Parker Avenue, L.P. v. City of Philadelphia

175 F. Supp. 3d 457, 2013 WL 4196420, 2013 U.S. Dist. LEXIS 115310
CourtDistrict Court, E.D. Pennsylvania
DecidedAugust 15, 2013
DocketCivil Action No. 13-121
StatusPublished
Cited by4 cases

This text of 175 F. Supp. 3d 457 (Parker Avenue, L.P. v. City of Philadelphia) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parker Avenue, L.P. v. City of Philadelphia, 175 F. Supp. 3d 457, 2013 WL 4196420, 2013 U.S. Dist. LEXIS 115310 (E.D. Pa. 2013).

Opinion

MEMORANDUM

BARTLE, District Judge.

Plaintiff Parker Avenue, L.P., a real estate developer, has sued defendants City of Philadelphia (the “City”) and the Philadelphia City Council (“City Council”) under 42 U.S.C. § 1983 for violation of its constitutional rights to Equal Protection, Procedural Due Process, and Substantive Due Process for defendants’ failure to pave a street. Plaintiff seeks declaratory relief, monetary damages, attorney’s fees, and a writ of mandamus to compel the City and City Council to act. The defendants have moved to dismiss the amended complaint on the ground that it does not state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure.1

I.

According to the amended complaint, plaintiff owns land located at 201-261 (Rear) Parker Avenue in the 21st Ward of the City of Philadelphia. The tract is within the 4th Councilmanic District now represented by Councilman Curtis Jones, Jr. For the past seven years, plaintiff has been seeking to develop the property and presently proposes a plan with 48 semidetached residences. While zoning is not an impediment and various necessary approvals and clearances from the City and the Commonwealth have been obtained, the City Council, despite the repeated requests of plaintiff, has never passed an ordinance to pave part of Cinnaminson Street which apparently adjoins the property. Plaintiff maintains that without the paving of this street the development of the property cannot go forward.

Plaintiff further avers that two bills to accomplish this purpose were introduced into City Council in 2007 and referred to Council’s Committee on Streets and Services. However, they were subsequently removed from the agenda. According to the amended complaint, the local Ridge Park Civic Association (“Civic Association”) persuaded Councilwoman Carol Campbell and her successor Councilman Jones not to support the bills. Pursuant to custom in City Council, no bills of this kind will proceed without the endorsement of the member of Council in whose district the real estate in issue is located. In 2012, Councilman Jones, at the suggestion of the Civic Association, introduced a bill to remove access to the property. Plaintiff does not allege that any action has been taken on this bill.

The amended complaint cites eight ordinances passed by City Council between 2007 and 2012 which authorize the paving of a street to facilitate residential development. Including these eight, 39 paving bills were introduced in the last ten years and all were passed by City Council except [460]*460for the one at issue here relating to Cinna-minson Street. Plaintiff avers that “defendants intentionally singled out plaintiff for different treatment and failed to authorize the paving ordinance required for plaintiffs proposed development.”

As a result of the allegedly unconstitutional conduct of defendants, plaintiff asserts it has been prohibited “from reasonably using, developing and enjoying a tract of land it owns in the City” and has lost a substantial amount of money as a result. As noted above, in addition to damages, it seeks declaratory relief as well as mandamus to compel the City and City Council to authorize the paving of Cinnaminson Street.

II.

Defendants argue that plaintiff has not stated a claim under 42 U.S.C. § 1983 which provides in relevant part:

Every person who, 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, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

First, defendants challenge plaintiffs claim that defendants have violated its right to equal protection under the Fourteenth Amendment to the Constitution. Plaintiff asserts that it is a class of one. In Village of Willowbrook v. Olech, the Supreme Court allowed a plaintiff to proceed with an equal protection claim where her municipality had demanded a 33 foot easement to connect her property to its water supply where other similarly situated property owners were only required to grant 15 foot easements. 528 U.S. 562, 565, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Plaintiff had alleged that the Village had acted simply out of spite because plaintiff had successfully sued the Village on an unrelated matter. Id. at 563, 120 S.Ct. 1073. The Supreme Court held that where a plaintiff alleges she was intentionally treated differently from others similarly situated and no rational basis exists for difference in treatment, the plaintiff does not need to be a member of a group or class but may be a class of one. Id. at 565, 120 S.Ct. 1073.

As with any equal protection claim, the plaintiff must plead that it has been treated differently than others similarly situated, that is, differently than others who are “alike in all relevant aspects.” Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir.2008) (internal quotation omitted). Plaintiff, in support of its equal protection claim, alleges the passage by City Council of eight ordinances which provide for the paving of streets in connection with residential development. The court will take judicial notice that the streets involved are in various sections or neighborhoods of Philadelphia and not all are even in the 21st Ward like the property in issue. There is no reference to whether these ordinances were supported or opposed by any neighbors or any local civic association. Plaintiff has also alleged nothing, for example, about the similarities of the locations or their surroundings as they relate to such matters as traffic, noise, congestion, density, type of zoning, or size of the residential development. With respect to the other paving ordinances, we know virtually nothing except the streets involved.

The Supreme Court requires a pleading to contain sufficient factual allegations which, if true, establish the plausibility of the claim that plaintiff is being treated differently than all others similarly situat[461]*461ed, that is, than all others who are alike in all relevant aspects. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell Atlantic v. Twoombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The amended complaint is simply insufficient to demonstrate the requisite plausibility.

Moreover, there is nothing other than legal conclusions in the amended complaint that the inaction of Council members Campbell and Jones and of City Council is irrational or arbitrary.2

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Cite This Page — Counsel Stack

Bluebook (online)
175 F. Supp. 3d 457, 2013 WL 4196420, 2013 U.S. Dist. LEXIS 115310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-avenue-lp-v-city-of-philadelphia-paed-2013.