                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-10-2006

Dev Grp LLC v. Franklin Twp Bd Supv
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1055




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                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                              No. 05-1055


               THE DEVELOPMENT GROUP, LLC,
                     doing business as DIJO;
           PARSONS ROAD DEVELOPMENT GROUP, LTD,

                                              Appellants

                                    v.

   FRANKLIN TOWNSHIP BOARD OF SUPERVISORS; ANDREW SULLIVAN;
ANTHONY YARMOLYK; ROBERT MEYER; DOLORES MORRIS; JOSEPH NEWMAN;
     HAROLD WALLS; FRANKLIN TOWNSHIP PLANNING COMMISSION;
     KEVIN BARROW; MARK HARRIS; DAVID HOFFMAN; CARL MEHN;
       BRUCE MORRIS; DAVID TOMAN; JOHN S. HALSTED, ESQUIRE




               Appeal from the United States District Court
                 for the Eastern District of Pennsylvania
                       (D.C. Civil No. 03-cv-02936)
              District Judge: Honorable Michael M. Baylson




                       Argued December 7, 2005

       Before: RENDELL, FISHER and GREENBERG, Circuit Judges.

                        (Filed January 10, 2006 )
William T. Hangley [ARGUED]
Rebecca Y. Starr
Lisa M. Candera
Hangley, Aronchick, Segal & Pudlin
One Logan Square, 27th Floor
Philadelphia, PA 19103

Counsel for Appellants
The Development Group, LLC,
Doing Business as Dijo;
Parsons Road Development Group, Ltd.


Andrew J. Bellwoar [ARGUED]
Siana, Bellwoar & McAndrew
941 Pottstown Pike, Suite 200
Chester Springs, PA 19425

Counsel for Appellees
Franklin Township Board of Supervisors;
Andrew Sullivan; Anthony Yarmolyk;
Robert Meyer; Dolores Morris;
Joseph Newman; Harold Walls;
Franklin Township Planning Commission;
Kevin Barrow; Mark Harris; David Hoffman;
Carl Mehn;Bruce Morris; David Toman


Paul C. Troy [ARGUED]
Kane, Pugh, Knoell & Driscoll
510 Swede Street
Norristown, PA 19401

Counsel for Appellee
John S. Halsted, Esquire




                                            2
                                OPINION OF THE COURT


RENDELL, Circuit Judge.

       The Development Group, LLC and Parsons Road Development Group, Ltd.

(together, “Development Group”), own two adjacent parcels of land on Miller Farm in

Franklin Township, Pennsylvania. The Franklin Township Board of Supervisors

rejected Development Group’s application for preliminary approval of its plan to develop

the Miller Farm parcels. Development Group appealed the denial to the Court of

Common Pleas for Chester County and the Commonwealth Court; both courts affirmed

the Board of Supervisors’ decision. As its appeal was pending in the Pennsylvania

courts, Development Group filed a complaint against the Board of Supervisors, the

Franklin Township Planning Commission, various individual members of those bodies

(the “Township Defendants”), and John S. Halsted, the Township Solicitor, in the

District Court for the Eastern District of Pennsylvania, alleging violations of its rights to

procedural due process, substantive due process and equal protection. The District Court

resolved these claims by granting the Township Defendants’ motion to dismiss the

procedural due process and equal protection claims, Dev. Group, LLC v. Franklin Twp.

Bd. of Supervisors, 2003 WL 22358440, at *11 (E.D. Pa. Sept. 24, 2003), and granting

Halsted’s and the Township Defendants’ motions for summary judgment on the


                                              3
substantive due process claim. Dev. Group, LLC v. Franklin Twp. Bd. of Supervisors,

2004 WL 2812049, at *22 (E.D. Pa. Dec. 7, 2004).

       Development Group now appeals the District Court’s order granting summary

judgment in favor of the Defendants on the substantive due process claim. The District

Court concluded, in a thorough and well-reasoned opinion, that Development Group has

not raised a genuine issue of material fact as to whether Defendants’ actions violated

Development Group’s substantive due process rights. We agree and will affirm.

       To succeed on a substantive due process claim in the land use setting, a plaintiff

must allege and prove executive action that “shocks the conscience.” United Artists

Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392, 401 (3d Cir. 2003).

Although “the meaning of this standard varies depending on the factual context,” id. at

400, it “encompasses ‘only the most egregious official conduct.’” Id. (quoting County of

Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). Under this demanding standard, we

have little difficulty upholding the District Court’s determination that none of the facts

advanced by Development Group in this case rises to the level of conscience-shocking

behavior.

       Development Group’s claim is based on three purported examples of “conscience-

shocking” behavior by the Defendants: (1) self dealing by the Board in rezoning the

Miller Farm properties to benefit members of the Planning Commission; (2) attempted

bribery by Township officials who offered to give Development Group priority in future


                                             4
Township development projects if they would abandon the Miller Farm plans; and (3)

Halsted’s suggestion that the parties wait to negotiate until after the plans were rejected

to avoid application of the Pennsylvania Sunshine Act, 65 Pa. Cons. Stat. § 701 et seq.1

       We need not decide whether the type of self dealing that Development Group

asserts, if true, would shock the conscience because we agree with the District Court that

Development Group has proffered insufficient evidence to support its theory. See id. at

*16. Its assertions that the Board of Supervisors rezoned the Miller Farm property to

benefit members of the Planning Commission amount to no more than conjecture. “Mere

speculation about the possibility of existence of such facts does not entitle [plaintiffs] to

go to trial.” Sterling Nat’l Mortgage Co. v. Mortgage Corner, Inc., 97 F.3d 39, 45 (3d

Cir. 1996).

       As for Development Group’s claims of attempted bribery and violation of the

Pennsylvania Sunshine Act, we cannot discern anything conscience-shocking in the

behavior of which Development Group complains. Rather, we interpret the Township’s

efforts to offer Development Group other development projects and Halsted’s proposal

that the parties should enter into settlement negotiations once the plans were rejected as


       1
         On appeal, Development Group also points out that the Zoning Hearing Board set
aside the ordinance that rezoned the Miller Farm parcels, but it fails to explain how this
fact alters the shock-the-conscience analysis. We conclude that it does not, for “[a] bad
faith violation of state law remains only a violation of state law,” and does not, without
more, rise to the level of a substantive due process claim. Chesterfield Dev. Corp. v. City
of Chesterfield, 963 F.2d 1102, 1105 (8th Cir. 1992), cited in United Artists, 316 F.3d at
402.

                                              5
reasonable attempts to resolve the dispute over the Miller Farm property. Moreover, as

the District Court noted, there is no evidence that any of the Defendants actually did

anything illegal. See Dev. Group, 2004 WL 2812049, at *17, 18 n.18. We therefore

agree with the District Court that, “[e]ven when taken as a whole, Defendants’ conduct,

though harsh, was not so extreme as to shock the conscience.” Dev. Group, 2004 WL

2812049, at *18.

       Although it has set forth various ways in which it contends that the Township’s

actions shock the conscience, the essence of Development Group’s complaint appears to

be that the Township never intended to allow it to develop the Miller Farm property.

Because its preliminary plans conformed to the applicable zoning scheme–“high density

residential” or “HDR”–Development Group claims that it was entitled to approval “by

right.” However, the Court of Common Pleas and the Commonwealth Court held that

the Board of Supervisors acted within its rights and in accordance with Pennsylvania law

when it denied Development Group’s plans.

       Our decision in United Artists Theatre Circuit, Inc. v. Township of Warrington

makes clear that federal courts are not to be “cast in the role of a ‘zoning board of

appeals.’” 316 F.3d at 402 (quoting Creative Env’ts , Inc. v. Estabrook, 680 F.2d 822,

833 (1st Cir. 1982)). “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.” Id. Given the state courts’


                                              6
rulings upholding the local officials’ action and the strength of our previous

pronouncements on this issue, we have trouble understanding why the parties continue to

press what essentially amounts to an appeal from local zoning decisions in federal court.

       For the foregoing reasons, we conclude that there is no genuine issue of material

fact as to whether Defendants’ actions shock the conscience, even when viewed in the

light most favorable to Development Group, and that Defendants are entitled to judgment

as a matter of law. We have considered all of the other arguments advanced by the

parties and conclude that no further discussion is necessary. Accordingly, we will

AFFIRM the judgment of the District Court.

       _____________________




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