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denying a motion to dismiss where plaintiff alleged that officials delayed approval for development while attempting to "buy off" plaintiff in violation of Pennsylvania law
Summary of this case from Hankin Family P'ship v. Upper Merion Twp.Opinion
CIVIL ACTION NO. 03-2936
September 24, 2003
MEMORANDUM
The Development Group, LLC and Parsons Road Development Group, Ltd. (herein "Plaintiffs") have filed a Complaint under 42 U.S.C. § 1983, alleging violations of substantive due process, equal protection and procedural due process. The Complaint names as Defendants the Franklin Township Board of Supervisors, the Franklin Township Planning Commission and various individual members of the Board of Supervisors and Planning Commission (collectively, "the Planning Authority Defendants"). Plaintiffs also name as a Defendant the Township Solicitor, John S. Halsted, Esq. ("Halsted").
Plaintiffs, the owners of two parcels of Franklin Township, Pennsylvania, real property, referred to as "Miller Farm I" and "Miller Farm II," allege that
Defendants are charged by law with the duty of considering and approving or denying — all in accordance with applicable law and their oaths and offices as public officials — plans involving the development of land in Franklin Township. Instead, Defendants acted in a manner that was calculated to and did in fact frustrate the application of the applicable law, and that was calculated to and has in fact prevented The Development Group and Parsons Road from proceeding lawfully in the development of real estate owned by them in accordance with that law.
Complaint ¶ 1. Presently before this Court is a Motion to Dismiss Plaintiffs' Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by the Planning Authority Defendants. Also pending before this Court is Defendant Halsted's Motion Pursuant to Rule 12(b)(6) to Dismiss or, Alternatively, for Summary Judgment. The Planning Authority Defendants, by their Motion, contend that the Complaint fails, substantively, to state any claim upon which relief may be granted. The thrust of Halsted's Morion is that Halsted is not a "state actor," and therefore cannot be held liable under § 1983.
In response to Halsted's motion, Plaintiffs filed a Motion, Pursuant to Rule 56(f), for Continuance of Motion for Summary Judgment and for Discovery to Be Had. By their motion, Plaintiffs request a continuance of Halsted's motion and a period of limited discovery, in the event that this Court should decide to treat Halsted's motion as one for summary judgment.
For the reasons expressed below, the Planning Authority Defendants' Motion will be granted, in part, and denied, in part. As to Defendant Halsted's motion, this Court will consider it to be one for summary judgment, and will grant Plaintiffs' motion, so that Plaintiffs may have the opportunity to take limited discovery in order to respond to Halsted's motion.
I. Legal Standards and Treatment of Defendant Halsted's Motion as a Motion for Summary Judgment
When deciding a morion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild. O'Brien Frankel, 20 F.3d 1251, 1261 (3d Cir. 1994). The court must accept as true all well pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
The Planning Authority Defendants have filed a motion to dismiss under Rule 12(b)(6). Defendant Halsted has filed a Motion Pursuant to Rule 12(b)(6) to Dismiss or, Alternatively, for Summary Judgment. Rule 12(b) provides that if
on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
However this Court has "complete discretion to determine whether or not to accept any material beyond the pleadings that is offered in conjunction with a 12(b)(6) motion." Stauske v. Healtheast. Inc., No. Civ.A. 91-1265, 1991 U.S. Dist. LEXIS 8603, at *2 (E.D. Pa. June 24, 1991) (quoting 5 Wright Miller, FEDERAL PRACTICE AND PROCEDURE § 1366 (1966)).
In support of his motion, Halsted has submitted an affidavit, averring that, although Halsted's law firm was appointed as Township Solicitor of Franklin Township, neither Halsted nor any member of his firm has ever been an "employee" of the Township. Affidavit of John S. Halsted ¶ 2-3. Halsted also avers that he "made no decisions in respect to any of the matters complained of in this case. Id. ¶ 4. Because Halsted's assertions, if true, would prove critical to the issue of whether he is a proper defendant in this civil rights action, the Court will treat Halsted's motion as one for summary judgment. In order to respond to the factual assertions contained in Halsted's affidavit, Plaintiffs must be permitted a short period of discovery.
Accordingly, the Court will reserve decision on Halsted's motion, and will grant Plaintiffs' Motion, Pursuant to Rule 56(f), for Continuance of Motion for Summary Judgment and for Discovery to Be Had. Plaintiffs will have sixty days from the date of this Order in which to conduct discovery related to the issues raised by Halsted's motion. Plaintiffs will then have ten days following completion of such discovery in which to file a brief in opposition to Halsted's motion, and Halsted will have one week thereafter in which to file a reply.
II. Allegations of the Complaint
Plaintiffs allege the following facts, which, for the purpose of deciding the instant motion, will be read in the light most favorable to Plaintiffs. According to the Complaint, Defendant Franklin Township Board of Supervisors is a body duly constituted to approve qualifying land development plans submitted pursuant to local zoning and land development ordinances. Complaint ¶ 5. Defendant Franklin Township Planning Commission is an advisory agency, authorized under state law to make recommendations to the Board of Supervisors regarding zoning, land development and subdivisions in Franklin Township. Id. at ¶ 6. Numerous individual Defendants are members or either the Board of Supervisors or the Planning Commission.
Plaintiff, The Development Group is the beneficial owner, and Plaintiff Parsons Road is the record owner, of a parcel of land, consisting of approximately 92 acres, located in Franklin Township, which is divided into Miller Farm I and Miller Farm II. Id. at ¶ 14. At all times relevant, Miller Farm I and Miller Farm II were zoned for high-density residential development ("HDR"), meaning that, under local law, the tracts could be developed to contain a maximum of five residential units per acre. Any development at lesser density would, under local ordinances, be deemed a "conditional use," and would require the approval of the Board of Supervisors. Id. at ¶ 15.
On or about July 5, 2000, representatives of Plaintiffs presented a sketch plan to the Planning Authorities at a joint public meeting. The sketch plan outlined a proposed development for Miller Farm I, involving the construction of approximately 54 single family residences. Id. at ¶ 18-19. At the meeting, Defendants pointed out that the HDR zoning of the Miller Farm I property prohibited single-family homes, whereas townhouses would be permitted under the applicable ordinances.Id. at ¶ 20. However, according to the Complaint, members of the Planning Authorities who were present at the meeting also told Plaintiffs that they were opposed to any development, of any kind, on the Miller Farm properties, and that they would never approve a development plan for the land, irrespective of whether it conformed with the applicable ordinances. Complaint ¶ 22-23.
Subsequently, based on Defendants' comment that townhouses would be a use permitted by the relevant ordinances, Plaintiffs incurred expenses in excess of $1 million and spent many months restructuring their plans for the development of the property, engaging engineers, redesigning their project and otherwise revising their plans with respect to the property.Id. ¶ 24. On February 26, 2001, engineers retained by Plaintiffs presented Plaintiffs' preliminary plan to Franklin Township for a 317-unit residential townhouse development on Miller Farm I.Id. at ¶ 25. According to Plaintiffs, Defendants then
over a period of many months, peppered The Development Group and Parsons Road with an enormous number of comments, criticisms and demands, many of them inconsistent with the Ordinances, that lengthened and complicated the process of obtaining approval for the Miller Farm I development and, in fact, tripled its expense. Each of these comments, criticisms and demands was addressed by The Development Group and Parsons Road in the course of five resubmissions of the Miller Farm I plan.Id. at ¶ 30. The Complaint further alleges that "the number, complexity and timing of Defendants' comments, criticisms and demands were far greater than in a typical situation in which a developer seeks approval of a permitted use," and that Defendants' conduct was part of a conscious plan to frustrate and prevent the completion of the Miller Farm I project. Id. at ¶ 31-32. Moreover, the Complaint suggests that Defendants gave Plaintiffs, at various times, contradictory indications as to what would be required before the plan could be approved.
Plaintiffs allege that, as they continued in their efforts to have the Miller Farm I subdivision and land development plan approved, Defendants developed a plan to "buy off' Plaintiffs, rather than allow the development to go forward lawfully. Id. at ¶ 43. Defendant Carl Mehn, a member of the Planning Commission, asked the principals of The Development Group and Parsons Road, John Herman and Richard Snyder, to meet with the Board of Supervisors privately. Id. at ¶ 44. At the meeting, certain members of the Board and Planning Commission asked Herman and Snyder "what it would take" to induce Plaintiffs to withdraw their plans for townhouses. Id. at ¶ 46. Defendants suggested that, if Plaintiffs abandoned the Miller Farm I development plan, the Planning Authorities would look favorably upon any future plans of Plaintiffs to develop other properties. Id. at ¶ 48. At another meeting, Defendants suggested that the Township's objections to the Miller Farm I proposal would be withdrawn if the Miller Farm I site was developed as "senior housing." Id. at ¶ 53.
Throughout 2002, Defendants repeatedly criticized Plaintiffs' plans for Miller Farm I and obstructed approval of the development. On November 27, 2002, Plaintiffs' engineers, in a fifth re-submission to the Planning Authorities, responded to comments from the Township related to the development plan, demonstrating the plan's compliance with every single comment made by the Township or its engineers. Id. at ¶ 68. Plaintiffs further allege that, in the Fall of 2002, Defendant Halsted, the Township Solicitor, proposed to Plaintiffs that if they would agree to a rejection of the plan, afterwards the parties could "work out a deal." Halsted allegedly admitted that the purpose of such deal would be to avoid application of the Pennsylvania Sunshine Act, 65 P.S. § 701, et seq., which would require public knowledge and input related to the plan. Id. at ¶ 70-73.
If the discussions as alleged were an effort at settlement, they may not be admissible. The Court takes no position on this issue at this time.
At a public meeting held December 19, 2002, the Board of Supervisors denied the preliminary subdivision and land development plans for Miller Farm I. On January 2, 2003, the Township articulated its reasons for the rejection in a letter. Such reasons included higher opacity of landscape screens than permitted by the applicable zoning ordinance, insufficient submissions regarding lighting, inadequate sight distances at a certain intersection, and need for further data regarding the water supply and storm water infiltration. Id. at ¶ 86. Plaintiffs contend that these reasons for denial were "spurious and pretextual, and provided an inappropriate and insufficient basis for denial of preliminary plans."Id. at ¶ 88. Moreover, the Townships's reasons concerned "minor and/or technical defects that mandate approval conditional upon resolution of such defects in the final plan." Id. at ¶ 89. In addition, Plaintiffs claim that the Planning Authorities justified the rejection with "nonspecific" health, safety and welfare considerations, which were "not a legitimate basis for denial under Pennsylvania law."Id. at If 91.
On May 29, 2002, Plaintiffs submitted a proposal for a 34-unit residential townhouse development on the Miller Farm II property.Id. at ¶ 74. At its public meeting held December 19, 2002, the Board of Supervisors denied the preliminary subdivision and land development plan for Miller Farm II, and articulated its reasons in the January 2, 2003 letter. Plaintiffs claim that the reasons for denial were "inappropriate and insufficient," in that the stated reasons concerned minor or technical defects, thus mandating approval conditional upon resolution of such defects under the law. Id. at ¶¶ 98-99. Plaintiffs assert, in other words, that the submitted plan for Miller Farm II "substantially complied" with all applicable laws and should have been approved. Id. at ¶ 105.
Further, Plaintiffs contend that the Township has recently granted conditional approval to development plans for tracts "similarly situated" to Miller Farm, despite minor deficiencies under the applicable ordinances and regulations. Id. at ¶¶ 106-11. Plaintiffs assert that a property known as Hess Mill Run II was granted a waiver concerning permissible lengths of cul-de-sacs and the number of units permissible on cul-de-sacs, while Plaintiffs were denied such a waiver.Id. ¶ 108. Also, the Complaint alleges that Hess Mill Run II was approved even though sewer planning modules had not yet been submitted to the state, whereas the Miller Farm sewer planning modules had been approved by the Township and submitted to the state.Id. ¶ 109. On this basis, Plaintiffs claim that the Planning Authorities "do not uniformly apply a standard to determine when a preliminary plan submission is complete, and as a result the review process has been highly subjective" and "fundamentally unfair" to Plaintiffs. Id. at ¶¶ 112 and 120.
III. Analysis of the Planning Authority Defendants' Motion to Dismiss
Plaintiffs bring their Complaint pursuant to 42 U.S.C. § 1983. That provision permits recovery in a civil action where the plaintiff can prove that the defendant
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.42 U.S.C. § 1983 (emphasis added).
As constitutional bases for their § 1983 challenge, Plaintiffs assert violations of substantive due process (Count I), equal protection (Count II) and procedural due process (Count III). The Planning Authority Defendants argue that Plaintiffs allegations are insufficient to state a claim on any of these grounds. Brief in Support of the Franklin Township Defendants' Motion to Dismiss Plaintiffs' Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (herein "Def. Brief) at 5-15. Moreover, Defendants claim that because the Franklin Township Planning Commission was not the governing body under state law, with respect to the land use decisions at issue, it cannot be a proper defendant in this civil rights action. Id. at 4-5.
A. Plaintiffs' Substantive Due Process Claim
With respect to Plaintiffs' substantive due process claim, Plaintiffs must allege facts demonstrating that the Township's conduct was arbitrary, irrational, or motivated by constitutionally impermissible factors. Sameric Corp. of Delaware. Inc. v. City of Philadelphia, 142 F.3d 582, 590-91 (3d Cir. 1998). In addition, a plaintiff asserting that a municipal land use decision violated substantive due process must show that the defendants' conduct "shocks the conscience." United Artists Theatre Circuit. Inc. v. Township of Warrington, 316 F.3d 392 (3d Cir. 2003).
In the very recent United Artists decision, the United States Court of Appeals for the Third Circuit — in light of the United States Supreme Court's decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998) — held that the "shocks the conscience" standard applies to substantive due process claims arising out of land use decisions.United Artists, 316 F.3d at 402. Prior precedent required plaintiffs to prove merely that a defendant acted with an "improper motive." Woodwind Estates. Ltd, v. Gretkowski, 205 F.3d 118, 124 (3dCir. 2000); Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir. 1987), or that the defendant's conduct was "improper interference."See Blanche Road Corp. v. Bensalem Twp., 57 F.3d 253 (3d Cir., 1995). Whether the conduct at issue in any particular land use case meets this heightened "shocks the conscience" standard will depend on the facts of the particular case. United Artists, 316 F.3d at 399-400. The Court of Appeals noted, however, that only the "most egregious official conduct" will rise to the level of a constitutional violation. Id. (quoting Lewis, 523 U.S. at 846).
The district courts in this circuit have not yet had occasion to apply the United Artists decision to a motion to dismiss the complaint in a land use dispute, and the parties have not cited to any district court case, decided since the United Artists decision, involving facts similar to those alleged in the present Complaint. Indeed, the facts of the United Artists case itself are rather different than the facts of the instant case, and, importantly, theUnited Artists decision arose from the disposition of a summary judgment motion, rather than a motion to dismiss.
In support of their substantive due process claims, Plaintiffs allege that "Defendants gave contradictory indications about what kind of submission would be approved, attempted to persuade Plaintiffs to withdraw the submissions through unlawful means, and caused Plaintiffs to incur great expense in revising the plans." Complaint ¶ 125. If these allegations are substantiated, they may indicate an arbitrary or irrational treatment of Plaintiffs' land use applications, and — if Plaintiffs are able to prove Defendants' attempts to "buy off Plaintiffs and make an under-the-table deal — the facts of the Complaint could be conscience-shocking to a jury. Applying the standard governing a motion to dismiss under Rule 12(b)(6), this Court cannot say, with respect to Plaintiffs' substantive due process claim, that Plaintiffs will be unable to prove any set of facts which would entitle them to relief.
B. Plaintiffs' Equal Protection Claim
With respect to Plaintiffs' equal protection claim, Plaintiffs do not allege that they are members of a protected class, but, rather, that the Township has discriminated against Plaintiffs by treating other "similarly situated" developers more favorably. Complaint ¶ 129. To proceed on such a theory, Plaintiffs must allege facts demonstrating that Defendants, acting under color of state law, intentionally treated Plaintiffs differently from others similarly situated, and that there is no rational basis for the difference in treatment. Violations of constitutional rights in zoning cases should be alleged with some particularity "to immunize any concern about transferring run of the mill zoning cases into cases of constitutional right." Village of Willowbrookv. Olech, 528 U.S. 562, 564 (Breyer, J., concluring) (2000).
The Planning Authority Defendants claim that Plaintiffs have failed to identify any instances in which a land developer similarly situated to Plaintiffs received a more favorable review, and have failed to allege facts exhibiting the absence of a rational basis for such treatment. Plaintiffs allege that Defendants approved preliminary plans for proposed subdivisions in Franklin Township, including developments referred to as Hess Mill Run II and Echo Hill. Complaint ¶¶ 106-110. Plaintiffs claim that these proposed developments received approvals, Plaintiffs are similarly situated, but Defendants denied Plaintiffs' proposals. Defendants' reliance on Anselma Station Ltd, v. Pennoni Associates, Inc., 654 A.2d 608 (Pa.Commw. 1995) is misplaced because that decision was not limited to mere allegations of the complaint.
Plaintiffs assert that Hess Mill Run II was granted a waiver regarding permissible lengths of cul-de-sacs and the number of units permissible on cul-de-sacs, while Plaintiffs were denied such a waiver. Id. ¶ 108. Also, the Complaint alleges that Hess Mill Run II was approved even though sewer planning modules had not yet been submitted to the state, whereas, the Miller Farm sewer planning modules had been approved by the township and submitted to the state. Id. If 109. Other than these two generalized allegations, Plaintiffs provide no detail to support their contention that Hess Mill Run II and Echo Hill were similarly situated to Miller Farm. In order to demonstrate that these proposed developments were, in fact, similarly situated to Plaintiffs' developments, the Complaint would have to provide much more detail about Hess Mill Run II and Echo Hill.
Moreover, Plaintiffs have pled no facts which would show that Defendants lacked any rational basis for granting Hess Mill Run II a waiver as to the cul-de-sac rules, while denying Plaintiffs such a waiver. Nor does the Complaint suggest the absence of a rational basis for granting preliminary approval to Hess Mill Run II despite the fact that its sewer planning modules had not yet been submitted, whereas the Miller Farm sewer planning modules had been submitted. There could be many possible explanations for the Township's decision to overlook such deficiencies in the case of one developer, while citing them as reasons for denial in the case of another. Significantly, in denying Plaintiffs' plans, according to the Complaint, the Township did not cite only a few instances of noncompliance, but, rather, listed numerous reasons why, in its view, the plans did not comply with applicable requirements. Complaint ¶¶ 96-99.
While Plaintiffs, of course, allege that these multiple reasons for denial were specious, Plaintiffs have failed to allege facts showing that Defendants relied on certain deficiencies for the purpose of denying Plaintiffs' proposal, while ignoring the exact same deficiencies in other plans. The present Complaint, which mentions only a few deficiencies shared by Hess Mill Run II and the Miller Farm, does not allege sufficient facts to show consistently different treatment of similarly situated developments. Nor does the Complaint contain other factual charges, which, if proven, would show the absence of any rational basis for the Township's actions. Accordingly, this Court will dismiss Plaintiffs' equal protection claim for failure to state a claim upon which relief may be granted, without prejudice, and with leave to amend.
C. Plaintiffs' Procedural Due Process Claim
As to Plaintiffs' procedural due process claim, to successfully plead such a claim, by way of § 1983, Plaintiffs must assert that Defendants, acting under color of state law, deprived Plaintiffs of a protected property interest, and that the local and state procedures for challenging the deprivation are inadequate. DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 597 (3d Cir. 1995) overruled on other grounds by United Artists Theatre Circuit. Inc. v. Township of Warrington, 316 F.3d 392, 400 (3d Cir. 2003).
A state provides constitutionally adequate procedural due process when it provides "reasonable remedies to rectify a legal error by a local administrative body." Id. The Third Circuit has consistently held that Pennsylvania's procedures for challenging zoning ordinances provide procedural due process. Rogin v. Bensalem Township, 616 F.2d 680 (3d. Cir 1980), cert. den, 450 U.S. 1029 (1981),Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988), cert. den, 488 U.S. 801. Moreover, when a state affords a "full judicial mechanism" with which to challenge administrative decisions of the type at issue, the state provides adequate procedural due process, regardless of whether the plaintiff avails herself of that appeal mechanism. Id. (quoting Midnight Sessions. Ltd, v. Philadelphia, 945 F.2d 667, 680 (3d Cir. 1991), overruled on other grounds by United Artists, 316 F.3d at 400). See also Midnight Sessions, 945 F.2d at 680-81 (holding that city provided adequate procedural due process where judicial mechanism existed under which to challenge administrative decision to deny application for dance hall licenses); 8131 Roosevelt Blvd. Corp. v. City of Philadelphia, No. Civ.A. 02-1392, 2003 U.S. Dist. LEXIS 144, at *21 (E.D. Pa. Jan. 6, 2003) (dismissing plaintiffs procedural due process claim stemming from city's denial of variance, because city code and state law provided adequate procedures to challenge denial); Sauers v. Bensalem Twp., No. Civ.A. 01-5759, 2003 U.S. Dist. LEXIS 4706, at *6 (E.D. Pa. March 5, 2003) (finding amended complaint failed to state procedural due process claim because defendant township afforded full judicial mechanism for challenging administrative land use decisions and plaintiff made no allegations from which court could infer that procedure was unconstitutional).
Defendants argue that adequate procedures exist under state law to remedy any erroneous or irrational decision rendered by the Township. Def. Brief at 12. Defendants correctly point out that, under the Pennsylvania Municipalities Planning Code, 53P.S. § 10101 et seq., a land owner dissatisfied with a municipality's land use decision may file an appeal in the Court of Common Pleas for the county wherein the land is located. Id. § 11002-A. See also Id. § 11006-A(a) ("In a land use appeal, the court shall have power to declare any ordinance or map invalid and set aside or modify any action, decision or order of the governing body, agency or officer of the municipality brought up on appeal."). In fact, Plaintiffs have filed an appeal from the Township's adverse decision, in the Court of Common Pleas of Chester County. PI. Brief at 18; In re Appeal of the Development Group. LLC and Parsons Road Development Group. Ltd, from the Decision of the Bd. of Supervisors of Franklin Twp., Land Use Appeal No. 03-878 (C.C.P. Chester).
Plaintiffs rely on the Supreme Court's opinion in Zinermon v. Burch, 494 U.S. 113, 124 (1990), in support of their assertion that "[t]he very nature of a Section 1983 claim means that "overlapping state remedies' are "irrelevant to the question of the existence of a cause of action under Section 1983.'" Pl. Brief at 17-19. Thus, Plaintiffs suggest, their right to appeal the Township's decision to the state courts, under the Municipalities Planning Code, should have no bearing whatsoever on their § 1983 procedural due process claim. However, in relying on the Zinermon case, Plaintiffs ignore the context in which the Court actually discussed such "overlapping state remedies."Zinermon, 494 U.S. at 124.
The Zinermon Court explained that section 1983 "was intended not only to "override' discriminatory or otherwise unconstitutional state laws, and to provide a remedy for violations of civil rights "where state law was inadequate,' but also to provide a federal remedy "where the state remedy, though adequate in theory, was not available in practice.'"Id. (quoting Monroe v. Pape, 365 U.S. 167, 173-74 (1961), overruled on other grounds. Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978)). As an example, theZinermon Court noted that a plaintiff may bring a § 1983 action for an unlawful search and seizure despite the existence of state law remedies for trespass and conversion. 494 U.S. at 124-25. The Court further explained that, although the state laws "on the books" appear to satisfy the requisites of due process, the problem addressed in certain § 1983 cases is "the way those laws are or are not implemented by state officials." Id. at 125.
Yet, in distinguishing procedural due process claims from other types of claims that may be brought pursuant to the Due Process Clause and section 1983, the Zinermon Court wrote:
A § 1983 action may be brought for a violation of procedural due process, but here the existence of state remedies is relevant in a special sense. In procedural due process claims, the deprivation by state action of a constitutionally protected interest in "life, liberty, or property" is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law, The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law.494 U.S. at 125-26 (citations omitted) (emphasis in original).See also 1823 Sansom St. Corp. v. City of Philadelphia No. Civ.A. 95-2494, 1995 U.S. Dist. LEXIS 13858, at *4 (E.D. Pa. Sept. 22, 1995) (dismissing § 1983 procedural due process claim by plaintiff who was denied cabaret license because plaintiff failed to allege absence of adequate state remedy — noting that such remedies are relevant under Zinermon). Thus, Plaintiffs are incorrect in their contention that the "overlapping state remedies," provided under the Municipalities Planning Code, are "irrelevant" to Plaintiffs' procedural due process claim.
Although Plaintiffs' Complaint contains the blanket assertion that "[f]air, consistent procedures relating to the zoning review process in Franklin Township are not in place," Complaint Tf 134, the Complaint contains no facts whatsoever which would support that conclusory allegation, and any attempt to amend would be futile.
D. The Planning Authority Defendants' Claim that the Planning Commission and Its Members Should be Dismissed as Defendants
Finally, the Planning Authority Defendants claim that the Planning Commission and its members should be dismissed from this action, because the Planning Commission was not the "governing body," under state law, responsible for rendering decisions on land use applications. Def. Brief at 4. It is well established that a defendant can only be held liable under § 1983 if he can fairly be considered a "state actor," with respect to the conduct at issue in the lawsuit. National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179, 191 (1988). The Supreme Court has observed that § 1983 liability attaches only to those wrongdoers "who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it." Id. (quoting Monroe, 365 U.S. at 172).
It is true that, under the Pennsylvania Municipalities Planning Code,supra, the "governing body," with respect to land use decisions, is the Board of Supervisors, 53 P.S. § 10107(a), whereas the Planning Commission is an advisory agency created by the Board.Id. § 10201. See also Todrin v. Board of Supervisors, 367 A.2d 332, 334 (Pa.Commw. 1976) (noting that a "planning commission is no more than an advisory body, whose recommendations have no binding effect on the governing body"). However, it is also apparent that the Franklin Township Planning Commission was created pursuant to state law, for the exclusive purpose of performing, or assisting in the performance of, an inherently governmental function. The state's Municipalities Planning Code, 53 P.S. § 10209.1, provides for certain "powers and duties" of a municipality's planning agency, which include, at the request of the governing body, the duty to
(3) Prepare, recommend and administer subdivision and land development and planned residential development regulations . . . (10) Hold public hearings and meetings . . . (11) Require from other departments and agencies of the municipality such available information as relates to the work of the planning agency [and] (12) In the performance of its functions, enter upon any land to make examinations and surveys with the consent of the owner.53 P.S. § 10209.1(b). See also Id. § 10201 ("The governing body of any municipality shall have the power to create or abolish, by ordinance, a planning commission or planning department, or both."); Id. § 10203(a) ("All members of the commission shall be appointed by the appointing authority of the municipality."); Id. § 10207 ("The commission may make and alter by laws and rules and regulations to govern its procedures consistent with the ordinances of the municipality and the laws of the Commonwealth."); Id. § 10211 ("The planning agency may, with the consent of the governing body, accept and utilize any funds, personnel or other assistance made available by the county, the Commonwealth or the Federal government or any of their agencies, or from private sources.").
The Complaint charges the Planning Commission and its members with actual involvement in the conduct which deprived Plaintiffs of their rights. Specifically, the Complaint alleges that the Planning Commission and its members, in full participation with the Board of Supervisors and other Defendants, purposefully sought to prevent approval of Plaintiffs' development plans, informed Plaintiffs that there would be no development of the Miller Farm property, even though it was a conforming use, and attempted by unscrupulous means to persuade Plaintiffs to abandon their Miller Farm plans. Accordingly, this Court concludes that the Planning Commission and its members are proper defendants in this § 1983 action.
IV. Conclusion
For the foregoing reasons, this Court will grant, in part, and deny, in part, the Planning Authority Defendants' motion. The Court will grant Plaintiffs' motion for discovery as to Defendant Halsted's motion, which shall be treated as a motion for summary judgment.
An appropriate Order follows.
ORDER
AND NOW, this 24th day of September, 2003, it is hereby ORDERED that:
1. The Motion to Dismiss Plaintiffs' Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by the Franklin Township Board of Supervisors, the Franklin Township Planning Commission, and the other Planning Authority Defendants, is GRANTED, in part, and DENIED, in part;
2. The Motion to Dismiss Count I is DENIED. Count II of the Complaint is DISMISSED, without prejudice, with leave to amend within twenty (20) days. Count III is DISMISSED with prejudice.
3. Plaintiffs' Motion, Pursuant to Rule 56(f), for Continuance of Motion for Summary Judgment and for Discovery to Be Had, is GRANTED. This Court will consider The Motion Pursuant to Rule 12(b)(6) to Dismiss or, Alternatively, for Summary Judgment, filed by Defendant John S. Halsted, to be a motion for summary judgment; Plaintiffs will have sixty days from the date of this Order in which to complete discovery related to the issues raised by Halsted's motion; Plaintiffs will then have ten days following completion of such discovery in which to file a brief in opposition to Halsted's motion; and Halsted will have one week thereafter in which to file a reply.