Sutton v. Chanceford Twp., Civil No. 1:14-CV-1584

TERRY SUTTON, d/b/a CINKAJ BROGUE LIMITED PARTNERSHIP,BRENDA SUTTON d/b/a CINKAJ BROGUE LIMITED PARTNERSHIP,CHRIS CINKAJ, d/b/a/ CINKAJ BROGUE LIMITED PARTNERSHIP, Plaintiff v. CHANCEFORD TOWNSHIP, et al., Defendants

Civil No. 1:14-CV-1584

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

December 14, 2016

(Magistrate Judge Carlson)

MEMORANDUM OPINION

Currently before this Court is the defendant's motion to dismiss the plaintiffs' amended complaint pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure. The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the motion will be granted in part and denied in part.¹

I. BACKGROUND

The plaintiffs in this action are a group of real estate developers and co-owners of a business known as Cinkaj Brogue Limited Partnership (referred to collectively as "plaintiffs" or "developer"). The plaintiffs own a shopping center development in Chanceford Township, York County, Pennsylvania. The plaintiffs allege that in 2013 their partnership was denied a zoning permit necessary to open a cabaret featuring nude dancing in the shopping center. The plaintiffs have sued Chanceford Township and several of its officials alleging that that Township's denial of their request for a special exception needed to open their intended adult entertainment business violated their rights under the United States and Pennsylvania Constitutions. The plaintiffs' chief argument seems to be that the Chanceford Township zoning ordinance operates as a prior restraint on protected speech, and thereby violates the First Amendment. The plaintiffs have also made a claim that the ordinance, as applied to their application, violated the plaintiffs' rights under the First Amendment, in particular by arguing that the stated bases given for denying the special exception were pretextual cover for the real reason the permit was denied, namely, a moral aversion to allowing the plaintiffs' to open a business that featured nude dancing. The plaintiffs also claim that their rights to procedural and substantive due process were violated, and that the defendants violated similar prohibitions contained in the Pennsylvania Constitution regarding freedom of expression. The plaintiffs seek damages and declaratory relief.

In contrast to the complaint that they initially filed commencing this litigation, in their amended complaint the plaintiffs have attached excerpts of official records and minutes of meetings of the Planning Commission and the Zoning Hearing Board, which both parties have relied upon in their arguments supporting and opposing the defendants' motion to dismiss. For their part, the defendants have attached to their motion the entire Zoning Ordinance and the decision of the Zoning Hearing Board issued in August 2013, both of which the defendants argue undermine the plaintiffs' legal claims in this case.

The submission of these extraneous documents with the complaint and the pending motion places the current motion to dismiss in a somewhat different light than the defendants' prior dispositive motion, and strongly suggests there is a more fulsome, and perhaps disputed, record upon which to consider some of the plaintiffs' claims and the defendants' stated defenses to those claims. As will be noted, however, the inclusion of these materials, and reference to the underlying planning and zoning proceedings invites the Court to stray from the limited review normally applied to threshold motions to dismiss under Rule 12(b)(6).² The Court finds that in large part, consideration of these materials and other evidence should await a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

The plaintiffs own property identified as 2514 Delta Road, Chanceford Township, York County. Chanceford Township is a township organized and existing under the laws of the Commonwealth of Pennsylvania. On April 10, 2006, the Township, acting under the Pennsylvania Municipalities Planning Code, 53 P.S. §§ 10101 et seq., adopted the ordinance known as the Chanceford Township Zoning Ordinance (the "Ordinance"). Section 513.C gives the Chanceford Township Zoning Hearing Board (the "ZHB") exclusive jurisdiction to rule on all zoning applications for uses pursuant to the Ordinance. (Doc. 19, Ex. L.) Section 513.C.2 specifies that collectively and individually, the members of the ZHB have the authority "to hear and decide special exceptions upon which the Board is required to pass" under the Ordinance. (Id., Ex. O.)

The plaintiffs' property is located in the General Commercial Zone in the Township and has been developed into a small shopping center that includes businesses offering goods for sale, as well as service businesses that include a bank. (Id., ¶ 56 and Ex. D.) The Ordinance provides that the General Commercial Zone in the Township allows for the use of property for an "Adult Oriented Facility" only under Special Exception as shown in Table 203.1 and Article IV of the Ordinance. (Id. at Exs. B and C.)

The Ordinance defines "Adult Oriented Facility" to mean any "establishment open to the general public or a private club open to members except person under the age of eighteen (18) years, which is used and occupied for one (1) or more of the following activities: . . . ADULT CABARET - An establishment, club tavern, restaurant, theater or hall which features live entertainment distinguished or characterized by an emphasis on sexual conduct or sexually explicit nudity." (Doc. 21, Ex. 1, § 602.)³ The plaintiffs' intended to use the property to operate an Adult Cabaret.

Section 407 of the Ordinance specifies that the manner of operation of an "Adult Oriented Facility" is regulated under the Ordinance. (Id., Ex. A.) Section 407 sets forth the general and specific requirements that must be met in order for members of the ZHB to approve a special exemption for an "Adult Oriented Facility" under the Ordinance. (Id., Ex. A.) These requirements provide that no materials, merchandise, film or service offered for sale or view shall be displayed or represented outside of the building; that all Adult Oriented Facilities will be windowless or have opaque coverings over the windows and doors; that no sign shall be erected depicting the types of goods or services offered in the establishment; that signage be posted restricting access to adults only and warning others that they may be offended upon entry; establish parking requirements; and include restrictions on locating Adult Oriented Facilities at least 1,000 feet from schools and 500 feet from churches. (Doc. 21, Ex. 1, § 407.)

Section 502 of the Ordinance provides the guidelines that govern uses permitted by special exception, and requires, inter alia, that the proposed use meets drainage requirements; that the proposed use will not create traffic congestion; that the proposed use has made adequate provision for disposal of sewage; and that the proposed use is "in harmony with the orderly and appropriate development" of the zone. (Doc, 21, Ex. 1, § 502.) Section 502.2 of the Ordinance, in turn, sets forth the requirements for special exceptions and provides that "For any use permitted by special exception, a special exception must be obtained from the Zoning Hearing Board." (Id.) That section further provides that "All applicants for a special exception shall be referred to the Planning Commission for a report. The Chairman of the Planning Commission shall insure that a copy of its report is delivered to the Township Secretary for inclusion in the permanent record of the application, to the Zoning Officer and to the Zoning Hearing Board." (Id.)

The Ordinance also sets forth a number of specific requirements that govern hearings for special exceptions conducted by the ZHB, and purports to confer certain rights upon applicants or appellants. Among the requirements is one that requires the ZHB to hold a hearing within 60 days of the date of the applicant's request for a hearing, and provides that when a hearing is not held within this 60-day period, a decision shall be "deemed to be rendered in favor of the applicant, unless the applicant has agreed in writing or on the record to an extension of time." (Am. Compl., ¶ 61 and Ex. R.)

On February 11, 2013, plaintiff Terry Sutton asked the Chanceford Township Solicitor, Timothy Bupp, about the prospect of opening an adult entertainment facility in the Township, specifically at the property, with live nude dance performances. The solicitor invited Sutton to attend a meeting of the Board of Supervisors that night. (Am. Comp., ¶ 91.) At that meeting, plaintiff Sutton told the Board that there was someone interested in subleasing space in the property to private groups with BYOB privileges. Solicitor Bupp informed Sutton that pursuant to the Ordinance, the plaintiffs "would need to apply to the Zoning Hearing Board for special exception for any proposed restaurant or commercial use at which time the board would determine the conditions of use." (Id., ¶ 92.)

On March 12, 2013, the plaintiffs submitted an application for a special exception pursuant to Section 203 of the Ordinance to the ZHB seeking to make use of the property as an Adult Oriented Facility. (Am. Compl., Ex. F.) The application specifically disclosed the plaintiffs' intention to use the property to operate as an "Adult Cabaret," as defined in the Ordinance, "featuring live nude dancers." (Am. Compl., ¶ 80.) The application disclosed the plaintiffs' intention to "not offer materials, merchandise, film, or service for sale, rent, lease, loan or for view outside of a building or structure." (Id., ¶ 81.) The application stated that the plaintiffs intended to "establish a membership requirement for entry into the facility and with ten (10) separate rooms for private entertainment." (Id., ¶ 82.) The application contained additional information with respect to the décor to be implemented, discretion with...