                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-27-2001

Cowell v. Palmer
Precedential or Non-Precedential:

Docket 00-1075




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Recommended Citation
"Cowell v. Palmer" (2001). 2001 Decisions. Paper 193.
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Filed August 27, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1075

EILEEN COWELL; RICHARD COWELL;
SYLVESTER PANY; EASTGATE LAND &
DEVELOPMENT CORP.,

       Appellants

v.

PALMER TOWNSHIP; DONALD S. HIMMELREICH;
VIRGINIA S. RICKERT; THEODORE BOREK;
ROBERT LAMMI; JEFFREY YOUNG; ROBERT ELLIOT;
ROBERT WASSER; H. ROBERT DAWS; HEMSTREET,
HIMMELREICH & NITCHKEY; JOHN DOES

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 99-cv-03216)
District Judge: Hon. Thomas N. O'Neill, Jr.

Argued: May 21, 2001

Before: BECKER, Chief Judge, SLOVITER, and
AMBRO, Circuit Judges

(Filed August 27, 2001)

       Maurice R. Mitts (Argued)
       Heather Gelfand Ptasznik
       Philadelphia, PA 19103

        Attorneys for Appellants
       Maureen P. Fitzgerald (Argued)
       McKissock & Hoffman, P.C.
       Philadelphia, PA 19103

        Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Eileen Cowell, Richard Cowell, Sylvester Pany, and
Eastgate Land & Development Corp. (collectively"plaintiffs")
brought takings and due process claims pursuant to 42
U.S.C. S 1983, as well as various state law claims, against
Palmer Township, various township officials, and the
Township's law firm (collectively "defendants"). The basis for
these claims was the defendants' alleged interference in the
plaintiffs' land development plans, specifically the
imposition of two municipal liens on the plaintiffs'
properties in 1992 and 1993. The District Court dismissed
the federal law claims under Fed. R. Civ. P. 12(b)(6),
declined to allow plaintiffs leave to amend their complaint,
and further dismissed the state law claims without
prejudice. We now review the plaintiffs' appeal.

I.

FACTS AND PROCEDURAL HISTORY

Eileen Cowell, Richard Cowell, and Sylvester Pany were
owners of Eastgate Land & Development Corp. ("Eastgate"),
a Pennsylvania real estate development company that
owned a 23-acre parcel of land in Palmer Township,
Pennsylvania known as the Palmer Business Park. In 1987,
the plaintiffs began a three phase project to improve the
land for development. This project was subject to the local
land use codes of Palmer Township. Defendants Robert
Lammi, Jeffrey Young, Robert Elliot, Robert Wasser, and H.
Robert Daws were on the Township's Board of Supervisors
at all relevant times. Defendant Virginia S. Rickert was also
on the board and served as the Treasurer of Palmer

                                  2
Township. Defendant Theodore Borek was the Township's
Director of Planning. Defendant Donald Himmelreich was
the Solicitor for Palmer Township, and his law firm,
Hemstreet, Himmelreich & Nitchkey, served as counsel to
the Township.

Appellants planned to sell lots to McDonalds and
Kentucky Fried Chicken for the development of restaurants,
as well as to build a shopping mall to be called Eastgate
Mall. Before contracts could be signed to finalize these
plans, the Township allegedly changed the zoning
classification of these lots from commercial use to"planned
office buildings," thereby preventing the development of
these commercial enterprises. Eastgate sued to prevent
these zoning changes from taking effect. Plaintiffs allege,
and defendants do not deny, that the parties reached a
settlement in which Eastgate agreed to cease its plans to
build the Eastgate Mall and the Township agreed to
approve all projects that had already been proposed for
Phases I, II, and II(a) at Palmer Business Park as well as
assume responsibility for certain municipal improvements.
But when Eastgate proceeded with the development of
Phase II, the Township allegedly imposed a building
moratorium in July 1987 which prohibited any and all
commercial development of the property and caused severe
financial hardship for Eastgate.

It is the allegations of the events occurring after 1990
that are most relevant to this appeal. Beginning in 1990,
the plaintiffs worked to improve Lots 12 through 17 of
Palmer Business Park in order to sell them as buildable
lots. On October 22, 1992, the Township imposed a
$25,000 lien on Lots 14 and 15, naming Richard Cowell
and Nicholas J. Pugliese as owners of those lots. The lien
was filed "on the basis of anticipated non-payment of the
installation of certain municipal improvements." App. at
206.

The Township explains that the lien was imposed
pursuant to an agreement that Cowell and Pugliese would
be responsible for paying for paving work on a subdivision
called Milford Street, with the Township serving as the
guarantor. The Township contends that when neither
Cowell nor Pugliese paid the paving contractor on time, the

                                3
Township paid the bill and then imposed the lien. The
plaintiffs respond that Richard Cowell had sold his interest
in Milford Street to Pugliese in 1991 and should not have
been responsible for any municipal improvements. More
important, they argue that the lien was unlawful under the
Municipal Lien Code, 53 Pa. Cons. Stat. Ann. SS 7101 et
seq., because no improvements were made on Lots 14 and
15 for which a lien could be legally placed. They further
argue that the Township imposed the lien to retaliate
against them for successfully challenging the Township's
zoning changes in 1987 and to cause financial harm to the
plaintiffs.

On March 9, 1993, the Township imposed a second
municipal lien in the amount of $250,000 on the
subdivisions of Palmer Business Park owned by Eastgate.
This lien was filed "for present and future unfunded escrow
review accounts and unfunded escrow accounts for
municipal improvements." App. at 209. On March 24,
1993, Himmelreich sent a letter to Eastgate on behalf of the
Township explaining that the lien was intended to serve as
a security for (1) the anticipated failure by Eastgate to
complete municipal improvements and (2) the unlawful
depletion of funds held in an escrow account for the
Township's benefit, accomplished by Richard and Eileen
Cowell forging signatures of various township officials in
order to obtain the release of various funds held in escrow.

The Cowells had indeed pled guilty to forgery and theft by
receipt of stolen property. However, the plaintiffs contend
that the reference to the Cowells' criminal conduct was a
smokescreen and that the $250,000 lien was imposed for
the municipal improvements only. They further allege that
the Township refused to remove this lien even after it was
informed that the plaintiffs had sufficient funds to pay for
the municipal improvements.

In April 1994, Eastgate filed a Chapter 11 bankruptcy
petition. As part of their Plan of Reorganization, Eastgate
agreed to pay $30,000 to the Township in exchange for a
discharge of the $250,000 lien. Eileen Cowell also filed for
personal bankruptcy. During Eileen Cowell's bankruptcy
proceeding, the bankruptcy judge lifted and expunged the
$25,000 lien on July 13, 1998, and thereafter noted in the

                               4
amended order that "a municipal improvement lien cannot
be filed against a property not so improved." App. at 222-223.1
Specifically, the bankruptcy judge found that Lot 14 was
not affected or benefitted by the improvements done on
Milford Street, which was one mile away and in a separate
development.

On June 25, 1999, Eileen Cowell, Richard Cowell,
Sylvester Pany, and Eastgate filed the present suit against
Palmer Township, various township officials, and the
Township's law firm. The complaint alleges that the
imposition of the two municipal liens violated the Takings
Clause of the Fifth Amendment and the Due Process Clause
of the Fourteenth Amendment, as well as various state
laws.

The defendants moved to dismiss all of the claims for
failure to state a claim upon which relief could be granted
pursuant to Fed R. Civ. P. 12(b)(6). The defendants
asserted, inter alia, that the actions alleged did not amount
to a taking and that the takings claim was not yet ripe. The
defendants further asserted that the due process claim was
barred by the statute of limitations. In response, the
plaintiffs argued that they stated a valid takings claim and
that the statute of limitations should not apply because the
Township had continued to interfere with their development
plans after the imposition of the second lien in March 1993.
The plaintiffs therefore asked the court to deny the motion
to dismiss or, alternatively, to allow them to amend their
complaint to include additional allegations.

In a memorandum and order dated December 16, 1999,
the District Court dismissed the takings and due process
claims, declined to allow the plaintiffs to amend their
complaint, and dismissed the state law claims without
prejudice after declining to exercise jurisdiction over them.

The plaintiffs filed a timely notice of appeal. We have
jurisdiction under 28 U.S.C. S 1291.
_________________________________________________________________

1. Richard Cowell had apparently conveyed his interest in Lot 14 to
Eileen Cowell in January 1992 as part of a divorce settlement.

                               5
II.

DISCUSSION

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
may be granted only if, accepting all well-pleaded
allegations in the complaint as true and viewing them in
the light most favorable to plaintiff, the plaintiff is not
entitled to relief. See Maio v. Aetna, Inc., 221 F.3d 472,
481-82 (3d Cir. 2000). We have plenary review of a district
court's dismissal of a complaint pursuant to Fed. R. Civ. P.
12(b)(6). See id. We review a district court's refusal to allow
a party to amend its complaint for abuse of discretion. See
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1434 (3d Cir. 1997).

A. Takings Claim

The plaintiffs allege that the Township and various
township officials violated the Takings Clause by imposing
two municipal liens that impaired the value of the plaintiffs'
properties and deprived them of their right to full control of
their properties. The District Court ruled that the takings
claim was not yet ripe because the plaintiffs had not yet
availed themselves of the state procedures for seeking just
compensation. In the alternative, the court held that the
defendants' alleged actions did not rise to the level of a
taking.

The Fifth Amendment proscribes the taking of private
property for public use without just compensation. See U.S.
Const. amend. V. It is well-recognized that this prohibition
applies to state and local governments under the
Fourteenth Amendment. See Chicago, Burlington & Quincy
R.R. Co. v. City of Chicago, 166 U.S. 226, 239 (1897). The
Supreme Court has recognized that just compensation need
not be paid in advance of the taking -- "all that is required
is that a reasonable, certain and adequate provision for
obtaining compensation exist at the time of the taking."
Williamson County Reg'l Planning Comm'n v. Hamilton Bank
of Johnson City, 473 U.S. 172, 194 (1985) (quotation
omitted). Therefore, if a state has provided an adequate
procedure for seeking just compensation and a landowner
has used those procedures to obtain just compensation,

                               6
there is no violation of the Takings Clause. See id. It follows
that "if a State provides an adequate procedure for seeking
just compensation, the property owner cannot claim a
violation of the [Takings] Clause until it has used the
procedure and been denied just compensation." Id. at 195.

Pennsylvania's Eminent Domain Code provides inverse
condemnation procedures through which a landowner may
seek just compensation for the taking of property. See 26
Pa. Cons. Stat. Ann. SS 1-408, 1-502(e), 1-609.2 Indeed,
many landowners have invoked these procedures to seek
just compensation for takings. See, e.g., In re Prop. Situate
Along Pine Rd. in Earl Township, 743 A.2d 990 (Pa.
Commw. 1999); Gross v. City of Pittsburgh, 741 A.2d 234
(Pa. Commw. 1999); Lehigh-Northampton Airport Auth. v.
WBF Assocs., 728 A.2d 981 (Pa. Commw. 1999).

In the case at hand, the plaintiffs do not contend that
they attempted to use these procedures but were denied
just compensation. Instead, they argue they were not
required to file an inverse condemnation petition because
the Township did not have legal authority under the
Eminent Domain Code or any other power to impose the
liens. In addition, they claim that they "exhausted state
remedies" by raising the merits of the two liens in
bankruptcy court.

We reject the plaintiffs' arguments. The plaintiffs' ability
to file an inverse condemnation petition in state court in
order to obtain just compensation was not related to the
Township's right to impose the liens. In addition,
adjudication in federal bankruptcy court is not an
appropriate alternative to the state inverse condemnation
procedures. As the Township notes, the bankruptcy courts
never determined whether there had been a taking of the
plaintiffs' property. Because the plaintiffs have not availed
themselves of the appropriate procedures under
_________________________________________________________________

2. Under Pennsylvania law, a landowner may file a petition requesting
the appointment of viewers to declare a taking and ascertain just
compensation. See 26 Pa. Cons. Stat. Ann.S 1-502(e). If the landowner
is successful, then s/he may also be awarded reasonable appraisal,
attorney, engineering, and other costs incurred. See 26 Pa. Cons. Stat.
Ann. S 1-609.

                               7
Pennsylvania law to obtain just compensation, we agree
with the District Court that their takings claim is not ripe.

Even if the plaintiffs' takings claim were ripe, the
defendants' actions do not amount to a taking. The
plaintiffs argue the two liens amounted to a regulatory
taking because the liens forced them to reduce the sale
price for their properties and caused them financial
distress. However, a regulatory taking occurs only when the
government's action deprives a landowner of all
economically viable uses of his or her property. See Lucas
v. South Carolina Coastal Council, 505 U.S. 1003, 1019
(1992).

A municipal lien does not deprive the landowner of all
economically viable uses of the property. Rather, a lien is
merely "a charge upon property by which a lien creditor has
the right to execute on that property in order to satisfy a
debt or other obligation." Unity Sav. Ass'n v. Am. Urban Sci.
Found., 337 Pa. Super. 470, 474, 487 A.2d 356, 358
(1984). Under Pennsylvania law, the filing of a lien does not
affect the debtor's use of that property until foreclosure.
See Winpenny v. Krotow, 574 F.2d 176, 177 (3d Cir. 1978)
(citing 53 Pa. Stat. Ann. S 7181). Though the liens in the
case at hand may have prevented the plaintiffs from
entering into certain transactions, they did not foreclose all
economically viable uses of the land. Therefore, we agree
with the District Court that the imposition of the liens did
not constitute a taking.3

B. Due Process Claim

The plaintiffs also allege that the imposition of the two
liens, one for $25,000 and the other for $250,000, violated
their due process rights under the Fourteenth Amendment.
The District Court held that these claims were barred by
the two-year statute of limitations for claims brought under
_________________________________________________________________

3. We are compelled to note that we regard the imposition of the liens as
of questionable propriety; at argument, counsel for the defendants
attempted to explain why the Township resorted to the liens, but offered
no legal authority to justify them. The liens imposed for anticipated non-
payment for municipal improvements may have violated the Municipal
Lien Code, 53 Pa. Cons. Stat. Ann. SS 7101 et seq.

                               8
42 U.S.C. S 1983. The court specifically ruled that the
continuing violations doctrine did not apply because the
defendants' last affirmative act occurred in 1993 with the
imposition of the second lien.

As the plaintiffs concede, the applicable statute of
limitations for their S 1983 claims is two years. See Sameric
Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 599
(3d Cir. 1998). They argue, however, that the continuing
violations doctrine should have been applied to toll the
limitations period because the defendants engaged in a
"continuing campaign of affirmative acts" that interfered
with their substantive due process rights. Br. of Appellants
at 23-24.4

The continuing violations doctrine is an "equitable
exception to the timely filing requirement." West v.
Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995).
Thus, "when a defendant's conduct is part of a continuing
practice, an action is timely so long as the last act
evidencing the continuing practice falls within the
limitations period; in such an instance, the court will grant
relief for the earlier related acts that would otherwise be
time barred." Brenner v. Local 514, United Bhd. of
Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d
Cir. 1991).

In order to benefit from the doctrine, a plaintiff must
establish that the defendant's conduct is "more than the
occurrence of isolated or sporadic acts." West, 45 F.3d at
755 (quotation omitted). Regarding this inquiry, we have
recognized that courts should consider at least three
factors: (1) subject matter -- whether the violations
constitute the same type of discrimination, tending to
connect them in a continuing violation; (2) frequency --
whether the acts are recurring or more in the nature of
isolated incidents; and (3) degree of permanence-- whether
the act had a degree of permanence which should trigger
the plaintiff 's awareness of and duty to assert his/her
_________________________________________________________________

4. The District Court noted that the plaintiffs appeared to assert both
procedural and substantive due process violations. Plaintiffs do not
argue on appeal that their procedural due process rights were violated,
so we will limit ourselves to the substantive due process claim.

                                9
rights and whether the consequences of the act would
continue even in the absence of a continuing intent to
discriminate. See id. at 755 n.9 (citing Berry v. Board of
Supervisors of Louisiana State Univ., 715 F.2d 971, 981
(5th Cir. 1983)). The consideration of "degree of
permanence" is the most important of the factors. See
Berry, 715 F.2d at 981.

The continuing violations doctrine has been most
frequently applied in employment discrimination claims.
See, e.g., West, 45 F.3d 744; Bronze Shields, Inc., v. New
Jersey Dept. of Civil Serv., 667 F.2d 1074, 1081 (3d Cir.
1981); Jewett v. Int'l Tel. and Tel. Corp., 653 F.2d 89, 91
(3d Cir. 1981). However, this has not precluded the
application of the doctrine to other contexts. See Brenner,
927 F.2d 1283 (applying the doctrine to a claim brought
under the National Labor Relations Act); Centifanti v. Nix,
865 F.2d 1422, 1432-33 (3d Cir. 1989) (applying the
doctrine to a procedural due process claim brought under
S 1983).

At issue in this case is whether this equitable doctrine
should be applied to toll the statute of limitations for the
plaintiffs' substantive due process claim.5 The plaintiffs
_________________________________________________________________

5. After oral argument, we requested letter briefs from the parties to
address, inter alia, the issue of the applicability of the continuing
violations doctrine to substantive due process claims generally. The
submissions of both parties were comprehensive and we express our
appreciation. Plaintiffs argued that our decision in Sameric Corp. of
Delaware v. City of Philadelphia, 142 F.3d 582, 599-600 (3d Cir. 1998),
accepted that the continuing violations doctrine could be applied to
substantive due process claims but merely held that the evidentiary
record did not support its application to the facts of the case. The
Township disputed this interpretation of Sameric and argued that the
doctrine should not be extended to apply to substantive due process
claims.

After consideration of the jurisprudence on the continuing violations
doctrine, we do not find it necessary to adopt a per se rule of its
applicability to substantive due process claims. Most importantly, the
doctrine is an equitable one and requires a factual analysis that will be
different for each case. Therefore, we will limit ourselves to whether the
continuing violations doctrine should apply to the plaintiffs' substantive
due process claim in the case at hand.

                                10
appear to offer two theories for application of the
continuing violations doctrine here. First, they argue that
the two municipal liens were continuing violations of their
substantive due process rights until they were either lifted
or expunged. Specifically, the $25,000 lien remained in
effect until July 13, 1998, when it was expunged by a
bankruptcy judge. The $250,000 lien was in place until
July 1, 1997 at the earliest, when Eastgate negotiated its
bankruptcy reorganization plan which included a $30,000
payment to the Township for settlement of that lien.
Therefore, according to the plaintiffs, their substantive due
process claim was timely raised because their complaint
was filed on June 25, 1999.

We disagree with the plaintiffs' interpretation of a
continuing violation and therefore reject this theory. The
focus of the continuing violations doctrine is on affirmative
acts of the defendants. See Delaware State College v. Ricks,
449 U.S. 250, 258 (1980); Sameric, 142 F.3d at 599; 287
Corporate Center Assoc. v. Township of Bridgewater , 101
F.3d 320, 324 (3d Cir. 1996). The mere existence of the
liens does not amount to a continuing violation. Neither
was the Township's refusal to remove the lien an affirmative
act of a continuing violation.

The cases cited by the plaintiffs do not require a different
result. In United States v. Dickinson, 331 U.S. 745 (1947),
a landowner brought a claim against the federal
government seeking compensation for flooding of lands that
had been authorized by the government. The government
argued that the claim was time-barred but the Supreme
Court disagreed. The Court held that the flooding was a
continuous event and therefore the limitations period began
to run when the flooding had stabilized, rather than when
the flooding first began. See id. at 749. Dickinson was a
unique situation in which the physical taking of property
was not complete until the flooding had stabilized. We have
previously declined to extend its holding to toll the running
of a limitations period for a substantive due process claim,
see 287 Corporate Center Assoc., 101 F.3d at 324, and we
similarly decline to extend its holding here.

The plaintiffs also cite to the decision in Gordon v. City of
Warren, 579 F.2d 386 (6th Cir. 1978). In that case, a

                               11
developer had been prevented from completing construction
of an apartment complex by a city ordinance that was later
held to be unconstitutional. The Court of Appeals held that
the developer's subsequent takings claim was not time-
barred because the alleged wrong was the "continuing
course of action which made it impossible for the plaintiffs
to enjoy the full use of their property." Id. at 391.

The Sixth Circuit has since declined to follow Gordon, see
Kuhnle Bros. v. County of Geauga, 103 F.3d 516, 521 n.4
(6th Cir. 1997), as have other courts of appeals, see, e.g.,
Ocean Acres Ltd. v. Dare County Bd. of Health, 707 F.2d
103, 106 (4th Cir. 1983). In Ocean Acres, the Fourth
Circuit reaffirmed that "[a] continuing violation is
occasioned by continual unlawful acts, not continual ill
effects from an original violation." Id. (quotation omitted).
This conforms with our understanding of the continuing
violations doctrine, see Sameric, 142 F.3d at 599, and we
see no reason to depart from it. Therefore, we reject the
plaintiffs' first theory for application of the continuing
violations doctrine.

The plaintiffs' second theory is that the Township
engaged in a campaign of harassment against them that
extended beyond the imposition of the two municipal liens.
In particular, they identified the following five acts that fell
within the two-year limitations period in their
Memorandum of Law in Opposition to the Motion to
Dismiss submitted to the District Court:

(1) On July 1, 1997, as part of Eastgate Corporation's Plan
       of Reorganization in bankruptcy, the parties negotiated
       a $30,000 payment from Eastgate to the Township in
       return for a discharge of the $250,000 municipal lien
       imposed on the Palmer Business Park property.
       Although this $30,000 payment was made, the
       Township later requested an additional payment of
       $23,000 before the lien was discharged. This additional
       request allegedly violated 11 U.S.C. S 1141.

(2) In August 1997, the Township required lot purchaser
       Lone Star Steakhouse to build a driveway to the Tic-
       Toc Diner as a condition to issuing a building permit.
       As a result, Eastgate was compelled to reduce the price

                               12
       of the lots it was selling to Lone Star Steakhouse by
       $25,000.

(3) In May 1998, the Township required Eastgate to fund
       the installation of a stop light in or near Lot 11.
       Consequently, Eastgate was compelled to reduce the
       sale price of Lot 11 by $75,000.

(4) In January 1999, the Township required purchasers of
       Lot 11 to pay $5,000 to the Township for the
       installation of stoplights as a condition of issuing
       building permits.

(5) On February 13, 1999, the Township sent Eastgate a
       bill for engineer fees related to a September 1994
       inspection of the Palmer Business Park property.
       Eastgate claimed it was not responsible for this bill,
       which was sent over five years after the inspection took
       place.

App. at 155-156. In addition, the plaintiffs argued before us
that the Township has continued to harass them by filing
a petition to the Court of Common Pleas of Northampton
County on December 15, 2000 requesting further
improvements. The plaintiffs contend that they should be
allowed to amend their complaint to include these and
other allegations.

Although these acts fall within the two-year limitations
period, we must consider whether they are "isolated,
intermittent acts" or part of a "persistent, on-going pattern."
West, 45 F.3d at 755. In doing so, we will consider the
three factors identified in Berry v. Board of Supervisors of
Louisiana State Univ., 715 F.2d 971, 981 (5th Cir. 1983).
First, with regard to the "subject matter" of the violations,
we note that these acts, except for the first one, appear to
be unrelated to the imposition of the liens. The plaintiffs
attempt to link these acts by characterizing them as a
general interference with property rights. However, our
substantive due process jurisprudence has always focused
on the particular acts of the defendant, and not a general
interference with property rights. See, e.g., Woodwind
Estates, Ltd. v. Gretkowski, 205 F.3d 118, 125 (3d Cir.
2000) (considering the alleged delay of permit approval for
subdivision plans); Blanche Road Co. v. Bensalem

                                13
Township, 57 F.3d 253, 268 (3d Cir. 1995) (considering the
intentional blocking or delay of the issuance of permits for
reasons unrelated to the merits of the permit application).
Indeed, the plaintiffs argued at oral argument that each of
these acts was an independent violation of their substantive
due process rights and therefore individually actionable. If
so, then the appropriate course of action was to bring a
new S 1983 claim with respect to these alleged harassments
instead of trying to tack them on to their existing claim.

In this respect, this case is not unlike the situation that
was before us in Sameric, 142 F.3d 582. In that case, a
theater owner alleged substantive due process violations
against the City of Philadelphia and various city officials for
improperly designating the theater as an historic building
and improperly denying a permit to demolish the theater.
Although the denial of the demolition permit occurred
outside the applicable two-year statute of limitations, the
owner argued that the statute should be tolled because the
denial of the permit was related to the historical
designation and the owner had continued to dispute the
historical designation in state court. We rejected this
argument, noting that the denial of the permit gave rise to
an independent cause of action and should have been
pursued as such. Thus, we held that the continuing
violations doctrine could not be applied to revive the claim
involving the permit denial. See id. at 598-600. Because the
case at hand is similar to the situation in Sameric, the first
Berry factor weighs against finding a continuing violation.

With regard to the "frequency" of the acts, we note that
courts have never set a specific standard for determining
how close together the acts must occur to amount to a
continuing violation. The plaintiffs assert on appeal that
defendants engaged in a campaign of harassment that
began as early as 1987, became exacerbated with the
imposition of the liens in October 1992 and March 1993,
and continued throughout the mid and late 1990s. Many of
the alleged harassing acts deal with routine dealings
between a land developer and a board of supervisors that
would not amount to violations of substantive due process.
In any event, this would be a different due process claim
than that pled in the complaint, which was confined to the

                                14
imposition of the liens. The type of acts that would satisfy
the "frequency" factor of the Berry inquiry must at least be
acts of substantially similar nature to those which were the
basis of the original claim.

Turning to the third Berry factor -- whether the acts had
a "degree of permanence" which should trigger the
plaintiff 's awareness of and duty to assert his/her rights --
we must consider the policy rationale behind the statute of
limitations. That is, the continuing violations doctrine
should not provide a means for relieving plaintiffs from
their duty to exercise reasonable diligence in pursuing their
claims. See Nat'l Adver. Co. v. City of Raleigh , 947 F.2d
1158, 1168 (4th Cir. 1991); Ocean Acres, 707 F.2d at 107.
In the case at hand, the plaintiffs were aware of the
wrongfulness of the liens when the liens were imposed in
1992 and 1993. Therefore, the plaintiffs should have
brought a claim to strike the liens in state court or filed a
S 1983 claim within the applicable limitations periods. To
allow the plaintiffs to proceed with their substantive due
process claim now would be unfair to the Township and
contrary to the policy rationale of the statute of limitations.
See United States v. Richardson, 889 F.2d 37, 40 (3d Cir.
1989) ("Limitations periods are intended to put defendants
on notice of adverse claims and to prevent plaintiffs from
sleeping on their rights."). Therefore, this factor strongly
weighs against applying the continuing violations doctrine.

Balancing the equities of the case, we conclude that the
continuing violations doctrine does not relieve plaintiffs
from the statute of limitations for the substantive due
process claim. Therefore, we agree with the District Court
that the substantive due process claim was untimely.

C. Leave to Amend the Complaint

We also conclude that the court did not abuse its
discretion in denying plaintiffs leave to amend their
complaint. Although Fed. R. Civ. P. 15(a) states that leave
to amend "shall be freely given when justice so requires,"
we have held that leave to amend need not be granted when
amending the complaint would clearly be futile. See Maio,
221 F.3d at 500-01 n.19. It is evident that allowing the
plaintiffs in the case at hand to amend their complaint

                                  15
would not have saved their takings claim. As for the
substantive due process claim, we have held that the
additional factual allegations offered in their Memorandum
of Law in Opposition to the Motion to Dismiss did not
constitute a continuing violation. Therefore, that claim
would not be able to overcome the statute of limitations,
and any amendment of the complaint would have been futile.6

III.

CONCLUSION

For the reasons set forth above, we will affirm the District
Court's order dismissing plaintiffs' action.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

6. The plaintiffs also contend in their brief that the District Court
erred
in characterizing their complaint as already amended. While the court
may have erred in this regard, we do not see this error as warranting a
reversal.
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