Posted by: Patricia Salkin | October 4, 2016

Fed. Dist. Court in PA Dismisses Due Process, Equal Protection and Section 1983 Claims Stemming from Refusal of Building Official to Continue to Issue New Permits

Plaintiff Flanders sought to construct an addition onto his existing commercial building, and therefore submitted an “Application for Permit to Erect a New Building or Structure”, which was granted by Defendant Fred Dzugan. After constructing the footer and foundation and purchasing certain materials for the upper part of the addition, Flanders contacted Dzugan to apply for the second permit. Despite Dzugan refusing to sign the second permit, Flanders proceeded to frame the addition sometime in the fall of 2006, as he was concerned about deterioration of the materials in place and the possibility that runoff from the foundation might flood his business premises. When Flanders refused to sign the Order and stop construction, Dzugan issued a Non-Traffic citation that same day (“Citation #1”), charging Flanders with violating Ordinance 657, the PCCA, and the directive to submit blueprints. On October 30, 2006, Flanders received a letter from Dzugan advising him that a new sign leaning against his building was in violation of Borough Code because of its size. On November 13, 2006 Dzugan issued a second Non-Traffic citation (“Citation #2”) to Flanders, charging him with violating the Borough Code for failing to comply with the October 30, 2006 letter regarding the sign. On September 26, 2007, Dzugan issued Flanders a third citation (“Citation #3”) for failing to comply with the Magisterial District Judge’s order to produce the blueprints after a hearing regarding Citations 1 and 2. Flanders then commenced this action in state court, alleging civil rights violations related to his unsuccessful attempt to construct addition to his business premises. 

In Count II of the Amended Complaint, Flanders asserted the violation of his substantive due process rights. However, the court found that many of the acts of which Flanders complained failed to establish any deprivation of his protected property interest. For example, neither Dzugan’s prosecution of Flanders for the non-traffic citations nor his initial issuance of the demolition permit bearing an incorrect address deprived Flanders of his property interest. Similarly, no property deprivation occurred as the result of Dzugan’s failure to notify Flanders of his right to appeal and/or Dzugan’s failure to give written notice concerning the Board of Appeals hearings. Thus, the court determined that these events did not support Flanders’ substantive due process claim. Furthermore, certain acts which arguably did result in a deprivation of Flanders’ property were not actionable because they are time-barred. 

In Count III of the Amended Complaint, Flanders asserted a § 1983 claim based on Defendants’ alleged retaliation against him for having engaged in rights protected by the United States Constitution. Flanders contended that he engaged in constitutionally protected activity when he “contested the unfair action of the Defendants through appeals of their decisions regarding his property.” The court found that many of the adverse actions of which Flanders complained of occurred prior to his protected activity, and therefore, could not have been retaliatory in nature. This included Dzugan’s refusal to accept hand-drawn sketches of the proposed addition, his refusal to issue a building permit without professional blueprints, his issuance of the stop-work order, his prosecution of Flanders relative to Citations #1, #2, and #3, and his failure to advise Flanders of his appeal rights. Moreover, the record showed that Flanders and Dzugan had numerous interactions between 2005 and 2011 concerning the status of the proposed addition, and Flanders failed to produce evidence showing that repeated, escalating incidents occurred with Dzugan between January 28, 2008, when Flanders first appealed Dzugan’s permit denial to the Board, and the next act of alleged retaliation, which was Dzugan’s issuance of Citation #4 on January 14, 2011. Nor had Flanders demonstrated a pattern of antagonism between himself and any members serving on the Board of Appeals. Thus, to the extent Flanders alleged acts of alleged retaliation that post-dated his protected activity, these acts were found to fail to support a logical inference of retaliatory motive, even when the record as a whole was viewed in the light most favorable to Flanders. 

As to Flanders’ Equal Protection Claim, the court found Flanders had not identified a single comparator that was similarly situated to himself in all relevant respects; instead, he proffered comparators that, at best, were arguably similar in certain discrete respects. Additionally, he had not shown a pattern of conduct on Dzugan’s part which supported an inference that he was intentionally singled out for adverse treatment based on considerations that were completely divorced from any legitimate governmental concern. Accordingly, the court found it would not have been clear to a reasonable official that Dzugan’s conduct toward Flanders and the other aforementioned property owners violated Flanders’ equal protection rights. Because Flanders failed to produce evidence sufficient to establish a predicate violation of his federal constitutional rights, the court could not hold the Borough liable under § 1983.

Flanders v. Dzugan, 156 F. Supp. 3d 648 (W.D. Pa. 2016)


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