Richard Giuliani, Sr. v. Township of Springfield

• Court: Court of Appeals for the Third Circuit
• Decided: March 6, 2018
• Docket: 17-1675
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 17-1675 ____________

RICHARD GIULIANI, SR.; RICHARD GIULIANI, JR.,

Appellants

v.

SPRINGFIELD TOWNSHIP; SPRINGFIELD TOWNSHIP BOARD OF COMMISSIONERS; SPRINGFIELD TOWNSHIP ZONING HEARING BOARD; WILLILAM R. HOUSEHOLDER, JR., D.J.; GLENN A. SCHAUM, Commissioner, Springfield Township; JEFFERY T. HARBISON, Commissioner, Springfield Township; BAIRD M. STANDISH, Commissioner, Springfield Township; ROBERT E. GILLIES, JR., Commissioner, Springfield Township; ALISON MCGRATH PIERCE, Commissioner, Springfield Township; JAMES E DAILEY, Commissioner, Springfield Township; DOUGLAS J. HELLER, Commissioner, Springfield Township; DONALD E. BERGER, Township Manager, Springfield Township; JOSEPH DUNLOP, Zoning Officer, Springfield Township; CHARLES H. BAILEY, Code Enforcement Officer, Springfield Township; RICHARD LESNIAK, Code Enforcement Officer, Springfield Township; AMY RIDDLE MONTGOMERY, P.E. Code Enforcement Officer, Springfield Township; JOSEPH BAGLEY, Springfield Township ____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-10-cv-07518) U.S. District Judge: Honorable Thomas N. O’Neill, Junior ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) Submitted December 15, 2017

Before: CHAGARES, RESTREPO and FISHER, Circuit Judges.

(Filed: March 6, 2018) ____________

OPINION* ____________

FISHER, Circuit Judge.

This lawsuit grows out of a protracted zoning and land-use dispute between

property owners and their municipality. The property owners, Richard Giuliani, Sr. and

Richard Giuliani, Jr., filed suit under 42 U.S.C. § 1983 claiming procedural and

substantive due process violations. The District Court entered summary judgment in

favor of Defendants Springfield Township, its Board of Commissioners, its Zoning

Hearing Board, and township officials.1 Plaintiffs appeal. We will affirm.

I.

A. The Property and the Tenancy of Future Commissioner Schaum

In 1996, Plaintiffs bought a five-acre industrial property. There were a half dozen

tenants on the property and in its three structures (an office building, a warehouse, and a

Quonset hut). In late 1996 and early 1997, Plaintiffs’ property manager sent several

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 Following the convention of the District Court and the parties, we refer to Defendants collectively as “the Township.” 2 letters regarding delinquent rent to tenant Glenn Schaum. Eviction proceedings, although

threatened, never took place because Schaum voluntarily vacated the property. Later in

1997, Schaum was elected to the Springfield Township Board of Commissioners.

B. The Township’s Requests for a Land Development Plan

In 2001, the Township told Plaintiffs—twice—that they needed to submit a land

development plan for their property. No plan had ever been submitted by the property’s

former owners. The Township’s first notification was in response to Plaintiffs’ inquiry

about improvements they contemplated making to the property. The second notification

cited the Pennsylvania Municipalities Code, which requires a land development plan

when a property owner enters into multiple leaseholds. In July 2002, eight months after

the second notification, Plaintiffs submitted a conceptual or sketch plan.

In July 2003, the Township notified Plaintiffs a third time that a land development

plan was required. The letter said that if a plan was not submitted in thirty days, the

Township would “commence enforcement actions.”2 Instead of filing a plan, Plaintiffs

applied for a zoning variance with regard to the required number of parking spaces.

While the Township was repeatedly requesting a land development plan, Plaintiffs

continued to rent the property to multiple tenants. Also during this time period, the

Township issued a citation for lack of a development plan and a notice of multiple code

violations.

2 App. 4489. 3 C. The Outcome of the Land Development Plan

In February 2004—more than two years after the Township’s first letter advising

Plaintiffs that a land development plan was needed, and seven months after the “formal

notice” to the same effect—Plaintiffs finally submitted a plan. The Township engineer

and Plaintiffs’ land use consultant subsequently engaged in three rounds of review and

revision of the plan. The engineer and the consultant both testified at deposition that this

iterative process was common in land development.

While the Township engineer and Plaintiffs’ consultant were going back and forth

on the plan, the Township Code Enforcement Officer/Fire Marshal inspected the property

and identified code violations. He concluded, among other things, that § 1702.8 of the

Building Code required a fire suppression system to be installed because part of the

property was being used for auto repair. Plaintiffs appealed the Fire Marshal’s ruling to

the Board of Commissioners.

In August 2004, the Township agreed to abandon or modify some of the

engineer’s latest conditions. At that point, Plaintiffs’ land use consultant was optimistic

that the remaining work could be completed in a week and that the plan would be

approved. But, for reasons the consultant never knew, Plaintiffs directed him to stop work

on the project.

Despite stopping their consultant’s work, Plaintiffs sought extensions for plan

approval and the appeal of the fire suppression system ruling. The Township sent a letter

4 saying that the extensions would be granted until November 30—on the condition that

Plaintiffs make substantial progress on both matters by the time of the Commissioners’

November meeting. Otherwise, the letter warned, the Commissioners would decline

further extensions and decide both matters based on existing documentation.

The Commissioners did indeed act before November 30, as they had said they

might. At their November 8, 2004 meeting, the Commissioners voted to deny the fire

suppression system appeal and the land development application. They sent a letter to

Plaintiffs explaining the reasons for denial of the plan, several of which were issues the

Township had agreed in August to modify or abandon. Plaintiffs appealed both decisions

to the Montgomery County Court of Common Pleas. The court summarily affirmed.

Plaintiffs did not appeal to the Commonwealth Court, as they had the right to do.

D. The State Court Lawsuit

In January 2005, the Township sued Plaintiffs in the Court of Common Pleas,

requesting an injunction directing that the property be vacated until the code violations

had been addressed. The parties subsequently settled some of the issues in the

Township’s lawsuit and litigated others to judgment. Under the settlement, Plaintiffs

would install a fire detection (not suppression) system, Plaintiffs would obtain use and

occupancy permits before any new tenants moved in, and the Township would withdraw

the outstanding citations. Under the court order disposing of the remaining issues,

Plaintiffs could not enter into or extend any leases before they complied with the code by,

5 among other things, obtaining approval for a land development application. The court

also ordered that three of Plaintiffs’ tenants vacate the property. Plaintiffs did not appeal.

E. The Conflicts Continue

With the parties’ state court actions concluded as of March 2006, the record goes

quiet for two and a half years. Then, in September 2008, the Township wrote letters to

Plaintiffs—and began issuing daily citations—because vehicles were being stored on the

property for multiple owners. The Township said the Court of Common Pleas’ order did

not allow this. A district justice found Plaintiffs guilty of the cited offense and they

appealed to the Court of Common Pleas.

The Township also sent Plaintiffs a separate letter stating that the property

appeared to be in use as a school bus terminus, which was not permitted for property

zoned as industrial. Plaintiffs appealed to the Zoning Hearing Board, which ruled in their

favor.

F. Plaintiffs’ Assertions about Defendants’ Motives and Conduct

Plaintiffs assert that the record is replete with evidence of Township officials’

hostility and harassment. For example, they say that the fire suppression requirement was

“hypocritical” because it had not been considered necessary when Glenn Schaum, who

later became a Township commissioner, was a tenant.3 However, the auto body business

that triggered the fire suppression system requirement moved onto the property six years

3 Appellant’s Br. 7. 6 after Schaum vacated.

Plaintiffs also say that Township officials insisted they obtain building permits for

minor repairs such as repairing broken window glass. Their appendix citations show that

they applied for a permit to replace windows, not to repair broken glass. 4 As a final

example, Plaintiffs cite a letter from the Township to one of their tenants saying that

rubbish could not be stored on the property. Plaintiffs claim that the rubbish had been put

out for same-day pickup, but their appendix citations provide no evidence that the items

were picked up the same day they were put out.5

G. Procedural History

In December 2010, Plaintiffs filed this lawsuit. Relevant to this appeal, they

asserted claims under 24 U.S.C. § 1983 for violations of their procedural and substantive

due process rights. After no fewer than five years of discovery, the District Court granted

Defendants’ motion for summary judgment.

II.

The District Court had federal question jurisdiction.6 We have appellate

jurisdiction to review the District Court’s final order.7 “We review a district court’s grant

4 Appellants’ Br. 5 (citing App. 4477-81, among other appendix pages). 5 Appellants’ Br. 4-5 (citing App. 4487, among other appendix pages). 6 28 U.S.C. § 1331. 7 28 U.S.C. § 1291. 7 of summary judgment de novo, applying the same standard as the district court.” 8

Viewing the facts in the light most favorable to the non-movant, we affirm if there is no

genuine issue of fact and the movant is entitled to judgment as a matter of law.9

III.

A.

Plaintiffs argue that there is a genuine issue of material fact regarding their

procedural due process claim because the Township’s zoning and land use procedures

were subverted for personal ends and were a sham. Their argument misapprehends the

law.

In order to establish a procedural due process violation, the plaintiff must show

that “the state procedure for challenging the deprivation does not satisfy the requirements

of procedural due process.”10 A District Court case concisely expresses the point that

Plaintiffs miss: “the focus in procedural due process claims is on the adequacy of the

remedial procedure, and not on the government’s actual actions that allegedly deprived

the individual of his liberty or property interest.”11

8 S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 256 (3d Cir. 2013). 9 Id.; Fed. R. Civ. P. 56. 10 DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 597 (3d Cir. 1995), abrogated on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA, 316 F.3d 392 (3d Cir. 2003). 11 K.S.S. v. Montgomery Cnty. Bd. of Comm’rs, 871 F. Supp. 2d 389, 397-98 (E.D. Pa. 2012). 8 “[A] state provides constitutionally adequate procedural due process when it

provides reasonable remedies to rectify a legal error by a local administrative body.”12

Thus, “when a state ‘affords a full judicial mechanism with which to challenge the

administrative decision in question,’ [it] provides adequate procedural due process,

whether or not the plaintiff avails him or herself of the provided appeal mechanism.”13

The District Court outlined Pennsylvania’s appeal process for the Township’s decisions.

That process provides reasonable remedies for parties who are aggrieved by local land

use decisions, including review by the Court of Common Pleas and/or the Board of

Commissioners, plus further review by Pennsylvania appellate courts.14

Plaintiffs’ arguments focus solely on how the Township arrived at the decisions to

deny their land use application and fire code appeal. They do not argue that the remedial

process (of which they partly availed themselves, appealing as far as the Court of

Common Pleas) failed to provide reasonable remedies. The District Court did not err in

granting summary judgment on their procedural due process claim.

B.

Plaintiffs’ substantive due process argument also fails. We determine “whether a

zoning official’s actions or inactions violate [substantive] due process . . . by utilizing a

12 DeBlasio, 53 F.3d at 597. 13 Id. (quoting Bello v. Walker, 840 F.2d 1124, 1128 (3d Cir. 1988)). 14 Giuliani v. Springfield Twp., 238 F. Supp. 3d 670, 690-91 (E.D. Pa. 2017). 9 ‘shocks the conscience’ test.”15 This test “is designed to avoid converting federal courts

into super zoning tribunals” by limiting substantive due process violations to “only the

most egregious official conduct.”16

Plaintiffs argue that a reasonable factfinder could conclude that three of the

individual Defendants’ actions “rested on revenge and spite.”17 As our precedents make

clear, this is beside the point. In United Artists Theatre Circuit, Inc. v. Township of

Warrington, we applied Supreme Court precedent and rejected the improper-motive

standard. We ruled that the substantive due process test is, instead, whether local

officials’ conduct shocks the conscience.18

Plaintiffs do not argue, nor does their lengthy factual recitation show, that the

Township’s behavior shocks the conscience. In Eichenlaub v. Township of Indiana, we

held that it is not enough to show that officials “applied subdivision requirements to [the

plaintiffs’] property that were not applied to other parcels; that they pursued unannounced

and unnecessary inspection and enforcement actions; that they delayed certain permits

and approvals; that they improperly increased tax assessments; [or] that they maligned

and muzzled the [plaintiffs].”19 The evidence Plaintiffs point to here falls short of even

the level of evidence that, we concluded, was insufficient to create a genuine issue of

15 Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004) (quoting United Artists, 316 F.3d at 399). 16 Id. (quoting United Artists, 316 F.3d at 400). 17 Appellant’s Br. 23; see also id. at 12-18. 18 United Artists, 316 F.3d at 400-01. 19 385 F.3d at 286. 10 material fact in Eichenlaub.

Plaintiffs seize on our statement that “corruption or self-dealing” would violate

due process.20 But there is no evidence of corruption or self-dealing, such as bribery or an

attempt by a Township official to acquire the property for himself or herself. Indeed, the

record mainly reveals Plaintiffs’ own obstinacy and delay. Having thoroughly reviewed

the record, as did the District Court, we conclude there is no evidence of conscience-

shocking behavior, and thus no genuine factual dispute on the issue.

IV.

For the reasons set forth above, we will affirm.

20 Id. 11