PHILADELPHIA -- Citing the U.S. District Court for the
Eastern District of Pennsylvania’s “excellent opinion,” the U.S. Court of
Appeals for the Third Circuit has upheld a ruling dismissing a developer’s
lawsuit for failure to state a claim.
With Judge Thomas M. Hardiman authoring the court’s
opinion for colleagues Theodore A. McKee and Marjorie O. Rendell on Sept. 23,
the appellate judiciary relied upon virtually the same reasoning as the
district court in dismissing Parker Avenue LP’s legal action versus the City of
Philadelphia and the Philadelphia City Council.
Parker owns land in Philadelphia’s 21st Ward, where it
has desired to build 48 residential units for nearly a decade. Though the
planned development meets all necessary zoning ordinances and approvals from
the city and the Commonwealth, the city council’s failure to pass an ordinance
to pave Cinnaminson Street has prevented construction. Cinnaminson Street would
provide the necessary access to and from the property.
Though two bills to pave Cinnaminson Street were
introduced in 2007 and referred to the city council’s Committee on Streets and
Services, they were taken off the council agenda at the insistence of the Ridge
Park Civic Association (RPCA). The RPCA opposed Parker’s development plan and
successfully lobbied the district’s then-councilwoman and her successor not to
support the bills. Despite Parker meeting with the RPCA in an attempt to
alleviate their concerns, the bills were never reintroduced for council
discussion.
Parker initiated a lawsuit against the city and the city
council, listing 39 paving ordinances introduced in the last decade (eight of
which were pertinent to residential development) and explaining all were passed
except the one to pave Cinnaminson Street. Parker indicated the city’s
government treated them differently than other similar developers and as a
result, has been prevented from maximizing the use of its property.
The district court dismissed Parker’s amended complaint,
and the developer subsequently lost on motions for both reconsideration and
leave to file a second amended complaint. These actions led Parker to appeal to
the Third Circuit.
In its appeal, Parker believed the district court applied
“an impermissibly high plausibility standard,” “erred in dismissing its equal
protection claim because the Court evaluated its allegations under an improper
standard,” “erred in dismissing its substantive due process claim” and “erred
when it denied its motion for leave to amend.”
Hardiman examined each of Parker’s claims.
“The District Court properly applied the pleading
standards set forth in Ashcroft v. Iqbal, and Bell Atlantic v.
Twombly, and found that the amended complaint failed to state plausible
claims for relief. And as we explain below, the District Court’s analysis was
not erroneous,” the judge wrote.
Hardiman pointed out the district court dismissed the
complaint for Parker’s failure to identify which landowners “who were alike in
all relevant aspects” that it felt it was treated differently from.
“Although the amended complaint identified a number of
approved paving ordinances, including some for residential developments, it
failed to allege whether any of them were opposed by neighbors or local civic
groups, as was the paving ordinance for Cinnaminson Street,” the judge wrote.
“Nor did the amended complaint allege whether the
approved ordinances were similar regarding their locations or surroundings,
including with respect to issues such as traffic, noise, density, or size of
the residential development. Without more specific facts, Parker has not alleged
that these landowners are similarly situated, and has therefore failed to state
an equal protection claim.”
Hardiman said the district court was correct in
dismissing the substantive due process claim as well.
“As explained by the District Court, however, Parker did
not allege irrational and arbitrary governmental conduct. It merely alleged a
difference of opinion between a landowner and a civic association over the
propriety of paving of a city street. These competing interests of the two
sides are for the City to resolve,” he wrote.
Finally, Hardiman said the trial court was right to deny
Parker the ability to further amend its complaint.
“The proposed second amended complaint sought to add
details about some of the residential developments for which paving bills had
been passed, yet did not cure the deficiencies identified by the District
Court,” the judge wrote. “The proposed amendments did not, for example, include
factual allegations of irrational or arbitrary conduct by the City Council in
weighing the competing interests of the civic association and developer. Nor
did the amendments allege that any of the other paving bills were either
supported or opposed by a local neighborhood association.
“Because Parker did not cure these deficiencies, the
District Court reasonably found that a second opportunity to amend would prove
futile. We perceive no error in this determination.”
The plaintiff is represented by Darwin R. Beauvais,
Anthony R. Twardowski and Gary R. DeVito of Zarwin Baum DeVito Kaplan Schaer
Toddy in Philadelphia.
The defendants are represented by Christopher H. Rider
and Jane Lovitch Istvan of the City of Philadelphia’s Law Department, plus Anne
B. Taylor of the U.S. Attorney’s Office in Camden, N.J.
U.S. Court of Appeals for the Third Circuit case
13-4049
U.S. District Court for the Eastern District of
Pennsylvania 2:13-cv-00121
Source: Penn
Record
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