LONG et al v. BRISTOL TOWNSHIP et al

Filing 61

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE RONALD L. BUCKWALTER ON 7/11/2012. 7/12/2012 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT C. LONG, SR. &
JANET V. LONG,
Plaintiffs,
v.
BRISTOL TOWNSHIP, et al.,

Defendants.

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CIVIL ACTION

NO. 10-1069

MEMORANDUM
BUCKWALTER, S. J.

July 11, 2012

Presently before the Court is the Motion for Summary Judgment of Defendants Bristol
Township, the Zoning Hearing Board of Bristol Township, Glenn M. Kucher, Wendy Margulies, Al
Burgess, Ronald Marczak, Peggy Horvath, Joseph Champey, John Gushue, Tina Davis, John
Monahan, and Linda Tarlini1 (collectively hereinafter “Defendants,” “the Township,” or “Bristol
Township”). For the following reasons, the Motion is granted in part and denied in part.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This matter involves a dispute over a parcel of land located in Bristol Township,

Pennsylvania. The land is owned by Plaintiffs Robert C. Long, Sr. and Janet V. Long (“Plaintiffs”
or “the Longs”). The individually named defendants are or formerly were officers of Bristol
Township.

1

George and Susan Rosenberg were originally also listed as defendants in this action. On
May 10, 2012, however, the parties stipulated to the dismissal of the Rosenbergs as defendants.
(See Docket No. 58.)

Under Bristol Township’s land use laws and regulations, all land developers are required to
formulate a “land development plan” describing their project, which subsequently must be filed with
the Bristol Township Council for review and approval. (Defs.’ Mem. Supp. Mot. Summ. J. (“Defs.’
Summ. J. Mem.”), Ex. P, Stipulation of the Longs and Bristol Township (“Stipulation”) ¶ 30.)
Upon approval of the plan, the developer may begin to develop his property. (Id.) Should a
developer’s plan require him to obtain a variance from a local ordinance, however, this entails a
different procedure. (Id. ¶ 25.) In such a situation, the developer is first required to submit an
application to the Bristol Township Zoning Hearing Board (“ZHB” or “the Board”) for a variance.
(Id.) After receiving preliminary approval for a variance, the developer thereafter has six months
to obtain either a building permit or occupancy certificate. See Bristol Twp. Z.O. § 2506(e).2 Failure
to adhere to this requirement results in the expiration of the developer’s variance grant, at which
point he must apply for either a renewed variance or request an extension. A developer’s land
development plan cannot be approved by the Township Council absent a valid variance.
On January 28, 2005, the Longs filed an application with the Bristol Township Zoning
Hearing Board (“ZHB”) requesting a use and dimensional variance for a parcel of their land. (Pls.’
Answer to Defs.’ Mot. Summ. J. (“Pls.’ Answer”), Ex. A, Dep. of Robert Long (“Robert Dep.”),
26:24, 27:1–4.) Specifically, Plaintiffs sought to construct a “mini-storage warehouse” on the
property. (Id. at 28:3, 6–9.) To assist them in this process, the Longs retained the services of
Pennsylvania attorney John Koopman, Esq., and land use planning engineer Joseph Mixner. (Id. at

2

Bristol Township Zoning Ordinance § 2506(e) states: “[U]nless otherwise specified by
the Zoning Hearing Board, a variance shall expire if the applicant fails to obtain a building
permit or occupancy certificate, as the case may be, within six months from the date of
authorization thereof.” Bristol Twp. Z.O. § 2506(e).
2

34:12–24, 35, 36, 37:1–6.)
On March 14, 2005, the ZHB held a public hearing on the Longs’ application, and
unanimously granted their request for a variance. (Defs.’ Summ. J. Mem., Ex. B, 04/12/05 Zoning
Hr’g Bd. Decision (“ZHB Decision”) at 1.) The ZHB subsequently documented its grant of the
variance in a formal written Decision on April 12, 2005, which explicitly stated that local regulations
required the Longs to obtain either a building permit or occupancy certificate within six months or
else their variance would expire. (ZHB Decision at 5.) The Longs did not obtain either document
within the requisite six months. Plaintiff Robert Long claims that he was not made aware of this sixmonth expiration period. (Robert Dep. 46:13–24.) Robert further testified that, upon receiving a
letter from the Township which stated that the variance had expired, Koopman advised him not to
concern himself with the matter. (Id. at 62:5–24.)
Although they did not obtain either of the requisite documents, the Longs allege that they
nonetheless incurred expenses associated with the development of their land during this time. (Id.
at 63:23–24, 64:1–24.) Specifically, they assert that they were paying Koopman to oversee the land
development plan, and that Mixner billed them for engineering work he completed on the property.
(Id. at 64:14–24, 65, 66.) Invoices from Mixner’s consulting company and Koopman’s law firm
indicate that the Longs were billed for approximately $150 in engineering fees and $1,860 in legal
fees during this time. (Defs.’ Summ. J. Mem., Ex. F, 06/16/09 J.H. Mixner Consultants, Inc. Billing
Invoice (“Mixner Invoice”); Ex. G, 03/31/05 Begley, Carlin & Mandio LLP Billing Statement
(“Koopman Bill”).)
In January of 2006, the Longs filed their land development plan—nine months after their
variance had been granted and three months after it had expired. (Robert Dep. 81:19–24.) The plan
3

was originally set to be voted on by the Bristol Township Council on March 16, 2006. (Defs.’
Summ. J. Mem., Ex. I, 03/01/06 Bristol Township Letter (“03/01/06 Letter”).) However, Defendant
Glenn M. Kucher (“Kucher”), a Bristol Township zoning officer, discovered that the variance had
expired. He therefore sent the Longs a letter informing them that they needed to re-apply for a
variance before their land development plan could be considered by the Council. (Defs.’ Summ. J.
Mem., Ex. D, Dep. of Glenn Kucher (“Kucher Dep.”) 87–88; Ex.K 04/27/06 Letter from Glenn
Kucher to Robert Long (“Kucher Letter”).) Another six months passed before Plaintiffs actually
filed a request for an extension of their variance on October 31, 2006. (Defs.’ Summ. J. Mem., Ex.
A, Compl. of Robert and Janet Long (“Court of Common Pleas Compl.”) ¶ 28; Ex. L, 01/25/07
Findings of Fact &Conclusions of Law in Support of the Decision of the Bristol Twp. Zoning Hr’g
Bd. (“ZHB Decision”) at 2.) A hearing before the ZHB on the extension request was scheduled for
December 11, 2006. (ZHB Decision at 2; Defs.’ Summ. J. Mem., Ex. M, Bristol Twp. Zoning Mtg.
(“12/11/06 ZHB Mtg.”).)
In the time between the original grant of Plaintiffs’ variance and the December 2006 hearing,
however, significant changes occurred in Bristol Township. (Kucher Dep. 43:12–24, 44:1–24,
45:1–20; ZHB Decision at 3.) Specifically, several Township councils and associations worked
together to complete the “Bristol Township Beautification Project,” a community plan aimed at
commercially revitalizing the local area, including the area buttressing the Longs’ property. (Kucher
Dep. 43:21–24.) In accordance with the Project, the local train station was re-done and the main
local traffic route, Route 13, was re-designed into a pedestrian-friendly business corridor. (Id. at
43:22–24, 44:1–10.) The area was also eventually re-zoned for “mixed use.” (Id. at 44:19–21.)
At the December 2006 hearing, the Longs were denied an extension of their variance. (Id.
4

at 60:7–21; Robert Dep. 104:23–24, 105:1–7; 12/11/06 ZHB Mtg. at 38–42.) The ZHB issued a
formal written Decision on January 25, 2007, in which it cited the Beautification Project as one
reason for its denial of the variance renewal. (ZHB Decision at 3.) The Board also denied the
extension based on the fact that Plaintiffs waited several months before requesting the extension,
which implied to the Board that they had no real interest in developing their property. (Defs.’
Summ. J. Mem., Ex. N, Dep. of Ronald Marczak (“Marczak Dep.”) 17:13–19, 21:3–5.) As a result
of the ZHB’s denial of their variance, the Longs were therefore unable to move forward with their
land development plan. (See Defs.’ Summ. J. Mot., Ex. K, 04/27/06 Letter to Robert C. Long Re:
2019 Bristol Pike, Croydon, Tax Parcel #5-12-100 (“04/27/06 Letter”).)
Plaintiffs appealed the ZHB’s decision to the Court of Common Pleas of Bucks County.
During discovery it was revealed that, since the time the six-month expiration requirement became
effective, nine out of the twelve land development projects in Bristol Township had not obtained
building permits or occupancy certificates within the requisite timeframe but were nonetheless
permitted to move forward. (Stipulation ¶ 33.) Evidence unveiled during discovery further revealed
that the six-month expiration period was not routinely enforced in Bristol Township, and that the
ZHB regularly granted renewed variances and extensions for land development projects. (Id. ¶¶
2–29.) It was also revealed that the Longs’ neighbors, George and Susan Rosenberg, owned property
in violation of an existing ordinance, but were not required to obtain a variance. (Robert Dep. 117.)
Based on this evidence, the Court of Common Pleas reversed the ZHB Decision, and held
that the Longs could move forward with their property development. (Defs.’ Summ. J. Mem., Ex.
Q, Opinion & Order of the Court of Common Pleas (“Common Pleas Op.”).) The Court of Common
Pleas also found that: “[g]iven the fact that no other applicants ha[d] been treated this way[,] it [was]
5

difficult to deny the existence of bad faith” on the Township’s part. (Common Pleas Op. at 7.) After
the Court of Common Pleas’ reversal, the Township Council ultimately approved the Longs’ land
development plan, thereby permitting Plaintiffs to formally begin the development of their property.
(Robert Dep. 107:19–22.) To date, however, the Longs still have not started construction of the
warehouse on the property. (Id. at 109–112.)
Plaintiffs filed their Complaint in federal court on March 11, 2010, asserting several
constitutional violations pursuant to 42 U.S.C. § 1983: (1) violations of their procedural and
substantive due process rights (Count I); (2) violations of their equal protection rights (Count II); (3)
a taking of their property (Count III); and (4) a conspiracy to deprive them of their constitutional
rights (Counts IV).3 Defendants filed the instant Motion for Summary Judgment on April 9, 2012.4
Plaintiffs responded in opposition on May 4, 2012, making this matter ripe for judicial consideration.
II.

STANDARD OF REVIEW
Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). A factual dispute is “material”
only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). For an issue to be “genuine,” a reasonable fact-finder must be able to return a verdict in
favor of the non-moving party. Id.
On summary judgment, it is not the court’s role to weigh the disputed evidence and decide

3

In their Response in Opposition, Plaintiffs withdraw their conspiracy claims set forth in
their Complaint. (See Pls.’ Resp. Opp’n 19.) As such, summary judgment on this point is
denied as moot.
4

Neither a motion to dismiss, nor any other preliminary motion, was filed in this case.
6

which is more probative, or to make credibility determinations. Boyle v. Cnty of Allegheny, Pa., 139
F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi’s IGA Supermarkets, Inc. v. Darling-Del. Co., Inc., 998
F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable
inferences which may be drawn from it, in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361
(3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must
accept as true the allegations of the non-moving party, and “all justifiable inferences are to be drawn
in his favor.” Anderson, 477 U.S. at 255.
Although the moving party bears the initial burden of showing an absence of a genuine issue
of material fact, it need not “support its motion with affidavits or other similar materials negating
the opponent’s claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden
by “pointing out . . . that there is an absence of evidence to support the nonmoving party’s case.”
Id. at 325. Once the movant has carried its initial burden, the opposing party “must do more than
simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec., 475 U.S.
at 586. “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249. Summary judgment may
be granted when “the evidence is merely colorable . . . or is not significantly probative.” Id. at 249–
50 (citations omitted).

7

III.

DISCUSSION
Defendants move for summary judgment in their favor on Plaintiff’s constitutional claims

brought under § 1983, alleging that the Longs have failed to establish the existence of constitutional
violations on their part. Defendants likewise aver that Bristol Township cannot be held liable under
a theory of municipal liability, and that the individually named Defendants are protected by the
doctrine of qualified immunity. The Court considers each argument and response in turn.
A.

The Constitutional Claims

Plaintiffs assert their constitutional claims against the Township pursuant to 42 U.S.C. §
1983. Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress[.]
42 U.S.C. § 1983. The statute itself does not independently create substantive rights, but rather
merely “provides a remedy for deprivations of rights established elsewhere in the Constitution or
federal laws.” Kopec v. Tate, 361 F.3d 772, 775–76 (3d Cir. 2004) (internal citation omitted); see
also Gonzaga Univ. v. Doe, 536 U.S. 273, 284–85 (2002); Bush v. Lancaster City Bureau of Police,
No. Civ.A.07-3172, 2008 WL 3930290, at *3 (E.D. Pa. Aug. 26, 2008). Federal law requires a
plaintiff to satisfy two steps in order to properly establish a § 1983 claim: (1) the deprivation of a
constitutional right or other federal law; and (2) that a “person acting under the color of state law”
is responsible for the alleged deprivation. Collins v. City of Harker Heights, 503 U.S. 115, 119–20
(1992).

8

In the instant case, Plaintiffs claim that Bristol Township engaged in conduct committed
under the color of state law that deprived them of their due process and equal protection rights under
the United States Constitution. (Compl. ¶¶ 43–56.) Plaintiffs further aver that the Township’s
conduct resulted in an unconstitutional taking of their property. (Id. ¶¶ 57–69.)
1.

Due Process (Count I)5

The Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty, or
property, without due process of law[.]” U.S. Const. amend. XIV. As interpreted by the Supreme
Court, the Fourteenth Amendment protects both the substantive and procedural due process rights
of individuals. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846–47 (1992). In this
case, the Longs assert that Bristol Township’s conduct violated both types of due process. The Court
considers each allegation in turn.
a.

Procedural Due Process

“At the core of procedural due process jurisprudence is the right to advance notice of

5

In their Complaint, Plaintiffs assert that Bristol Township violated their procedural due
process rights under the Fifth Amendment, and their substantive due process rights under the
Fourteenth Amendment. (Compl. ¶¶ 43–50.) It is well established law, however, that the Fifth
Amendment only applies to actions taken by the federal government. See Nguyen v. U.S.
Catholic Conf., 719 F.2d 52, 54 (3d Cir. 1983) (citing Pub. Util. Comm’n v. Pollak, 343 U.S.
451, 461 (1952)) (paranthetical omitted). Here, Bristol Township is a local government
entity—not a part of the federal government system. As such, Defendants are entitled to
summary judgment on all claims made by Plaintiffs based on Bristol Township’s alleged
violation of their Fifth Amendment due process rights. Moreover, although it appears from the
face of the Complaint that Plaintiffs’ procedural due process claims are solely based on the Fifth
Amendment, it is possible for one to infer from the text of Plaintiffs’ Complaint and Response in
Opposition that they likewise meant to base their procedural due process claims on the
Fourteenth Amendment. At this stage of the proceedings, the Court is required to draw all
inferences in the non-moving parties’ favor, which in this case are the Longs. As such, the Court
will likewise consider Plaintiffs’ procedural due process claims to the extent that the Longs
intended them to be based on the Fourteenth Amendment.
9

significant deprivations of liberty or property and to a meaningful opportunity to be heard.” Abbott
v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998) (internal citations omitted). In order to successfully
establish a prima facie case of a procedural due process violation, a plaintiff must show: (1) there
has been a deprivation of the plaintiff’s liberty or property, and (2) the procedures used by the
government to remedy the deprivation were constitutionally inadequate. See Mulholland v. Gov’t
of Cnty. of Berks, No. Civ.A.10-5616, 2012 WL 1057446, at *8 (E.D. Pa. Mar. 29, 2012) (citing
Studli v. Child. & Youth & Fam. Ctr. Reg’l Office, 346 F. App’x 804, 813 (3d Cir. 2009)).
Remedial procedures will be found to be constitutionally inadequate if “they contain a defect so
serious [as to] characterize the procedures as fundamentally unfair.” See Leonard v. Owen J.
Roberts Sch. Dist., No. Civ.A.08-2016, 2009 WL 603160, at *4 (E.D. Pa. Mar. 5, 2009) (citing
Daniels v. Williams, 474 U.S. 327, 341 (1987) (Stevens, J., concurring)). Put differently, if a
plaintiff avers a lack of adequate procedures to protect his constitutional interest at issue, then the
inquiry is whether the government in fact has an established procedure in place that would remedy
the infringement. As such, the focus in procedural due process claims is on the adequacy of the
remedial procedure, and not on the government’s actual actions that allegedly deprived the individual
of his liberty or property interest. Leonard, 2009 WL 603160, at *4.
Here, Plaintiffs allege that they were deprived of their property rights. (Compl. ¶ 47.)
Specifically, Plaintiffs aver that “[t]he right of the Longs to develop the property consistently with
the existing ordinances of Bristol Township and in accordance with the variance approved for the
Property has been intentionally abridged by Defendants . . . with [the] intent to deprive” them of their
property. (Id. ¶ 45.) It is well established law that “possessory interests in property invoke
procedural due process protections.” Abbott, 164 F.3d at 146 (internal citation omitted). As such,
10

Plaintiffs have satisfied the first element of the procedural due process analysis.
The second element requires the Court to consider if the procedures used to remedy the
deprivation were constitutionally inadequate. A fellow court in this District previously addressed
this issue in a factual scenario largely similar to the one at hand in Maple Properties, Inc. v.
Township of Upper Providence, No. Civ.A.00-4838, 2004 WL 2579740 (E.D. Pa. Nov. 12, 2004).
In Maple, the plaintiff purchased a tract of land upon which it sought to construct fast food and
convenience stores. Id. at *1. The plaintiff applied for and was granted a special exception from the
relevant zoning ordinance, and began engineering work on the property. Id. While the plaintiff was
in the course of completing its land development plan, the township changed the zoning demarkation
of the area, which effectively prohibited further construction on the plaintiff’s land. Id. The plaintiff
sued the township, asserting a deprivation of its procedural due process rights related to its property
interest. Id. at *4. In declining to find a violation of procedural due process, the Maple Court relied
on the Third Circuit’s language in Rogin v. Bensalem Township, 616 F.2d 680 (3d Cir. 1980), which
detailed the remedial procedures available to dissatisfied landowners in Pennsylvania:
A [Pennsylvania] landowner who wishes to challenge the validity of a zoning
ordinance or amendment that restricts the use or development of its land may file a
challenge with the zoning hearing board and may appeal from any decision by the
zoning officer applying the ordinance. . . . If the landowner is dissatisfied with the
Board’s decision, it then has the right to appeal to the Court of Common Pleas. The
appeal may take the form of direct judicial review of the Board’s decision, or the
court may take new evidence and enter its own findings of fact after trial de novo.
The Court is authorized to declare any ordinance or map invalid and to set aside or
modify any action, decision, or order of the Township, Zoning Officer, or Zoning
Hearing Board.
Maple, 2004 WL 2579740 at *4 (quoting Rogin, 616 F.2d at 694–95). Based on this language, the
Maple Court found that: “[i]n a state such as Pennsylvania, which affords a full judicial mechanism

11

to challenge administrative decisions, the state provides adequate procedural due process regardless
of whether the plaintiff avails herself of that appeal mechanism.” Maple, 2004 WL 2579740 at *4
(internal citations omitted).
This Court finds Maple and Rogin particularly instructive here. After the Longs filed their
land development plan, the Township informed them that their variance was expired, but gave them
the opportunity to remedy this by filing an application for an extension. The Longs waited another
six months before actually filing for the extension. Upon receipt of the application, the ZHB held
a hearing on it, during which it took comments from the public and heard testimony from several
individuals, including Plaintiffs’ attorney. Nothing in the record indicates that Plaintiffs were in any
way prevented from participating in and representing their interests at this hearing. Indeed, Robert
Long acknowledges being present at the hearing. After the ZHB decided at the hearing that it would
not grant the extension of the variance, it shortly thereafter issued a formal written Decision
explaining its reasoning for doing so. Displeased with this result, Plaintiffs appealed the ZHB
Decision to the Court of Common Pleas, where they were given the opportunity to conduct discovery
and have another neutral body consider their claims anew. Based on this evidence of record, there
can be no dispute that Plaintiffs took full advantage of the procedures available to them under
Pennsylvania law to cure any constitutional violation that may have occurred here. As such,
Defendants are entitled to summary judgment on Plaintiffs’ procedural due process claims.
b.

Substantive Due Process

The substantive component of the Due Process Clause bars certain arbitrary and wrongful
government actions that would deprive an individual of life, liberty, or property. Tazioly v. City of
Phila., No. Civ.A.97-1219, 1998 WL 633747, at *7 (E.D. Pa. Sept. 10, 1998) (citing Zinermon v.
12

Burch, 494 U.S. 113, 125 (1990)). The first step in assessing a substantive due process claim is to
identify the constitutional interest that was allegedly aggrieved. See Harris v. Lehigh Cnty. Office
of Child. & Youth Servs., 418 F. Supp. 2d 643, 647 (E.D. Pa. 2005) (citing Williams v. Borough of
W. Chester, 891 F.2d 458, 464 (3d Cir. 1989)); Wessie Corp. v. Sea Isle City Zoning Bd. of
Adjustment, No. Civ.A.06-589, 2007 WL 1892473, at *3 (D.N.J. June 29, 2007). In order to
successfully make out a substantive due process claim in the context of local land use regulations,
“a plaintiff must establish as a threshold matter that he has a property interest protected by the
Fourteenth Amendment’s due process clause.” Maple, 2004 WL 2579740, at *2 (citing Independent
Enters. Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1179–80 (3d Cir. 1997)) (internal
paranthetical omitted). Here, the Longs own a piece of land that was effected by Bristol Township’s
land use regulations, and therefore have established the presence of a property interest entitled to due
process protection. See Maple, 2004 WL 2579740, at *2 (citing DeBlasio v. Zoning Bd. of
Adjustment for Twp. of W. Amwell, 53 F.3d 592, 600 (3d Cir. 1995)); Cherry Hill Towers, LLC v.
Twp. of Cherry Hill, 407 F. Supp.2d 648, 654 (D.N.J. 2006) (“As owner of the Cherry Hill Towers
property, Plaintiff clearly has a property interest protected by due process.”).
The Court must next ascertain whether the identified property interest has, in fact, been
aggrieved by the government. Maple, 2004 WL 2579740, at *2. In United Artists Theatre Circuit
v. Township of Warrington, 316 F.3d 392 (3d Cir. 2003), the Third Circuit defined the standard for
determining substantive due process violations in the land use context as government action that
rises to the level of “shocking the conscience.” Id. at 400. While there is no “calibrated yard stick”
upon which to measure such conduct, the Supreme Court has recognized that “only the most
egregious official conduct” qualifies as conscience shocking. Kaucher v. Cnty. of Bucks, 455 F.3d
13

418, 425 (3d Cir. 2006) (internal citation omitted); Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847
n.8 (1998) (emphasis in original); see also Cherry Hill Towers, 407 F. Supp. 2d at 655. “What is
clear is that this test is designed to avoid converting federal courts into super zoning tribunals.”
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004). Indeed, the Third Circuit in United
Artists noted that:
[E]very appeal by a disappointed developer from an adverse ruling of the local
planning board involves some claim of abuse of legal authority, but “[i]t is not
enough simply to give these state law claims constitutional labels such as ‘due
process’ or ‘equal protection’ in order to raise a substantial federal question under
section 1983.” Land-use decisions are matters of local concern, and such disputes
should not be transformed into substantive due process claims[.]
United Artists, 316 F.3d at 402 (quoting Creative Env’t, Inc. v. Estabrook, 680 F.2d 822, 833 (1st
Cir. 1982)) (further internal citation omitted).
In Eichenlaub, the Court of Appeals provided the lower courts with some guidance on what
qualifies as conscience shocking behavior in the land use context, including: evidence of “corruption
or self-dealing,” the hampering of development in order to interfere with otherwise constitutionallyprotected activity, municipal action reflecting “bias against an ethnic group,” or evidence indicating
a “virtual taking” of the claimant’s property. Eichenlaub, 385 F.3d at 285–86. By the same token,
the Third Circuit likewise listed examples of conduct that is not sufficiently egregious or outrageous,
such as: applying certain regulations to one parcel of property but not to others, making unannounced
or unnecessary inspections of the property, delaying permits and approvals, improperly increasing
tax assessments, or “malign[ing] or muzzl[ing]” claimants. Id. at 286. While these lists are not
exhaustive, the Third Circuit has noted that allowing only the most outrageous conduct to qualify
as conscious shocking prevents federal courts from “being cast in the role of a ‘zoning board of

14

appeals.’” United Artists, 316 F.3d at 402 (quoting Estabrook, 680 F.2d at 833).
Here, the Longs contend that Bristol Township’s conduct shocks the conscience because no
reasonable jury could conclude that the ZHB’s actions served any rational land use purpose. (Pls.’
Resp. Opp’n 16.) More specifically, Plaintiffs allege that there is no evidence in the record
indicating that the Longs’ proposed use of their property as a mini-storage warehouse was
inconsistent with the aim of the Bristol Township Beautification Project, or that the zone change
directly impacted their tract of land. (Id.) Plaintiffs further contend that the Board’s reliance on their
as-of-yet failure to begin construction on the property is improper (id.), and that the ZHB’s actions
overall were motivated by “bias, bad faith, and improper motives, such as political and/or personal
gain.” (Compl. ¶ 49.)
Several factors, however, counsel against a finding that the Township’s actions shocked the
conscience here. First, in United Artists, the Third Circuit expressly overruled prior caselaw that
allowed for substantive due process violations in the land use context to be based on a mere
improper motive or a reason unrelated to the merits of the issue, stating that land use disputes
“should not be transformed into substantive due process claims based only on allegations that
government officials acted with ‘improper’ motives.” United Artists, 316 F.3d at 400–02; see also
Honey Brook Estate v. Honey Brook Twp., No. Civ.A.09-6910, 2012 WL 2076985, at *14, 15 (E.D.
Pa. June 7, 2012); Cherry Hill Towers, 407 F. Supp. 2d at 654. The Third Circuit has likewise
recognized that “a bad faith violation of state law” does not meet the conscience-shocking standard.
See Highway Materials, Inc. v. Whitemarsh Twp., 386 F. App’x 251, 257 (3d Cir. 2010); see also
Honey Brook, 2012 WL 2076985 at *14 (recognizing and relying on the holding of Highway
Materials). As such, Plaintiffs’ assertions that Bristol Township’s actions here violated their
15

substantive due process rights because they were based on “bad faith” and “improper motives” do
not rise to the heightened level of egregiousness necessary to establish a constitutional violation.
Moreover, to the extent that Plaintiffs assert that the Township’s actions were motivated by “political
and/or personal gain,” there is no evidence in the record to support such a finding. It is wellestablished law that “[i]t is not enough simply to give [ ] state law claims constitutionals labels . .
. in order to raise a substantial federal question[.]” Wessie Corp., 2007 WL 1892473, at *6 (citing
Creative Env’t, 680 F.2d at 833).
The Court next considers Plaintiffs’ allegation that the ZHB’s actions did not serve a rational
purpose because Plaintiffs’ proposed use of the property as a mini-storage warehouse was consistent
with the Beautification Project and the zone change did not directly impact their tract of land. On
their part, Defendants contend that the Township’s actions and decision to deny the variance
extension were based on the fact that circumstances had significantly changed as a result of the
Beautification Project, as well as Plaintiffs’ chronic failure to timely adhere to the requirements
related to the granting of their variance. (Defs.’ Summ J. Mem. 11; ZHB Decision at 3; Marczak
Dep. 17:13–19; 21:3–5.)
Glenn Kucher—the zoning officer who notified the Longs of the expiration of their variance
and that testified at the December 2006 hearing—stated in his deposition that certain Township
officials expressed concern that the Longs’ plan to build a warehouse did not fit with the character
of the Beautification Project. (Kucher Dep. 59:5–24.) Instead of supporting a finding that the Board
acted arbitrarily, this testimony actually indicates that the ZHB’s denial of the variance extension
was rationally related to the issue of land use planning.
Moreover, even if the conduct at issue here did not serve a rational purpose, the Longs’
16

claims would nonetheless fail because the Township’s actions simply do not rise to the level of
conduct that is “so egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998) (emphasis in original).
Numerous courts have declined to find a violation of substantive due process under analogous
circumstances. See Blain v. Twp. of Radnor, 167 F. App’x 330, 333–34 (3d Cir. 2006); Maple, 2004
WL 2579740 at *2–3; Perano v. Twp. of Tilden, No. Civ.A.09-00754, 2010 WL 1462367, at *7–8
(E.D. Pa. Apr. 12, 2010); Honeybrook, 2012 WL 2076985, at *13–17; Hankin Fam. P’ship v. Upper
Merion Twp., No. Civ.A.01-1622, 2012 WL 43610, at *18–21 (E.D. Pa. Jan. 6, 2012); Cherry Hill
Towers, 407 F. Supp. 2d at 654–57; Wessie Corp., 2007 WL 1892473, at *3–6. None of the actions
of Bristol Township in this case are analogous to the types of conscience-shocking behavior
identified by the Third Circuit in Eichenlaub, 385 F.3d at 285–86. In fact, Plaintiffs’ contentions that
the Township treated them differently from other developers actually fits within the type of behavior
recognized by the Third Circuit in Eichenlaub as not sufficiently egregious or outrageous for due
process purposes. Id. at 286 (recognizing that a municipality’s conduct in applying requirements to
some parcels of land but not others does not qualify as “conscious-shocking” behavior). Finally, to
the extent that Plaintiffs base their due process violation on the costs they incurred from the services
of Koopman and Mixner,6 this Court notes that other courts within this Circuit have previously
recognized that the incurment of extensive costs does not constitute conscious-shocking behavior.
See Cherry Hill Towers, 407 F. Supp. 2d at 655.

6

Although Plaintiffs do not raise this issue in the section of their Response in Opposition
discussing their alleged deprivation of substantive due process, there are numerous references in
the record to the incurment of legal and engineering fees stemming from the development of the
property.
17

As such, an analysis of the record in this case indicates that Bristol Township’s conduct did
not rise to the requisite level of conscience-shocking behavior. While the ZHB’s conduct here could
potentially be categorized as unfair or improper, such behavior is insufficient to support a substantive
due process violation. See Perano, 2010 WL 1462367, at *8 (“[C]onduct of officials in this case
may have been ‘unfair’ or ‘improper’ from plaintiff’s perspective, but there is no evidence of the
patently egregious behavior [necessary] to constitute a substantive due process claim.”) (internal
citation and alteration of text omitted); Wessie Corp., 2007 WL 1892473, at *6 (“As has been often
stated, the violation of a state statute [or regulation] does not automatically give rise to a violation
of rights secured by the Constitution.”) (internal citation and quotation marks omitted). Rather, the
Longs’ assertions here are “precisely the type of land-use disputes that are properly adjudicated in
state court.” Perano, 2010 WL 1462367, at *8. Plaintiffs have already been given a full and
adequate opportunity to air their land use contentions in the Pennsylvania administrative and state
court systems. To allow them to do so again here would essentially convert this Court into the
“zoning board of appeals” that the Third Circuit cautioned against in United Artists, 316 F.3d at 402.
Therefore, the Court finds that Defendants are likewise entitled to summary judgment on Plaintiffs’
substantive due process claims.
2.

Equal Protection (Count II)

The Equal Protection Clause of the Fourteenth Amendment provides that: “[n]o state . . .
shall deny any person within its jurisdiction equal protection of the laws.” U.S. Const. amend. XIV.7
7

In their Complaint, Plaintiffs root their equal protection claim in the Thirteenth
Amendment. The Thirteenth Amendment, however, makes no reference to equal protection, but
rather provides that: “[n]either slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within the United States[.]”
U.S. Const. amend. XIII. Despite being made aware of their error, Plaintiffs make no attempt to
18

Usually, in order to successfully make out an equal protection violation, a plaintiff must establish
that he is a member of a protected class, is similarly situated to members of an unprotected class, and
was treated differently from the unprotected class. See Kline ex rel. Arndt v. Mansfield, 454 F.
Supp. 2d 258, 264 (E.D. Pa. 2006) (citing Shuman ex rel. Shertzer v. Penn Manor Sch. Bd., 422 F.3d
141, 151 (3d Cir. 2005)). In circumstances when a plaintiff does not allege membership in a
constitutionally protected class or group, however, a claimant may nonetheless pursue an equal
protection claim under a “class-of-one” theory. Perano, 2010 WL 1462367, at *9 (internal citation
omitted). In order to make out a claim under the class-of-one theory in the land use context, a
plaintiff must establish that: (1) the government intentionally treated him differently than similarly
situated property owners; and (2) there was no rational basis for the government’s difference in
treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The government’s conduct
will only be considered unconstitutional if it was “irrational and wholly arbitrary.” Cherry Hill
Towers, 407 F. Supp. 2d at 658 (citing Olech, 528 U.S. at 565)).
The first prong of the analysis requires the plaintiff to “identify similarly situated individuals
who were treated differently and provide some factual support for such allegations . . . [and] allege
‘occasions or circumstances’ of differential treatment.” Perano, 2010 WL 1462367, at *9 (citing
Conklin v. Warrington Twp., No. Civ.A.06-2245, 2008 WL 2704629, at *11 (M.D. Pa. July 7,
2008)). In the land use context, the two entities that are being compared for equal protection
purposes must be “‘similarly situated in all material respects.’” Timoney v. Upper Merion Twp., No.

correct it in their Response in Opposition, and nonetheless discuss their equal protection claim as
though it were rooted in the Fourteenth Amendment clause. As such, the Court will assume that
the Longs meant to base their equal protection claim on the well-known equal protection clause
of the Fourteenth—rather than Thirteenth—Amendment.
19

Civ.A.01-1622, 2004 WL 2823227, at *6 (E.D. Pa. Dec. 8, 2004) (quoting Shumway v. United
Parcel Servs., 118 F.3d 60, 64 (2d Cir. 1997)); Windsor Jewels of Penn., Inc. v. Bristol Twp., No.
Civ.A.01-553, 2005 WL 331703, at *5 (E.D. Pa. Feb. 10, 2005).
In the instant case, Plaintiffs allege an equal protection violation under the class of one theory
based on the Township’s treatment of other similarly situated land developers in Bristol Township
that previously requested variance extensions. According to Plaintiffs, these other land developers
were granted renewed variances or extensions, even though they had not obtained permits and/or
occupancy certificates for those projects within the six-month period required by the Township’s
regulations. (Pls.’ Resp. Opp’n 18.)8 In support of this contention, Plaintiffs rely on the Affidavit
of their own attorney, Mr. Koopman, who stated that in his experience it was customary for the ZHB
to extend variances when the land development process was underway and no material changes had
been made to the property in question. (Pls.’ Resp. Opp’n, Ex. F, Affidavit of John Koopman,
Esquire (“Koopman Aff.”) ¶¶ 8–10.) Plaintiffs further rely on a Stipulation that they entered into
with the Township in their litigation before the Court of Common Pleas, in which it was
acknowledged that:
27.

Prior to the Township’s refusal to grant land development approval for the
Long project in the spring of 2006, the Township had never applied the sixmonth variance limitation to a project involving land development and the

8

In their Complaint filed before this Court, the basis of Plaintiffs’ equal protection claim
is that their neighbors, the Rosenbergs, own property in violation of an existing zoning
ordinance, but were nonetheless permitted to use their property as a commercial enterprise
without obtaining a variance. (Compl. ¶ 54.) Based on this alleged differential treatment, the
Longs requested the Court to award them equitable relief in the form of an order compelling the
Township to enforce the existing zoning ordinance as applied to the Rosenbergs. (Id. ¶ 56(4).)
As previously mentioned, however, the Rosenbergs were dismissed as defendants to the instant
action per stipulation dated May 10, 2012. As such, the Court declines to consider the Longs’
equal protection claims to the extent that they concern the Rosenbergs.
20

Township had routinely and regularly granted land development approvals
for numerous projects involving land development, even though permits for
those projects had not been obtained within six (6) months from the date of
the variances.
28.

Since the spring of 2006, the Township Zoning Hearing Board has routinely
and regularly in each and every case before it, except the Long case, granted
renewed variances or variance extensions for projects involving subdivision
or land development.

(Stipulation ¶¶ 27, 28.) The Stipulation goes on to list nine land development projects in Bristol
Township that were permitted to proceed forward, despite the fact that the developers had not
obtained renewed variances or extensions within the requisite six months. (Id. ¶ 33(a–i).) The
Longs point out that the Court of Common Pleas relied on these stipulated facts when they found that
Bristol Township acted in bad faith, and that the ZHB’s actions “appear[ed] [to be] orchestrated to
thwart the progress of th[e] [Longs’] project for reasons unclear.” (Pls.’ Resp. Opp’n 18; Common
Pleas Op. 9.)
In response, Defendants assert that the Longs are not similarly situated to these other
developers “in all material respects,” as is required to establish an equal protection violation. (Defs.’
Summ. J. Mem. 12, 13.) More specifically, Defendants allege that the Longs did not file their land
development plan until after their variance expired, while the other land developers filed their plans
prior to the expiration of their variances. (Id. at 7, 13.) Thus, according to Defendants, the other
developers’ plans were already approved and the land development process was well underway when
they sought an extension, thereby making the granting of their requests more logical under the
circumstances. (Id.) Plaintiffs, on the other hand, had not received approval for their plan prior to
the expiration of their variance, nor was their land development process significantly underway at
the time of the filing of their extension request. (Id.) Thus, Defendants contend that, while the
21

Township’s treatment of the Longs here may have been different from its treatment of other land
developers, it was not unconstitutional.
On this point, the Court finds that genuine issues of material fact remain as to whether or not
the Longs were intentionally treated differently than other similarly situated property developers such
that Bristol Township’s conduct could be deemed unconstitutional. As an initial matter, Defendants’
attempt to distinguish the Longs’ project from the other development projects is dubious. Merely
because the other developers had already obtained plan approval and were underway with
development of their land does not change the fact that, just like the Longs, they nonetheless did not
obtain the necessary documentation within the six month time period in order to maintain their
variance. Furthermore, there is evidence in the record from which a reasonable juror could conclude
that the Longs were likewise underway with the development of their land at the time that their
variance expired—notably, their incurment of legal and engineering fees related to the development
of their property. (See Mixner Invoice; Koopman Bill.)
Furthermore, material issues of fact remain as to whether or not the second prong of the equal
protection analysis has been satisfied under these circumstances—i.e., whether the Township’s
actions here were “rationally related to a legitimate governmental purpose.” Clark v. Jeter, 486 U.S.
456, 461 (1988). On this point, Bristol Township asserts two allegedly rational reasons for denying
the Longs’ variance extension: (1) that circumstances had changed in the Township as a result of the
Beautification Project, and (2) that Plaintiffs’ continued delay in obtaining a valid variance implied
that they were not actually interested in developing the property. (Pls.’ Resp. Opp’n 13; Marczak
Dep. 17:13–19, 21:3–5.)
The record indicates that the purpose of the Beautification Project was to revitalize Route 13
22

and to aesthetically enhance and bring commercial business to Bristol Township. (Kucher Dep.
43:21–24.) As a result of the Project, this area of the Township was re-zoned for “mixed use.” (Id.
at 44:19–21.) The Township sought to achieve its goals for the Project in numerous ways, including
by revamping the local train station, planting aesthetic landscaping, building pedestrian-friendly
walkways along Route 13, and recruiting retail shops and restaurants to the area. (Id. 44:5–10,
48:12–17.) In his deposition, Kucher testified that “self-storage was not something that . . . had
[been] outlined as an appropriate use” under the Project, and that certain Township officials
expressed hesitation about the Longs’ storage warehouse adhering to the character of the newly
revitalized and aesthetically enhanced area that the Township sought to develop. (Id. at 48:14–17;
59:18–22.) Preserving and promoting a community’s aesthetic quality and character has previously
been recognized as a legitimate government purpose under the equal protection clause. See Berman
v. Parker, 348 U.S. 26, 33 (1954) (“It is within the power of the legislature to determine that the
community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well
as carefully patrolled.”); Rogin v. Bensalem Twp., 616 F.2d 680, 688 (3d Cir. 1980); Roosevelt
Blvd. Corp. t/a Pinups v. City of Phila., No. Civ.A.02-1391, 2003 WL 57903, at *9 (E.D. Pa. Jan.
06, 2002); Interstate Outdoor Adver. v. Zoning Bd. of Twp. of Mt. Laurel, No. Civ.A.09-1376, 2011
WL 4386577, at *7 (D.N.J. Sept. 19, 2011). Thus, it is possible to find that the Township’s denial
of the Longs’ variance extension was rationally related to the legitimate government purpose of
creating and promoting the aesthetics and character of the local community.
On the other hand, the record also indicates that the Longs’ particular parcel of land was not
directly affected by the Beautification Project. Specifically, Kucher testified that the new mixed use
zoning classification did not apply to the Longs’ property, and that the aesthetic enhancements would
23

not take place along the part of Route 13 buttressing the Longs’ parcel of land. (Kucher Dep.
49:10–16.) The record further reveals that the Beautification Project actually was approved and
received government funding before the Township granted their original variance in March of 2005.
(Court of Common Pleas Op. 9; Stipulation ¶ 22.) This evidence shows that the Township was
cognizant of the ramifications of the Beautification Project when it initially approved of the Longs’
decision to build a warehouse, and calls into question why the Township later objected to the Longs’
intended use of their property. In fact, it is possible to find that the Township’s actions here hint
toward the type of “irrational” and “arbitrary” conduct prohibited by the Equal Protection Clause.
See Cherry Hill Towers, 407 F. Supp. 2d at 658. Thus, based on this evidence, a reasonable juror
could also find that the Township’s denial of the variance extension based on the Beautification
Project was not rational. Given these genuine issues of material fact, summary judgment on this
point is impermissible.
As to the Township’s contention that its actions were steered by the Longs’ continued delay
in obtaining a valid variance, the Court cannot conclude that a reasonable juror would be unable
return a jury verdict in the Longs’ favor on this point. Defendants assert that Plaintiffs’ repeated
tardiness and failure to adhere to set timing requirements indicated to Township officials that they
were not really interested in developing their property. (Defs.’ Summ. J. Mem. 5, 13; Marczak Dep.
17:13–19, 21:3–5.) As an initial matter, the Court notes that the mere fact that the Longs applied
for an extension of their variance in the first instance indicates that they remained interested in
developing their parcel of land. There is also evidence in the record indicating that the Longs’
attorney and engineer continued to work on the advancement of the property during this time. (See
Mixner Invoice; Koopman Bill.) These facts call into question whether the Township’s denial based
24

on the Longs’ conduct was rational and legitimate. Such an inquiry is best left to the discretion of
a jury.
Therefore, based on the above, summary judgment on Plaintiffs’ equal protection claim based
on the government’s treatment of other similarly situated land developers in Bristol Township is
impermissible. As such, Defendants’ request for summary judgment on this point is denied.
3.

Taking of Property (Count III)

Plaintiffs further cursorily allege that the Township’s actions in this case resulted in an
unlawful de facto taking of their property because they “were deprived of any use of the Property
while they awaited zoning approval which was withheld in bad faith.” (Pls.’ Resp. Opp’n 19.)9
The Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides
that: “private property [shall not] be taken for public use, without just compensation.” U.S. Const.
amend. V. In Williamson Co. Regional Planning Communications v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985), the Supreme Court of the United States held that a takings claim is not
ripe for adjudication if the claimant has not sought compensation through the procedures a state has
provided for doing so. Id. at 195. The Court based its holding on the fact that the “Fifth Amendment

9

The basis of Plaintiffs’ takings claim is unclear, as they make no reference to either the
Fifth Amendment or Pennsylvania Code provisions or caselaw. In Count III of the Complaint,
Plaintiffs make no reference to the Fifth Amendment or § 1983, whereas their other
constitutional claims in Counts I and II directly reference the specific section of the Constitution
upon which they are based. In the section of the Complaint entitled “Jurisdiction and Venue,”
however, it is stated that: “the Longs bring this action under the Fifth . . . Amendment[ ] to the
Constitution of the United States and the Civil Rights Act of 1871, 42 U.S.C.A. § 1983.”
(Compl. ¶ 3.) Plaintiffs make no attempt to clarify their position in their Response in Opposition.
In fact, Plaintiffs dedicate a mere two sentences to their takings claim in their Response in
Opposition. (See id.) Moreover, Plaintiffs likewise fail to cite to any Pennsylvania Code
provisions or caselaw in their Response in Opposition. Nonetheless, the Court will consider
Plaintiffs’ claims under both the federal constitution and applicable state law.
25

does not proscribe the taking of property; it proscribes the taking of property without just
compensation.” Id. at 194 (emphasis added).
In Pennsylvania, the Commonwealth’s Eminent Domain Code provides procedures according
to which landowners may seek just compensation for alleged takings of their property in 26 Pa. C.S.
§§ 308, 502, and 709. Perano v. Twp. of Tilden, No. Civ.A.09-00754, 2010 WL 1462367, at *12
(E.D. Pa. Apr. 12, 2010) (citing Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008)). In regard to
alleged de facto takings of property, a property owner may bring an action for inverse
condemnation10 to obtain just compensation under the Code. “A de facto taking occurs when ‘an
entity clothed with the power of eminent domain has, by even a non-appropriative act or activity,
substantially deprived an owner of the beneficial use and enjoyment of his property.’” Munoz v.
City of Phila., No. Civ.A.05-5318, 2006 WL 328346, at *5 (E.D. Pa. Feb. 10, 2006) (citing Genter
v. Blair Cnty. Convention & Sports Facilities Auth., 805 A.2d 51, 55 (Pa. Commonw. Ct. 2002)).
The Third Circuit has recognized that these Code provisions provide “adequate process for plaintiffs
to obtain just compensation. . . . Where there is a procedure for seeking just compensation, ‘the
property owner cannot claim a violation of the [Takings] Clause until [he] has used the procedure
and been denied just compensation.’” Chainey, 523 F.3d at 223 (citing Williamson, 473 U.S. at
195); see also Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d Cir. 2001); Brubaker v. E. Hempfield
Twp., 234 F. App’x 32, 36 (3d Cir. 2007); ATE Kays Co. v. Pa. Convention Ctr. Auth., No.

10

“In a normal takings case, the taking occurs when the government acts to condemn
property in the exercise of its power to eminent domain, while the doctrine of inverse
condemnation is predicated on the proposition that a taking may occur without such formal
proceedings.” ATE Kays Co. v. Pa. Convention Ctr. Auth., No. Civ.A.00-3693, 2000 WL
1763669, at *2 (E.D. Pa. Nov. 21, 2000) (citing Peduto v. City of N. Wildwood, 878 F.2d 725,
728 n. 4 (3d Cir. 1989); First Eng. Evangelical Church v. L.A. Co., 482 U.S. 304, 316 (1987)).
26

Civ.A.00-3693, 2000 WL 1763669, at *2 (E.D. Pa. Nov. 21, 2000).
As applied to the instant case, the Longs must first have suffered a deprivation of their
constitutional rights and then utilized the state procedures available to them to remedy the
deprivation before filing their takings claim. See Atuahene v. City of Phila., No. Civ.A.99-1359,
1999 WL 994004, at *3 (E.D. Pa. Oct. 29, 1999) (finding plaintiff’s § 1983 claim premature because
he did not first utilize the state procedures available to him in Pennsylvania). The record indicates
that the Longs have not attempted to seek compensation under the Commonwealth’s Eminent
Domain Code to remedy the alleged taking of their property. As such, their takings claim is not ripe
and summary judgment on this point is granted in favor of the Defendants.
B.

Claims Against Officers In Their Individual Capacities

When suing an officer named as a defendant in a legal action in his individual capacity
pursuant to 42 U.S.C. § 1983, plaintiffs essentially seek to hold the officer personally liable for his
or her conduct. Hafer v. Melo, 502 U.S. 21, 25 (1991). Here, Plaintiffs bring suit against ten named
Township officials in their individual capacity.11 Two of these officials, Kucher and Margulies, are
zoning officers. Three officials—Monahan, Tarlini, and Davis12—are members of the Bristol

11

Plaintiffs likewise bring suit against these individuals for actions taken in their official
capacity. “[O]fficial-capacity suits generally represent only another way of pleading an action
against an entity of which an officer is an agent.” Hafer, 502 U.S. at 25 (quoting Kentucky v.
Graham, 473 U.S. 159, 165 (1985); Monell v. New York City Dept. of Soc. Servs., 436 U.S.
658, 690 n.55 (1978)) (internal quotation marks omitted). Suits against government officers in
their official capacity therefore should be treated as suits against the government entity itself.
Hafer, 502 U.S. at 25 (citing Graham, 473 U.S. at 166). To the extent that the officials in this
case are being sued in their official capacities, the Court will treat such actions as suits against
the Township itself, and considers these claims below in Section C, supra, discussing the
Township’s potential municipal liability under these circumstances.
12

In their Complaint, Plaintiffs incorrectly identify Defendant Monahan as “John
Monaghan” and Defendant Tarlini as “Linda Parlini.”
27

Township Council.13 The remaining five officers are members of the Zoning Hearing Board:
Burgess, Marczak, Horvath,14 Champey, and Gushue.15 In their Motion for Summary Judgment,
Defendants generally assert that these individuals are immune from liability based on the doctrine
of qualified immunity. A closer review of the record and relevant law, however, indicates that, based
on their positions and job duties, several of these officials could qualify for more “protective” forms
of immunity—notably, judicial and legislative immunity. As such, the Court will consider whether
any of the “more protective” forms of absolute immunity apply to any of the individually named
defendants before considering whether the qualified immunity doctrine is applicable here.
1.

Judicial Immunity

The Court first addresses the claims asserted against the five members of the ZHB. “‘It is
a well-settled principle of law that judges are generally immune from a suit for money damages.’”
Ryan v. Lower Merion Twp., 205 F. Supp. 2d 434, 439 (E.D. Pa. 2002) (quoting Figueroa v.
Blackburn, 208 F.3d 435, 440 (3d Cir. 2000); Mireles v. Waco, 502 U.S. 9 (1991) (per curiam))
(further citation omitted). The Third Circuit has recognized that members of zoning boards are
charged with performing “quasi-judicial functions,” and are therefore entitled to judicial immunity

13

In their Complaint, Plaintiffs mistakenly identify these individuals as members of the
Township’s “Board of Supervisors.” (See Compl. ¶¶ 15–17.) The actual governing body of
Bristol Township to which these Defendants belong, however, is the Township Council. (See
Defs.’ Summ. J. Mot., Exs. U, V, W.)
14

Defendant Horvath is since deceased. In their Response in Opposition, Plaintiffs
therefore withdraw their claims asserted against her. (See Resp. Opp’n 20.) As such, summary
judgment is denied as moot on all claims asserted Defendant Horvath.
15

Plaintiffs incorrectly identify Defendant Champey as “Joseph Campey.” Furthermore,
Plaintiffs once again mistakenly identify these five individuals as members of the Township’s
“Board of Supervisors” in their Complaint. (See Compl. ¶¶ 10–14.) These individuals, however,
are members of the Zoning Hearing Board. (See Defs.’ Summ. J. Mot., Exs. B, C, M, N, O.)
28

for their actions that are integrally related to the judicial process. See Omnipoint Corp. v. Zoning
Hr’g Bd. of Pine Grove, 181 F.3d 403, 409 (3d Cir. 1999) (citing Urbano v. Meneses, 431 A.2d 308,
311 (Pa. Super. 1981)). In Ryan, Chief Judge Joyner addressed a remarkably similar factual scenario
that occurred in a township nearby to the one at hand. In finding that the ZHB members in that case
were entitled to judicial immunity for their actions, the court noted that:
Defendants Ryan and Morris were sitting as members of the Zoning Hearing Board
(“ZHB”) to hear Plaintiff’s appeal from a zoning decision made by Duncan, a Zoning
Officer. Plaintiff was represented by counsel at the ZHB hearing. Plaintiff put on
a case-in-chief and had the opportunity to cross-examine his opponents. The ZHB
took the sworn testimony of witnesses and ruled on objections from counsel. A
review of the transcript from the hearing demonstrates it was judicial in nature.
Further, the ZHB issued a written opinion outlining its decision and the decision was
appealable to the Court of Common Pleas for Montgomery County, Pennsylvania.
Because Defendants Ryan and Morris were performing a quasi-judicial role as
members of the ZHB hearing an appeal of a zoning decision, they will be granted
judicial immunity and all of Plaintiff’s claims against them in their individual
capacities are dismissed with prejudice.
Ryan, 205 F. Supp. 2d at 439 (internal footnotes omitted). The actions of the ZHB officers in Ryan
are almost precisely the same as the actions of the five ZHB members at issue here. As such, this
Court finds the language of Ryan directly applicable to this dispute. Rather than rehash what has
already been properly stated by the Chief Judge of this Court, this Court finds that, as members of
the ZHB, Defendants Burgess, Marczak, Champey, and Gushue are entitled to judicial immunity for
their actions here. Summary judgment is therefore granted on all claims asserted against them in
their individual capacities.
2.

Legislative Immunity

The Court next considers whether the members of the Township Council or zoning officers
are entitled to absolute legislative immunity for their actions in this case.

29

In Tenney v. Brandhove, 341 U.S. 361 (1951), the Supreme Court held that individual
legislators acting in their official legislative capacity are absolutely immune from suit for damages
under § 1983. The Court subsequently extended the reach of this immunity to regional legislators
in Lake County Estate, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979). In Aitchison
v. Raffiani, 708 F.2d 96 (3d Cir. 1983), our Court of Appeals further expanded the breadth of
legislative immunity to include local legislators. Local legislators, however, are only entitled to
immunity for actions taken in a traditional legislative capacity, and the Third Circuit has therefore
instructed courts to focus on whether the “mode” in which such individuals operate is more
“legislative” or “administrative” in nature. See Donivan v. Dallastown Borough, 835 F.2d 486, 488
(3d Cir. 1988); Ryan v. Burlington Cnty., N.J., 889 F.2d 1286, 1290 (3d Cir. 1989); Acierno v.
Cloutier, 40 F.3d 597, 610 (3d Cir. 1994). In Donivan, the Third Circuit differentiated between the
two types of modes, stating that actions which apply generally to the community at large are
legislative matters, while actions directed at one or a few individuals are usually more administrative
in nature. Donivan, 835 F.2d at 488 (internal citations omitted). The circuit court further clarified
that “legislative powers require enactment of an ordinance; if an act is accomplished by means other
than an ordinance, it is not an exercise of legislative activity.” Id. at 489.
According to the record, the Bristol Township Council is a local governmental body
responsible for various legislative and administrative duties. Specifically, Council members address
all citizen complaints and concerns, legal and union issues, and land development procedures
occurring within the Township. (See Tarlini Dep., 14:22–24, 15:1–18; Monahan Dep. 8:18–24,
9:12–22.) Council members also review Township bills and organize local community projects,
such as the Bristol Township Beautification Project. (Davis Dep. 11:10–24.) Moreover, Council
30

members regularly participate in local public meetings and vote on specific issues affecting the
community. (Tarlini Dep. 17:18–24; Monahan Dep. 9:2–5; Kucher Dep. 12:12–24.) Most relevant
to this case is the fact that the Township Council is the government entity charged with approving
or disapproving land development plans.
In Epstein v. Township of Whitehall, 693 F. Supp. 309 (E.D. Pa. 1988), another court in this
District held that the actions of local legislators in voting on and disapproving a development plan
did not constitute legislative activity to which immunity attaches. Id. at 315. The court based its
finding on the fact that the legislators “were not voting upon passage, amendment or recission of an
ordinance which generally applied to all [ ] Township residents or those wishing to develop land
within the Township; [but] rather . . . was purportedly taking an ordinance, already enacted, and
applying it to but a single plan for development[.]” Id. Based on this, the court found that the
officials’ actions were administrative in nature. Id.
Here, Plaintiffs’ claims against the Township Council members are particularly premised on
their actions related to the disapproval of the Longs’ land development plan. In ultimately deciding
not to approve their development plan, the Council members did not vote on an ordinance that
generally affected all Bristol Township residents or those wishing to develop land within the
Township as a whole, but rather solely focused and acted upon the Longs’ particular land
development plan application. Under Epstein, such conduct is more administrative than legislative
in nature. Defendants Davis, Monahan, and Tarlini are therefore not entitled to legislative immunity
for their actions here.
As to the zoning officers in Bristol Township, the record indicates that these officials are
responsible for processing variance applications and fees, creating notices of land developments,
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placing advertisements in local newspapers, and forwarding applications to the ZHB. (Kucher Dep.
35:10–24.) While zoning officers attend hearings on the variance applications before the ZHB, they
do not make recommendations to the Board or vote on the applications. (Id. 35:22–24; 37:8–12;
39:12–14.) Based on these duties, the actions of zoning officers in Bristol Township appear to be
more administrative than legislative in nature. As such, Defendants Margulies and Kucher are
likewise unable to shield themselves from liability based on the doctrine of absolute legislative
immunity.
3.

Qualified Immunity

The Court next considers whether the Township Council members and zoning officers can
take advantage of the less protective shield of qualified immunity.
Qualified immunity exists when a reasonable officer could have believed his conduct was
lawful in light of clearly established law and the information he possessed. Id. Moreover, the
plaintiff’s subjective beliefs are irrelevant in determining whether the qualified immunity doctrine
applies. See Anderson v. Creighton, 483 U.S. 635, 636 (1987); Green v. City of Patterson, 971 F.
Supp. 891, 901 (D.N.J. 1997). The doctrine provides sufficient room for mistakes in the officers’
judgment, and serves to protect “all but the plainly incompetent or those who knowingly violate the
law.” Green, 971 F. Supp. at 901 (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir.
1995)) (further citations omitted).
In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Supreme Court established the standard
for invoking a qualified immunity defense, stating that: “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
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would have known.” Id. at 818 (internal citations omitted). In Saucier v. Katz, 533 U.S. 194 (2001),
the Court refined this standard by formulating a two-pronged inquiry into the official’s conduct: (1)
whether, taken in the light most favorable to the plaintiff, the alleged facts indicate the deprivation
of an actual constitutional right; and (2) if so, whether the right was clearly established such that a
reasonable officer could have believed that the particular conduct at issue was lawful. See id. at 201;
see also Holmes v. Cnty. of Del., No. Civ.A.04-4794, 2007 WL 954122, at *4 (E.D. Pa. Mar. 28,
2007); Pagan v. Ogden, No. Civ.A.09-00002, 2010 WL 3058132, at *6 (E.D. Pa. July 30, 2010);
Bergdoll v. City of York, No. Civ.A.1:08-01879, 2009 WL 25093, at *7–8 (M.D. Pa. Jan. 5, 2009).
In Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court held that the sequence of the
Saucier inquiry is not mandatory and that district courts should exercise their “sound discretion” in
determining which prong to address first. Id. at 236; see also Pagan, 2010 WL 3058132, at *6;
Verdier v. Borough, 796 F. Supp. 2d 606, 630 (E.D. Pa. 2011).
The first prong of Saucier instructs the Court to consider whether Plaintiffs could have been
deprived of an actual constitutional right under these circumstances. Saucier, 533 U.S. at 201. As
discussed above, a reasonable jury could find that the Longs’ equal protection rights were violated
based upon the Township’s treatment of other similarly situated land developers that were previously
granted variance extensions and renewals. As such, the first prong of Saucier is satisfied under these
circumstances.
The second prong of Saucier requires the Court to consider whether the alleged constitutional
rights were clearly established such that a reasonable officer could have believed that the particular
conduct at issue was lawful. Id. The Fourteenth Amendment right to equal protection of the laws
is clearly established. See Plyler v. Doe, 457 U.S. 202, 216 (1982). Thus, the only remaining
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inquiry is whether the officers could have believed that their conduct was lawful in light of this
clearly established constitutional right.
The Court first considers the actions of the two zoning officers in this case. As to Defendant
Margulies, Plaintiffs have not pointed to any specific actions taken by her, let alone any conduct on
her part that could be considered anything but lawful. Nothing in the Complaint identifies any acts
undertaken by Margulies in her capacity as a zoning officer of Bristol Township. Even after
discovery, the record is still devoid of any reference at all to her actions in this case. In their
Response in Opposition, Plaintiffs make no attempt to explain how Margulies could be held
personally liable here, and instead merely conclusively state that whether individual officers here
“had a reasonable belief that their conduct is lawful is a genuine issue of material fact to be decided
at trial by the fact finder.” (Pls.’ Resp. Opp’n 19.) The Court disagrees. The record here reveals no
genuine issue of material fact on Margulies’s lack of personal liability. As such, summary judgment
is granted on all claims asserted against Defendant Margulies for actions taken in her individual
capacity.
Plaintiffs are, however, more successful in their allegations against Defendant Kucher.
Defendants point out that the duties of Kucher’s position as a zoning officer of Bristol Township did
not include voting on the Longs’ variance extension request, and therefore assert that he cannot be
held responsible for the ZHB’s ultimate decision to deny their application. (Defs.’ Summ. J. Mot.
16.) While it is true that Kucher did not actually make the decision to deny the variance extension,
the record reflects that he was directly involved in the process leading up to the ZHB’s denial of the
request. Specifically, Kucher testified at the December 2006 hearing before the ZHB that the Longs’
variance request was no longer appropriate given the changes in the local area. (Pls.’ Resp. Opp’n
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19.) Discovery revealed, however, that the Longs’ particular parcel of land was not actually directly
affected by the Beautification Project. (See Kucher Dep. 49:10–16.) Furthermore, in his deposition
taken during discovery, Kucher stated that zoning officers in Bristol Township do not make
recommendations to the ZHB on particular variance extension or renewal applications. (See id.
37:8–12. ) This begs the question of why Kucher testified against the granting of the Longs’
application at the December 2006 hearing in the first place if such conduct fell outside his job duties
as a zoning officer. Such inquiries constitute a genuine issue of material fact better left to the
discretion of a jury. As such, Defendant Kucher is unable to envelop himself in the cloak of
qualified immunity under these circumstances.
The Court next considers whether the Township Council members are entitled to qualified
immunity. In Bristol Township, the Township Council votes on land development plans, while the
ZHB—a completely separate entity—makes decisions related to variance extensions and renewals.
(Kucher Dep. 34:6–24, 35:1–24.) Although the approval of a land development plan is separate and
distinct from the granting of a variance extension, the two are related because the Township Council
cannot approve a given land development plan unless the developer possesses a valid variance for
the property. (Id. at 34:23–24; 35:1–3.) This procedure indicates that the Township Council
members in the instant case could not have believed that their conduct was anything but lawful. At
the time that the Longs filed their land development plan with the Council in January of 2006, their
variance had already expired. The Council was therefore precluded from considering their plan any
further until they obtained a valid variance. The ZHB denied the Longs’ variance extension
application in December of 2006. At this point, the land development plan became stagnant because
the Longs did not possess a valid variance for their parcel of land, and, according to the procedure
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in Bristol Township, the Council could take no further action on the plan. Given that the Township
Council was merely following standard procedure, the Court finds nothing unlawful about this
conduct. In fact, the Court recognizes that when the Court of Common Pleas ultimately overturned
the ZHB’s denial of the variance extension, the Township Council approved Plaintiffs’ land
development plan upon receipt of a valid variance. This fact further supports a finding that the
Council members could have believed that their conduct was lawful under these circumstances. As
such, Defendants Davis, Monahan, and Tarlini are shielded from personal liability here under the
doctrine of qualified immunity. Accordingly, summary judgment is granted on all claims asserted
against them in their individual capacities.
C.

Township Liability16

In the seminal case of Monell v. Department of Social Services, 436 U.S. 658 (1978), the
Supreme Court held that § 1983 applies to municipalities and other local government units. Id. at
690. To impose § 1983 liability on such a governing body, a plaintiff must show that the
municipality engaged in some “action pursuant to [an] official municipal policy . . . [that] caused a
constitutional tort.” Id. at 691. However, “it is not enough for a §1983 plaintiff merely to identify
conduct properly attributable to the municipality.” Bd. of the Cnty. Comm’rs of Bryan Cnty. v.
Brown, 520 U.S. 397, 404 (1997). Rather, the plaintiff must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights. Id.; see also Bielevicz v.
Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (plaintiff carries burden of demonstrating a “plausible
16

As explained above in Footnote 11, infra, the Longs also allege claims against ten
individuals based on their actions taken in their official capacity as Township officers. Because
suits against government officers in their official capacity are treated as suits against the
government entity itself, see Hafer v. Melo, 502 U.S. 21, 25 (1991), the Court considers these
allegations in conjunction with its analysis of the Township’s potential liability here.
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nexus” or “affirmative link” between the municipality’s custom or policy and the constitutional
deprivation challenged) (internal citation and quotations omitted).
After Monell, the Supreme Court has recognized several ways in which plaintiffs can
establish the existence of a policy or custom on the part of a municipality. First and foremost, the
Supreme Court has provided that actions taken by a municipal legislative body can constitute an
official policy to which liability could attach. In Pembaur v. City of Canton, 475 U.S. 469 (1986),
the Court stated that: “No one has ever doubted . . . that a municipality may be liable under § 1983
for a single decision by its properly constituted legislative body—whether or not that body had taken
similar action in the past or intended to do so in the future—because even a single decision by such
a body unquestionably constitutes an act of official government policy.” Id. at 480. As discussed
above, the Township Council is an entity of Bristol Township imbued with various legislative and
administrative duties, including the approval or disapproval of filed land development plans.
Accordingly, the Township Council’s actions here are sufficient to establish the presence of a policy
or custom on the part of Bristol Township.
An official policy can likewise be established when government agencies or boards take
actions in accordance with the authority delegated to them by the municipality itself. Specifically,
a municipality can be held responsible under § 1983 “when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy” inflicts a constitutional injury. Monell, 436 U.S. at 694. In Monell, for
example, the Supreme Court found that the actions of two agencies, the Department of Social
Services and the Board of Education, related to city regulations that required pregnant employees
to take an unpaid leave of absence, “unquestionably involve[d] official policy.” Id.
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In the instant case, the Township can be held responsible under a theory of municipal liability
based on actions taken by the ZHB and zoning officers. The Pennsylvania General Assembly has
created and delegated certain duties to municipalities in the land use context. See 53 P.S. § 10601
(“The governing body of each municipality . . . may enact, amend and repeal zoning ordinances to
implement comprehensive plans[.]”). More specifically, the Code provides that municipalities
should delegate the duty of enforcement and interpretation of zoning ordinances to a local zone
hearing board. See 53 P.S. § 10901 (“Every municipality which has enacted or enacts a zoning
ordinance pursuant to this act or prior enabling laws, shall create a zoning hearing board.”); see also
In re Leopardi, 532 A.2d 311, 313 (Pa. 1987) (describing the various duties of zone hearing boards
in Pennsylvania). The Code further provides that a municipality may appoint zoning officers to
administer local zoning laws. See 53 P.S. § 10614 (“For the administration of a zoning ordinance,
a zoning officer . . . shall be appointed.”). As such, the actions of the Bristol Township ZHB and
zoning officers here—exercised pursuant to the authority granted to them by state and local
lawmakers—can be said to constitute official policy or custom under Monell such that municipal
liability would attach under these circumstances.
Based on the above, the Court finds that summary judgment is not warranted on the basis that
Plaintiffs have failed to establish the presence of municipal liability on the part of Bristol Township
in this case. Accordingly, Defendants Motion on this point is denied.
F.

Punitive Damages

Finally, Plaintiffs seek compensatory and punitive damages for Defendants’ alleged
violations of their constitutional rights. The Supreme Court has established, however, that municipal
governments may not be sued for punitive damages under § 1983. See City of Newport v. Fact
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Concerts, 453 U.S. 247, 271 (1981). As such, Plaintiffs are precluded from recovering any punitive
damages from the Township, and summary judgment is therefore granted in Defendants’ favor on
this point.
The Supreme Court has concluded, however, that punitive damages may be recovered from
individual officers if their actions were “motivated by evil motive or intent, or . . . involve[d]
reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S.
30, 56 (1983). As noted in Russoli v. Salisbury Twp., 126 F. Supp. 2d 821 (E.D. Pa. 2000), “[t]he
objective standard of ‘callous or reckless indifference’ that suffices for an award of punitive
damages is not far removed from the standard for denying qualified immunity to the
officers—whether a reasonable officer would have known that his conduct violated a clearly
established constitutional right. Therefore any claim . . . that would result in our denying qualified
immunity could also be the basis for punitive damages.” Id. at 873. This Court has already
concluded that Defendant Kucher is not entitled to the qualified immunity defense. As such,
Plaintiffs’ claims for punitive damages as to Defendant Kucher may proceed forward to trial.
IV.

CONCLUSION
For the reasons set forth above, the Court finds that Defendants’ Motion for Summary

Judgment is granted in part and denied in part.
An appropriate Order follows.

39