
with the constitutional requirements of substantive due
process, a balancing of interests of the public as a
whole and those of the individual property owners, and,
in many cases, the element of good faith and bad faith
and the resort to equity and equitable principles.
4 Rathkopf, supra, § 50.01, at 50-2. When making land use
decisions which involve the rezoning of a developer's property,
local officials must analyze this complex body of law in order to
ascertain whether a particular action will clearly abrogate a
vested right the developer has acquired. The doctrine of
qualified immunity is designed to protect reasonable officials in
the exercise of their duties, which in the case of local
legislators and administrators charged with making land use and
zoning decisions often involves interpreting complicated issues
of state and county law.
Therefore, we hold that under the vested rights
doctrine as recognized in Delaware, Acierno's property interest,
if any in fact existed, was not so clearly established as to
defeat the members of the County Council and Mitchell of their
claims to qualified immunity for their actions leading to the
enactment of Ordinance 91-190. In addition, we also conclude
that the law of equitable estoppel cannot provide the basis for a
property interest which supports a substantive due process claim
under § 1983 in federal court. Any claim of entitlement must
derive from an existing legislative or administrative standard.
Biser, 991 F.2d at 104. Although Acierno might be able to
proceed directly against the County under a theory of equitable
estoppel in order to attack the validity of the rezoning process,
it does not support his damage claim brought pursuant to § 1983
in federal court. Finally, without undertaking a complete
analysis of whether Acierno might prevail in attacking the
validity of Ordinance 91-190 because the County Council may have
relied on an unadopted ordinance as the source for its authority,
County law cannot provide the basis for vitiating the defendants'
entitlement to qualified immunity because the issue was not
settled under County law at the time they acted.18
18
. With respect to this issue we note that we have found no
reported state or federal cases which construe the DPUD ordinance
provisions at issue in this case. We also note that the district
court did not conclude that the five-year sunset provision was
not applicable; it merely concluded that the County Council
relied on an unadopted ordinance in voiding Acierno's record
V.
In sum, with respect to the members of the County
Council, the order of the district court denying their motion for
summary judgment on legislative immunity and qualified immunity
grounds will be reversed. The members of the County Council are
entitled to legislative immunity for their action rezoning
Acierno's property by enacting Substitute No. 1 to Ordinance 92-
119. They are entitled to qualified immunity for voiding
Acierno's record development and subdivision plans by enacting
Ordinance 91-190. Finally, the order of the district court
denying First Assistant County Attorney Mitchell's motion to
dismiss on qualified immunity grounds also will be reversed.
(..continued)
development plan. Our review of this issue leads us to conclude
that even if the County Council did rely on an unadopted
ordinance, reliance on the appropriate ordinance would have
resulted in the same result--application of the five-year sunset
provision which allows a record plan to be voided upon the
recommendation of the Department of Planning. We reject any
indication in the district court's opinion supporting the
principle that the unknowing reliance on unadopted legislation as
authority for an action should result in a per se denial of the
qualified immunity defense.