E. Marvin Herr v. Pequea Township, et al.

E. Marvin Herr, a land developer, appeals the grant of
summary judgment to Pequea Township ("Township") and
its three supervisors, Virginia Brady, Bruce Groff, and
Martin Hughes (collectively, "defendants"), in this civil
rights action. Herr alleges that his right to substantive due
process was violated by an eleven year campaign of the
Township and its officers to delay and obstruct his
development of an industrial park.

The defendants adopted a land use plan and a sewer
facilities plan based in part on their view that industrial
development within the Township should be restricted.
Over the next eleven years, Herr, who wished to construct
an industrial park and who had applied to the Lancaster
County Planning Commission ("LCPC") for approval of a
subdivision plan prior to the effective date of these plans,
sought the necessary authorization for his development
from the LCPC, the Department of Environmental Review
("DER"), the Environmental Hearing Board ("EHB"), the
Zoning Hearing Board ("ZHB"), and the courts. The
Township participated in the proceedings before each of
these bodies. While it acknowledged that Herr's project was
grandfathered under the prior land use plan if he
completed it within five years, the Township insisted that
he had no vested right to municipal sewer services under
the prior sewer facilities plan and argued that the
Township's new plan should be enforced. After Herr
secured an order from the DER directing the Township to
amend its sewer facilities plan so as to provide municipal
sewer service to his property and obtained a land use
permit from the LCPC, the Township took the position in
further proceedings that not all conditions of the LCPC's
approval had been fulfilled and that the five year
grandfathering had expired before completion of the project.
Ultimately, Herr secured the necessary authority to go
forward with his industrial park.

Herr claims that the defendants' conduct with respect to
his proposed development was motivated throughout by a
strong desire to preserve agricultural land and restrain
development in the Township. In support of this claim, he
has tendered evidence tending to show that the individual
defendants had run for office on "anti-development"
platforms and that their adoption of a new zoning
ordinance and sewer facilities plan was intended to make it
more difficult for developers to secure approvals of their
projects. Herr stresses, for example, that the new zoning
ordinance reduced the land zoned industrial by 68 percent.

While Herr points to the defendants' adoption of the new
zoning ordinance and sewer plan as evidence of their"anti-
development bias," we do not understand him to contend
that the defendants' actions with respect to those plans
violated his right to substantive due process. Decisions on
whether to adopt or amend zoning ordinances and
municipal services plans are legislative ones that must
survive due process review unless "the governmental body
could have had no legitimate reason for its decisions." Pace
Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023,
1034 (3d Cir. 1987). The desire to limit development is such
a legitimate reason. Id.

Rather, Herr claims that the defendants conspired to
prevent him from securing the necessary approvals from
other government agencies, or to delay the receipt of those
approvals until his project would no longer be
grandfathered under the prior ordinance. In support of this
contention, he submitted what he regards as a "smoking
gun" letter from Dr. Alan Peterson, the Chairman of the
Pequea Township Environmental Advisory Council, to the
Township's legal counsel dated February 19, 1994. That
letter states in part:

Only Virginia Brady and I in the township know the
following: (Do not state this back to the township in
any manner). The owner must sell the lots, then all
land development plans must be approved by 10/94 or
they become nonconforming lots in the Ag. District.
Obviously the longer we can stall (if we can't win this
with the [Department of Environmental Review]), the
better.

App. at 374-75.

According to Herr, the defendants' conspiracy consisted
of (1) resisting before the LCPC, the DER, the Board, and
the courts Herr's efforts to secure the right to proceed; (2)
instructing its own personnel to carefully scrutinize Herr's
proposal in order to identify any possible problems; and (3)
communicating with the LCPC, the DER, the State Fish
Commission, the State Game Commission, and other
governmental agencies voicing various concerns about the
proposed project.

Herr relies on a line of our cases which hold that a
township or other agency acting under color of state law
denies a landowner substantive due process if it denies or
delays action on his permit application for reasons
unrelated to the merits of the application. See Woodwind
Estates, Ltd. v. Gretkowski, 205 F.3d 118, 124-25 (3d Cir.
2000) (holding that delay of permitting process because of
community resistance to proposed low income housing
project provided jury with a basis from which it could
reasonably find that decision maker acted in bad faith or
due to an improper motive violating developer's substantive
due process rights); DeBlasio v. Zoning Bd. of Adjustment,
53 F.3d 592, 601-02 (3d Cir. 1995) (holding that denial of
permit based on decision maker's personal financial
interest, if proven, establishes a violation of the right to be
free from arbitrary and capricious government action);
Blanche Rd. Corp. v. Bensalem Township, 57 F.3d 253,
267-68 (3d Cir. 1995) (holding that conspiracy to delay
permits for industrial park for political reasons unrelated to
the merits of an application is sufficient to establish a
substantive due process violation); Parkway Garage, Inc. v.
City of Philadelphia, 5 F.3d 685, 696-97 (3d Cir. 1993)
(holding that the jury could reasonably infer improper
motive when lease was allegedly terminated based upon
decision maker's economic interest); Bello v. Walker, 840
F.2d 1124, 1129-30 (3d Cir. 1988) (holding that a
municipal corporation's denial of a building permit for
partisan political or personal reasons unrelated to the
merits of the case, if proven, establishes a substantive due
process violation). Herr correctly points out that, while the
ultimate issue before the LCPC and the other governmental
bodies was whether to permit a new industrial park,
resolution of that issue properly turned on whether his
development met the criteria established by law. The
defendants' opposition, according to Herr, was motivated by
a determination to stop his development without regard to
whether it met those criteria.

Unlike the defendants in the cases cited by Herr,
however, the Township and its supervisors were not
authorized to issue permits for Herr's industrial park. The
LCPC alone had that authority. Herr's claim is thus not
that the defendants subverted a decision making process
by taking irrelevant considerations into account. It is rather
that the defendants contested issues before the bodies
authorized to resolve various permitting issues because
they wished to defeat or delay the approval of Herr's project
by those bodies. This claim is materially different from the
claims asserted in Bello and its progeny.

We conclude that there is evidence from which a trier of
fact could conclude that the Township's challenged conduct
was motivated by a desire to stop Herr's development. At
the same time, we conclude that there is no evidence from
which a trier of fact could conclude that the Township took
frivolous positions or otherwise unreasonably delayed the
proceedings before the various state bodies. We hold that
where a township participates in proceedings before other
governmental agencies authorized to resolve issues like
those here presented, the township and its supervisors are
not subject to liability for delay occasioned by those
proceedings solely because their participation was
motivated by a desire to delay or prevent the project for
which approval is sought.

* * *

"[T]he [First Amendment] right to petition extends to all
departments of government" including administrative
agencies and the courts. California Motor Transport Co. v.
Trucking Unlimited, 404 U.S. 508, 510 (1972). It is made
applicable to the states by the Fourteenth Amendment.
Hague v. Committee for Indus. Org., 307 U.S. 496 (1939).
The protection it affords thus applies both to petitioning
state agencies and to petitioning state courts. Moreover,
this protection extends not only to petitioning for
affirmative relief but also to petitioning in opposition to
applications for relief by others. Armstrong Surgical Center,
Inc. v. Armstrong County Mem. Hosp., 185 F.3d 154 (3d Cir.
1999) (holding that the First Amendment right to petition
provides protection for opposition to a competitor's
application to the State Department of Health for a
Certificate of Necessity for a medical facility).

While the right to petition conferred by the First and
Fourteenth Amendments does not provide an absolute
immunity from liability for actions based on petitioning
activity, see California Motor Transport, 404 U.S. at 513-14,
the Supreme Court has held that such liability cannot be
imposed in the absence of a finding that the position taken
lacked any reasonable basis. In Professional Real Estate
Investors, Inc. v. Columbia Pictures Indus., Inc. , 508 U.S. 49
(1993), Columbia Pictures sued Professional Real Estate
Investors ("PRE") for copyright infringement. PRE filed a
counterclaim under the Sherman Act and various state
laws charging that the copyright infringement suit was a
part of a conspiracy to monopolize and restrain trade.
When Columbia Pictures moved for summary judgment
based on its constitutionally protected right to petition, PRE
argued that the copyright suit had been instituted in bad
faith, i.e., it was brought to restrain trade and without an
"honest . . . beli[ef] that the infringement claim was
meritorious." Id. at 54. The Supreme Court acknowledged
that petitioning immunity did not extend to liability based
on the institution or maintenance of "sham" litigation but
held that litigation could be regarded as a "sham" only if it
is "objectively baseless."

We now outline a two-part definition of "sham"
litigation. First, the lawsuit must be objectively
baseless in the sense that no reasonable litigant could
realistically expect success on the merits. If an
objective litigant could conclude that the suit is
reasonably calculated to elicit a favorable outcome, the
suit is immunized . . . , and an antitrust claim
premised on the sham exception must fail. Only if
challenged litigation is objectively meritless may a
court examine the litigant's subjective motivation.
Under this second part of our definition of sham, the
court should focus on whether the baseless lawsuit
conceals "an attempt to interfere directly with the
business relationships of a competitor," through the
"use [of] the governmental process-- as opposed to the
outcome of that process -- as an anticompetitive
weapon," Omni, 499 U.S., at 380 (emphasis in original).

Professional Real Estate Investors, 508 U.S. at 60-61
(citations omitted).

* * *

Here, the charge is that the defendants instructed
Township employees to apply "extra scrutiny" in their
review of Herr's proposal in order to identify problems
relevant to Herr's application before the LCPC and other
state agencies. We conclude that this essential precursor to
the Township's actual communications with the state
agencies also comes within the law's protection for
petitioning activity and that this is true regardless of how
thorough the employees were instructed to be in identifying
problems with the jurisdiction of the petitioned agencies.

The judgment of the District Court will be affirmed.

Unknown

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Reported by Kent Morlan