Halchak v. Dorrance Twp. Bd. of Supervisors

646 F.Supp.3d 571

Anthony HALCHAK, et al., Plaintiffs, v. DORRANCE TOWNSHIP BOARD OF SUPERVISORS, et al., Defendants.

3:18-CV-1285

United States District Court, M.D. Pennsylvania

Filed December 16, 2022

Ralph J. Johnston, Jr., Johnston & Johnston, Kingston, PA, Charles E. Wasilefski, Peters & Wasilefski, Harrisburg, PA, for Plaintiffs.

Robert M. Tucker, Michael G. Crotty, Siana, Bellwoar & McAndrew, LLP, Chester Springs, PA, for Defendants Dorrance Township Board of Supervisors, Alan Snelson.

Lisa A. Balestrini, Swartz Campbell LLC, Scranton, PA, Candidus K. Dougherty, Jeffrey B. McCarron, Swartz Campbell LLC, Philadelphia, PA, for Defendants Ken Fenstermacher, Code Inspections, Inc.

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge

I. INTRODUCTION

Presently before the Court are three cross-motions for summary judgment. Defendants Dorrance Township Board of Supervisors (the "Dorrance Board") and Alan Snelson (Doc. 64) (together, "Dorrance Defendants"), and Code Inspections, Inc. ("CII") and Ken Fenstermacher (Doc. 71) (together, "CII Defendants"), move for summary judgment on all claims against them. Plaintiffs Anthony and Kelly Halchak move for summary judgment on their procedural due process claims against the Dorrance Board, CII, and Fenstermacher (Doc. 66).

Plaintiffs filed their original Complaint on November 18, 2015, (Doc. 1-1), but the operative complaint is the Amended Complaint, an action in mandamus filed in the Court of Common Pleas of Luzerne County on December 7, 2017. (Doc. 2-1). Dorrance Defendants removed the action to this Court on June 26, 2018, with CII's and Fenstermacher's consent. (Doc. 1 ¶ 9.) Although the Amended Complaint contains five counts, the Court of Common Pleas denied Plaintiffs' Petition for Leave to File an Amended Complaint as to Counts II and III. (Doc. 2 ¶ 3 & n.1.) Counts I, IV, and V remain. Count I does not identify a specific cause of action, but alleges that Defendants acted "in violation of the Plaintiffs [sic] procedural due process rights and civil rights under federal and state law" and demands judgment directing that Defendants "issue an Occupancy Permit" and awarding damages, costs and attorney's fees. (Doc. 2-1 at ¶ 52-54, 56.) The federal due process claims provide the basis for federal jurisdiction under 28 U.S.C. § 1331, and supplemental jurisdiction over the mandamus relief is proper under 28 U.S.C. § 1367. Counts IV and V are claims for "damages" against Defendants.

For the reasons set forth herein, Defendants' Motions are granted in their entirety, and Plaintiffs' Motion is denied in its entirety.

II. STATEMENT OF FACTS

This case reflects Plaintiffs' efforts to obtain two permits, a zoning permit and an occupancy permit,¹ both needed to commence the lawful operation of a used car lot on their property. The briefs reflect strong disagreement between the parties as to whether and how each of the permits need to be obtained, due to underlying disputes regarding the past use of the property and the parties' interpretations of the relevant zoning and building code provisions. However, the Record itself demonstrates no dispute as to the material facts.

The following facts are undisputed, unless otherwise noted.

A. History of Property

On November 13, 2009, Plaintiffs purchased two adjoining parcels of land in Dorrance Township, Luzerne County, Pennsylvania from John and Maria Colon. (Plaintiffs' Concise Statement of Material Facts, Doc. 67 at ¶ 1; see generally 686 South Mountain Blvd. Deed, Doc. 65-1). Plaintiffs intended to operate a used car lot on the property. (Doc. 67 at ¶ 2.)

The Amended Complaint and "documents associated with the transfer of the property" identify the property's address as 686 South Mountain Boulevard. (Dorrance Defendants' Statement of Material Facts, Doc. 65 at ¶¶ 9-10; see, e.g., 686 South Mountain Blvd. Deed, Doc. 65-1 at 8.) Plaintiffs aver that the mailing address of the whole property was 686 South Mountain Boulevard when they purchased it, but that the two parcels acquired separate mailing addresses—686 and 688 South Mountain Boulevard—"[s]ometime in 2010." (Plaintiffs' Counterstatement of Material Facts in Response to Statement by CII Defendants, Doc. 83 at ¶ 5.)

The property with a current mailing address of 686 South Mountain Boulevard has a single-family house and pool. (Doc. 65 at ¶ 12; A. Halchak 6/23/2020 Dep. Tr., Doc. 65-5, Ex. E at 98:3-98:6).² The adjoining parcel is the subject of this litigation (the "Property") and currently has a mailing address of 688 South Mountain Boulevard. (Doc. 65 at ¶¶ 11, 13; Aerial Photograph, Doc. 65-7, Ex. G at 2).³ The Property has a "one-door garage and an attached room with a separate entrance," both of which existed when Plaintiffs purchased the Property. (Doc. 65 at ¶ 14, Doc. 65-5, Ex. E at 97:18-98:2).

The Property is located in a zoning district designated as a "B-2 Highway Business District" under the Zoning Ordinance for Dorrance Township enacted January 8, 2007. (Doc. 67 at ¶ 3; Doc. 67-1, Ex. 2.)

The parties agree on the following history of the ownership of the Property, though the extent to which these details were known to the parties when the relevant events occurred is not clear. Anna and Joseph Kamionka bought the Property on December 12, 1978, and sold it to Fairway Consumer Discount Company on March 29, 1999. (Doc. 65-1, Ex. A at 38, Kamionka Deed; id. at 34, Fairway Deed.)⁴ Fairway Consumer Discount Company sold the Property to Andrey and Yelena Makarenko on November 1, 1999. (Id. at 32, Makarenko Deed.) The Makarenkos sold the Property to John and Marie Colon on May 1, 2009. (Id. at 30, Colon Deed.)

From 1999 until 2009, the Record reflects no evidence of the operation of an automotive sales business on the Property, but Plaintiffs allege (without evidence) that the Colons "had placed cars on the property for sale."⁵ (Doc. 65 at ¶ 17; Doc. 79-3 at ¶ 17.) Nonetheless, Plaintiffs acknowledge that the Property was vacant, and did not contain an automotive sales business, when they purchased it. (A. Halchak 3/13/20 Dep. Tr. at 98:13-16.)

Plaintiffs had no dealings with the Makarenkos, Fairway Consumer Discount Company, or the Kamionkas, and obtained from them no records of the use to which these previous owners put the Property. (Doc. 65 at ¶¶ 21-23.) Although Mr. Colon allegedly told Mr. Halchak that "there was a car lot" on the Property, Mr. Colon "didn't specify whether it was a licensed car dealership." (Doc. 79-5, Ex. 2 at 30:4-13.)

B. Governing Zoning Provisions

The Dorrance Township Zoning Ordinance provides that "[n]o building, structure or sign shall be erected, constructed, moved, added to or structurally altered, nor shall any land, structure or building be put to any use without first obtaining a zoning permit from the Zoning Officer." Dorrance, Pa., Zoning Ordinance § 1302.1 (Jan. 8, 2007). A certificate of zoning compliance is also required "prior to the occupation for the use or change of use of any building, structure or land." Id. § 1303. "Change of use" is defined as "[a]ny use which differs from the previous use of a building, structure, or land." Id. § 201.

Furthermore, the Dorrance Township Subdivision and Land Development Ordinance enacted on September 28, 2006 [SALDO], requires that

[n]o subdivision or land development of any lot, tract, or parcel of land shall be made, and no street, sanitary sewer, water main, gas, oil, or electric transmission line, or other facilities in connection therewith shall be laid out, constructed, opened, or dedicated for public use or travel or for the common use of occupants of buildings abutting thereon, except in accordance with the provisions of this Ordinance.

SALDO § 103.1. Further,

[n]o lot in a proposed subdivision or land development may be sold, and no zoning and/or building permit to erect any building, structure or other improvements upon land in a subdivision or land development may be issued unless and until ... [t]he plans and application have been granted final approval by the Township Board of Supervisors.

Id. § 103.2. SALDO defines "Land Development" as, inter alia, "[t]he improvement of one lot or two (2) or more contiguous lots, tracts or parcels of land for any purpose involving ... a single nonresidential building on a lot or lots regardless of the number of occupants or tenure." Id. at § 202.

Under the Pennsylvania scheme for zoning matters, the zoning hearing board has jurisdiction to hear and render final adjudications in matters which include a zoning officer's "failure to act" on an application for any permit. 53 P.S. § 10909.1(a)(3).

C. 2009 Zoning Permit Application

In November 2009, Plaintiffs contacted the Dorrance Board seeking a permit for a used car dealership. (Doc. 65 at ¶ 27.) The Dorrance Board directed Plaintiffs to Zoning Officer Alan Snelson. (Id.) In their initial dealings with the Dorrance Board and Snelson, Plaintiffs referred to the Property for which they sought a zoning permit as 686 South Mountain Boulevard. (Id. at ¶ 28.) On November 17, 2009, Snelson emailed Ms. Halchak regarding Plaintiffs' request:

Kelly attached is an application for a Land Development and a zoning permit at 686 S Mountain Blvd. as well as the fee structure.

The location is a B-2 zoning district. The intent is the development of a used car lot.

To my knowledge there is not an existing structure on the property. Also, to my knowledge there is not an existing septic system or well on the property.

Therefore you'll need to obtain approval for the project at the Planning commission prior to applying for a Zoning PErmit [sic]

Should you have any questions regarding this matter feel free to contact me [sic]

(Doc. 65-13, Ex. M at 2). Ms. Halchak replied:

We received your letter and zoning application, thank you, just want to clarify one point, your letter mentioned there was no structure, there is an existing structure on the property. There was a previous business there at some

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