Nittany Outdoor Advertising et al v. College Township
Filing
24
MEMORANDUM AND ORDER denying College Township's motion to quash for improper venue 15 . (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 1/15/13. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NITTANY OUTDOOR ADVERTISING,
LLC and STEPHANAS MINISTRIES,
Plaintiffs
v.
COLLEGE TOWNSHIP,
PENNSYLVANIA,
Defendant
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CIVIL ACTION NO. 4:12-CV-672
(Judge Conner)
MEMORANDUM
Presently before the court is a motion to quash for improper venue (Doc. 15) filed
by College Township. Challenges to venue were waived pursuant to Rule 12(h) when
Defendants filed its responsive pleading (Doc. 14) on July 17, 2012. However, careful
review of the pending motion reveals that the Township does not seek to challenge
venue; rather, it challenges this court’s subject matter jurisdiction pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure. For the reasons that follow, the court
will deny the motion.
Culled to its essence, the Township’s motion contends that the court lacks
jurisdiction because plaintiffs failed to secure a final decision from the zoning hearing
board and, therefore, this matter is unripe for judicial review. The Pennsylvania
Municipalities Planning Code provides, in pertinent part: “The zoning hearing board
shall have exclusive jurisdiction to hear and render final adjudications in . . . [a]ppeals
from the determination of the zoning officer, including, but not limited to, the granting
or denial of any permit . . . .” 53 P.S. § 10909.1(a)(5). In the case sub judice it is
undisputed that plaintiffs did not appeal the zoning officer’s denial of their sign
applications to the zoning hearing board. According to the Township, this failure to
appeal is fatal to plaintiffs’ federal court action. The Township relies upon the following
quote from Taylor Inv., Ltd. v. Upper Darby Township, 983 F.2d 1285, 1291 (3d Cir. 1993)
as set forth in Holland Transport Inc. v. Twp. of Upper Chichester, 200 WL 31518836
(E.D. Pa. 2002):
In the context of land-use decisions, Williamson and
MacDonald require state zoning authorities be given an
opportunity “arrive[ ] at a final, definitive position regarding
how it will apply the regulations at issue to the particular land
in question” before its owner has a ripe constitutional
challenge based on the disputed decision. Williamson, 473 U.S.
15 191, 105 S.Ct at 3119. This finality rule recognizes that, with
respect to zoning disputes, a property owner suffers no mature
constitutional injury until the zoning authority defines the
application of the zoning ordinance and defines the harm to
the owner. The finality rule also prevents the premature
adjudication of zoning disputes.
The Township is generally correct that ripeness is an element of justiciability that
impacts when the court may conduct its review of a controversy and that administrative
finality is generally favored in cases involving land use decisions.
However, the court concludes that this matter is governed by the Third Circuit
decision in Peachlum v. City of York, 333 F.3d 429 (3d Cir. 2003). Like the instant matter,
Peachlum involved a facial First Amendment challenge to a municipal ordinance. Judge
Rosenn, writing for the Peachlum court, observed: “Whether the absence of final
adjudication by a municipal agency of the validity of a city ordinance precludes judicial
consideration of First Amendment challenges to it is one of first impression.” Id. at 434.
Although Peachlum involved a post-enforcement challenge and the instant case involves
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a pre-enforcement challenge, the distinction does not alter the fact that “a facial First
Amendment challenge is not normally subject to administrative finality analysis under
any circumstances.” Id. at 436.
The Peachlum court set forth the following ratio decidendi:
. . . a facial First Amendment challenge may be deemed ripe
even during the pendency of an administrative proceeding.
Ripeness standards are most relaxed when the First
Amendment claim is a facial overbreadth challenge. Facial
claims vindicate the rights of may would-be speakers. To allow
the vindication of such broad entitlements, we relax our
ripeness requirements for such claims. See Kines v. Day, 754
F.2d 28, 30-31 (3d Cir. 1985).
In the case of overbreadth challenges, standing arises
“not because [the plaintiff’s] own rights of free expression are
violated, but because of a judicial prediction or assumption
that the [challenged statute’s] very existence may cause others
not before the court to refrain from constitutionality protected
speech or expression.” Broadrick, 413 U.S. at 612, 93 S.Ct.
2908. Therefore, an individual against whom no enforcement
action has been taken can still challenge a regulation “because
[that regulation] also threatens others not before the court those who desire to engage in legally protected expression but
who may refrain from doing so rather than risk prosecution or
undertake to have the law declared partially invalid.”
Waterman v. Farmer, 183 F.3d 208, 212 (3d Cir. 1999) (quoting
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct.
2794, 86 L.Ed.2d 394 (1985).
This concern with the rights of those not before the
court holds equal force in both pre-enforcement cases and
those in which prosecution is pending. See Canatella v. State of
California, 304 F.3d 843, 853 (9th Cir. 2002).
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In its reply brief, the Township attempts to distinguish Peachlum, asserting that
the “issues at hand are not yet developed for judicial determination.” (Doc. 21 at 4). The
Township mentions a preliminary public hearing on a revised ordinance and suggests
that an amended ordinance may moot plaintiffs’ First Amendment claims. In support of
these arguments, the Township cites to the three-part test for declaratory relief when
ripeness is disputed as set forth in Step-Saver Data Systems, Inc. v. Wyse Technology,
912 F.2d 643, 647 (3d Cir. 1990) (asking three questions: (1) whether the parties’ interests
are sufficiently adverse; (2) whether the court can issue a conclusive ruling in light of
potentially evolving factual developments; and (3) whether the decision will render
practical help to the litigants).
Given the sweeping language of Peachlum supra, the court has some concerns
regarding Step-Saver’s continued viability as it relates to facial First Amendment
challenges to municipal ordinances. In the exercise of caution, the court notes that the
constitutional claims in the instant matter are sufficiently mature for judicial resolution.
Clearly, the parties’ interests are adverse as delineated in the complaint. In addition, the
court can issue a conclusive ruling based upon the existing ordinance. Finally, the
court’s ruling will surely render practical help to the parties. Indeed, it may very well
expedite pending efforts to amend the present ordinance.
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For all of these reasons, the court will deny the Township’s motion to quash. An
appropriate order shall issue.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:
January 15, 2013
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NITTANY OUTDOOR ADVERTISING,
LLC and STEPHANAS MINISTRIES,
Plaintiffs
v.
COLLEGE TOWNSHIP,
PENNSYLVANIA,
Defendant
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO. 4:12-CV-672
(Judge Conner)
ORDER
AND NOW, this 15th day of January, 2013, for the reasons set forth in the
accompanying memorandum, College Township’s motion to quash for improper venue
(Doc. 15) is DENIED.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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