Anselma Station, Ltd. v. Pennoni Associates, Inc.

654 A.2d 608, 1995 Pa. Commw. LEXIS 80

Opinions

KELTON, Senior Judge.

This is an action against the township engineers of West Pikeland Township, Chester County. An appeal has been filed by a property owner, Anselma Station, Ltd. and its President, Barry N. Snader (Anselma) from the March 16, 1993 order of the Court of Common Pleas of Chester County (trial court) sustaining the preliminary objections to Count VIII of Anselma’s Amended Complaint against the engineer, Pennoni Associates, Inc. and two of its employees, John J. Gillespie and Kenneth G. D’Aurizio.

In that Count, Anselma alleged that before and during the processing of Anselma’s application to the Township for approval of a site development, Pennoni, while acting under the color of state law, denied Anselma its rights to procedural due process, to substantive due process and to equal protection of the law in violation of 42 U.S.C. § 1983 (Section 1983).

The entire Amended Complaint contained 42 pages with eleven separate counts, with about 75 pages of exhibits attached thereto. We will not attempt to summarize these documents in their entirety. In brief summary, in ten of the eleven counts, Anselma sought relief under state tort law and in Count VIII sought relief under Section 1983 of the federal Civil Rights Act. Anselma in the state tort claims sought damages on behalf of ei ther Anselma or its president as follows: I) Commercial Defamation-Libel; II) Commercial Defamation-Slander; III) Conspiracy to Injure Reputation; IV) Slander of Property; V) Trespass of Land; VI) Intentional Interference with Prospective Contractual Relations; VII) Tortious Conversion; VIII) Civil Rights Violation under 42 U.S.C. § 1983; IX) Commercial Defamation-Libel; X) Commercial Defamation-Slander; and XI) Conspiracy to defame. The trial court judge, the Honorable Thomas G. Gavin, overruled all preliminary objections to counts I-IV and IX-XI but sustained Pennoni’s preliminary objections to Counts VI and VII relating to alleged interference with contract and Tor-tious Conversion of personal property and dismissed those counts. He also sustained preliminary objections to the civil rights Count VIII.

In dismissing Count VIII, the trial court concluded that the conduct alleged in the complaint did not rise to the level of a constitutional tort and that the complaint did not state a cause of action under Section 1983. The only issue raised on appeal is whether the allegations contained in Anselma’s amended complaint adequately state a cause of action under Section 1983, i.e. that Penno-ni and its two employees, while acting under color of state law, deprived Anselma of property by violation of its procedural or substantive due process rights or its right to equal protection. We affirm.

Count VIII of the Complaint is stated at paragraphs 141 through 150, but because those paragraphs incorporate all of the preceding paragraphs by reference, it is necessary to review paragraphs 1 through 140 as well.

I. FACTS

Judge Gavin aptly summarized the relevant facts pleaded in the amended complaint and we adopt that summary here:

On or about December 15,1986 Anselma acquired a parcel of land consisting of approximately six (6) acres located in the township near Pickering Creek (hereinafter “the site”). At the time of the purchase, the site contained six (6) buildings, two (2) sewer systems and two (2) water wells. [Anselma] allege[s] that at the time of the purchase, the site was a squalid eyesore and in disrepair, but was zoned and was being used for commercial purposes pursuant to the township ordinance that was in effect at the time. Anselma acquired the site with the intention of substantially rehabilitating it and further developing it for commercial purposes, including the leasing of space for offices and retail stores.

The amended complaint further alleges that on or about July 29, 1986, prior to Anselma’s acquisition of the site, [Pennoni] had inspected the site at the request of the Township’s Board of Supervisors (hereinafter “the Board”) because the Board was considering purchasing the property for the township’s own use. As alleged in the amended complaint, the inspection reportedly confirmed the longstanding suspicion that possible soil contamination and possible raw sewerage discharge into Pickering Creek existed at the site. The Board unsuccessfully negotiated with the seller of the site, Nevin N. Myer and related interests. [Anselma] further averts] that subsequent to the unsuccessful township negotiations, Anselma purchased the site without knowledge of the July 1986 inspection or any of the township’s concerns about the condition of the site. In June of 1987 Anselma submitted preliminary plans to the township proposing to improve the site for commercial uses including the leasing of the developed space. In paragraph 18 of the amended complaint, [Anselma] allege[s] that from that date forward the township and the Board aided, abetted, advised and mounted an unwarranted effort to block the development of the site without a rational basis and in reckless disregard of Anselma’s rights[,] to defame Anselma and Mr. Snader and deny them equal protection of the laws and to slander the subject real estate and depress its value. [Anselma] refer[s] to four documents in support of [its] contentions: 1) the Pennoni letter dated April 16, 1990 (See Exhibit A of [Anselma’s] Complaint); 2) the Pennoni report dated May 23, 1990 (See Exhibit B of [Anselma’s] Complaint); 3) the Pennoni Memorandum dated July 9, 1990 (See Exhibit C of [Anselma’s] Complaint); and the Pennoni Memorandum dated December 10,1990 (See Exhibit D of [Anselma’s] Complaint). They also allege that [Pennoni’s] activities include, but are not limited to, trespassing onto the site during which clandestine testing was performed and samples of stream water and soils were removed, orally presenting false and malicious statements to the township, intervening with Anselma’s application for a permit to allow the removal of any allegedly contaminated soil and the installation of a monitoring well as requested by DER [Department of Environmental Resources], interfering with the correction of the township’s misdesignation of a portion of Ansel-ma’s property as a floodplain, participation in discriminatory enforcement of local, state and federal land use regulations against Anselma but not against others similarly situated and engaging in various conversations and meetings that resulted in depressing the value of the site and damaging the good names and reputations of Anselma and Mr. Snader. [Anselma] believe[s] that such activities caused (1) the Board and CCHD [the Chester County Health Department] to force Anselma to discontinue the existing sewer system and create a holding tank system imposing unnecessary and onerous expenses to Ansel-ma and a loss of income from the rental of apartments because the holding tanks could not provide adequate reserve for sewer containment; (2) the Board and DER to force Anselma to undertake unwarranted engineering, legal and other expenses, (8) unfounded, defamatory allegations and accusations to be levelled at An-selma and Mr. Snader, (4) a loss of value of the site and loss of good name and reputation of Anselma and Mr. Snader, and (5) extensive delay in approval for the site’s development. [Anselma] also claim[s] in their amended complaint that [Pennoni’s] conduct and defamatory comments caused the Board to appeal the remapping of the floodway decision which caused unnecessary expense to Anselma.

(Trial Court’s March 16, 1993 Opinion, R.R. Appendix “C” at 2-6.)

As noted above, the trial court left intact the majority of Anselma’s state action claims. The trial court did sustain Pennoni’s preliminary objections to Counts VI, VII and VIII. Anselma only appealed the trial court’s decision to sustain Pennoni’s preliminary objection to Count VIII which alleged Section 1983 civil rights violations.

In sustaining Pennoni’s preliminary objections to Count VIII the trial court stated:

Mere tortious conduct, although committed by governmental officials, in and of itself, does not automatically rise to the level of a 42 U.S.C. § 1983 constitutional tort. See Smith v. Spina, 477 F.2d 1140 [3d Cir.1973]. In order to rise to the level of a constitutional tort, the plaintiff must aver that the conduct was so egregious as to exceed the boundaries of injuries for which the injured party could be compensated under tort law. Byrd v. Clark, 783 F.2d 1002 (11th Cir.1986); Haag v. Cuyahoga County, 619 F.Supp. 262 (N.D.Ohio 1985).

The amended complaint is void of any facts to warrant this claim. It is clear that plaintiffs have failed to state a claim on which relief may be granted. This demurrer is sustained and Count VIII is stricken.

(Appellant’s Brief, Appendix “C” at 15-16.)¹

II. DISCUSSION

Appellant Anselma states that the question involved in this appeal is: “Whether a person or persons who, while acting under color of state law, engage in conduct which deprives another of his or her constitutionally protected rights can escape liability pursuant to 42 U.S.C. § 1983 simply because the complainant’s injuries are compensable under state tort law?” Appellee Pennoni argues, howev er, that the Amended Complaint contains no facts which would make out a cognizable federal civil rights violation. After a careful review of the Complaint, we agree with the trial court and with Pennoni that Count VIII was properly dismissed.²

Section 1983 provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

Section 1983 provides a civil remedy for deprivations of federally protected rights caused by persons acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981).

Accordingly, in any Section 1983 action the initial inquiry must focus on whether the two essential elements to a Section 1983 action are present: (1) whether the con-duet complained of was committed by a person acting under color of state law; and (2)whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

Id.

A. Under Color of State Law

In its amended complaint, Anselma alleges that Pennoni acted under color of state law because, at all material times Pen-noni was acting as the township engineer for West Pikeland Township. Pennoni’s counsel concedes in its brief (Appellee’s brief at 4) that Pennoni’s inspection of the development plans and of the site were “[in] accordance with township supervisors’ directions.” We conclude from the Complaint and from this concession that this question is clearly answered in favor of Anselma and that the first prong of a Section 1983 cause of action is satisfied.

B. Procedural Due Process

Anselma argues that it properly alleged a violation of its procedural due process rights by Pennoni.³ Anselma alleged in its amended complaint that Pennoni made adverse determinations regarding Anselma’s rehabilitation and development of the site but failed to provide Anselma with notice of those determinations. Further, Anselma alleges that Pennoni failed to provide it with the opportunity to refute those findings and determinations before Pennoni submitted them to state and local government agencies. Anselma did not, however, allege that the normal statutory land development plan review processes are inadequate. See Article V of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10501-10515.3.

The Due Process Clause of the Fourteenth Amendment does not prohibit all deprivations of life, liberty or property. It only prohibits such deprivations without due process of law. Parratt, 451 U.S. at 537, 101 S.Ct. at 1913-14; Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2694-95, 61 L.Ed.2d 433 (1979). Parratt addressed the question of whether the remedies which a state provides as a means of redress for property deprivations satisfy the requirements of procedural due process. In Par-ratt, the Supreme Court concluded that an individual is not denied procedural due process if a state provides the means by which he can receive redress for the deprivation. A post-deprivation hearing is adequate to provide such redress. Further, the available state remedy need not provide all the relief available under a Section 1983 cause of action for it to be considered adequate due process. Parratt, 451 U.S. at 543-44, 101 S.Ct. at 1916-17.

The effect of the Parratt decision is that an individual alleging a Section 1983 violation for deprivation of property without procedural due process must allege the absence of an adequate state remedy. Here, Anselma failed to allege the complete absence of state procedures of due process or that the state procedures were inadequate or impractical. Therefore, Anselma failed to properly allege a cause of action under Section 1983 for a violation of its procedural due process right.

C. Substantive Due Process

Anselma further argues that it properly stated a cause of action under Section 1983 by alleging that Pennoni violated its substantive due process rights.⁴ In determining what must be alleged to plead a claim of violations of substantive rather than procedural due process, the standards announced by the federal courts are not as clear. The Parratt requirement that an individual allege the absence of an adequate state remedy does not apply to Section 1983 substantive due process cases. Lamoureux v. Haight, 648 F.Supp. 1169, 1175 (D.Mass.1986) (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 872 (7th Cir.1983)).

Anselma alleges that its substantive due process rights were violated by Pennoni’s deliberate and arbitrary abuse of government power. Pennoni argues that the conduct Anselma alleges in its complaint does not rise to the level of a constitutional tort.

The Supreme Court has not seen fit to visit the issue of what is required to properly allege a Section 1983 violation for a deprivation of substantive due process. It has stated, however, that “Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.” Baker v. McCollan, 443 U.S. at 146, 99 S.Ct. at 2695. Several of the federal circuit and district courts have addressed the issue in more detail.

It is clear “that a tort committed by a state official acting under color of state law is [not], in and of itself, sufficient to show an invasion of a person’s right under [Section 1983].” Smith v. Spina, 477 F.2d at 1143 (quoting Kent v. Prasse, 385 F.2d 406, 407 (3d Cir.1967)). Some common law torts do not rise to the constitutional level. Smith. “Recovery under Section 1983 is strictly limited to deprivations under the federal constitution and federal law.” Id. at 1144.

In order to recover under Section 1983, a plaintiff must show that the injury inflicted rose to the level of a constitutional tort, i.e., that the complained of conduct was so egregious as to exceed the boundaries of wrongful injuries redressable under tort law and which deprived the victim of a fourteenth amendment liberty interest without, [sic] due process of law.

Byrd v. Clark, 783 F.2d 1002 (11th Cir.1986) (citations omitted).

A substantive due process claim based upon an explicit or judicially recognized implicit substantive constitutional right does support a cause of action under Section 1983. Lamoureux, 648 F.Supp. at 1175.

The purpose of the Fifth and Fourteenth Amendments is to restrict or limit arbitrary and unreasonable governmental conduct. The Fourteenth Amendment, applying the ‘due process’ clause to the states, does not afford positive rights but it does prohibit arbitrary and unreasonable governmental action.

Haag v. Cuyahoga County, 619 F.Supp. at 275 (citing Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982)).

Two recent Third Circuit decisions apply the substantive due process analysis to cases where property owners were seeking land development or building use permits. In Bello v. Walker, 840 F.2d 1124 (3d Cir.1988), cert denied, 488 U.S. 851, 109 S.Ct. 134, 102 L.Ed.2d 107 (1988), the plaintiffs sued the defendants under Section 1983 for violations of their constitutional rights to due process and equal protection. Plaintiffs alleged that a number of municipal officials improperly influenced the decision to deny them building permits.

The issue addressed by the court in Bello was “whether a person’s constitutional right to due process can be violated when municipal officials process an application for a building permit pursuant to a constitutionally adequate procedure, but deliberately and arbitrarily abuse government power to deny the application.” Id. at 1126. The court concluded that the applicable federal ease law reveals that “the deliberate and arbitrary abuse of government power violates an individual’s right to substantive due process.” Id. at 1129. In applying this statement of the law to the case before it, the court concluded that the Bello plaintiffs presented sufficient evidence that certain council members improperly interfered with the process of issuing building permits for partisan political or personal reasons. The court found that the allegations, if proven, would be enough to establish a substantive due process violation. Id. at 1129.

In Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667 (3d Cir.1991), cert. denied, 508 U.S. 984, 112 S.Ct. 1668, 118 L.Ed.2d 389 (1992), the court addressed, inter alia, whether plaintiffs’ substantive due process rights were violated by the defendants’ denial of their dance hall licenses. Relying on Bello, the court stated that

allegations that the government’s actions in a particular case were motivated by bias, bad faith, or improper motive, such as partisan political reasons or personal reasons unrelated to the merits of the plaintiff’s application, may support a finding of substantive due process violation.

Midnight Sessions, 945 F.2d at 682.

The court also added, however, that in order to have a substantive due process violation, the denial of the permit must be arbitrary and capricious with no conceivable rational factual basis. Id. at 683. The Court concluded that one of the plaintiffs, Down South, could not possibly have a substantive due process claim for the denial of its occupancy permit because the premises were not in compliance with the applicable laws, ordinances and fire regulations. It could not have been lawfully occupied in any event. “Indeed, it would have been improper to grant it the license at the time that L & I acted on the application so the denial of the application was not arbitrary and capricious.” Id. at 686.

Anselma alleged in Count VIII of its amended complaint that Pennoni acted under color of state law to protect private interests and did not act fairly, evenhandedly or in the interest of the public.⁵ Anselma also alleged that Pennoni aided, abetted, advised and incited West Pikeland Township and its Supervisors to mount “an unwarranted effort to block Anselma’s rehabilitation and development of the Site, without a rational basis and in reckless disregard of Anselma’s rights.”⁶

But the Exhibits attached to Anselma’s own complaint show that, whatever the motivation of the Pennoni employees, their communications to the Township and other regulatory authorities had a rational basis arising out of the condition of the land itself. Attached to Anselma’s amended complaint are the four reports and memoranda created by Pennoni regarding the conditions at the site. These documents contain objective evidence to warrant a legitimate governmental concern about health and environmental problems at the site.

The May 23, 1990 letter to the Township from Pennoni addressed the issue of the sanitary facilities at the site. See Appellant’s Amended Complaint, Exhibit “B.” Pennoni reported therein that “[t]he septic system for the two apartments above the auto repair facility has failed or has been seriously curtailed in capacity.” The retaining tank was found to be full to the point of overflowing, “with effluent readily visible on the surface of the ground.” Pennoni further found that the auto repair facility and the inspection station restroom toilets were unable to function and had been in such a condition for ten months. No sanitary facilities could be observed for the mobile home; and the warehouse utilized a port-a-john stationed outside the building. Pennoni found that “a serious discrepancy is evident in the capability and capacity of the existing systems and that capacity which is technically required for the current uses.” Further, Pennoni reported observing a discharge of blackish-brown scum with the distinct stale odor of sanitary emission from a pipe into Pickering Creek. Anselma did not plead that these statements were false, merely that the engineers were improperly motivated in making them.

The letter of May 23, 1990 also addressed the results of water quality tests conducted at the site. There Pennoni stated that “[t]he fecal coliform results obtained by our office from sample points 1, 2 and 8 do not conclusively confirm contamination of the stream with human waste. The fecal coliform concentration (370 colonies/lOOml.) in the sample collected from point # 1, does suggest some contamination.” Pennoni pointed out that the “PaDER generally requires that the effluent from treatment plants have fewer than 200 colonies/lOOml.” Pennoni comments that samples obtained by the health department show a much greater evidence of contamination by human wastes.

In the July 9, 1990 memorandum from Pennoni to the Board of Supervisors, Penno-ni stated that the DER and Chester County Health Department “positively confirmed the existence of not only human waste discharge into the Pickering Creek, but the presence of soils contaminated with petroleum products at various locations on the site.” Pennoni further noted Anselma’s President’s continued failure to address the environmental problems at the site and referred to the applicable township ordinances, i.e. that Mr. Snader (Anselma’s President) is directly violating: Section 1005 l.(f) and Section 1005 l.(g) of the West Pikeland Township Zoning Ordinance.⁷

These documents, all of which are contained in Anselma’s Complaint, are evidence of a rational basis for Pennoni’s actions as alleged by Anselma. We cannot conclude that Pennoni’s actions in investigating the site and advising the Township to delay development of the site were arbitrary and capricious. The engineers reported on objective evidence of environmental hazards at the site. The existence of human waste discharge into Pickering Creek from the site’s sewage system and petroleum products in the soil in various locations throughout the site are ample justification for a township engineer to carry out his statutory duty and request a delay in Anselma’s development of the site until the proper remediation is accomplished.

For these reasons, we conclude that Ansel-ma has failed to allege a civil rights cause of action under Section 1983 for egregious or arbitrary conduct in violation of its substantive due process rights.

D. Equal Protection

Anselma further alleges that its right to equal protection under the law was violated by Pennoni because Pennoni treated “similarly situated” people differently. Specifically, Anselma alleges that Pennoni treated it and the former owner and former operator of the site differently. Pennoni allegedly urged local and state agencies to investigate and cite Anselma for possible environmental and health violations at the site when Pennoni had actual knowledge that those conditions were caused by the former owner and former operator of the site, not Anselma. Anselma argues that Pennoni set out to block its rehabilitation and development of the site by selectively enforcing local and state laws against Anselma while never moving to enforce those same laws against the former owner and former operator of the site.⁸

Pennoni argues that Anselma did not state a cause of action under Section 1983 for violation of its right to equal protection because Anselma and the former owner and former operator are, by definition, not similarly situated. According to Pennoni, a landowner with development plans is not similarly situated with a former owner or a tenant who has no ownership interest or stake in the proposed development. Further, Pennoni argues that Anselma’s amended complaint merely alleges a misapplication of the environmental, health and safety laws and not a violation of the Equal Protection Clause.

“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394-95, 72 L.Ed.2d 786 (1982)). To bring a successful claim under Section 1983 for a denial of equal protection, Anselma must show that it “ ‘[received] different treatment from that received by other individuals similarly situated.’” Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir.1990) (quoting Kuhar v. Greensburg-Salem School Dist., 616 F.2d 676 (3d Cir.1980)). However, “[a]n equal protection claim fails when it ‘at most amounts to an allegation that state law was misapplied in [an] individual case.’” ARA Services, Inc. v. School District of Philadelphia, 590 F.Supp. 622 (E.D.Pa.1984) (quoting Short v. Garrison, 678 F.2d 364, 368 (4th Cir.1982)).

Anselma merely alleges that state laws which could have been applied by the Township against the former owner and former operator of the site but were not, were unfairly applied against it. Anselma fails to allege, however, a constitutional violation of civil rights pursuant to the Equal Protection Clause.

The Township is charged with the duty to protect the public from harmful environmental conditions. To discharge this duty, the Township exercises its police power against landowners whose property endangers the health and safety of the public. As cited in the previous section, the property owned by Anselma and Mr. Snader violated numerous environmental and safety laws as well as the Township zoning ordinance.⁹ The Township was well within its rights, and in fact had a duty, to delay any development on a site with the conditions found at Anselma’s site.

Pennoni’s investigation into the conditions of the site did not begin until after Anselma submitted its plans to develop the site. The former owner and former operator did not submit development plans to the Township. Anselma, as the present owner of the site, is required to address the Township’s legitimate concerns regarding the site’s environmental conditions before its development of the site may legally progress.

Under the facts as alleged in the amended complaint and found in the documents attached to the amended complaint, we cannot conclude that Anselma properly alleged a violation of its equal protection rights. At most, “Anselma pleaded misapplication of state tort laws. Their allegations, however, do not rise to the level of a constitutional civil rights violation. If these allegations survive further pre-trial proceedings and are proven at trial, the wrongs alleged may be redressed in a trial of the remaining counts of the Complaint which the trial judge did not dismiss.

Conclusion

For the reasons stated above, we conclude that Anselma failed to plead a cause of action for a violation of its right to procedural due process, substantive due process and equal protection pursuant to Section 1983. Therefore, we affirm the trial court’s order dismissing Count VIII of Anselma’s amended complaint.

ORDER

AND NOW, this 3rd day of February, 1995, it is ordered that the March 16, 1993 order of the Court of Common Pleas of Chester County is hereby affirmed. The matter is remanded to that Court for further proceedings consistent with this opinion and with the Order of that Court dated March 16, 1993.

Jurisdiction relinquished.

Footnotes

1

. Our scope of review is to determine whether, on the facts alleged, the law states with certainty that no recovery is possible. Hawks by Hawks v. Livermore, 157 Pa.Commonwealth Ct. 243, 246 n. 3, 629 A.2d 270, 271 n. 3 (1993). We must accept as true all well pled allegations and material facts averred in the complaint as well as inferences reasonably deducible therefrom and any doubt should be resolved in favor of overruling the demurrer. Id.

2

. The jurisdiction of this Court is based upon 42 Pa.C.S. § 762(a)(4)(i)(A) in that it involves the application or enforcement of statutes regulating the affairs of a political subdivision or its agents (i.e. the township engineers) acting in their official capacity.

3

. 145. The defendants acted under color of state law to deprive Anselma of its property interests in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

(Appellant's Brief, Appendix "B" at 35.)

4

. "Substantive due process involves the fundamental or natural rights of an individual.” Haag v. Cuyahoga County, 619 F.Supp. 262, 275 (N.D.Ohio, 1985).

5

. (Appellant's Brief, Appendix “B" at 35.)

6

. (Appellant's Brief, Appendix "B” at 5.)

7

. Prohibited uses and performance standards.

(f) Discharge any untreated sewage, or industrial waste into any stream, or otherwise contribute to the pollution of surface or underground waters.

(g) Create any other objectionable condition in an adjoining area which will endanger public health and safety or be detrimental to the proper use of the surrounding area.

Section 1005 l.(f) and (g).

8

. Anselma points out that after investigating the site at Pennoni’s request, DER cited the former operator of the site and ordered the former owner to undertake remedial action at the site but did not cite Anselma or order it to take any remedial action.

9

. Generally, a board’s failure to uniformly enforce zoning regulations does not preclude subsequent enforcement of the same. Ridley Township v. Pronesti, 431 Pa. 34, 244 A.2d 719 (1968); Kar Kingdom, Inc. v. Zoning Hearing Board of Middletown Township, 88 Pa.Commonwealth Ct. 364, 489 A.2d 972 (1985); Braccia v. Upper Moreland Zoning Hearing Board, 16 Pa.Commonwealth Ct. 214, 327 A.2d 886 (1974).

Knipple v. Geistown Borough Zoning Hearing Board, 155 Pa.Commonwealth Ct. 120, 124, 624 A.2d 766, 768 (1993).