Posted by: Patricia Salkin | December 3, 2012

3rd Circuit Court of Appeals Upholds Dismissal of Alleged Retaliation Stemming from Opposition to Zoning Permit and Subsequent Enforcement Action

After more than a decade of battling over the zoning of a neighboring property, the Krisses filed a First Amendment retaliation action in U.S. District Court against Fayette County, and several individual county, zoning, and planning officials.

The Krisses own Fayette County, Pennsylvania’s, historic Meason House, bordered on all sides by the Cellarule properties.  In 1995, the Cellarules first attempted to rezone five acres of the property for business use, with plans of opening an auto body business there.  The Krisses opposed this and several subsequent attempts to change the zoning and site the auto business there, but the Cellarules managed to obtain a non-conforming use permit and, despite the permit being revoked, constructed and operated the auto business.  Despite multiple requests from the Krisses, and a cease and desist letter from the County Zoning Office, the Cellarule business persisted, and the Krisses allege the County did nothing to stop it.

After several suits and dismissals related to the dispute, the Krisses sued the Cellarules in the Court of Common Pleas to enforce conditions previously placed on the Cellarule property pursuant to a special zoning exception.  It was this lawsuit, filed in October 2009, upon which the Krisses based their First Amendment retaliation claim.

The Krisses allege that, in retaliation for their October 2009 suit, County Zoning officials mistreated them and consistently took actions favoring the Cellarules.  To prove First Amendment retaliation, the Krisses needed to prove that they had engaged in constitutionally protected conduct, that there was retaliatory action by the County which would be “sufficient to deter a person of ordinary firmness from exercising his constitutional rights,” and that there was a causal link between the protected conduct and the retaliatory action.

While the Court was willing to find protected conduct on the part of the Krisses, the Court declined to find retaliatory conduct by the County, citing a lack of specific evidence of retaliatory conduct.  Further, even if there had been retaliatory action by the County, the Court could not find a causal connection to the Krisses suit.  The Court noted that the Krisses had alleged a decade-long pattern of similar treatment of the Krisses by the County, which tended to indicate that the County’s actions could not have been in retaliation for the October 2009 suit.  For that reason, the Third Circuit affirmed the District Court’s decision to dismiss the Krisses case.

Kriss v. Fayette County, 2012 WL 5816867 (3d Cir. 11/16/2012)

The opinion can be accessed at: http://www.ca3.uscourts.gov/opinarch/121156np.pdf


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