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dismissing equal protection claim when plaintiffs did not identify any similarly situated individuals in their complaint, noting that "this Court cannot assume that plaintiffs can prove facts that they have not alleged"
Summary of this case from NHS Human Servs. v. Lower Gwynedd Twp.Opinion
Civil Action No. 2:05-CV-02724.
January 23, 2006
MEMORANDUM
Presently before the Court is Defendants' Motion to Dismiss or alternatively, Motion for Summary Judgment (Doc. No. 11) and Plaintiffs' Opposition thereto (Doc. No. 19). For the following reasons, Defendants' Motion is GRANTED.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 8, 2005, Plaintiffs Sunrise Development, Inc. ("SDI"), Sunrise Senior Living, Inc. and John Doe Nos. 1 through 134 commenced this action against Defendant Lower Makefield Township, Pennsylvania, Defendant Peter Stainthorpe, as Chairman of the Board of Supervisors of Lower Makefield Township, and Defendants Scott Fegley, Grace Parkinson Godshalk, Frank Fazzalore and Steven Santarsiero, as Members of the Board of Supervisors. Plaintiffs allege that defendants' actions opposing Plaintiff SDI's Zoning Hearing Board applications and defendants' filing of an appeal of the Zoning Hearing Board's decision violated the Fair Housing Act, the Americans with Disabilities Act, the Equal Protection Clause and the Due Process Clause.
Plaintiffs John Doe Nos. 1 through 94 are unidentified persons representing the future residents of the proposed Assisted Living Facility to be constructed on the property. Plaintiffs John Doe Nos. 95 through 134 are unidentified persons representing the future employees of the proposed Assisted Living Facility.
The Equal Protection and Due Process claims are brought pursuant to 42 U.S.C. § 1983.
A. The Property
On October 16, 2003, Plaintiff SDI entered into an Agreement of Sale to purchase a 9.302 acre parcel of real property located at the intersection of Stony Hill Road and Heacock Road in Lower Makefield Township, Bucks County, Pennsylvania. Compl. ¶¶ 15, 17. The property is located in a zoning district designated R-3M.Id. ¶ 15. Plaintiff SDI planned to construct an assisted living facility on the property. Id. ¶ 14. An R-3M district does not permit assisted living facilities by right; however, assisted living facilities are permitted in R-3M districts upon the issuance of a special exception by the Zoning Hearing Board ("ZHB").
On June 22, 2004, Plaintiff SDI applied to the ZHB for a special exception that would enable it to construct and operate an assisted living facility. Id. ¶ 20. On September 7, 2004 and October 4, 2004, Plaintiff SDI attended meetings about the proposed facility with nearby residents. Id. ¶ 22. At the meetings, several residents expressed objections to the proposed assisted living facility. Id. A substantial number of residents requested that Plaintiff SDI pursue a two-story rather than a three-story building. Id. Plaintiff SDI complied with this request. Plaintiff SDI's two-story design covers 19.5% of the property with impervious surfaces. Id. ¶ 23. Since the maximum permitted impervious surface ratio in the R-3M zoning district was 17.0%, Plaintiff SDI applied to the ZHB for a variance from the impervious surface ratio requirement.
Plaintiffs have classified this variance as de minimus because the difference between 17.0% to 19.5% is only 2.5%. Defendants believe that the variance is not de minimus, arguing that the change from 17.0% to 19.75% is an increase of nearly 16% (of 17%). Defs' Mot. at 3. If defendants had used 19.5%, which this Court accepts as the correct percentage for purposes of the motion to dismiss, to calculate the increase, the increase would have been nearly 15%.
B. ZHB Hearings
The ZHB held four public hearings on Plaintiff SDI's applications for a special exception and a variance from the impervious surface ratio requirement. Id. ¶ 25. At the first hearing, Defendant Lower Makefield Township, acting through its solicitor, John Koopman, Esquire, requested party status in the hearing. Id. ¶ 26. The ZHB granted party status to Defendant Township and to four individual residents. Id.
The hearings were held on November 3, 2004, December 7, 2004, January 4, 2005 and February 1, 2005.
During the hearings, plaintiffs claim that defendants, acting through their solicitor Mr. Koopman, presented testimony that was not relevant to the issues raised by Plaintiff SDI's applications, attempted to impose more fire safety restrictions than permitted by law, presented exaggerated testimony about traffic conditions and argued that Plaintiff SDI's plan should include improvements to Heacock Road even though improvements could only be required by PennDOT. Compl. ¶¶ 27, 29-31. Plaintiffs also allege that defendants, acting through Mr. Koopman, attempted to allow Defendant Santarsiero to interfere in the proceedings, attempted to elicit testimony even though Plaintiff SDI's attorney's objections to the testimony had been sustained and offered testimony that the proposed access drive was not located in the most desirable place, that drivers would engage in irrational and dangerous driving tactics, that the facility is not an appropriate use of land in an R-3M district and that the Township engineer objected to the application even though his objections were not raised until after the Township decided to oppose the application. Id. ¶ 32.
C. ZHB Decision
On March 15, 2005, the ZHB granted Plaintiff SDI's requests for a special exception and a variance from the impervious surface requirements. Id. ¶ 35. On March 21, 2005, the Board of Supervisors voted to file an appeal of the ZHB's decision. Id. ¶ 36. Counsel for Plaintiff SDI wrote a letter to the Township Solicitor, advising of the applicability of the FHA and ADA and requesting that, as a "reasonable accommodation" to plaintiffs, the Township refrain from filing its zoning appeal. Pls' Opp. at 5. On April 11, 2005, Defendant Lower Makefield Township filed a Notice of Appeal from the ZHB's decision in the Court of Common Pleas of Bucks County. Compl. ¶ 37.
The ZHB approved Plaintiff SDI's applications subject to certain conditions. See Compl. ¶ 35.
The Board of Supervisors was allowed to file an appeal because the Township had been granted party status by the ZHB.
II. LEGAL STANDARD
Dismissal for failure to state a claim is appropriate when it clearly appears that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). In determining whether a claim should be dismissed under Rule 12(b)(6), the court looks only to the facts alleged in the complaint and its attachments. Jordan v. Fox Rothschild O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). A claim may be dismissed when the facts alleged and the reasonable inferences therefrom are legally insufficient to support the relief sought. Pennsylvania ex rel. Zimmerman v. PepsiCo., Inc., 836 F.2d 173, 179-80 (3d Cir. 1988).
III. DISCUSSION
Plaintiffs allege that defendants' actions opposing Plaintiff SDI's applications for a special exception and a variance from the impervious surface ratio requirement and defendants' filing of the zoning appeal have violated the Fair Housing Act ("FHA"), the Americans with Disabilities Act ("ADA"), the Equal Protection Clause and the Due Process Clause. Currently before the Court is Defendants' Motion to Dismiss or, Alternatively, Motion for Summary Judgment. Defendants argue that plaintiffs have failed to state a claim upon which relief can be granted and, therefore, plaintiffs' Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). In the alternative, defendants argue that summary judgment in favor of defendants is appropriate.
A. Fair Housing Act
Plaintiffs allege that defendants' actions have violated the FHA, 42 U.S.C. § 3601 et seq. Specifically, plaintiffs allege that defendants "made unavailable" a dwelling because of the handicap of the future resident in violation of 42 U.S.C. § 3604(f)(1) and that defendants "coerced, intimidated, threatened or interfered with" plaintiffs' rights under the FHA in violation of 42 U.S.C. § 3617. Pls' Opp. at 6-7.
Plaintiffs also allege that defendants discriminated against Plaintiffs SDI and Senior Living in the terms, conditions, privileges or services offered in connection with the sale or rental of a dwelling, and in the provision of services or facilities in connection with such dwelling, because of the handicap of the future residents in violation of 42 U.S.C. § 3604(f)(2). Pls' Opp. at 6-7; Compl. ¶ 48. The factual allegations contained in the Complaint do not address the terms, conditions, privileges or services offered in connection with the sale or rental of the assisted living facility. The sale of the property was complete before the defendants became involved, and the defendants are not involved in the rental of the facility. In addition, the factual allegations in the Complaint do not address the provision of services or facilities by defendants. Therefore, plaintiffs have failed to state a claim under § 3604(f)(2). See Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277, 1284 n. 12 (3d Cir. 1993).
Plaintiffs seem to bring a cause of action under § 3604(f)(3)(B). Pls' Opp. at 7, 15-17. However, § 3604(f)(3)(B) does not support a separate cause of action. Section 3604(f)(3) states that "for purposes of this subsection, discrimination includes . . . (B) a refusal to permit reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). Section 3604(f)(3)(B) defines behavior that constitutes discrimination, it does not provide a separate cause of action. If a plaintiff brings a cause of action under § 3604(f)(1), then discrimination can be demonstrated by showing a refusal to permit reasonable accommodation. See Community Servs., Inc. v. Wind Gap Mun. Authority, 421 F.3d 170, 176 (3d Cir. 2005) (describing the three legal theories that can be used to prove discrimination in a FHA claim); Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1102-03 (3d Cir. 1996) (demonstrating how § 3604(f)(1) and § 3604(f)(3)(B) interrelate). Therefore, plaintiffs' claims that "reasonable accommodations" were not made will be addressed in connection with § 3604(f)(1).
1. Violations of 42 U.S.C. § 3604(f)(1)
Section 3604(f)(1) of the FHA makes it unlawful for anyone to "make unavailable or deny a dwelling to any buyer or renter because of a handicap" of the prospective buyer or lessee, of anyone intending to occupy the dwelling after the sale or lease, or of anyone associated with that buyer or lessee. 42 U.S.C. § 3604(f)(1); see also Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277, 1282 (3d Cir. 1993). In order to make out a claim under § 3604(f)(1), plaintiffs must assert, first, that defendants made housing unavailable to them and, second, that defendants actions were based on plaintiffs' handicaps. See Koorn v. Lacey Township, 78 Fed. Appx. 199, 206 (2003) (describing what is needed to state a claim under a similar provision in § 3604(a)).
Plaintiffs allege that, by filing a zoning appeal, defendants have discriminated against them by making unavailable to them a dwelling at the Sunrise at Lower Makefield facility because of their handicaps. Compl. ¶ 49. Plaintiffs argue that defendants appealed the ZHB decision in order to delay, potentially "indefinitely," the construction of the assisted living facility. Pls' Opp. at 12, 14. Plaintiffs conclude that this delay, in effect, made the assisted living facility "unavailable" in violation of § 3604(f)(1). Plaintiffs are essentially asking this Court to adopt an extremely broad construction of the phrase "make unavailable," i.e. a construction that would prohibit a party's legal right to appeal a ZHB decision if the appeal delayed the construction of handicapped housing. Third Circuit precedent does not support such a broad reading of the phrase "make unavailable."
Plaintiffs also allege that defendants have also discriminated against persons associated with John Does No. 1 through 94, including Plaintiffs SDI, Senior Living and John Doe Nos. 95 through 134. Compl. ¶ 49.
Not all courts have declined to adopt a broad reading of the phrase "make unavailable." See United States v. Scott, 788 F. Supp. 1555, 1562 (D. Kan. 1992) (finding that the phrase "make unavailable" in § 3604(f)(1) should be construed broadly to include the actions of neighbors who attempted to enforce a restrictive covenant through court action to prevent handicapped individuals from residing in their neighborhood).
The Third Circuit has recognized that the purpose of the Fair Housing Act is to protect the housing choices of handicapped individuals who seek to buy or lease housing and of those who seek to buy or lease housing on their behalf. Growth Horizons, 983 F.2d at 1283. Upon analyzing Congress's intent in enacting § 3604(f)(1), the Third Circuit found that "[t]he conduct and decision-making that Congress sought to affect was that of persons in a position to frustrate such [housing] choices — primarily at least, those who own the property of choice and their representatives." Id.; see also id. at 1283 (noting that the problem of biased sellers and lessors was the problem Congress addressed in § 3604(f)(1)); Michigan Protection Advocacy Service, Inc. v. Babin, 18 F.3d 337, 344 (6th Cir. 1994) (agreeing with the Third Circuit that "Congress's intent in enacting § 3604(f)(1) was to reach property owners and their agents who directly affect the availability of housing for a disabled individual").
In the current case, defendants do not own the property at issue, nor are they representatives for those that do. Defendants are neither sellers nor lessors of the property at issue. Defendants are not in a position to directly frustrate plaintiffs' housing choices, as defendants do not have the power to decide whether plaintiffs are allowed to build an assisted living facility in an R-3M district. Defendants' conduct does not fall within the conduct that Congress sought to affect by enacting § 3604(f)(1). Therefore, plaintiffs have failed to state a claim under § 3604(f)(1).
2. Coercion, Intimidation, Threats or Interference
Section 3617 provides that it is "unlawful to coerce, intimidate, threaten or interfere with" any person in the exercise or enjoyment of any right granted or protected by § 3603, § 3604, § 3605 or § 3606 of the FHA. 42 U.S.C. § 3617. Plaintiff alleges that defendants "coerced, intimidated, threatened or interfered with" plaintiffs' exercise or enjoyment of their rights under the FHA by (1) opposing the applications by Plaintiff SDI for a special exception and a variance and (2) filing the zoning appeal. Compl. ¶ 51. Plaintiffs argue that, for the purposes of the motion to dismiss, this Court must accept this allegation as true. Pls' Opp. at 8. While a court must accept all factual allegations in the Complaint as true, a court is not bound to accept a "legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). Rather than crediting plaintiffs' legal conclusion that defendants "coerced, intimidated, threatened or interfered with" plaintiffs' exercise or enjoyment of their rights under the FHA, this Court must examine the factual allegations set forth in the Complaint in order to determine whether plaintiffs have alleged facts sufficient to survive a motion to dismiss.
A successful claim under § 3604 is not a prerequisite to the bringing of a claim under § 3617. Michigan Protection Advocacy Svc., Inc. v. Babin, 799 F. Supp. 695, 723 (E.D. Mich. July 22, 1992), affirmed 18 F.3d 337 (6th Cir. 1994). See also Fair Housing Council of Suburban Philadelphia, 141 F.3d 71 (3d Cir. 1998) (allowing the § 3617 claim, but not the § 3604 claim, to survive summary judgment); Smith v. Stechel, 510 F.2d 1162 (9th Cir. 1975); Congdon v. Strine, 854 F. Supp. 355 (E.D. Pa. 1994) (discussing Babin); but see South-Suburban Housing Center v. Greater South Suburban Bd. of Realtors, 935 F.2d 868, 886 (7th Cir. 1991).
a. Defendants' Opposition to Plaintiff SDI's Applications
Plaintiffs argue that defendants' actions opposing the applications by Plaintiff SDI for a special exception and a variance from the impervious surface ratio requirement in the R-3M zoning district "coerced, intimidated, threatened or interfered with" plaintiffs' rights under the FHA. Compl. ¶ 51. In opposing Plaintiff SDI's applications, defendants, acting through their solicitor Mr. Koopman, allegedly presented irrelevant testimony during the ZHB hearings, attempted to impose more fire safety restrictions that permitted by law, presented exaggerated testimony about traffic conditions and argued that Plaintiff SDI's plan should include improvements to Heacock Road even though only PennDOT could require improvements. Compl. ¶¶ 27, 29-31. In addition, Mr. Koopman allegedly attempted to allow Defendant Santarsiero to interfere in the proceedings, attempted to elicit testimony when Plaintiff SDI's attorney's objections to the testimony had been sustained and offered testimony that the proposed access drive was not located in the most desirable place, that drivers would engage in irrational and dangerous driving tactics, that the facility is not an appropriate use of land in an R-3M district and that the Township engineer objected to the application even though he did not object until after the Township decided to oppose the application. Id. ¶ 32.
The allegedly irrelevant testimony included testimony regarding the type and color of exterior siding on SDI's building, the views of plaintiff SDI's building from different elevations, the sizes of parking spaces, the state licensing procedures, a sewer connection moratorium for a sewage treatment plant to which the assisted living facility would not be connected, the design of the access drive, details for proposed site lighting and PennDOT standards for highway access permits.
Even assuming that all of these allegations are true, defendants' actions in opposing Plaintiff SDI's applications cannot be said to have "coerced, intimidated or threatened" plaintiffs in the exercise of their FHA rights. Notwithstanding defendants' actions opposing Plaintiff SDI's applications, the ZHB approved Plaintiff SDI's application for a special exception and a variance from the impervious surface ratio requirement. Given this set of facts, defendants' actions cannot be said to have interfered with plaintiffs' rights under the FHA. See Michigan Protection Advocacy Service v. Babin, 18 F.3d 337, 347-48 (6th Cir. 1994) (holding that the phrase "interfere with" encompasses such overt acts as racially-motivated firebombings and threatening notes and less obvious, but equally illegal, practices such as exclusionary zoning, deflating appraisals because of discriminatory animus and insurance redlining); see also Congdon v. Strine, 854 F. Supp. 355, 363-64 (E.D. Pa. 1994) (quoting this language inBabin).
b. Defendants' Appeal of the ZHB Decision
Plaintiffs argue that defendants' filing of an appeal of the ZHB decision "coerced, intimidated, threatened or interfered with" plaintiffs' exercise or enjoyment of rights protected by the FHA in violation of § 3617. Compl. ¶ 51. Plaintiffs cite three district court cases in support of their argument. Pls' Opp. at 8-11 (citing United States v. Wagner, 940 F. Supp. 972 (N.D. Tex. 1996); Martin v. Constance, 843 F. Supp. 1321 (E.D. Mo. 1994); United States v. Scott, 788 F. Supp. 1555 (D. Kan. 1992)). In all three cases, neighbors tried to prevent the use of a home in their neighborhood as a group home for the developmentally disabled by filing a lawsuit in state court seeking to enforce a restrictive covenant. These cases differ dramatically from the one at hand. The current case involves Plaintiff SDI's applications for a special exception to a zoning ordinance and for a variance to the impervious surface ratio required in the zoning district, whereas the cases cited by plaintiffs involved restrictive covenants. In the current case, defendants have exercised their legal right to appeal a ZHB decision; they did not initiate a lawsuit in order to prevent the sale of a property. This Court does not believe that, in enacting § 3617, Congress intended to restrict the legal right of defendants to appeal an adverse decision of the ZHB, particularly under the current circumstances, i.e. where the underlying action was initiated by plaintiffs.
As plaintiffs have not alleged any actions that could be construed as coercive, intimidating or threatening, this Court will only analyze whether defendants' filing of an appeal "interfered with" plaintiffs' exercise or enjoyment of rights protected by the FHA.
Plaintiffs incorrectly cited this case as United States v. Pine.
In Martin, the plaintiffs did not bring a § 3617 claim. In Wagner and Scott, the plaintiffs filed a lawsuit in order to block the sale of a house to a buyer who planned to use the house as a group home for the developmentally disabled.
B. Americans with Disabilities Act
Title II of the ADA prohibits discrimination against the disabled in public services. 42 U.S.C. § 12131 et seq. Section 12132 provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Plaintiffs allege that defendants, by (1) opposing plaintiffs' applications and (2) filing the zoning appeal, have excluded plaintiffs from participation in and denied plaintiffs the benefits of the services, programs and activities offered by Defendant Township. Compl. ¶¶ 57, 58. Plaintiffs also allege that defendants, as a result of their opposition to plaintiffs' applications, have subjected Plaintiffs John Doe Nos. 1 through 94 to discrimination by reason of their disability. Id. ¶ 59.
Plaintiffs allege that Plaintiffs John Doe Nos. 95 through 134 have similarly been subjected to discrimination by defendants by reason of their association with John Doe Nos. 1 through 94. Compl. ¶ 60.
Plaintiffs claim that they have been excluded from participation in and denied the benefits of the services, programs and activities offered by Defendant Township. In support of this claim, plaintiffs state that "zoning is a rule, policy or practice of defendant Township which is an eligibility requirement for the receipt of services or the participation in programs or activities provided by defendants." Compl. ¶ 56. Plaintiffs' argument is less than clear; however, this Court assumes that plaintiffs are arguing that if defendants had not opposed Plaintiff SDI's applications and had not appealed the ZHB's decision, plaintiffs would have been eligible for participation in and the benefits of various services, programs and activities related to zoning. Even assuming that this statement is true, plaintiffs have not provided the necessary connection between defendants and the denial of services, programs and activities. Plaintiffs have not identified any services, programs, or activities they have been denied as a direct result of defendants' actions.
Plaintiffs also allege that defendants' actions opposing Plaintiff SDI's applications have subjected Plaintiffs John Doe Nos. 1 through 94 to discrimination by reason of their disability in violation of § 12132. Section 12132 falls under Title II of the ADA, a section that prohibits discrimination against the disabled in public services. Plaintiffs have not alleged that there is a public service available to the non-disabled that defendants are denying them because of their disability. Therefore, plaintiffs have failed to state a claim under § 12132.
C. Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, § 1. The Equal Protection Clause is "essentially a direction that all persons similarly situated should be treated alike."Congregation Kol Ami v. Abington Township, 309 F.3d 120, 133 (3d Cir. 2002) (quoting City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)). In an equal protection challenge, plaintiff has the initial burden of demonstrating that it is "similarly situated" to an entity that is being treated differently. Id. at 137. After the plaintiff has met this burden, the local municipality must offer a justification for its position. Id. The second inquiry then becomes whether the municipality's position is rationally related to a legitimate state interest. Id.; City of Cleburne, 473 U.S. at 440.
Plaintiffs argue that intermediate scrutiny is appropriate because Congress intended that the ADA would impose a standard of heightened scrutiny on actions involving discrimination against the disabled. Pls' Opp. at 22. As plaintiffs noted, the Third Circuit was unconvinced by a similar argument in Contractors' Assoc. v. City of Philadelphia, 6 F.3d 990, 1001 (3d Cir. 1993). This Court shall follow the Third Circuit's holding in Contractors' Assoc. and apply a rational basis standard. Id.
Plaintiffs argue that defendants' filing of a zoning appeal violates the Equal Protection Clause. Compl. ¶¶ 65-69. Plaintiffs allege that the defendants have not filed a zoning appeal against the ZHB as a result of any other special exception or variance granted by the ZHB within the last two years. Compl. ¶ 65. This allegation, by itself, does not demonstrate that plaintiffs were similarly situated to landowners who were treated differently.See Rucci v. Cranberry Township, 130 Fed. Appx. 572, 575 (3d Cir. 2005) (affirming the dismissal of an equal protection claim when the complaint did not allege sufficient facts to establish that plaintiff was similarly situated to other landowners); The Development Group, LLC v. Franklin Township Board of Supervisors, 2003 U.S. Dist. LEXIS 18042, at *20-*21 (E.D. Pa. Sept. 24, 2003) (holding that, in order to survive a motion to dismiss, the complaint would have to provide "much more detail" to establish that plaintiff was similarly situated).
Nowhere in the complaint do plaintiffs identify another landowner who requested both a special exception and a variance from the impervious surface requirements. See id. Since plaintiffs did not identify another landowner, plaintiffs failed to establish that they were similarly situated. When ruling on a motion to dismiss, this Court cannot assume that plaintiffs can prove facts that they have not alleged. Id. (citing City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998)). Since plaintiffs failed to allege sufficient facts to establish that they are similarly situated to other landowners who were treated differently, plaintiffs' equal protection claim is dismissed for failure to state a claim.
D. Due Process Clause
Defendants argue that plaintiffs have failed to state a cause of action for which relief can be granted under either procedural or substantive due process. Defs' Mot. at 19-24. Plaintiffs did not address their due process claims in their response to defendants' motion.
1. Substantive Due Process
Executive action violates substantive due process "only when it shocks the conscience." United Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 400 (3d Cir. 2003) (applying the shocks the conscience standard to determine if the Board of Supervisors had violated substantive due process by delaying approval of plaintiff's land development plan). The shocks the conscience standard "encompasses only the most egregious official conduct." Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).
In the current case, plaintiffs allege that defendants, in an attempt to prevent Plaintiff SDI from obtaining the special exception and the variance from the impervious surface ratio requirement, interposed irrelevant, meaningless and baseless objections to Plaintiff SDI's application. Compl. ¶ 72. Specifically, plaintiffs allege that defendants, acting through their solicitor Mr. Koopman, presented irrelevant testimony, attempted to denigrate and impugn the credibility of a witness, attempted to impose more fire safety restrictions than permitted by law, presented exaggerated testimony regarding resulting unacceptable traffic conditions, and argued that Plaintiff SDI's plan should include improvements to Heacock Road even though only PennDOT could require improvements to Heacock Road. Id. ¶¶ 27, 30, 31. In addition, plaintiffs contend that defendants attempted to allow Defendant Santarsiero to interfere in the proceedings, attempted to elicit testimony when Plaintiff SDI's attorney's objections to the testimony had been sustained and offered testimony that the proposed access drive was not located in the most desirable place, that drivers would engage in irrational and dangerous driving tactics, that the facility is not an appropriate use of land in an R-3M district and that the Township engineer objected to the application even though his objections were not raised until after the Township decided to oppose the application. Id. ¶ 32.
Even if this Court credits all of the facts alleged, defendants' alleged conduct does not "shock the conscience." See United Artists, 316 F.3d at 401 ("land use decisions are matters of local concern and such disputes should not be transformed into substantive due process claims based only on allegations that government officials acted with `improper' motives"). Therefore, plaintiffs have failed to state a claim for substantive due process violations. As a result, this claim is dismissed.
The Third Circuit also noted that this application of the shocks the conscience test ensures that a federal court is not "cast in the role of a `zoning board of appeals.'" United Artists, 316 F.3d at 401.
2. Procedural Due Process
Plaintiffs have not responded to defendants' argument that plaintiffs' procedural due process claim fails to state a cause of action for which relief can be granted. Defs' Mot. at 19-20. Since this Court cannot glean from Plaintiffs' Complaint how plaintiffs' procedural due process rights have been offended by defendants' alleged actions, this claim is dismissed for failure to state a claim.
IV. CONCLUSION
Accordingly, Defendants' Motion to Dismiss is granted. An appropriate order follows.
ORDER
AND NOW, this 23rd day of January 2006, upon consideration of Defendants' Motion to Dismiss or, Alternatively, Motion for Summary Judgment (Doc. No. 11) and Plaintiffs' Response thereto (Doc. No. 18), it is hereby ORDERED that Defendants' Motion is GRANTED. The Clerk of Court is directed to close this matter for statistical purposes.