Posted by: Patricia Salkin | October 20, 2016

Fed. Dist. Court in PA Dismisses Plaintiff’s § 1983 Due Process Claims

This § 1983 action was brought in response to the City of Pittsburgh Department of Permits, Licenses and Inspections’ (“PLI”) issuance of a “Stop Work Order / Cease Operations” notice (“Order”) to Plaintiff South Allegheny Pittsburgh Restaurant Enterprises, LLC at its East Carson Street establishment Mother Fletcher’s. Mother Fletcher’s “Southside Party Joint” was billed by its proprietor as “the biggest and most out-of-control Under-21 party on this side of the United States,” but was shut down by PLI at the conclusion of its grand opening because it was not operating as a restaurant as permitted under the City’s Zoning Code—as it was offering only a “chip buffet” and “soft drink bar” to its patrons. Before the Court was a Motion for Temporary Restraining Order/Preliminary Injunction that was opposed by Defendants, the City of Pittsburgh, (the “City”) and PLI.

Plaintiff claimed that the Order was defective and issued improvidently under circumstances that did not constitute an emergency, as is allegedly required under the Zoning Code. The court found that Plaintiff had not met its high burden to avoid the finality rule because it initiated a federal lawsuit challenging a land-use decision by PLI a mere five days after it was rendered, without even attempting to invoke any formal procedures that were available under the City’s Zoning Code. In the City of Pittsburgh, the Zoning Board of Adjustment is the “primary controlling authority” tasked with hearing appeals, interpreting zoning ordinances and special exemptions and evaluating the uses that are authorized on the property. However, the decision challenged in this case had not been presented to the Zoning Board for a final ruling, as was required. The court therefore found that Plaintiff’s due process claims were premature and not likely to succeed on the merits.

Plaintiff next complained that the Order was issued without strict adherence to §§ 924.05.A. and B of the Zoning Code because there was no “emergency” situation at Mother Flecther’s at the time it was shutdown. However, the court noted that the Third Circuit held that the mere fact that local authorities strayed from established procedures did not produce a “mature constitutional injury” that was actionable without first obtaining a final decision from the local adjudicative body. Beyond the failure to appeal the Orderthe court determined that the due process claims were not yet ripe because Plaintiff never filed for a special exemption, variance or conditional use permit with the Zoning Board seeking to alter the use of the property to permit dancing as would be required if the property was properly designated as either a “restaurant (limited)” or “restaurant (general)” under the Code. The court also noted that even if it assumed that Mother Fletcher’s “soft drink bar” and “chip buffet” constituted a “restaurant” under the Code, Plaintiff would need approval of the Zoning Board to change the use of the property in order to permit dancing at that location. Accordingly, Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction was denied and the court sua sponte dismissed Plaintiff’s § 1983 due process claims.

Rest. Enterprises, LLC v. City of Pittsburgh, CV 16-1393, 2016 WL 4962926 (W.D. Pa. Sept. 16, 2016)


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