Posted by: Patricia Salkin | January 30, 2010

Court Dismisses ADA, Due Process and Equal Protection Claims Where Pro Se Plaintiff Failed to Properly Support Claims

In October of 2008 the Township approved a zoning change for a piece of property that would change the use of the property from residential to controlled commercial. Sauers, a pro se plaintiff, filed a complaint claiming that the Township overlooked his rights and the law when they made the zoning decision.  Although the court was unsure what the plaintiff was actually trying to allege, it concluded that the complaint raised due process claims, equal protection claims and a claim under the Americans with Disabilities Act (ADA).

Under a substantive due process claim, the plaintiff must allege that the activity of Township “shocks the conscience.” The Court found that Sauers failed to meet this test, and at most he alleged that he disagreed with the zoning change and that the Township representatives failed to answer his questions. He offered no plausible factual allegations that the defendant violated his rights. The procedural due process claim was also dismissed since Sauers failed to show that he was deprived of a protected property interest. The Court noted that complaint did not acknowledge whether the Township intended to take his property nor whether he would be unable to use a portion of his property due to the Township’s actions. The equal protection claim failed since the plaintiff did not alleged that the Township did not irrationally distinguish between similarly situated classes.  Lastly, the ADA claim failed since the complaint made no mention of how his mental impairments (limited in the ability to read, write and spell) effected or has connection to the re-zoning. Although the Court denied Sauers’ motions, it gave him another opportunity to attempt to state a claim in regards to the zoning decision.

Sauers v Lower Southampton Township, 2010 WL 176858 (E.D.Pa.1/19/2010)

The opinion is available at:


  1. Thank you for this post. It has refined my thinking about legally disabled minorities. Of which I am one.

    This has helped me further educate my publicly elected officials. My correspondence through my public records request has attempted to assist public offices in complying with requests from the legally disabled.

    Fortunately, my state of Washington is among the more forward looking when applying equal access rights for the disabled. The drawback with looking forward is awareness of its great distance.

  2. Pennsylvania state law grants standing in a zoning change to “anyone affected”. By definition a zoning change is substantial and under state and local law there are detailed requirements of public hearings and notices. Any violation of the statutory requirements is a crime if it is deliberate and “deliberate indifference” if it was unintentional.

    When there is a zoning change requested by a property owner it is the responsibility of the owners of the petitioning property to show that there is a public need for the change. It is not the responsibility of the existing homeowners to show that there is no need. The burden of proof is on the moving party. I doubt that there is a public need for more commercial property in Lower Southhampton PA.

    There are standards of professional conduct for zoning changes to be processed and those require graphic presentations that can be understood by laymen. This is really not difficult even for owners of small properties because photos of comparable commercial development to what is proposed can be saved on Googlemaps street view or taken from magazines.

    The defense is a defense that the claim is “illegal”. That is a Rule 8 defense and it requires an answer and discovery. His complaint may have been vague but the defendants should have submitted a motion for more definite statement.

    This is a 42 USC section 1983 case and what the pro se neighbor property owner needs to do is to compare the detailed requirements for a Lower Southhampton Zoning Change with the procedure that actually occurred. There is a 2 year minimum statute of limitations plus 30 day equitable tolling off original complaint or possible Rule 60 submission on the basis that an affirmative defense was processed using Rule 12 without a Rule 12 category allowed answer. There is a link from the Lower Southhampton website to a different website that has the statutes. He can also look to the city planning department and degrees at the U of Pennsylvania for standards of professional conduct and documentation.

    He should use open records requests to get tape recordings and filings from the city.

  3. “The Seventh Amendment provides respondents with a right to a jury trial on their §1983 claim. All §1983 actions must be treated alike insofar as that right is concerned…. the subquestion whether that legitimate state interest is substantially furthered by the challenged government action is, at least in the highly particularized context of the present case, a jury question.” MONTEREY V. DEL MONTE DUNES ATMONTEREY, LTD. (97-1235) 526 U.S. 687 (1999) (US Supreme Court)

    “whether or not a defendant’s conduct amounts to deliberate indifference has been described as a “classic issue for the fact finder” and “a factual mainstay of actions under S 1983.” Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998).

    Thus if he was excluded from the notification and review process he has an equal protection claim. That claim can simply involve property. The Supreme Court ruled:

    “Olech’s complaint can fairly be construed as alleging that the Village intentionally demanded a 33-foot easement as a condition of connecting her property to the municipal water supply where the Village required only a 15-foot easement from other similarly situated property owners. See Conley v. Gibson, 355 U. S. 41, 45-46 (1957). The complaint also alleged that the Village’s demand was “irrational and wholly arbitrary” and that the Village ultimately connected her property after receiving a clearly adequate 15-foot easement. These allegations, quite apart from the Village’s subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis.” Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (U.S. 02/23/2000)

    “litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for … protection.” Davis v. Passman, 442 U. S. 228, 248-249 (1979)

    A right to assistance in court when vindicating a constitutional right can also be supported by the United Nations International Covenant for on Civil and Political Rights. “Among the rights of individuals are: the right to legal recourse when their rights have been violated, even if the violator was acting in an official capacity”.

    It may also be possible to pursue the right to legal assistance through the privileges and immunities clause since it is recognized by some federal courts. In the USCOURTS judicial canons as revised in 2009 there is a reference to hearing a litigant and his lawyer.

  4. There is a wonderful discussion of access to courts in

    Hardy W. RYLAND and Alma Odessa Ryland, Plaintiffs-Appellants,
    Alfred B. SHAPIRO, et al., Defendants,
    Edwin O. Ware and Edward E. Roberts, Jr., Defendants-Appellees.
    No. 82-3201.

    P.S. I am interested in these subjects because of my own experiences as a pro se litigant. I completed a master’s degree in city planning but never went to law school.
    United States Court of Appeals,
    Fifth Circuit.
    July 5, 1983.

  5. I found the Township of Lower Southhampton regulations here:

    This is the statutory notice requirement for a zoning change:

    “Public hearing – a formal meeting held pursuant to public notice by the Board of
    Supervisors or planning agency, intended to inform and obtain public comment, prior to taking action in accordance with this Chapter or the Zoning Ordinance [Chapter 27].
    [Ord. 401]
    Public meeting – a forum held pursuant to notice under the Act of October 15, 1998,
    P.L. 729, No. 93, §1, 65 Pa.C.S.A. §701 et seq. [Ord. 532]
    Public notice – notice published once each week for 2 successive weeks in a newspaper of general circulation in the Township. Such notice shall state the time and place of the hearing and the particular nature of the matter to be considered at the hearing. The first publication shall not be more than 30 days and the second publication shall not be less than 7 days from the date of the hearing. [Ord. 401]…”

    So if that notice didn’t happen exactly as required by ordinance, then claim one is a procedural due process notice claim under section 1983. Look through the documents for a civil conspiracy involving official misconduct and false government certificates and possibly perjury.

    Claim two can be that the presentation didn’t meet the excepted standards required for a zoning change -i.e. a graphical representation with a site map showing all the built form, parking, and street access and elevations or street view images. Again look for false government certificate and official misconduct.

    It’s possible that other evidence will emerge.

    Damages are loss of value to property including intangible value times 9.9 as a constitutional valuation. Plus, if there are constitutional violations to his person that occurred as a result or related to constitutional violations in the zoning dispute these are also actionable. See Dobbs The Law of Torts West Law.

    The complaint should specifically request attorney fees under 42 USC Section 1988.

    Other interactions that might be related such as police harassment or any kind of threats or retaliation are probably actionable if they caused the plaintiff damages. These can be denominated as first amendment retaliation if they are related to his protests that the rezoning process did not comply with the statutory procedural due process requirements and aren’t consistent with the Pennsylvania statutes and constitution

    see “All courts shall be open; and every man for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” PA Const. Art. 1 § 11.

    see Meeting the Challenge of Pro Se Litigation, A Report and Guidebook for Judges and Court Managers by Jona Goldschmidt, Barry Mahoney, Harvey Solomon, Joan Green, American Judicature Society 1998 pp. 130-134.

    “The 1871 Congress intended § 1 to “throw open the doors of the United States courts” to individuals who were threatened with, or who had suffered, the deprivation of constitutional rights, id. at 376 (remarks of Rep. Lowe), and to provide these individuals immediate access to the federal courts” PATSY V. BOARD OF REGENTS OF STATE OF FLORIDA, 457 U.S. 496 (1982) U.S. Supreme Court

  6. In a case involving a large pharmaceutical company, the appellant’s lawyers, Mr. Bennett and his co-counsel Mr. Brock at Berkman, Henock, Peterson & Peddy wrote:

    “The documents in the [record on appeal] include court records, hospital records, newspaper articles and other materials…. The RA also includes documents that… should be part of that record … This court may take judicial notice of the types of records contained in the RA … A court may take judicial notice “at any stage of the proceeding.” Fed.R.Evi. 201(f). See, e.g., Hotel Employees & Restaurant Employees Union v. City of New York Dep’t of Parks & Recreation, 311 F.3d 534, 540 n.1 (2d Cir. 2002); Werner v. Werner, 267 F.3d 288, 295 (3d Cir. 2001) (“appeals court may take judicial notice of filings or developments in related proceedings which take place after the judgment appealed from”). Many of the records in the RA were generated after the District Court’s decision.

    Under these circumstances, this Court may and should take judicial notice of these materials. Capital Ventures International v. Republic of Argentina,443 F.3d 214, 223 n.8 (2d Cir. 2006); Korn v. Franchard Corp., 456 F.2d1206, 1208 (2d Cir. 1972) (“Since our decision has to be forward-looking, determining the cast of the proceedings from now on, we must take account of this new situation….

    Judicial notice may be taken of proceedings in other courts and news articles if they have a bearing on the matters at issue.1 Werner v. Werner, supra; Shah v. Meeker, 435 F.3d 244, 249 (2d Cir. 2006); LC Capital Partners, LP v. Frontier Insurance Group, Inc., 318 F.3d 148, 153 (2d Cir. 2003); Lyons v. Stovall, 188 F.3d 327, 333 n.3 (6th Cir. 1999); St. LouisBaptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979) (“scope and reach of the doctrine of judicial notice has been enlarged over the years .
    . . [to] include[] those matters that are verifiable with certainty”). At a minimum, courts will take judicial notice of the existence of other court proceedings or publicly filed documents where the purpose is merely to establish that certain matters were stated in the documents, not for their truth. See, e.g., Liberty Mutual Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992); Kramer v. Time Warner Inc., 937 F.2d 767, 773-74 (2d Cir. 1991); Brown v. Lippard, 472 F.3d 384, 387 (5th Cir. 2006)… (court took judicial notice of the existence (but not the truth) of testimony that undermined a claim of qualified immunity).

    That case potentially involved a lot of money. I looked up the case on PACER and found that no objection was filed. Therefore, I think what is described is the standard for a motion for judicial notice and can be used in land use litigation.

    I found the motion on-line from 07-1107-cv Eli Lilly & Co v. James B. Gottstein
    2nd Circuit court of appeals.

    I’m sorry for my cut and paste error on 2/03/03. I wish this blog had a preview function. My husband was telling me to hurry up.

    Cleaning up my desktop, here is another potentially useful link:

    Click to access Chapter%2027%20Zoning.pdf

    §27-1604. Reclassifications.
    All applications for amendments to the Zoning Map reclassifying any tract or tractsof land to CC – Controlled Commercial District shall include sufficient data, in all instances, to enable the Board of Supervisors to judge the effectiveness of the design and character of the entire commercial use, and to consider properly such things as its relationship to surrounding areas, anticipated traffic, public health, safety and welfare.
    (Ord. 2, 11/1/1948; as consolidated by Ord. 302, 12/20/1979)

    So basically I think that procedural due process requires that the presentation by the property owner had to include the design and character of the buildings that would be built and must explicitly consider traffic, public safety, public healthy, welfare and the relationship to the surrounding area using the criteria specified in the zoning codes i.e. building height, shadows, water runoff, etc. If under a residential use there was a statutory or practical maximum number of vehicles that could be parked on site then that should have been compared to the on site parking under the controlled commercial district zone. If a family is defined then you should be able to infer a de facto parking limit of two or three vehicles per adult occupant.

    The plaintiff could go to the planning department of the city and ask under Open Records Act or FOIA to see all files on all zoning applications for last ten years. They could sit in the office and make a list of them and describe the contents of the application files and then to support their motion for judicial notice they could simply write “Over “x” years, there were “y” zoning change applications and “z%” of the applications approved as completed applications by the city planning staff included the following information: a.) site maps b.) renderings c.) proof of public notices including…”

    So basically, it seems to me, (a non lawyer with a city planning degree) that litigants can establish in court through motions for judicial notice citing the references explaining the procedure used in the Lilly case, the procedure that is required by ordinance for a zoning change and the process that was actually used where it was different than that described in the ordinances.

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