Is the Pendulum Swinging Back for Federal Substantive Due Process Claims?

January 2008 In The Zone

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In Frompovicz v.Township of South Manheim, the Federal District Court of the Middle District found that a Township Solicitor was a state actor and therefore susceptible to claims under 42 U.S.C. §1983. The Court also found that members of the Zoning Hearing Board (ZHB) enjoyed quasi-judicial immunity from claims against them in their individual capacities and that individual members of the Township Planning Commission and Board of Supervisors enjoy legislative immunity for claims regarding their legislative decision-making.

In the case, a landowner made several unsuccessful attempts to secure permits for spring water extraction on a 60-acre parcel zoned industrial. The landowner then applied for a permit to construct a cellular tower on the property after the ZHB denied another applicant’s permit for a cellular tower on the grounds that such structures were only allowed in the industrial zone. Although the landowner’s property was located in the industrial zone, the ZHB came to a different conclusion about where such structures could be located. The ZHB denied the landowner’s application for a cellular tower and then subsequently allowed another provider, Schuylkill Mobile, to locate a cellular tower in a residential area. Interestingly, Schuylkill Mobile was represented by another law partner of the Township Solicitor’s firm. Shortly after this decision, the Township Solicitor developed complex criteria for the development of cellular towers making it nearly impossible to construct another tower in the township and providing Schuylkill Mobile with a windfall.

Thereafter, the Township adopted a new Zoning Ordinance that changed the designation of the landowner’s property to agricultural. The landowner alleged that one of the Township Supervisors who voted for this change had previously signed petitions against the landowner and that the only property that remained in the Industrial Zone was a client of the Township Solicitor’s law firm. The landowner challenged the zoning changes, but the ZHB upheld the validity of the changes to the Ordinance.

The landowner filed a complaint in the United States District Court against the Township, the Township Solicitor, the Township Solicitor’s law firm, the Township Engineer, the Township Engineer’s firm, the ZHB, the Board of Supervisors, the Township Planning Commission, and several individual members thereof. The complaint consisted of seven counts:

  1. violation of landowner’s substantive due process rights in denying zoning permits based on political or personal bias and animus not related to the merits of the application
  2. violation of landowner’s procedural due process rights
  3. conspiracy to deprive landowner of his due process rights
  4. violation of due process rights by municipality policy, custom, or practice
  5. unconstitutional taking of landowner’s property
  6. unlawful interference with landowner’s business relationships
  7. denial of equal protection rights

The landowner sought $100,000 in compensatory and punitive damages on each count. The defendants filed numerous motions to dismiss.

The Court first addressed the argument of the Township Solicitor and his law firm that the complaints against them were insufficient because the landowner had not alleged that they acted under color of state law to deprive him of his constitutional rights as required by 42 U.S.C. § 1983. The Court denied the motion to dismiss finding that the Township Solicitor had indeed acted under state law in his capacity as a solicitor in evaluating and establishing zoning standards. However, the Court found that the law firm could not be liable because municipal liability under 42 U.S.C. § 1983 cannot be based on the respondeat superior doctrine, but must instead be founded upon evidence that the government unit itself supported a violation of constitutional rights.

Next, the Court addressed the argument made by defendant members of the Township’s Board of Supervisors, the ZHB, and the Planning Commission that they should enjoy legislative or quasi-judicial immunity for their actions. Similarly, the Township Engineer and his engineering firm argued that they should be entitled to qualified immunity. The Court found that the ZHB members enjoyed quasi-judicial immunity for claims against them in their official capacities and that members of the Planning Commission and Board of Supervisors enjoy immunity for legislative decisions. However, the Court found that qualified immunity was not available to the Township Engineer because the landowner’s complaint included allegations of deliberate and reckless behavior in making zoning use decisions. The Court dismissed the claim against the engineering firm because of the inability to base municipal liability under 42 U.S.C. §1983 on the respondeat superior doctrine as previously discussed.

The Court concluded that the Township, the Township Solicitor, the Township Engineer, the Township Planning Commission, and the ZHB remained potentially liable. The Court went on to grant the defendants’ motions to dismiss in part and denied them in part.

The Court denied defendants’ motion to dismiss the landowner’s substantive due process claim, finding that plaintiff could prevail if he could prove that the defendants “recklessly, intentionally, deliberately, maliciously, willfully, and outrageously acted in an arbitrary and capricious manner for personal reasons unrelated to the merits of the proposed use of the property and the law… ” The Court also denied the defendants’ motions to dismiss the conspiracy claim and third-party interference claim.

owever, the Court found that the plaintiff had not stated a procedural due process claim upon which relief could be granted and thus granted defendants’ motion to dismiss on this point. The Court also noted that the landowner had withdrawn the takings claim.

Finally, the Court denied the defendants’ motion to dismiss the equal protection claim. The Court found that the landowner had made several allegations, which if true, showed that the township had treated the landowner differently with his application for a cell phone tower and denied the defendants’ motion to dismiss on this count as well.

The Court ordered the landowner to file an amended complaint reflecting the claims and defendants remaining in the case.

For more information about this case, please contact Robert W. Gundlach at 215.918.3636 or [email protected].