Mr. Peaver, the plaintiff, was a communist activist who protested many of the Borough of Kennett Square’s zoning ordinances in the mid 90’s. In 2006, he bought a parcel of land contingent on the Borough Council granting final approval for the construction of a 5 unit townhouse development. Town ordinances prohibit any construction on slopes over 25% and townhouses on slopes over 15%. The Plaintiff submitted his permit and development application at the same time he submitted an application for a variance. He submitted letters in addition to the application that indicated slopes from 17.2 to 29.2% on his land. Mr. Drumheller, the Borough zoning officer, denied the permit application because the drawing submitted in the letter showed slopes that forbade construction. Plaintiff did not appeal the decision but rather attempted to show that the slopes were not too steep using a new calculation but Mr. Drumheller did not change his decision. The Plaintiff then had his wife read a letter in front of the Borough Council complaining of the conduct of the Borough Solicitor, Mr. Jones, but she was not allowed to finish as the Borough council could not discuss or take any action pertaining to the application pending before the zoning hearing board. The Borough Planning Commission then recommended that the Zoning Hearing Board deny the variance application. The Plaintiff sued and the Defendants (The Borough, Mr. Drumheller and Mr. Jones) moved for summary judgment.
The Plaintiff’s contended that the defendants violated his First Amendment and Equal Protection rights when they denied his wife the opportunity to read the letter on his behalf, that they denied his zoning applications in retaliation for his political activism and treated his zoning applications differently than other similarly situated individuals in the town.
In addressing the first amendment claim regarding the refusal to allow his wife to read the letter, the court noted that the plaintiff must demonstrate that each defendant acted under color of law and while doing so, deprived him of his first amendment right to free speech. The court held that the Plaintiff was unable to prove that either of the individual defendants took any action, let alone an action under color of law, to deprive him of his first amendment rights.
The Court then turned its attention to the other First Amendment claim with the Plaintiff claiming that his applications were denied in retaliation for his earlier criticism of the Borough and its officials. To succeed, the Plaintiff must establish that each of the individual defendants acted under color of state law in order to commit violations of the Plaintiff’s rights. The Court found that the Plaintiff had failed to cite to attach any record evidence that supports his allegations. Therefore, no reasonable jury could find that Mr. Jones either directed Mr. Drumheller to deny the Plaintiffs permit application.
In addressing the denial of the variance application, the court ruled that the evidence merely showed that both individual defendants performed their jobs as borough officials, jobs that did not carry the authority to determine the outcome of the Board’s decision and therefore their actions could not be under color of law.
The only action that could be said to be taken under color of law was Mr. Drumheller’s denial of the permit application. However, the court held that Mr. Drumheller was entitled to qualified immunity as he could have reasonably believed that the actions in question were lawful in light of clearly established law and the information that he possessed at the time. In other words, Mr. Drumheller’s decision to deny the Plaintiff’s permit application would have been the same without regard to the Plaintiff’s avowed political activism.
Having addressed the First Amendment claims, the court moved onto the Equal Protection claim. Plaintiff alleges that he is a class of one that was treated differently that other similarly situated individuals. To succeed on such a claim the plaintiff must show that the defendants treated him differently from others similarly situated, the defendant did so intentionally and there was no rational basis for the difference in treatment. A class of one equal protection claim is especially difficult in a zoning dispute as a plaintiff must show that the different treatment was irrational and wholly arbitrary.
The Court held that the evidence does not support a finding against Mr. Drumheller for the denial of the Plaintiff’s application. The plaintiff proffered evidence that Mr. Drumheller could have reasonably reached an alternate conclusion, but did not supply any evidence showing that he acted irrationally and wholly arbitrary. Even if the court held that Mr. Drumheller’s decision was solely based on animosity, the plaintiff failed to identify other similarly situated individuals that were treated differently as the other individuals must be alike in all relevant aspects. The Plaintiff cited two other developments that were given approval on sloped property, one that was approved before Mr. Drumheller took his position and another that merely had a “de minimis” slope on a small portion of its property.
Finally, the court held that the plaintiff failed to identify any policy, practice or custom of the borough or even that any such practice violated his constitutional rights. Plaintiff merely offered conclusory claims that, even if true, would not have satisfied the standards set by Monell prohibiting vicarious liability on municipalities for actions of their employees.
Therefore, the court granted the defendant’s motion for summary judgment.
Pevar v. Borough of Kennett Square, CIV.A. 09-1758, 2012 WL 1835566 (E.D. Pa. 5/21/2012)
Available online at: http://www.paed.uscourts.gov/documents/opinions/12d0523p.pdf