THORPE et al v. UPPER MAKEFIELD TOWNSHIP et al
MEMORANDUM OPINION. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 9/25/17. 9/26/2017 ENTERED AND COPIES E-MAILED. (aeg)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DALE W. THORPE and RENEE M.
CIVIL ACTION NO. 14-6154
UPPER MAKEFIELD TOWNSHIP, et al.
September 25, 2017
Plaintiffs, Dale and Renee Thorpe, filed suit alleging that after they purchased a 149-acre
property in Upper Makefield Township, they were discriminated against on the basis of ethnicity
in violation of their rights under the Due Process and Equal Protection Clauses of the Fourteenth
Amendment and suffered tortious interference with contractual relations. The parties having
conducted discovery, the remaining Defendants, the Township and David A. Kuhns, the
Township Director of Planning and Zoning, have moved for summary judgment on all claims,
which Plaintiffs opposed.
The parties have stipulated to many of the relevant facts.1 Where the facts are disputed,
they are viewed in the light most favorable to Plaintiffs as the non-moving parties. Plaintiffs
purchased Thorpe Farm in 2007, from Dale Thorpe’s second cousins. Dale Thorpe is Native
American (the record does not reveal whether the former owners of Thorpe Farm are also Native
American). According to the governing Joint Municipal Zoning Ordinance (“JMZO”), Thorpe
Unless otherwise stated, the following facts are drawn from the joint “Statement of Stipulated Material
Facts.” See Doc. No. 46.
Farm is zoned CM-Conservation Management.2 In 2000, the previous owners entered into
conservation easements; one with Bucks County and the other with the Township. The
easements restrict Thorpe Farm to agricultural uses, as well as uses in effect in 2000.
After purchasing the property, Plaintiff Dale Thorpe advised Defendant Kuhns that he
intended to expand the uses of Thorpe Farm. Plaintiffs allege that Defendants then began a
campaign to thwart Plaintiffs’ efforts to make Thorpe Farm profitable, identifying some 23
contacts between 2007 and 2014, which Plaintiffs describe as “enforcement actions.”3 These
range from denials of permits to the issuance of enforcement notices and citations, to what
Plaintiffs describe as threats of legal action.4 It appears the first incident occurred in October
2007, when Defendant Kuhns saw signs advertising a deer processing business at the Farm for
butchering deer shot by hunters. On October 19, 2007, Kuhns requested copies of any
certificates or license the Thorpes held from the Pennsylvania Department of Agriculture relating
to deer processing; Plaintiffs halted the deer processing business. That same day, Kuhns told
Dale Thorpe that the storage of truck tractors and tractor trailers by third parties violated the
conservation easement and the JMZO, that the installation of a neon sign at the Thorpe Farm
produce stand violated the JMZO, and that signs installed at the intersection of Stoneybrook and
River Roads violated the JMZO. Defendant Kuhns directed the Thorpes to resolve these issues
by December 1, 2007. Plaintiffs removed the neon sign, but did not comply with the other
The JMZO was jointly adopted in 1983 by Newtown Township, Wrightstown Township, and Upper
Plffs.’ Answer to Summ. J. at 1-3. Doc. No. 50.
Id. at 2.
Other disputes followed over the electrical wiring at the Farm’s produce stand; the denial
of a permit for a timber harvest; more sign issues; the denial of a zoning permit for a metal
fabricating business with a nonconforming wood stove; improper allegedly commercial
stockpiling of soil and other material; non-permitted use of the Farm by contractors; improper
storage; and so forth. There was also a substantial back and forth about required repairs after
various buildings were damaged by storms in 2012 and 2013; another building burned to the
ground after a fire in 2012.
Significant attention is devoted to a proposed Halloween attraction in 2011 featuring a
haunted house, hayride, and corn maze. Tony Gardner, the operator of the Festival of Fears,
submitted an application in May 2011, to operate a haunted house inside a pole barn on Thorpe
Farm; the permit was denied because the barn was less than 150 feet from Stoneybrook Road,
which would require a zoning variance as set forth in an October 2007 Amendment to the
JMZO.5 Neither Gardner nor the Thorpes applied for a variance, and the Fire Marshal also
advised Gardner that a fire suppression system would be required. In July 2011, Gardner applied
instead for a zoning permit for a hayride and corn maze on Thorpe Farm. The parties disagreed
as to the scope of the event, with Kuhns advising that a zoning variance would be required for
live, amplified entertainment. Again, no request for a variance was filed. In October 2011,
Kuhns issued a notice setting forth alleged zoning violations related to the event. Kuhns also
stated that a traffic plan had to be approved by the Township Police Department, but the Police
The Amendment, JMZO No. 2006-05, was jointly enacted by the participating municipalities and
addresses roadside stands, agricultural sales of farm products, and agricultural entertainment. As is relevant to this
litigation, the Amendment provides that “[n]o activity, event or structure used for an agricultural entertainment use
shall be located within one hundred fifty (150) feet of a right-of-way line or residential property line, except for
parking areas which may be located within fifty (50) feet of a right-of-way line or residential property line.” The
Amendment also provides that “[a] traffic control plan must be submitted to and approved by the Township Police
Department prior to receiving a permit for an agricultural entertainment use.” Compl. Ex. 1 at 3-4.
Chief testified that the Police Department is not required to approve parking plans, and was
unaware of any other instance of approval being required.6
There are other farms in the Township that are zoned CM, including Ely Farm, Tierney
Farm (also known as Birchwood Farms), Gunser Farm (also known as Active Acres Farm), and
Slack Farm. The Elys grow crops, raise cattle and hogs, manufacture cheese, process livestock
and deer (the deer are killed by hunters), and sell the products on a farm store. In 1992, the Elys
applied for a zoning permit for the farm store, which Defendant Kuhns denied. The Elys
appealed and obtained a variance that allowed the farm store to open with limitations on the
number of animals to be raised and slaughtered. Defendant Kuhns counted the animals on a
quarterly basis. The Elys were required to plant trees and bushes to buffer the view of propane
tanks and solar panels, and the Pennsylvania Department of Agriculture inspects the deer
processing operation. The Ely farm store has a fire suppression system, and does not rent any
portion of the farm to others for commercial purposes.
Dr. Michael Tierney, a veterinarian, operates his practice from Tierney Farm, whose
other activities include the raising of cattle, pigs, and chickens, the manufacture of dairy
products, and the operation of a farm store. The Tierneys were required by Defendants to
remediate one pond, and to obtain approvals from the Township and the Pennsylvania
Department of Environmental Protection to expand and improve another. Defendant Kuhns
denied an application to construct a pole barn because the proposed location was outside a
building set back line. Defendant Kuhns also denied an application to construct a layer house for
chickens; the Tierneys successfully applied for relief from the Township Zoning Hearing Board.
Kuhns Dep. Day 2 at 83-85; M. Schmidt Dep. at 16-18. However, as already noted, the 2007 Amendment
to the JMZO requires approval of parking plans for agricultural entertainment events.
The Tierneys did not have a mercantile license for their farm store until 2015, when Bucks
County officials insisted that they secure a license from the County. Tierney Farm does not have
any non-agricultural businesses or agricultural entertainment, although educational tours for
students are conducted.
Gunser Farms also operated a seasonal farm stand; after the death of William Gunser in
2015, one of the original owners, his widow, Eleanor Gunser, did not operate the stand. In 2016,
Eleanor Gunser’s daughter, Christine Gunser, applied for a zoning permit to operate the farm
stand in her name; Defendant Kuhns approved the permit based upon that representation.
In 1993, nearly two decades before Defendant Kuhns blocked Halloween entertainment
at Thorpe Farms, he denied an application for a hayride, corn maze, and live entertainment at
Gunser Farms. The Gunsers appealed to the Township Zoning Board, which granted a variance
provided that there was no live, amplified entertainment. The Gunsers successfully appealed
again, to the Court of Common Pleas of Bucks County, which struck the ban on live, amplified
entertainment. The Gunsers have operated the event every year, but in 1997, the Township’s
Fire Marshal refused to authorize a haunted house until a fire suppression system was arranged;
the property, including the haunted events, are inspected on a yearly basis.
The Slacks of Slack Farm grow crops, raise chickens, and have operated the Milk House
Farm Market since 2008. Brenda Slack did not apply for a zoning permit for the market because
she assumed she did not need permission from the Township; she did apply for a directional and
advertising sign, and received a permit from Defendant Kuhns. A Slack relative operates T&T
Tree Service, Inc., on Slack Farm.
“The underlying purpose of summary judgment is to avoid a pointless trial in cases
where it is unnecessary and would only cause delay and expense.”7 A court will award summary
judgment on a claim or part of a claim where there is “no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”8 A fact is “material” if resolving the
dispute over the fact “might affect the outcome of the suit under the governing [substantive]
law.”9 A dispute is “genuine” if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”10
In evaluating a summary judgment motion, a court “must view the facts in the light most
favorable to the non-moving party,” and make every reasonable inference in that party’s favor.11
Further, a court may not weigh the evidence or make credibility determinations.12 Nevertheless,
the party opposing summary judgment must support each essential element of the opposition
with concrete evidence in the record.13 “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.”14 Therefore, if, after making all
reasonable inferences in favor of the non-moving party, the court determines that there is no
genuine dispute as to any material fact, summary judgment is appropriate.15
Walden v. Saint Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) (citing Goodman v. Mead
Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)).
Fed. R. Civ. P. 56(a).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Boyle v. Cty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998).
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Anderson, 477 U.S. at 249-50 (internal citations omitted).
Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
The Fourteenth Amendment to the Constitution of the United States, through the Due
Process and Equal Protection clauses, protects citizens from arbitrary, capricious, and unequal
treatment by state actors.16 Plaintiffs argue that Defendants have violated their constitutional
rights and also tortiously interfered with contractual relations in violation of Pennsylvania
common law, by preventing them from processing deer, interfering with their ability to operate
the Farm Store, blocking the haunted attractions, taking action against individuals and businesses
that rented space at Thorpe Farm, subjecting them to unreasonable inspections, and exhibiting
The Due Process Clause provides that a state actor may not “deprive any person of life,
liberty, or property, without due process of law.”17 In this case, Plaintiffs assert a claim for
substantive due process, which arises where there is a deprivation of a protected property interest
by executive action that is arbitrary, or conscience shocking, in a constitutional sense. 18 The
Court of Appeals has stated that the “shocks the conscience” test is not precise and depends upon
the factual context, but is “designed to avoid converting federal courts into super zoning
tribunals.” 19 Evidence that zoning officials “pursued unannounced and unnecessary inspection
and enforcement actions; that they delayed certain permits and approvals; that they improperly
U.S. Const. amend XIV; 42 U.S.C. § 1983.
U.S. Const. amend XIV, § 1.
Connection Training Serv. v. City of Phila., 358 F. App’x 315, 319 (3d Cir. 2009); Gottlieb v. Laurel
Highlands School Dist., 272 F.3d 168, 172 (3d Cir. 2001).
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004) (citations omitted).
increased tax assessments; and that they maligned and muzzled” property owners does not shock
the conscience unless it is done with an improper motive such as self-dealing or racial bias, or is
otherwise the “most egregious official conduct.”20 The unfair application of zoning
requirements, without more, does not meet the standard.21
Thus, even if the Court were to accept Plaintiffs’ arguments that Defendants acted
unfairly toward them in the enforcement of zoning and other land-use regulations, Plaintiffs have
not produced evidence from which a reasonable jury could conclude that it was animated by
corrupt motives or by racial bias. There is no evidence that Dale Thorpe’s Native American
heritage motivated the actions of Defendant Kuhns or anyone associated with the Township. In
his deposition, Dale Thorpe testified that Defendant Kuhns told him during a dispute over signs
and brush that “prominent people . . . didn’t like that I was there and what I’m doing.”22 Kuhns
did not say that the “prominent people” were displeased with Dale Thorpe because he was
Native American.23 The only negative comments cited by Dale Thorpe were that “somebody
complained about the Native American drumming and one neighbor walking one day made a
comment to me that it just takes one bad Indian.”24 However, there is no evidence that
Defendants took any action against Thorpe Farm based on complaints about drumming, and the
Id. at 286.
Miller v. Pocono Ranch Lands Property Owners Ass’n, Inc., 557 F. App’x 141, 144-45 (3d Cir. 2014)
(citing Eichenlaub, 385 F.3d at 286).
D. Thorpe Dep. Day 1 at 63-64.
Id. at 67. Kuhns testified at his 2016 deposition that he had not known that Dale Thorpe was Native
American until “fairly recently.” Kuhns Dep. Day 1 at 57. The conversation recounted by Dale Thorpe regarding
“prominent people” occurred “early on.” D. Thorpe Dep. Day 1 at 64.
D. Thorpe Dep. Day 1 at 66.
offensive comment from the neighbor cannot fairly be attributed to Defendants.25 Without some
basis for concluding that Defendants acted with discriminatory intent, Plaintiffs have not shown
that Defendants’ actions shock the conscience.26
Plaintiffs allege as a separate due-process violation the 2007 Amendment to the JMZO,
which had the effect of scuttling the haunted attraction in 2011 because it required that buildings
used for agricultural entertainment be set back 150 feet from a public right-of-way. Plaintiffs
argue that this amendment is a facial violation of substantive due process and there is no rational
basis for it.27 Dale Thorpe testified in his deposition that people from the Township told him that
the provision was added to affect the Thorpes because it only affected Thorpe Farm and because
“the township had other plans for the property.”28 The Amendment, which was adopted by all
three municipalities in 2007, contains various provisions of general applicability directed to
commercial agricultural uses. There is no evidence from which a reasonable jury could conclude
Plaintiffs also cite an incident in 2013, when Defendant Kuhns met in his office with a contractor for
Thorpe Farms and three other men about the enforcement actions against Thorpe Farms. Afterward, it appears that
Kuhns, or someone else in the Township Building, reported to the Chief of Police about the visit from the men, all
of whom were African American, as noted on the incident report. See Kuhns Dep. Ex. 95 (incident report). There
are no other details shedding light on this incident, and Defendant Kuhns in deposition apparently did not recall
reporting the visit. Kuhns Dep. Day 2 at 158-68. Although strange, this incident would not be sufficient evidence
from which a reasonable factfinder could conclude, as Plaintiffs would argue, that Kuhns harbors racial animus in
general, and therefore animus against Native Americans. Defendants also note that Dale Thorpe filed an incident
report with the police in 2015 when a cousin of the contractor and Dale Thorpe had a disagreement over the
ownership of a horse and Dale Thorpe felt that the cousin had threatened him. The incident report from that
occasion described Dale Thorpe as “white” (not Native American) and the other person as “black.” Defs.’ Supp.
App’x Ex. 13 (incident report).
See Marjac LLC v. Trenk, 380 F. App’x 142, 147 (3d Cir. 2010) (evidence sufficient at summary
judgment where the township’s attorney made “general comments that Italians aren’t the best of people, they’re
connected to the mob”).
Plaintiffs also argue that Defendants failed to produce copies of the minutes of the Township Planning
Commission where the Amendment was discussed, and which was attended by Kuhns, who Dale Thorpe testified
was aware of the plans to offer the haunted attractions. However, the discovery deadline has passed, and Plaintiffs
should have sought relief from the Court if Defendants did not comply with discovery requests.
D. Thorpe Dep. Day 2 at 251.
that the Amendment was intended to target the Thorpes and was held in readiness until 2011
when it could be used against them.
Plaintiffs also take issue with the manner in which Defendants interpreted the 150-foot
setback requirement. But the “attempted enforcement of an allegedly unreasonable interpretation
of the [JMZO], even if directly contrary to Pennsylvania law, would be merely a violation of
state law. Such actions do not constitute a ‘truly irrational’ governmental action giving rise to a
substantive due process claim.”29 Plaintiffs have not established that the interpretation violates
state law, or even that it is necessarily irrational.
“A substantive due process violation occurs if a government official engages in ‘an abuse
of executive power so clearly unjustified by any legitimate objective of law enforcement’ that it
is barred by the Fourteenth Amendment.”30 Because Plaintiffs have not shown such a violation
in this case, summary judgment in favor of Defendants is warranted.
The Equal Protection Clause “‘prohibits selective enforcement of the law based on
considerations such as race.’”31 Here, Plaintiffs allege that they have been intentionally treated
differently from other similarly situated landowners and that there is no rational basis for the
difference in treatment.32 “Persons are similarly situated under the Equal Protection Clause
Giuliani, 238 F. Supp. 3d at 702.
Button v. Snelson, 679 F. App’x 150, 153 (3d Cir. 2017) (quoting Cty. of Sacramento v. Lewis, 523 U.S.
833, 840 (1998)).
Thomas v. Independence Twp., 463 F.3d 285, 297 (3d Cir. 2006) (quoting Whren v. United States, 517
U.S. 806, 813 (1996)).
See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
when they are alike in all relevant aspects.”33 Plaintiffs have argued in effect that other
landowners “have not been held to the same rigorous procedures” that were applied to activities
conducted at Thorpe Farm.34 This claim may be viable even without evidence of racial bias if
Plaintiffs can show that they are a “class of one,” where they have “been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in
treatment,” for example, where the official conduct was “irrational and wholly arbitrary.”35
The standard is a difficult one to meet: “rational-basis review in an equal protection
analysis is not a license for courts to judge the wisdom, fairness or logic” of the challenged
actions.36 As recently noted in this District, “[t]he irrational and wholly arbitrary standard is
difficult to meet in a land use case and it ‘may be very unlikely that a claim that fails the
substantive due process test will survive under an equal protection approach.’”37
There is some evidence that would tend to support the Thorpes’ belief that they have
been treated unfairly. But the record does not reveal the campaign of harassment that Plaintiffs
seek to portray, or that would elevate this case to the level of a constitutional violation. For
example, according to Plaintiffs’ own chronology, there was a period of more than two years
between 2008 and 2010 when no actions were reported, as well as other periods of many months
without any reported incidents between Plaintiffs and Defendants.38 The evidence also
Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (internal citations and quotation marks
Eichenlaub, 385 F.3d at 286.
Village of Willowbrook, 528 U.S. at 564-65.
Heller v. Doe by Doe, 509 U.S. 312, 319 (1993) (internal quotation marks and citation omitted).
Giuliani v. Springfield Twp., 238 F. Supp. 3d 670, 705 (E.D. Pa. 2017) (quoting Eichenlaub, 385 F.3d at
Dale Thorpe testified in his deposition that Township officials often arrived unannounced at the property;
apparently many of these visits did not result in enforcement actions. D. Thorpe Dep. Day 1 at 251-54.
demonstrates that repairs were needed to certain buildings on Thorpe Farms, and that once
repairs were made, Plaintiffs received the necessary approvals to proceed.39 With regard to
renters, Marazzo Landscaping, a tenant when Plaintiffs bought Thorpe Farm remains a tenant,
which is consistent with the conservation easement.40 Dale Thorpe acknowledged that the woodburning stove installed by the metal fabricating business tenant was a fire hazard;41 it was the
smoke from that stove that drew Defendants’ attention to the business, which Defendants
maintained was not a permitted use on the property.
Although the other CM-zoned farms also had periodic zoning disputes with Defendants,
Plaintiffs argue that the owners of these farms are similarly situated and have been treated more
favorably, for example with regard to the operation of farm stores. But the evidence shows that
the Township tried to block the haunted attractions at Gunser Farms, that the farm stores on other
properties are inspected by the Fire Marshal, and that other properties have had zoning disputes
with the Township. The owners of the other farms also sought variances or otherwise appealed
actions taken against them in some circumstances. The Thorpes did not.42
The evidence could perhaps support a finding that Plaintiffs have had more difficulties
with Defendants, but crucially, they “have not shown that the Township’s actions were
‘irrational and wholly arbitrary’ or that [P]laintiffs were intentionally singled out for adverse
See, e.g., Kuhns Dep. Day 2 Ex. 102 & 103 (issuing certificate of occupancy and memorandum of
approval of fire safety code inspection for the Farm Store in 2013); D. Thorpe Dep. Day 2 at 83-85 (permits
approved for electrical and sheetrock work at the Farm Store in 2008).
D. Thorpe Dep. Day 1 at 37.
D. Thorpe Dep. Day 1 at 152.
For example, after Kuhns wrote a letter stating that licensing was required for deer processing, Dale
Thorpe disagreed, but did not pursue the matter because “I didn’t want to have to deal with any court. I didn’t have
time.” Id. at 78.
treatment based on considerations that are wholly divorced from any legitimate government
concern.”43 Indeed, Plaintiffs themselves point out that the Township is generally concerned
about commercial activity and traffic, and is very concerned about the traffic generated by the
Halloween events at Gunser Farms.44 Defendants have offered legitimate, rational bases for their
actions. It is not the role of the federal courts to determine whether any particular land-use
enforcement action was warranted. Plaintiffs could have followed the applicable state-law
appeals processes, as other property owners did successfully, but chose not to do so. Plaintiffs
may disagree with the actions of Township officials, particularly Defendant Kuhns and the Fire
Marshal, but they have not produced evidence from which a reasonable jury could conclude that
Plaintiffs have met the high bar of proving that Defendants had not shown a “reasonably
conceivable state of facts that could prove a rational basis for the classification.”45 Therefore,
summary judgment will be granted in favor of Defendants and against Plaintiffs.
Tortious Interference with Contractual Relations
Having granted summary judgment with regard to the federal claims, the Court declines
to exercise supplemental jurisdiction over the remaining state-law claim. Pursuant to 28 U.S.C.
§ 1367(c)(3), “[t]he district courts may decline to exercise supplemental jurisdiction under
subsection (a) if … the district court has dismissed all claims over which it has original
jurisdiction …” In exercising its discretion to accept or decline supplemental jurisdiction over a
Guiliani, 238 F. Supp. 3d at 705 (quoting Village of Willowbrook, 528 U.S. at 565).
Plff. Opp. Summ. J. at 8-9.
Highway Materials, Inc. v. Whitemarsh Twp., 386 F. Appx. 251, 259 (3d Cir. 2010) (internal quotation
marks and citation omitted).
claim, a court “should take into account generally accepted principles of ‘judicial economy,
convenience, and fairness to the litigants.’”46
Under the circumstances of this case, the Court determines that these principles are best
served by declining to exercise supplemental jurisdiction over the state-law claim. As discussed
above, the issues of state and local governance and land-use regulations and ordinance raised in
this case are fundamentally questions for the state court where, as here, Plaintiffs have failed to
show a constitutional violation. The claim for tortious interference will be dismissed without
prejudice to its assertion in the appropriate state court.
Plaintiffs have failed to muster evidence from which a reasonable jury could conclude
that Defendants violated Plaintiffs’ constitutional rights, and Defendants’ motion for summary
judgment will be granted as to Counts I, II, and III. Because the disputes between the parties are
quintessentially those of state law, the Court declines to exercise jurisdiction over the remaining
state-law claim, and Count V will be dismissed without prejudice. An order will be entered.
Growth Horizons, Inc. v. Del. County, 983 F.2d 1277, 1284 (3d Cir. 1992) (quoting United Mine
Workers v. Gibbs, 383 U.S. 715, 726 (1966)).
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