Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
9-23-2003
Holland Transp Inc v. Upper Chichester Twp
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4221
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"Holland Transp Inc v. Upper Chichester Twp" (2003). 2003 Decisions. Paper 261.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
NO. 02-4221
________________
HOLLAND TRANSPORT, INC. and HOLLAND MULCH, INC.
Appellants
v.
UPPER CHICHESTER TOWNSHIP, THOMAS C. ROBERTS, WILLIAM E.
BURLAND, III, RICHARD T. CURRY, THOMAS J. WENGER, JOHN J. WILLS,
STEPHEN E. BARRAR, LAWRENCE M. SPEDDEN, THOMAS FERRO, BETH H.
ZENUK, ZONING HEARING BOARD OF UPPER CHICHESTER TOWNSHIP,
THERESA R. GUYER, JAMES SQUADRITO, CHARLES REMALEY, and LEWIS
KNAUER,
Appellees
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 00-cv-00397)
District Judge: Honorable Michael M. Baylson
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
September 8, 2003
Before: BARRY, BECKER, and GREENBERG
Circuit Judges.
(Filed: September 23, 2003)
_______________________
OPINION
_______________________
BECKER, Circuit Judge.
This is an appeal by plaintiffs, Holland Transportation, Inc. and Holland Mulch,
Inc. from the District Court’s grant of summary judgment in a case brought by plaintiffs
challenging certain land use decisions of the defendants – Upper Chichester Township
and a number of its officials. The case has a long and tortuous procedural history with
which the parties are intimately familiar and which need not be rescribed here. Judge
Baylson dismissed the complaint on ripeness grounds. We think that he was correct in
doing so.
Ripeness in this context is governed by Williamson County Regional Planning
Commission v. Hamilton Bank, 473 U.S. 172 (1985), which stands for the proposition
that in cases involving use of land and a challenge to a zoning decision, a claim will not
be ripe until the plaintiff has given the local municipality the opportunity to issue a final
decision on the application of its zoning ordinance to the property in question. Id. at 186.
We have recognized that, in a Pennsylvania Municipality, the ability to render final
zoning decisions is vested in the Zoning Hearing Board (“ZHB”) pursuant to
Pennsylvania’s Municipalities Planning Code. Taylor Inv., Ltd. v. Upper Darby
Township, 983 F.2d 1285, 1291-93 (3d Cir. 1993). Holland argues that its claim is ripe
because it appeared before the ZHB regarding Site A, and the ZHB issued a final
decision regarding that site (a denial).
However, Holland appealed this decision to the Delaware County Court of
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Common Pleas where Judge Battle reversed the ZHB, finding that it had abused its
discretion by labeling Holland’s mulch business as a “collection facility” rather than a
“processing facility.” Judge Battle then remanded the case to the ZHB for determination
of one specific issue. The municipal regulations require a “150-foot setback” from
residential properties for facilities of this sort. There is some ambiguity as to whether the
facility itself must be 150 feet from a residential property, or whether the property on
which the facility sits must be 150 feet from a residential property. Holland did not
renew its argument before the ZHB because, it argues, the ZHB had already decided this
issue (in favor of the “property” interpretation).
The District Court concluded that the remand essentially made the ZHB’s prior
“final decision” not final anymore, reasoning that, even if the ZHB had previously
decided in favor of the “property” interpretation rather than the “facility location”
interpretation, the Court of Common Pleas’ reversal of other components of its holding
might cause the ZHB to reconsider that one as well. (Perhaps if the ZHB views
Holland’s facility as a “processing facility,” its conclusion regarding the 150-foot setback
will change.)
We think that a remand for consideration of an issue renders nonfinal any decision
on that issue, in which case Holland had a duty to renew its action before the ZHB. It did
not do so, which means that its claim is not ripe. The same conclusion obtains for Sites
B and C, where Holland never even petitioned the ZHB for a resolution, claiming that to
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do so would have been futile given the perceived persecution by County Commissioners
that would give rise to a futility exception to ripeness. But we have not recognized the
futility exception in land use cases.
Holland spends a great deal of time arguing that our decision in Blanche Road
Corp. v. Bensalem Township, 57 F.3d 253 (3d Cir. 1995), precludes dismissal of
Holland’s claims even if they are not ripe.1 However, while this case was being briefed,
Blanche Road was superseded. We held in United Artist Theater Circuit, Inc. v.
Tonwship of Warrington, Pa., 316 F.3d 392 (3d Cir. 2003), that the Supreme Court’s
decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), requires that we
employ a “shocks the conscience” standard instead of an “improper interference
standard.” Holland concedes that this is now the controlling case, and makes an
argument that what happened in this case shocks the conscience. It does not.
The judgment of the District Court will be affirmed.2
1
Blanche Road held that zoning ripeness was not required when:
Defendants acting in their capacity as officers of the township, deliberately
and improperly interfered with the process by which the township issued
permits in order to block or to delay the issuance of plaintiffs’ permits, and
that the defendants did so for reasons unrelated to the merits of the application
for permits. Such actions, if proven, are sufficient to establish a substantive
due process violation, actionable under § 1983, even if the ultimate outcome
of plaintiffs’ permit applications was favorable.
2
Alternatively, we agree with Judge Baylson that a separate basis for granting summary
judgment is that granting Holland the relief it sought (a permit) would necessarily entail
setting aside the judgment of the Court of Common Pleas, which instructed Holland to
file a Land Use Development Plan in connection with Site B. In reversing, we would be
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overturning the judgment of a state court that a Land Use Development Plan was a
prudent request on the part of the Commissioners, and the Rooker-Feldman doctrine
prevents us from doing so, see D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482
n.16 (1983), and Rooker v. Fid. Trust Co., 263 U.S. 413 (1923).
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Edward R. Becker
Circuit Judge
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