Herr v. Pequea Township

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

12-11-2001

Herr v. Pequea Twp
Precedential or Non-Precedential:

Docket 00-2473

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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_2001/287

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Filed December 11, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 00-2473

E. MARVIN HERR, INDIVIDUALLY AND T/A MILLWOOD
PARK ASSOCIATES

v.

PEQUEA TOWNSHIP; VIRGINIA K. BRADY, INDIVIDUALLY
AND IN HER OFFICIAL CAPACITY; BRUCE G. GROFF,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
MARTIN P. HUGHES, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY

E. Marvin Herr, Appellant

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 99-cv-00199)
District Judge: Honorable Franklin S. VanAntwerpen

Argued May 14, 2001

BEFORE: SCIRICA, GARTH and STAPLETON,
Circuit Judges

(Opinion Filed: December 11, 2001)

Edward M. Posner (Argued)
Jeffrey P. Wallack
Drinker, Biddle & Reath
18th and Cherry Streets
One Logan Square
Philadelphia, PA 19103
Attorneys for Appellant
 Kevin J. O'Brien (Argued)
Marks, O'Neil, O'Brien & Courtney
1880 JFK Boulevard, Suite 1200
Philadelphia, PA 19103
Attorney for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

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

2
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

3
 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

4
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.1
_________________________________________________________________

1. The dissent correctly notes that the Township and its supervisors have
asked us to affirm the judgment of the District Court on the ground that
the evidence presents no material dispute of fact as to whether they had
an improper motive. If Bello and its progeny were the controlling

5
I.

Herr sought to develop approximately 45 acres of land
that he owns in Pequea Township, Lancaster County,
Pennsylvania. By October 9, 1989, he learned of a proposed
land use plan under which the zoning of his land would be
changed so as to permit only agricultural use. On
December 5, 1989, Herr submitted to the LCPC a
subdivision plan to construct an industrial park on this
property ("Millwood Industrial Park" or "Millwood"). At the
time he submitted this plan, his property was zoned
industrial, and the existing sewage facilities plan ("the 1971
sewage facilities plan") was a county-wide plan providing
public sewers pursuant to the Pennsylvania Sewage
Facilities Act ("Act 537"). The LCPC considered and rejected
the industrial park plan twice, and Herr resubmitted it
twice. Ultimately, the LCPC granted preliminary conditional
approval on October 9, 1990, and preliminary
unconditional approval on February 25, 1991.

After Herr's subdivision plan was filed but several
months before the LCPC approvals, Pequea Township, on
August 22, 1990, adopted a new Township map to conform
with Lancaster County's comprehensive plan. On the new
map, the land where Herr's proposed industrial park was to
be situated was rezoned from industrial to agricultural.
Under Pennsylvania law, Herr was allowed five years from
the date of the preliminary approval to complete his non-
conforming development.2 Following adoption of the new
zoning, the Township began to revise its sewage facilities
_________________________________________________________________

authority here and motive were the legally relevant issue, we would find
ourselves hard pressed to uphold the District Court's judgment.
However, "when the judgment of a district court is [legally] correct, it
may be affirmed for reasons not given by the Court and not advanced to
it." Video International Production, Inc. v. Warner-Amex Cable
Communications, Inc., 858 F.2d 1075, 1085 (5th Cir. 1988) (quoting Laird
v. Shell Oil Co., 770 F.2d 508, 511 (5th Cir. 1985)); Elliott Coal Mining
Co.
v. Director, 17 F.3d 616, 628 n. 16 (3d Cir. 1994).

2. Under Pennsylvania law, once a development proposal is submitted,
the zoning regulations in place are not subject to change (with respect to
that proposal) for five years after the preliminary proposal is approved.
See 53 Pa. C.S.A. S 10508(4)(i).

6
plan to comport with its new land planning scheme. On
June 3, 1992, the Township repealed prior sewage plans
and adopted a new sewage plan. The new plan provided for
the extension of public sewers into areas of the Township
designated for development but not into areas designated
for agricultural use. Accordingly, the permitted sewage
disposal for the area in which Millwood was situated was
changed from public sewers to on-lot disposal systems. As
required, the Township submitted its sewage facilities plan
to the DER for approval under Act 537.

On July 30, 1992, Herr requested that the Township
amend its sewage facilities plan so as to provide for
municipal sewer service to Millwood. A little over a month
later, on September 2, 1992, that request was denied.3 Herr
then filed a "private request" with the DER under 35 Pa.
Cons. Stat. Ann. S 750.5 seeking an order requiring the
Township to amend its sewage plan as it had been
requested to do.4 At the time of Herr's private request, the
_________________________________________________________________

3. Section 71.53 of the DER regulations, as then in effect, provided:

(f) A municipality may refuse to adopt a proposed revision to
their
official plan for new land development for reasons, including, but
not limited to:

(1) The plan is not technically or administratively able to be
implemented.

(2) Present and future sewage disposal needs of the area,
remaining acreage or delineated lots are not adequately addressed.

(3) The plan is not consistent with municipal land use plans and
ordinances, subdivision ordinances or other ordinances or plans for
controlling land use or development.

(4) The plan is not consistent with the comprehensive sewage
program of the municipality as contained in the official plan.

(5) The plan does not meet the consistency requirements of
S 71.21(a)(5)(i)-(iii).

25 Pa. Code S 71.53(f) (1989).

4. Section 750.5(b), as then in effect, provided:

Any person who is a resident or property owner in a municipality
may request the department to order the municipality to revise its

7
Department was still reviewing the plan that the Township
had submitted.

On September 28, 1993, the LCPC gave conditional final
approval to a final plan for Millwood that had been
submitted on August 3, 1992 ("the August 1992 plan"). The
approval was conditioned on Herr's satisfaction of over forty
conditions including his securing approval for his proposed
sewage disposal. On February 8, 1994, the DER granted
Herr's private request and issued an order directing the
Township to revise its 1992 sewage plan.

Several years of litigation ensued. On March 25, 1994,
the EHB reversed the decision of the DER. In response to
this decision, the DER denied Herr's private request on
April 4, 1994. Then Herr appealed, first to the EHB and
next to the Commonwealth Court. On May 31, 1996, the
Commonwealth Court reversed the EHB's decision, found in
favor of Herr, and remanded the case for further
proceedings. On remand, the EHB ultimately granted
summary judgment on the sewage disposal issue. The
Township and the DER both filed a petition for
reconsideration with the Board, which denied the petition,
and then a petition for review with the Commonwealth
Court, which, on July 10, 1998, affirmed the Board's
decision. Pequea Township v. Herr, 716 A.2d 678, 681 (Pa.
Commonw. Ct. 1998).

Throughout the "sewer litigation," the Township
maintained that the law specifying the sewer requirements
applicable to the Millwood site was the 1992 sewer plan. In
support of this view, it took the position that (1) the 1992
plan became effective without DER approval on October 20,
_________________________________________________________________

official plan where said person can show that the official plan is
inadequate to meet the resident's or property owner's sewage
disposal needs. Such request may only be made after a prior
demand upon and refusal by the municipality to so revise its
official
plan. The request to the department shall contain a description of
the area of the municipality in question and an enumeration of all
reasons advanced by said person to show the official plan's
inadequacy. Such person shall give notice to the municipality of
the
request to the department.

8
1992, pursuant to 25 Pa. Code S 71.32(c) (1989),5 and the
DER accordingly lacked authority for its original order; and
(2) the statute grandfathering for five years developments
pending approval at the time of a zoning change did not
apply to sewer plans and, accordingly, Herr had no vested
right to public sewer service. The Board agreed with the
Township that the 1992 plan became effective on October
20, 1992. The Commonwealth Court did not reach the
merits of that issue but did agree with the Township that
the grandfathering provision for zoning ordinances did not
give Herr a right to public sewer services under the 1971
plan. Pequea Township v. Herr, 716 A.2d 678, 684 (Pa.
Commonw. Ct. 1998). The Court nevertheless decided in
Herr's favor on the ground that, even if a landowner's
proposal is inconsistent with the applicable municipal
sewer plan, the DER is authorized to require its adoption
upon a showing that the provisions of the municipal plan
are "inadequate" to meet the needs of the landowner. The
Commonwealth Court wrote at some length on each of the
six contentions raised by the DER and the Township.

On November 29, 1998, once all the sewage issues were
settled, the LCPC determined that Herr met all of the
remaining conditions for approval and permitted
recordation of the final land development plan. The
Township then appealed this decision to the Court of
Common Pleas, arguing (1) that Herr failed to meet three of
the other conditions imposed by the LCPC when it
conditionally approved the August 1992 plan; and (2) that
Herr's vested rights to application of the pre-existing zoning
ordinance had expired because five years had elapsed since
the approval of his preliminary development plan and no
valid extension had been granted by the LCPC.

Meanwhile, after recordation, Herr began construction of
_________________________________________________________________

5. This section provides:

Upon the Department's failure to act on a complete official plan or
revision within 120 days of its submission, the official plan or
official plan revision will be considered approved, unless the
Department informs the municipality prior to the end of 120 days
that additional time is necessary to complete its review. The
additional time may not exceed 60 days.

9
his industrial park. During construction, Herr erected a
sign advertising the sale of lots and began excavation. A
Township zoning officer issued Herr an enforcement notice
because he believed that Herr had violated the Township's
1992 zoning ordinance for excavation without a zoning
permit and advertising the sale of the premises without a
zoning permit. Herr appealed the enforcement notice to the
Zoning Hearing Board ("ZHB"), arguing that the Township's
1980 zoning ordinance applied rather than the 1992 zoning
ordinance. The ZHB held that, even if Herr's substantive
rights were determined by the earlier zoning ordinance, he
must comply with the procedural requirements of the new
ordinance, including its permit requirements. Herr appealed
to the Court of Common Pleas.

The appeals to the Court of Common Pleas were
consolidated. On December 29, 1999, the Court decided in
favor of Herr and against the Township. With regard to the
issues raised by the Township, the Court held that the
LCPC did not abuse its discretion in granting Herr an
extension and allowing recordation of his plan. With regard
to the issue raised by Herr, the Court found that the 1992
zoning ordinance requiring a permit for excavation and
advertising was inapplicable because it was substantive
rather than procedural in nature and thus adversely and
improperly affected Herr's substantive rights. The Township
appealed the Court of Common Pleas decision to the
Commonwealth Court, which affirmed on January 10,
2001.

II.

We agree with the District Court that Herr had a property
interest in Millwood which was entitled to protection under
"the substantive due process element of the Fourteenth
Amendment." Herr v. Pequea Township, No. 99-cv-199, at
17 (E.D. Pa. filed July 31, 2000). See Blanche Road, 57
F.3d at 268 n.15; DeBlasio, 53 F.3d at 601. We thus turn
to the issue of whether Herr was deprived of that property
interest in violation of substantive due process.

III.

With possible exceptions hereafter addressed in section
IV, the injuries for which Herr seeks redress arise from the

10
delay occasioned by the proceedings before the LCPC, the
DER, the EHB, the ZHB and the courts of Pennsylvania.
When recovery is sought against a participant in
adjudicatory proceedings before state agencies and state
courts based on its participation in those proceedings,
fundamental interests are implicated that were not
implicated in the situations before us in Bello and its
progeny. Both the Constitution and the common law
provide protection for those who petition the government.

"[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

11
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).

The petitioning immunity that the Court upheld in PRE
was immunity from antitrust liability. The Court pointed
out, however, that the principles being relied upon were not
limited to antitrust liability and noted that the same
principles had been applied by it to liability under the
National Labor Relations Act. See Bell Johnson's
Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983) (holding
that for a civil suit to be enjoined, there must be both an
improper motive on the part of the plaintiff and a lack of a
reasonable basis for the suit). Moreover, the Supreme Court
in PRE stressed that its holding was consistent with the
protection traditionally afforded petitioning activity under
the common law:

[T]he Court of Appeals correctly held that sham
litigation must constitute the pursuit of claims so

12
 baseless that no reasonable litigant could realistically
expect to secure favorable relief.

The existence of probable cause to institute legal
proceedings precludes a finding that an antitrust
defendant has engaged in sham litigation. The notion
of probable cause, as understood and applied in the
common-law tort of wrongful civil proceedings, requires
the plaintiff to prove that the defendant lacked
probable cause to institute an unsuccessful civil
lawsuit and that the defendant pressed the action for
an improper, malicious purpose. Probable cause to
institute civil proceedings requires no more than a
"reasonabl[e] belie[f] that there is a chance that [a]
claim may be held valid upon adjudication." Because
the absence of probable cause is an essential element
of the tort, the existence of probable cause is an
absolute defense. Just as evidence of anticompetitive
intent cannot affect the objective prong of [the] sham
exception, a showing of malice alone will neither entitle
the wrongful civil proceedings plaintiff to prevail nor
permit the factfinder to infer the absence of probable
cause.

Professional Real Estate Investors, 408 U.S. at 62-63
(footnote and citations omitted).

The law applied in PRE is generally referred to in the case
law as the Noerr-Pennington doctrine.6 Since PRE, the
courts of appeals have frequently held that the restrictions
on liability there recognized are applicable to liability under
state tort laws, e.g., State of Missouri v. National
Organization of Women, 620 F.2d 1301, 1318-19 (8th Cir.
1980), and to liability under the Civil Rights Act, e.g.,
Video Intern Productions, Inc. v. Warner-Amex Cable
Communications, Inc., 858 F.2d 1075, 1084 (5th Cir. 1988)
(". . . we hold that any behavior by a private party that is
protected from anti-trust liability by the Noerr-Pennington
doctrine is also outside to scope of S 1983 liability");
Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 614-15
_________________________________________________________________

6. From the seminal cases of Eastern Railroad Presidents Conference v.
Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers
v. Pennington, 381 U.S. 657 (1965).

13
(8th Cir. 1980) (same); Stern v. United States Gypsum, Inc.,
547 F.2d 1329, 1342-46 (7th Cir. 1977).

We reached a similar conclusion in Brownsville Golden
Age Nursing Home, Inc. v. Wells, 839 F.2d 155, 159-60 (3d
Cir. 1988). There, two private individuals and a public
official were charged with having conspired to mount a
campaign to get the Commonwealth of Pennsylvania to
revoke the license of the plaintiff nursing home. This
conspiracy was alleged to have violated state tort law. In
support of its case, the plaintiff submitted a "smoking gun"
letter written by a member of the official's staff arguably
reflecting an agreement to work together to secure
termination of the license. We made the following
observations that are instructive here:

In a somewhat analogous situation, it has been held
that persons who were successful in persuading the
Forest Service to reduce or abandon its timber sales
program to protect the wilderness quality of an area
could not be liable under state tort law for interference
with an advantageous relationship. Sierra Club v. Butz,
349 F. Supp. 934 (N.D. Cal. 1972). Judge Zirpoli based
the decision on the First Amendment right to seek to
influence government action.

Two lines of cases support the Sierra Club decision
and that which we uphold here: the defamation cases,
e.g., New York Times v. Sullivan, 376 U.S. 254, 84 S.
Ct. 710, 11 L.Ed. 2d 686 (1964), emphasizing the
constitutional importance of communication on
matters of public interest; and the Noerr-Pennington
cases teaching that the collusive use by competitors of
legislative, administrative or judicial process does not,
without more, give rise to an anti-trust violation, see,
e.g., Eastern R.R. Conference v. Noerr Motor Freight,
365 U.S. 127, 81 S. Ct. 523, L.Ed. 2d 464 (1961);
California Motor Transport Co. v. Trucking Unlimited ,
404 U.S. 508, 93 S. Ct. 609, 30 L.Ed 2d 642 (1972).

The rule that liability cannot be imposed for damage
caused by inducing legislative, administrative, or
judicial action is applicable here. The conduct on
which this suit is based is protected by the firmly

14
 rooted principle, endemic to a democratic government,
that enactment of and adherence to law is the
responsibility of all.

Brownsville, 839 F.2d at 159-60 (footnote omitted).

Also helpful is our decision in McArdle v. Tronetti, 961
F.2d 1083 (3d Cir. 1992). There, a state employee, a prison
counselor, allegedly prosecuted in bad faith a civil
proceeding to have the plaintiff involuntarily committed to
a mental health treatment facility. The plaintiff instituted
his suit under the Civil Rights Act, 42 U.S.C. S 1983,
claiming a violation of his right to substantive due process.
We held that this claim was analogous to "a common law
tort of malicious use of civil process by a state actor" and
that "claims of malicious prosecution brought under
Section 1983 `must include the elements of the common
law tort as it has developed.' " Id. at 1088 (quoting Rose v.
Bartle, 871 F.2d 331, 349 (3d Cir. 1989)). We cited to
section 674 of the Restatement (Second) of Torts as
evidencing those elements. That section provides:

One who takes an active part in the initiation,
continuation or procurement of civil proceedings
against another is subject to liability to the other for
wrongful civil proceedings if

(a) he acts without probable cause, and primarily for
a purpose other than that of securing the proper
adjudication of the claim in which the proceedings are
based, and

(b) except when they are ex parte, the proceedings
have terminated in favor of the person against whom
they are brought.

"In determining probable cause for initiation of civil
proceedings, all that is necessary is that the claimant
reasonably believe that there is a sound chance that his
claim may be held legally valid upon adjudication."
Restatement (Second) of Torts, S 675, cmt. (e) (1976).7
_________________________________________________________________

7. Contrary to the suggestion of the dissent, we do not read Albright v.
Oliver, 510 U.S. 266 (1994), a case dealing with an alleged malicious
prosecution that implicated the Fourth Amendment, as overruling

15
Herr's S 1983 claim against the defendants in this case is
analogous to the common law tort of malicious use of civil
process by a state actor. Accordingly, liability cannot be
imposed under the teaching of McArdle unless all elements
of the common law tort are satisfied. This includes the
requirement that the defendants resisted Herr's efforts to
secure approval "without probable cause and primarily for
a purpose other than securing the proper adjudication" of
Herr's claim. Nor, of course, can liability be imposed in a
manner inconsistent with the Constitution.

As Justice Souter points out in his concurring opinion in
PRE, there may be a conceptual difference between the
Constitutional "probable cause" requirement as articulated
in PRE and the term "probable cause" as employed by the
Restatement and the common law. PRE, 508 U.S. at 66-67
(Souter, J., concurring). PRE's "probable cause" is wholly
objective -- liability may be imposed only if"no reasonable
litigant could realistically expect to secure favorable relief."
PRE, 508 U.S. at 62. The common law's "probable cause"
may have a subjective component -- the defendant must
"reasonably believe that there is a sound chance that his
claim may be held legally valid." Restatement (Second) of
Torts S 675, cmt. (e). In most situations, this will be a
distinction without a difference. If a person has undertaken
to participate in civil proceedings and the circumstances
are such that he could have a reasonable expectation that
he may succeed, it will be the rare case indeed in which he
does not actually have that expectation. In any event, we
need not determine in this case whether there are cases in
which the distinction would make a difference. It does not
here.

The record in this case will not support a conclusion that
the defendants' resistance to Herr's application was
frivolous in the sense that no reasonable litigant could
_________________________________________________________________

McArdle, a case dealing with an alleged malicious use of civil process
that did not implicate the Fourth Amendment. Also, contrary to the
suggestion of the dissent, we believe McArdle stands for the proposition
that the principles we endorsed in Brownsville are applicable to an
alleged constitutional tort based on substantive due process.

16
realistically expect to prevail. Nor will it support an
inference that the defendants had no belief that they had a
"sound chance" of prevailing. As the District Court pointed
out, they took no appeal from the LCPC's original
conditional approval in 1992 and thus did not contest that
Herr was entitled for five years to the benefits of the prior
zoning ordinance. Moreover, their basic position in the
sewer litigation that Herr had no vested rights to municipal
sewer services under the 1971 sewage facilities plan was
ultimately sustained by the Commonwealth Court. Thus,
what Herr characterizes as a bad faith "end run" around
the grandfathering provision of the zoning law was, in
reality, a winning argument. Even Herr's "smoking gun"
letter, to the extent it can be taken as reflecting the
defendants' views, evidences that the Township expected
that it might well prevail before the DER and that the
possibility of the five year period expiring was regarded as
only an additional, incidental benefit of the defendants'
resistance before the state agency and the courts.

While Herr characterizes the defendants' resistance in
conclusory terms as frivolous, he has not identified any
specific issue and articulated why it was not a litigable one.
Our search of the record has not identified such an issue,
and we find no suggestion in the opinions of the decision-
making agencies that any of them regarded the Township's
positions as frivolous. Both the 1998 opinion of the
Commonwealth Court in the sewer litigation and the 1999
opinion of the Court of Common Pleas in the ensuing
litigation analyze the issues presented with care and some
detail. If either court had viewed one or more of those
issues as frivolous, we are confident that some evidence of
that view would have found its way into the opinions.8
_________________________________________________________________

8. We fail to perceive any similarity between this case and Grant v. City
of Pittsburgh, 98 F.3d 116 (3d Cir. 1996). There we were asked to decide
"whether, in applying Harlow's objective test for qualified immunity, a
Court may `consider' evidence of a defendant's state of mind when
motivation is an essential element of the civil rights claim." Id. at 123.
Our answer was in the affirmative. That answer is not helpful here,
however. Because the positions taken by the Township have not been
shown to be "objectively baseless" or asserted without "probable cause,"
the motive behind taking those positions is not legally relevant to the
propriety of the summary judgment entered against Herr.

17
IV.

To the extent the rule of decision here is grounded in the
common law, it makes no difference whether we are
analyzing the liability of the Township or the liability of the
supervisors in their individual capacities. The elements of
Herr's claim would be the same in either event, and if Herr
has not come forward with evidence that satisfies each
essential element of the analogous state tort, summary
judgment is appropriate. To the extent the rule of decision
here is an immunity rooted in the First Amendment, the
analysis of the Township's liability involves an additional
issue. It is clear that public officials sued in their individual
capacity are entitled to the immunity provided under the
Noerr-Pennington doctrine. See Brownsville Golden Age
Nursing Home, 839 F.2d at 159-60. We have found no case
addressing the issue of whether a municipal corporation is
entitled to such immunity.9 We predict, however, that the
Supreme Court would hold that it is.

In situations of this kind, a township and its supervisors
represent their constituents and facilitate their
participation in the governmental process. Indeed, if
municipal governments are discouraged from utilizing
municipal funds to finance participation in proceedings
before other governmental agencies, their citizens are likely
to be left without a voice in important matters pending
before those agencies. Moreover, municipal governments
are among those most likely to be in possession of
information relevant to the kinds of decisions that had to
_________________________________________________________________

9. The dissent cites one case, Video International Production, Inc. v.
Warner-Amex Cable Communications, Inc., 858 F.2d 1073 (5th Cir. 1988),
as standing for the proposition that petitioning immunity cannot apply
to a public entity. In that case, however, the plaintiff did not seek to
impose liability on the defendant city based on petitioning activity. The
complaint was based on the city's own zoning enforcement decisions
and, as the Court noted, "it is impossible for the government to petition
itself." Id. at 1086. Video International did not involve a situation,
like the
one before us, in which the plaintiff seeks to impose liability on a
municipality for petitioning a distinct public entity authorized by state
law to resolve land planning issues. Video International would be of help
here only if Herr were suing a public entity which had denied it a permit
for reasons unrelated to the merits of the permit application.

18
be made here and are among those most likely to be aware
of the decision makers' need for information. A rule which
would discourage municipalities from expressing concerns
and taking a position before other governmental agencies
would "deprive the government of a valuable source of
information." Noerr, 365 U.S. at 139. Granting petitioning
immunity to townships would thus serve the purposes of
the right to petition clause. While the Supreme Court has
held that townships are not entitled to the across-the-
board, common law, qualified immunity enjoyed by public
officials who exercise discretionary functions, Owen v. City
of Independence, 445 U.S. 622, 649-50 (1980), the rationale
of that decision is inapposite here. Petitioning immunity is
a limited immunity based on a specific provision of the
Constitution itself and extending it to townships would not
only be consistent with, but would further, the purposes of
the right to petition clause.

We therefore hold that neither the Township nor its
supervisors may be held liable based on the delays
occasioned by the proceedings before the LCPC and other
public bodies in the absence of a showing, not made upon
this record, that they lacked "probable cause" for the
positions they took.

V.

In addition to the claims predicated on the delays
occasioned by the proceedings before the LCPC and other
public bodies, Herr's brief makes the following allegations:

As in Blanche Road, there is substantial evidence
that defendants tried to delay or stop Mr. Herr's
development through "extra scrutiny" of Mr. Herr's
plans -- both improper reviews and never-ending
searches for "problems" with or additional conditions
for the plans. Additional "problems" or conditions, the
Township supposed, might cause the LCPC to
disapprove the project or Mr. Herr to abandon it. For
example, there is evidence that defendants caused the
Township zoning officer to give special attention to
reviews of plans for Millwood Industrial Park. Similarly,
there is evidence that the Township conducted

19
 numerous, time-consuming reviews to find "every
possible violation" in Mr. Herr's plans (Blanche Road,
57 F.3d at 260) and, thereafter, reported all such
reviews to the LCPC in the hope that the LCPC would
disapprove the plans.

Finally, there is evidence of the Township's and the
Supervisors' efforts to foster unfounded opposition to
Millwood Industrial Park from public agencies and
private parties alike. The Township repeatedly sent out
letters attempting to "engender any concerns" or
otherwise "get Mr. Herr on something else" (Blanche
Road, 57 F.3d at 258) as a means to "slow down and
shut down" (Id. at 260) the project.

Appellant's Br. at 31-32.

While these charges are cast in a somewhat different
form and are obviously intended to bring these aspects of
Herr's case within the teachings of Blanche Road , we
conclude that they, too, are barred by the protection
afforded for petitioning activity. To the extent these claims
are based on communications to the LCPC and other
responsible state agencies, a straightforward application of
the principles already discussed leads to the conclusion
that there can be no S 1983 liability. Calling concerns about
a proposed development to the attention of the responsible
state agencies lies at the core of privileged activity, and this
is true without regard to the number of concerns expressed
so long as there is some rational basis for those concerns.
In making these charges, Herr has identified no problem
communicated to a state agency that has been shown to
have no rational basis.

In Blanche Road, we held that the defendants might have
exposed themselves to S 1983 liability "by ordering that
Blanche Road's applications be reviewed with greater
scrutiny in order to slow down the development." 57 F.3d
at 269. We so held, however, in the context of a situation
in which the defendants comprised the permitting authority
and their alleged conduct "improperly interfered with the
process by which the township issued permits . . . for
reasons unrelated to the merits of the application for
permits." Blanche Road, 57 F.3d at 267-68.

20
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.

VI.

The judgment of the District Court will be affirmed.

21
GARTH, Circuit Judge, dissenting:

I must dissent from the majority's opinion, because I
would hold that there exists a genuine issue of material fact
as to whether Pequea Township's actions violated Herr's
substantive due process rights and, therefore, I would
remand for trial. I part company from the majority, which
holds that the 1st Amendment right to petition permits the
Township to use litigation and the judicial process in order
to prevent Herr from developing his property. For the
following reasons, in my opinion, the majority has erred:

1. Many of the actions taken by Pequea Township,
which deliberately delayed and obstructed Herr in the
development of his property, were actions which arose from
other than Court proceedings and the judicial process, and
thus may not be considered within the rubric of the
Township's right to petition under the 1st Amendment. In
short -- Herr's evidence in support of this substantive due
process claim is not simply limited to the Township's
litigious behavior.

2. Pequea itself has rejected any claim or theory
dependent upon the right to petition. In short -- Pequea
has declined to rely on any such theory even after it was
encouraged to do so.

3. Even if a right to petition were relevant in this case
(as the majority believes it to be), it cannot defeat or
overcome an individual's substantive due process right
where the Township of Pequea has engaged in arbitrary and
capricious developmental conduct. In short -- the improper
motives of the Township cannot be immunized by resorting
to a right to petition theory and the majority has cited
to no authority which would support such aberrant
jurisprudence.

a. In an effort to bolster its conclusion that Herr's
action is barred by Pequea Township's right to petition
-- a theory to which not even Pequea itself has
subscribed -- the majority claims that the Noerr-
Pennington doctrine supports its thesis.1 But Noerr-
_________________________________________________________________

1. Named after two Supreme Court cases, Eastern Railroad Presidents
Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United
Mine Workers v. Pennington, 381 U.S. 657 (1965), Noerr-Pennington
immunity protects private parties from antitrust liability flowing from
valid petitioning activity to the government.

22
 Pennington immunity applies to private, not
governmental, entities, and as I have pointed out and
will amplify later in this dissent, Herr's charges
encompass more than just petitioning activity. In short
-- Noerr-Pennington immunity may not be looked to in
an effort to resolve this controversy.

4. Of even greater significance, the majority has ignored,
and has not even referred to, a Third Circuit opinion
relevant here. Grant v. Pittsburgh, 98 F.3d 116 (3d Cir.
1996) holds, albeit in a qualified immunity context, that
claims of substantive due process violations of the kind
alleged by Herr require careful examination by the courts of
the motive and intent of the relevant government entity
involved. In short -- the majority's opinion would ignore
Grant's teachings, and would preclude Herr's evidence of
improper motive and intent on the basis of a right to
petition. That preclusion is not recognized in our
jurisprudence.

I.

It should be recalled that Herr is a landowner with
property in Pequea Township. He submitted a plan for an
industrial park to the Lancaster County Planning
Commission ("LCPC"), which granted preliminary and final
approval to his plan. According to the relevant Pequea
Township ordinances, Herr's industrial park was to be
provided with public sewer service. It was only after Herr
received approval from the LCPC that the Township
modified its ordinances and engaged in multiple court and
other actions which the record reveals were designed to
prevent the development of Herr's property in accordance
with the industrial nature of the zoning approval. It did so
because the Township desired the property to be used for
agricultural purposes rather than the zoned industrial
purposes.

Herr, whose legal position to develop an industrial
property was eventually upheld by the courts of
Pennsylvania,2 faced roadblocks at every step of his
_________________________________________________________________

2. The majority provides that the Township's"basic position in the sewer
litigation that Herr had no vested rights to municipal sewer services

23
attempts at industrial development for over eleven years. It
was not just a case of litigating his rights (which he was
forced to do), but it was a case where the Township, which
had a very deliberate and intentional motive to prevent Herr
from developing his property, obstructed Herr at every turn
of the road.

Both parties tried this case to summary judgment on the
issue that Herr's substantive due process rights had been
violated. Counsel for both parties rejected the majority's
suggestion that McArdle v. Tronetti, 961 F.2d 1083 (3d cir.
1992), had anything to do with Herr's predicament. McArdle
is a classic malicious abuse of prosecution case, whose
viability is in substantial doubt after the Supreme Court
decision in Albright v. Oliver, 510 U.S. 266 (1994).
Moreover, neither counsel relied on any aspect of Pequea
Township's 1st Amendment right to petition or the Noerr-
Pennington doctrine. Rather, both parties in this case
approached the issue on appeal in a straight-forward
manner -- the one asserting and the other denying a
substantive due process violation.

The plaintiff, Herr, contended that Pequea Township was
motivated by a desire to retain his property as agricultural
property. Herr, who had purchased the property and was
"grandfathered" into the zoning of the property as industrial
(so long as he developed the property within five years),
claimed that Pequea Township's acts were taken in bad
faith and with an improper motive, thus preventing him
from developing his property. Pequea, on the other hand,
_________________________________________________________________

under the 1971 sewage facilities plan was ultimately sustained by the
Commonwealth Court," and therefore was a "winning argument." Maj.
op. at 17. This reading by the majority, however, does not tell the whole
story. In fact, the Commonwealth Court -- while disagreeing with the
Environmental Hearing Board and ruling that the protection offered to a
developer's approved plan under S 508 of the Pennsylvania Municipalities
Planning Code did not apply to sewage facility plans-- nevertheless
found the Board's error to be harmless and ruled in favor of Herr. See
Pequea Township v. Herr, 716 A.2d 678, 684-85 (Pa. Commw. Ct. 1998).
Indeed, the Commonwealth Court agreed that "Herr had established that
[Pequea Township's] 1992 sewage plan was inadequate to meet Herr's
sewage disposal needs," and upheld Herr's right to municipal sewage
services from Pequea. Id. at 685.

24
argued that motive was not an issue, and that if it had
been, their motives were proper.

I suggest that this is the issue that must be resolved, not
the issues manufactured by the majority on which they
have decided to resolve this controversy.

II.

We have held that "non-legislative state action," which is
the type of state action at issue here, "may . . . give rise to
a substantive due process claim upon allegations that the
government deliberately and arbitrarily abused its power."
Nicholas v. Pennsylvania State University, 227 F.3d 133,
139 (3d Cir. 2000) (internal quotation marks omitted). A
substantive due process claim arising out of non-legislative
state action has two elements: 1) "we must look, as a
threshold matter, to whether the property interest being
deprived is `fundamental' under the Constitution," Nicholas,
227 F.3d at 142; and 2) the plaintiff "also must
demonstrate that [he] was the victim of `a governmental
action [that] was arbitrary, irrational, or tainted by
improper motive.' " Woodwind Estates, Ltd. v. Gretowski,
205 F.3d 118, 124 (3d Cir. 2000). Grant v. City of
Pittsburgh, 93 F.3d 116, 124-25 (3d Cir. 1996) adds that a
court is to consider evidence of a defendant's state of mind
[here, Pequea's] when motivation is an essential element [as
it is here] of the plaintiff 's [Herr's] civil rights claim.

A.

There can be no doubt that the property interest at issue
here is "fundamental." "Indeed," as we held in DeBlasio v.
Zoning Board of Adjustment for the Township of West
Amwell, "one would be hard-pressed to find a property
interest more worthy of substantive due process protection
than ownership." 53 F.3d 592, 601 (3d Cir. 1995).
Accordingly, I believe, and the majority agrees as well, see
maj. op at 10, that the District Court properly held that
Herr's interest in developing his property was an interest
worthy of due process protection.

25
B.

Because Herr has alleged a violation of a fundamental
property interest, it must be determined whether Herr has
suffered from "a governmental action [that] was arbitrary,
irrational, or tainted by improper motive." Bello v. Walker,
840 F.2d 1124, 1129 (3d Cir.1988). We have made clear
that, "[i]n disputed factual situations, the determination of
the existence of improper motive or bad faith is properly
made by the jury as the finder of fact." Woodwind Estates,
Ltd. v. Gretowski, 205 F.3d 118, 124 (3d Cir. 2000). We
also observed in Woodwind that "we have not hesitated to
vacate a grant of summary judgment or a judgment as a
matter of law where the evidence at least plausibly showed
that the government took actions against the developer for
indefensible reasons unrelated to the merits of the zoning
dispute." 205 F.3d at 124. In this context, "the intentional
blocking or delaying of the issuance of permits for reasons
unrelated to the merits of the permit application violates
principles of substantive due process and is actionable
under S [1]983." Woodwind, 205 F.3d at 124-25.

Looking at the facts in the light most favorable to Herr,
because it was Pequea Township, the defendant, which had
moved for summary judgment, I believe that a rational jury
could and would certainly find that the Township
intentionally blocked or delayed Herr's development of his
property "for reasons unrelated to the merits" of his
development plan. Indeed, the evidence suggests that the
Township used every effort -- including access to the courts
-- to hinder development of Herr's land.

There is extensive evidence from which a jury could find
that the Township acted arbitrarily, irrationally, or with
improper motive. Alan S. Peterson ("Peterson"), Chairman of
the Pequea Township Environmental Advisory Council, sent
numerous letters in 1990 to such places as the Nature
Conservancy, the Pennsylvania Historical and Museum
Commission, the Pennsylvania Game Commission, and the
Pennsylvania Fish Commission, asking them to review
Herr's proposal "for possible endangered species or other
environmental rarities," "for possible historical or
archaeological significance," and "for . . . species of special
concern." (App. 612a-615a.) Peterson also sent another

26
round of letters in early 1992 to the Lancaster Water
Authority, the Pennsylvania Power & Light Company, the
Suburban Lancaster Sewer Authority, and Department of
Transportation, among others, informing them about
concerns related to Herr's proposal. (App. 616a-622a.)
Additionally, Virginia K. Brady ("Brady"), a member of the
Township Board of Supervisors and a defendant in this
action, sent similar letters in October 1993 to the
Department of Transportation, the Bureau of Dams and
Waterways, the Department of the Army, and the Lancaster
City Engineer in October 1993. (App. 638a-641a.)

Peterson sent a letter to Eugene Dice, an attorney,
stating:

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 the
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 DER), the better. . . . We want this defeated after
our four year struggle!

(App. 374a-375a (emphasis added).)

Brady stated at her deposition: "Development is not bad.
However, to put -- and this is a personal opinion-- to put
development on prime agricultural soils is not right, and
that is a personal belief I have had for many, many, many
years." (App. 216a.). Additionally, Brady was quoted in a
1997 newspaper article, regarding the "battle" between Herr
and Pequea Township over his development plan, as
stating: "We already have an industrial park," and "I am
opposed to paving over any prime agricultural land." (App.
585a-586a.) Bruce Groff, another member of the Board of
Supervisors and a defendant in this action, was quoted as
saying that "support [for rural preservation] is desperately
needed to deter recent and future horrendous proposals
being prepared by developers." (App. 379a.)

Herr received a letter in April 1999 from Robert G.
Sneath, whose company had been a potential buyer of
space at Herr's proposed industrial park, in which Mr.

27
Sneath requested that Herr release him from the agreement
of sale, explaining:

My Associate, Glenn Warfel, talked to the zoning officer
about our plans. His name is Wes Brocknoe. . . Glenn
was informed that your plans were under litigation and
the land was still zoned agricultural by Pequea
Township. The zoning officer was not at liberty to talk
about it. With timing important to us, this was not
encouraging.

(App. 210a.) Mr. Sneath also stated, "Quite frankly,
everything I have heard about dealing with Pequea
Township is negative. I have no desire to invest my money
in a township with a negative attitude. It looks like this
development could take forever to be approved by the
township." (App. 210a.)

In light of this evidence, it is clear to me that the issue
of whether the Township had an improper motive must be
sent to the jury. Indeed, it is inconceivable to me how the
District Court could have held otherwise. The District Court
analyzed the evidence without regard to the fact that the
issue of improper motive was before the court on a
summary judgment motion, in which the court was required
to draw all reasonable inferences in Herr's favor. Instead,
the District Court several times drew inferences in Pequea
Township's favor in direct contravention of the summary
judgment standard.

For instance, the District Court drew the following
conclusions from the evidence: 1) "the reasonable inference
to be drawn is that Defendants wished to zone [another
land parcel which was permitted to remain industrial]
consistently with its current use, rather than carry out the
pointless exercise of changing the zoning to agricultural but
grandfathering the preexisting industrial use"; 2) "there is
no evidence before us that Defendants knew they could not
stop development of Millwood Park, yet acted merely to
delay and harass Plaintiff "; 3) "the mere fact that Dr.
Peterson claims that Virginia Brady was aware of the time
limit imposed by [the grandfather clause under which
Herr's land was zoned industrial] does not imply an
improper motive on her part"; 4) there was "no basis for an

28
inference that Defendants pursued the sewer litigation for
any purpose other than a genuine desire not to have
Millwood Park come about in the form proposed by
Plaintiff "; and 5) "[t]here is no basis to determine what the
true motives [of the Township] were." (App. 21a-25a.)

Additionally, I should note that a motive on the part of
the Township to prevent industrialization of land, i.e., "not
to have Millwood Park come about in the form proposed by
Plaintiff," (App. 25a), is not related to the merits of the
zoning dispute between Herr and the Township. Herr had
already submitted his plan to a separate governmental
entity (the LCPC), which approved Herr's plan before the
Township could pass legislation which would prevent the
proposed development. The fact that the Township properly
enacted new zoning and sewage ordinances with the goal of
reducing development does not mean that its actions to
attempt to defeat a development plan that had legitimately
escaped its regulation were proper. Indeed, in my view, the
Township's motive in enacting new ordinances and plans
relating to land use is irrelevant, and the District Court
erred in considering it.

III.

The majority holds that the Township's litigation-related
actions are protected by the 1st Amendment right to
petition and that, therefore, they cannot form the basis of
Herr's substantive due process claim. Holding that Herr
could not prove any injury without these actions, the
majority affirms the District Court's summary judgment
dismissal of Herr's substantive due process claim. I cannot
agree with this holding because the right to petition does
not bar substantive due process liability for litigation
arbitrarily and irrationally initiated by a governmental
entity.

A. Pequea's Actions Other and Apart from Litigation

As an initial matter, Herr's evidence in support of his
substantive due process claim is not simply limited to the
Township's litigious behavior. Herr presents evidence of a
litany of conduct by the Township above and beyond its

29
litigation activity over a span of eleven years-- all of which
was purportedly designed to delay and block the industrial
development of Herr's land.

This evidence includes: (1) proof of the Township's
campaign since 1990 to find problems with, or raise
unfounded concerns about, Millwood Industrial Park with
the hope that the problems raised would lead to delays
leading past the five-year grandfather period; (2) proof of
the Township's "extra scruntiny" of Herr's applications in
an effort to delay the development past the five-year period;
(3) proof of the Township's denial of Herr's applications for
public sewer service motivated by reasons unrelated to
water-quality issue but rather by Pequea's desire to hold up
Herr's development; and (4) proof that the Township's
issuance of an enforcement notice was part of a campaign
to delay development. This conduct has nothing to do with
litigation or petitioning activity before the LCPC or state
courts, and therefore -- even assuming the majority's right
to petition is correct -- it would not be immunized by the
1st Amendment.

B. Counsel's Rejection of Pequea's Petitioning Right

Next, Pequea Township itself has rejected any claim or
theory dependent upon the right to petition, declining to
rely on any such theory even after it was encouraged to do
so. Not only was this theory never raised, entertained or
discussed by the very party to whose benefit it would
redound, but when asked for supplemental memoranda
pertaining to that issue, both Herr and Pequea declined to
embrace or rely on such a theory. They did so because both
parties recognized that this case was a garden variety
substantive due process proceeding.

Likewise, the majority's reliance upon McArdle v. Tronetti,
961 F.2d 1083 (3d Cir. 1992) -- which it urged upon the
parties -- is inapposite. There, we analyzed the plaintiff 's
S 1983 claim as a malicious use of civil process claim in
violation of his 14th Amendment rights. Referring to Lee v.
Mihalich, 847 F.2d 66 (3d Cir. 1988), and its progeny, we
reasoned that "a claim of malicious use of process may
state a S 1983 claim if it includes the elements of that

30
common law tort as it has developed." McArdle , 961 F.2d at
1088. Accordingly, we required that such a claim requires
proof that (1) the defendant "acted in a grossly negligent
manner or without probable clause and primarily for a
purpose other than that of securing the proper . . .
adjudication of the claim in which the proceedings are
based; and (2) the proceedings have terminated in favor of
the person against whom they are brought." Id.

Setting aside the issue of McArdle's questionable viability
after the Supreme Court decision in Albright v. Oliver, 510
U.S. 266 (1994),3 the majority, by claiming that "Herr's
S 1983 claim against the defendants in this case is
analogous to the common law tort of malicious use of civil
process by a state actor," see maj. op. at 16, again directly
contradicts the repeated and equivocal positions of both
Herr's and the Township's counsel that Herr's claims were
not malicious use of process claims. Indeed, in a
Supplemental Letter Brief dated June 1, 2000 (ordered by
this Court), the Township specifically conceded that:

the McArdle principles do not apply to the instant
appeal. . . . Because the issues regarding abuse of
process have not been raised by [Herr] in the instant
appeal and because [Herr] has not produced evidence
to allow a finding of abuse of process, [the Township]
argues that McArdle has no relevance to the instant
appeal. . . . [T]he principles of McArdle have no
determinative effect on this Honorable Court's ability to
decide that there is insufficient evidence of record to
support a reasonable jury finding of a substantive due
process violation.

Similarly, Herr agrees that his claims are not malicious use
of process claims. While I acknowledge that we should
recognize the correct jurisprudence even if counsel declines
_________________________________________________________________

3. The Supreme Court's holding in Albright -- which suggested that a
malicious prosecution claim must be anchored in explicit constitutional
text, such as the Fourth Amendment, rather than generalized notions of
due process -- has cast doubt on the viability of Lee v. Mihalich and its
progeny, including McArdle. See,e.g., Gallo v. City of Philadelphia,161
F.3d 217, 222 (3d Cir. 1998) ("[Albright] has created great uncertainty in
the law" of malicious prosecution under S 1983 and Bivens).

31
to do so, we should not, as the majority has done here,
devise our own theory of liability (or immunity) after
counsel has deliberately rejected that theory, particularly
since it is flawed and lacks support in our jurisprudence.
Indeed, I think it is inappropriate and improvident to
substitute a panel's theory for counsel's, particularly when
it is obvious from our own jurisprudence that the issue of
improper motive in a substantive due process case is one
for the jury and not for the judge. See Woodwind , 205 F.3d
at 124; Grant, 93 F.3d at 124-25.

Nevertheless, even if McArdle were applicable, Herr's
claims (as discussed previously) encompass more than just
abuse of process. Rather, his claims are based upon
specific evidence showing that the Township blocked and
delayed the industrial development of his land at every
possible turn. The use of the court system is just one,
albeit important, evidentiary example of the Township's
tactics. Accordingly, the holding in McArdle -- even if
applicable -- is too circumspect to be of value as to Herr's
claims of substantive due process.

C. A Right to Petition Cannot Trump Illegal Municipal
Actions and Cannot Defeat a Legitimate Substantive Due
Process Claim

Even if a right to petition were relevant in this case, it
cannot defeat or overcome an individual's substantive due
process right where evidence has been presented that the
Township of Pequea has engaged in arbitrary and
capricious behavior. The improper motives of the Township
cannot be immunized by resorting to a right to petition and
the majority has cited to no authority which would support
such aberrant jurisdiction.

Though it is true that the First Amendment encompasses
a right to petition, this right is "not absolute." San Filippo
v. Bongiovanni, 30 F.3d 424, 435 (3d Cir. 1994).
Additionally, the doctrine of substantive due process does
not require that the actions taken by the government be
illegal to constitute a due process violation. Instead,
substantive due process "protects individual liberty against
`certain government actions regardless of the fairness of the

32
procedures used to implement them.' " Collins v. Harker
Heights, 503 U.S. at 125 (quoting Daniels v. Williams, 474
U.S. 327, 331 (1986)) (emphasis added). Indeed, courts
have repeatedly explained that substantive due process
protects against "the arbitrary exercise of the powers of
government." Bello v. Walker, 840 F.3d 1124, 1128 (3d Cir.
1988) (internal quotation marks omitted). Implicit in this
statement is that the actions that form the basis of
substantive due process claims are actions that are within
the government's power but nevertheless may be
constitutional violations in a particular case because of the
government's motive in exercising that power.

Accordingly, because of this clear indication in
substantive due process jurisprudence that it is not the
government's legal authority to exercise its power but its
motive that is relevant in analyzing a substantive due
process claim, I cannot agree with the majority's holding
that the Township did not violate Herr's substantive due
process rights simply because its actions were protected by
the right to petition.

By immunizing motive and intent whenever there is
petitioning activity on the part of the government, the
majority effectively renders the 14th Amendment powerless,
turning it into mere surplusage any time improper litigious
activity by a municipality is asserted. This "would
essentially insulate government officials from liability for the
very harm our substantive due process precedents have
sought to redress: using government authority to take
actions that, because of the improper motives of public
officials, have no rational relationship to a legitimate
government purpose." Grant, 98 F.3d at 125 (emphasis
added).

In this way, the right to petition -- which, by the
majority's reasoning, virtually always defeats any evidence
of a substantive due process violation -- would insulate the
Township from the very arbitrary and capricious
governmental conduct that is meant to be protected by the
14th Amendment. By this reasoning, the right to petition
would also immunize a municipality of liability under the
Equal Protection Clause -- also a 14th Amendment claim
-- notwithstanding evidence that a particular municipality

33
had pursued delay litigation tactics because of an
individual's race or religious beliefs, just so long as it could
articulate some non-frivolous justification to support its
lawsuit. Such a result is clearly contrary to our
constitutional jurisprudence.

D. Noerr-Pennington is Not Applicable and Not Relevant
to Government Misconduct

In an effort to bolster its conclusion that Herr's due
process claim is barred by the Township's right to petition,
the majority claims that the Noerr-Pennington doctrine
supports its thesis. In our most recent exposition of the
doctrine, we have described Noerr-Pennington immunity as
follows:

Under the Noerr-Pennington doctrine, private parties
may be immunized against liability stemming from
antitrust injuries flowing from valid petitioning. This
includes two distinct types of actions. A petitioner may
be immune from the antitrust injuries which result
from the petitioning itself. Also . . . parties are immune
from liability arising from the antitrust injuries caused
by government action which results from petitioning.

A.D. Bedell Wholesale Company, Inc. v. Philip Morris Inc.,
263 F.3d 239, 251 (3d Cir. 2001) (citations omitted).
"Rooted in the First Amendment and fears about the threat
of liability chilling political speech," the Noerr-Pennington
doctrine generally insulates a private entity which petitions
the government for redress from antitrust liability"even if
there is an improper purpose or motive" behind the
petitioning activity. Id. at 250 (emphasis added). We have
also noted that "the immunity reaches not only to
petitioning the legislative and executive branches of
government, but `the right to petition extends to all
departments of the Government,' including the judiciary."
Id. (quoting California Motor Transp. Co. v. Trucking
Unlimited, 404 U.S. 508, 510 (1972)).

The Noerr-Pennington doctrine, and the rationale behind
it, however, is not applicable here. First, in this case, it
seeks to immunize too much. Because Herr's charges
include more than appropriate petitioning activity on

34
Pequea's part (see Section III.A., supra ), the application of
Noerr-Pennington here cannot insulate or immunize Pequea
from Herr's claims.

Second, and more importantly, however, Noerr-Pennington
immunity applies to private parties -- not governmental
entities -- seeking redress from the government. See Video
International Production, Inc. v. Warner-Amex Cable
Communications, Inc., 858 F.2d 1075, 1082-84, 86
(applying Noerr-Pennington protection to private cable
operator against antitrust, tort and S 1983 co-conspirator
liability, but noting as to municipal liability that"Noerr-
Pennington protection does not apply to the government");
see also Professional Real Estate Investors, Inc. v. Columbia
Pictures Ind., Inc., 508 U.S. 49 (1993) (protecting private
movie companies against antitrust liability); Bill Johnson's
Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983) (extending
1st Amendment protection to private employer who filed
lawsuit against former employee allegedly in violation of the
National Labor Relations Act); California Motor Transport
Co. v. Trucking Unlimited, 404 U.S. 508 (1972) (refusing to
apply 1st Amendment protections to private trucking
company because it fell within "sham" exception); Gorman
Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir. 1980)
(immunizing private defendants against S 1983 liability on
the basis of Noerr-Pennington protection, but holding public
officials immune on grounds other than Noerr-Pennington
immunity); State of Missouri v. National Organization for
Women, 620 F.2d 1301 (8th Cir. 1980) (protecting private
women's organization against antitrust liability); Stern v.
United States Gypsum, Inc., 547 F.2d 1329 (7th Cir. 1977)
(protecting corporation and its officers againstS 1985
liability). To the extent that the majority has cited one case
that could arguably be seen as extending this immunity to
a governmental entity, the protection immunized the party
only against statutory liability, not against a constitutional
deprivation. See Armstrong Surgical Center, Inc. v.
Armstrong County Memorial Hospital, 185 F.3d 154 (3d Cir.
1999).4
_________________________________________________________________

4. In Armstrong, Noerr-Pennington protection was afforded to a hospital
and its staff physicians from antitrust liability under the Sherman Act.

35
Accordingly, the application of the Noerr-Pennington
doctrine cannot resolve, and cannot be analogous to, the
following conflict: whether a governmental entity's
[Pequea's] 1st Amendment right to petition always trumps
an individual citizen's [Herr's] 14th Amendment due
process right to be free from arbitrary and capricious
government activity.5 The majority provides no authority
extending Noerr-Pennington to conduct by government
entities which have been shown to have acted in violation
of constitutional restrictions. Nor do I know of any
authority purporting to extend Noerr-Pennington in such a
way so as to per se defeat an individual's constitutional
rights under the 14th Amendment.

One of the cases cited by the majority, Brownsville
Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155 (3d
Cir. 1988), involved a nursing home operator that filed state
tort claims against two private individuals and a public
official. There, the nursing home alleged that the
defendants improperly scrutinized its operations through a
publicity and letter-writing campaign which ultimately led
to its loss of license. This Court affirmed the district court's
grant of summary judgment against the nursing home
because it failed to "raise a material issue of fact" on its
state law claims of tortious interference with business
relations and civil conspiracy. Id. at 159 (emphasis in
original). Specifically, we agreed with the district court that
_________________________________________________________________

While the caption of that case suggests that the hospital may have been
a county hospital, the issue of whether it was a"municipality" or a
"government entity" was never addressed. Indeed, the opinion itself
appears to have referred to the defendant hospital as a "private party" a
number of times, and explicitly characterized the Noerr-Pennington
immunity as an "immunity for private parties." See, e.g., id. at 159-61,
62 (emphasis added).

5. It is axiomatic that government entities, unlike private citizens, are
limited by the Constitution from certain conduct in ways that individuals
are not (see, e.g., the Due Process Clause and the Equal Protection
Clause). Therefore, providing a private citizen an absolute per se
immunity arising from his or her 1st Amendment right to petition is far
different than providing such an absolute constitutional right to a
governmental entity such as Pequea Township.

36
the plaintiff failed to show that the defendants actions were
"unlawful" or "improper" (as required by those torts) since
the Pennsylvania courts had conclusively determined that
the revocation of the home's license was warranted
"because of its serious violations of nursing home
standards." Id.

Invoking, by analogy, the principles underlying
defamation cases, e.g., New York Times v. Sullivan, 376
U.S. 254 (1964), and Noerr-Pennington cases, we held that
the defendants' actions "in calling [plaintiff 's] violations to
the attention of state and federal authorities and eliciting
public interest cannot serve as the basis of tort liability."
Brownsville, 839 F.2d at 160. This ruling is a far cry from
the situation in this case wherein Herr has presented
credible evidence showing that the Township's motivations
behind its delay tactics and in litigating the "sewer" issue
were prompted by a desire to thwart Herr from his rightful
claim to develop his property as well as a scheme to delay
Herr sufficiently such that his five-year grandfather period
would expire. In addition, unlike the allegations made in
Brownsville, Herr's claims sound in direct constitutional
authority and not in state common law or statutory
liability.

E. Grant v. Pittsburgh

Finally, by disregarding evidence of the Township's
motive and intent, the majority has ignored our holding in
Grant v. Pittsburgh, 98 F.3d 116 (3d Cir. 1996). There,
Grant (a land developer) brought suit against certain city
officials under S 1983 alleging, inter alia, violations of his
substantive due process rights. In particular, Grant claimed
that the nomination by city officials of two buildings for
historic preservation under the Pittsburgh Historic
Structures, District, Sites and Objects Ordinance,
Pittsburg, Pa. Code Title 1007, S 513, effectively prevented
the buildings from being demolished and thereby thwarted
Grant's plans to develop the property on which the
buildings were located. Grant alleged that the nomination
was not motivated by public interest, but rather by partisan
and personal politics having no bearing on the historic

37
preservation of the buildings. The defendants claimed
qualified immunity.

The district court, failing to consider each defendant's
role individually in the alleged conduct, nonetheless denied
the officials' summary judgment motion based upon
qualified immunity. This Court remanded the qualified
immunity issue for reevaluation as to the specific conduct
of each defendant, but specifically noted that "courts are
not barred from examining evidence of a defendant's state
of mind in considering whether a plaintiff has adduced
sufficient evidence to withstand summary judgment on the
issue of qualified immunity, where such state of mind is an
essential element of the constitutional violation itself." Id. at
124 (citations omitted). In particular, our Court specifically
recognized that,

[t]he substantive due process violation alleged in this
case is precisely the sort of claim where clearly
established law makes the conduct legal or illegal
depending upon the intent with which it is performed .
By their very nature, substantive due process claims of
this kind involve the application of otherwise legitimate
government machinery to achieve an illegitimate end.
. . . [W]hen the same officials invoke administrative
processes with an illicit purpose, they are violating
substantive due process guarantees and, at the same
time, `clearly established' law.

Id. at 125 (citations omitted) (emphasis added). Although
decided in the context of qualified immunity, Grant
expressly recognizes and acknowledges that substantive
due process claims often involve the use of legitimate
governmental processes by government officials for
illegitimate ends, and that the proper inquiry focuses not
upon the propriety of the processes utilized, but rather
upon the motives of the officials involved.

Here, the very essence of Herr's substantive due process
allegations depend upon the motives behind the actions
taken by the Township and the individual defendants. As
already discussed (see Section II.B., supra), Herr has
presented particularized and specific evidence which-- if
credited -- could reasonably lead a jury to conclude that

38
the actions by Pequea Township in this case were motivated
by illicit purposes, and thereby violated Herr's substantive
due process rights under the 14th Amendment.

IV.

The District Court noted that "we believe Defendants are
entitled to qualified immunity." (App. 30a.) The Supreme
Court stated in Harlow v. Fitzgerald: "government officials
performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known."
457 U.S. 800, 818 (1982). I would hold that the defendants
here should have known that their actions may have
violated Herr's substantive due process rights and,
therefore, they are not entitled to qualified immunity.
However, because I am satisfied that the issue of"improper
motive" must be returned for jury determination, even
though I believe that the Township has violated Herr's
constitutional right and that the right was clearly
established at the time of the violation, I would hold that
the qualified immunity issue should be addressed not by us
but in the District Court.

Such a holding would be consistent with our holdings in
Blanche Road Corp. v. Bensalem Township and Woodwind,
both of which involved substantive due process challenges
to governmental interference with land development plans.
In Blanche Road, we stated:

In the instant case . . . , when the evidence is viewed
in the light most favorable to plaintiffs, it is clear that
defendants could not have reasonably believed that
their conduct did not violate [plaintiffs']6 rights. If
defendants, for reasons unrelated to an appropriate
governmental purpose, intentionally conspired to
impede the development of the Blanche Road project,
by ordering that Blanche Road's applications be
reviewed with greater scrutiny in order to slow down
_________________________________________________________________

6. The text of the opinion says "defendants' rights," but this is clearly
a
typographical error.

39
 the development and by ordering that efforts be taken
to shut down the development, such an arbitrary
abuse of governmental power would clearly exceed the
scope of qualified immunity. Accordingly, the defense of
qualified immunity is not available to defendants in the
instant matter.

57 F.3d 253, 269 (3d Cir. 1995). Similarly, we held in
Woodwind that: "In the instant case . . . , when the
evidence is viewed in the light most favorable to plaintiff, it
is clear that the supervisor defendants could not have
reasonably believed that their conduct did not violate
plaintiff 's rights." 205 F.3d at 125.

I believe that the defendants in this case have even less
claim to qualified immunity than the defendants in Blanche
Road. If the right to be free from state intervention with
land development was clearly established when Blanche
Road was decided (in 1995), it is even more clearly
established now in light of the Third Circuit's decision and
holding in Blanche Road.

V.

I would reverse the District Court's grant of summary
judgment to Pequea Township and remand the case for
trial, because Herr has a fundamental property interest;
there is a genuine issue of material fact as to whether the
Township acted with an improper motive; and the
Township's delay tactics, including its initiation of
litigation, is not protected from substantive due process
analysis by any claimed right to petition. Because the
majority of the panel holds otherwise, I respectfully dissent.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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