Posted by: Patricia Salkin | June 24, 2016

Third Circuit Court of Appeals Dismisses Substantive Due Process Claims Against Judge and Zoning Hearing Board Over Application for Private Airport/Heliport

Michael Selig, through a limited liability corporation called Aerotierra, purchased some land that he intended to use as a private airport/heliport. Selig filed a zoning application, asking for a special exception and variance. The North Whitehall Township Zoning Hearing Board (“ZHB”) denied his application, determining that a heliport was not a permitted use on the property, and that Selig did not meet the requirements for a special exception. Selig filed an appeal in the Court of Common Pleas of Lehigh County, which dismissed his appeal, finding that Selig lacked standing because the property was owned by Aerotierra, LLC, and the Commonwealth Court of Pennsylvania also dismissed his appeal for lack of standing. The District Court dismissed Selig’s complaint without prejudice for failure to state a claim upon which relief could be granted. Selig then filed an amended complaint, arguing that the ZHB and Judge J. Brian Johnson violated his substantive due process rights. The District Court dismissed the amended complaint with prejudice as to Judge Johnson on the basis of judicial immunity, and dismissed it as to the ZHB because Selig lacked standing to bring a substantive due process claim. The Court also denied Selig’s motion for reconsideration, and Selig appealed.

On appeal, Selig argued that he had standing to sue because he had some type of beneficial or equitable ownership interest in the property under Pennsylvania law. The court found that nothing other than full property ownership warranted substantive due process protection. However, even if Selig had a protected property interest in the property during the zoning proceedings, the court found the dismissal of Selig’s complaint was proper, since the allegations of the complaint did not state a plausible substantive due process claim. Here, Selig was required to show that the ZHB deprived him of a protected property interest and that such deprivation “shocks the conscience.” The court held that complaints related to zoning requirements, inspections, and permits were “frequent in land use planning disputes” and that while adversely affected property owners could couch such complaints as abuses of legal authority, they do not rise to the level of substantive due process violations.

Selig v North Whitehall Township Zoning Hearing Board, 2016 WL 3440450 (3rd Cir. CA 6/23/2016)

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