                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-23-2003

Holland Transp Inc v. Upper Chichester Twp
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4221




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                                                NOT PRECEDENTIAL

            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                         _____________

                              NO. 02-4221
                           ________________

       HOLLAND TRANSPORT, INC. and HOLLAND MULCH, INC.

                                                      Appellants

                                    v.

   UPPER CHICHESTER TOWNSHIP, THOMAS C. ROBERTS, WILLIAM E.
 BURLAND, III, RICHARD T. CURRY, THOMAS J. WENGER, JOHN J. WILLS,
STEPHEN E. BARRAR, LAWRENCE M. SPEDDEN, THOMAS FERRO, BETH H.
 ZENUK, ZONING HEARING BOARD OF UPPER CHICHESTER TOWNSHIP,
THERESA R. GUYER, JAMES SQUADRITO, CHARLES REMALEY, and LEWIS
                             KNAUER,
                                           Appellees

               ____________________________________

              On Appeal From the United States District Court
                  For the Eastern District of Pennsylvania
                           (D.C. No. 00-cv-00397)
               District Judge: Honorable Michael M. Baylson
              _______________________________________

               Submitted Under Third Circuit LAR 34.1(a)
                         September 8, 2003
              Before: BARRY, BECKER, and GREENBERG
                           Circuit Judges.

                        (Filed: September 23, 2003)

                       _______________________

                              OPINION
                       _______________________
BECKER, Circuit Judge.

       This is an appeal by plaintiffs, Holland Transportation, Inc. and Holland Mulch,

Inc. from the District Court’s grant of summary judgment in a case brought by plaintiffs

challenging certain land use decisions of the defendants – Upper Chichester Township

and a number of its officials. The case has a long and tortuous procedural history with

which the parties are intimately familiar and which need not be rescribed here. Judge

Baylson dismissed the complaint on ripeness grounds. We think that he was correct in

doing so.

       Ripeness in this context is governed by Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S. 172 (1985), which stands for the proposition

that in cases involving use of land and a challenge to a zoning decision, a claim will not

be ripe until the plaintiff has given the local municipality the opportunity to issue a final

decision on the application of its zoning ordinance to the property in question. Id. at 186.

We have recognized that, in a Pennsylvania Municipality, the ability to render final

zoning decisions is vested in the Zoning Hearing Board (“ZHB”) pursuant to

Pennsylvania’s Municipalities Planning Code. Taylor Inv., Ltd. v. Upper Darby

Township, 983 F.2d 1285, 1291-93 (3d Cir. 1993). Holland argues that its claim is ripe

because it appeared before the ZHB regarding Site A, and the ZHB issued a final

decision regarding that site (a denial).

       However, Holland appealed this decision to the Delaware County Court of


                                              2
Common Pleas where Judge Battle reversed the ZHB, finding that it had abused its

discretion by labeling Holland’s mulch business as a “collection facility” rather than a

“processing facility.” Judge Battle then remanded the case to the ZHB for determination

of one specific issue. The municipal regulations require a “150-foot setback” from

residential properties for facilities of this sort. There is some ambiguity as to whether the

facility itself must be 150 feet from a residential property, or whether the property on

which the facility sits must be 150 feet from a residential property. Holland did not

renew its argument before the ZHB because, it argues, the ZHB had already decided this

issue (in favor of the “property” interpretation).

       The District Court concluded that the remand essentially made the ZHB’s prior

“final decision” not final anymore, reasoning that, even if the ZHB had previously

decided in favor of the “property” interpretation rather than the “facility location”

interpretation, the Court of Common Pleas’ reversal of other components of its holding

might cause the ZHB to reconsider that one as well. (Perhaps if the ZHB views

Holland’s facility as a “processing facility,” its conclusion regarding the 150-foot setback

will change.)

       We think that a remand for consideration of an issue renders nonfinal any decision

on that issue, in which case Holland had a duty to renew its action before the ZHB. It did

not do so, which means that its claim is not ripe. The same conclusion obtains for Sites

B and C, where Holland never even petitioned the ZHB for a resolution, claiming that to


                                              3
do so would have been futile given the perceived persecution by County Commissioners

that would give rise to a futility exception to ripeness. But we have not recognized the

futility exception in land use cases.

         Holland spends a great deal of time arguing that our decision in Blanche Road

Corp. v. Bensalem Township, 57 F.3d 253 (3d Cir. 1995), precludes dismissal of

Holland’s claims even if they are not ripe.1 However, while this case was being briefed,

Blanche Road was superseded. We held in United Artist Theater Circuit, Inc. v.

Tonwship of Warrington, Pa., 316 F.3d 392 (3d Cir. 2003), that the Supreme Court’s

decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), requires that we

employ a “shocks the conscience” standard instead of an “improper interference

standard.” Holland concedes that this is now the controlling case, and makes an

argument that what happened in this case shocks the conscience. It does not.

         The judgment of the District Court will be affirmed.2

  1
      Blanche Road held that zoning ripeness was not required when:
         Defendants acting in their capacity as officers of the township, deliberately
         and improperly interfered with the process by which the township issued
         permits in order to block or to delay the issuance of plaintiffs’ permits, and
         that the defendants did so for reasons unrelated to the merits of the application
         for permits. Such actions, if proven, are sufficient to establish a substantive
         due process violation, actionable under § 1983, even if the ultimate outcome
         of plaintiffs’ permit applications was favorable.

  2
      Alternatively, we agree with Judge Baylson that a separate basis for granting summary
judgment is that granting Holland the relief it sought (a permit) would necessarily entail
setting aside the judgment of the Court of Common Pleas, which instructed Holland to
file a Land Use Development Plan in connection with Site B. In reversing, we would be
                                                 4
overturning the judgment of a state court that a Land Use Development Plan was a
prudent request on the part of the Commissioners, and the Rooker-Feldman doctrine
prevents us from doing so, see D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482
n.16 (1983), and Rooker v. Fid. Trust Co., 263 U.S. 413 (1923).
                                          5
TO THE CLERK:

                Please file the foregoing opinion.




                                            /s/ Edward R. Becker
                                               Circuit Judge




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