Posted by: Patricia Salkin | September 25, 2017

Fed. Dist. Court in PA Dismisses Equal Protection and Due Process Claims Arising from Preventing Owner From Operating Haunted House Attractions

Plaintiffs purchased Thorpe Farm in 2007, which was zoned CM–Conservation Management. In 2000, the previous owners entered into conservation easements that restricted Thorpe Farm to agricultural uses. Tony Gardner, the operator of the Festival of Fears, submitted an application to operate a haunted house inside a pole barn on Thorpe Farm; however, the permit was denied because the barn was less than 150 feet from Stoneybrook Road, which would require a zoning variance as set forth in an October 2007 Amendment to the Joint Municipal Zoning Ordinance (“JMZO”). Neither Gardner nor the Thorpes applied for a variance, and the Fire Marshal also advised Gardner that a fire suppression system would be required. Instead of applying for a variance, Gardner applied for a zoning permit for a hayride and corn maze on Thorpe Farm. When this permit was denied, plaintiffs Dale and Renee Thorpe filed suit alleging they were discriminated against on the basis of ethnicity in violation of their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment and suffered tortious interference with contractual relations.

As to the Due Process claim, the court found that even if it were to accept Plaintiffs’ arguments that Defendants acted unfairly toward them in the enforcement of zoning and other land-use regulations, Plaintiffs failed to produce any evidence from which a reasonable jury could conclude that it acted with corrupt motives or racial bias. Furthermore, there was no evidence that Dale Thorpe’s Native American heritage motivated the actions of Defendant Kuhns or anyone associated with the Township. Without a basis for concluding that Defendants acted with discriminatory intent, the court held that Plaintiffs failed to show Defendants’ actions shocked the conscience.

Plaintiffs next argued that although the other CM–zoned farms also had periodic zoning disputes with Defendants, the owners of these farms were similarly situated and had been treated more favorably. Distinguishing Plaintiffs’ property from these comparators however, was the fact that the owners of the other farms successfully sought variances or otherwise appealed actions taken against them in some circumstances, while the Thorpes did not. As such, Plaintiffs’ equal protection claim failed.
Having granted summary judgment with regard to the federal claims, the Court declined to exercise supplemental jurisdiction over the remaining state-law claim of tortious interference, and dismissed it without prejudice.

Thorpe v Upper Makefield Township, 2017 WL 42609049 (ED PA 9/25/2017)

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