Ruiz v. New Garden Township

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

7-26-2004

Ruiz v. New Garden Twp
Precedential or Non-Precedential: Precedential

Docket No. 02-4434

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PRECEDENTIAL (Civil Action No. 01-CV-5081)
District Judge: Hon. Anita B. Brody
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT Argued: December 15, 2003

Before: ROTH, McKEE, and ROSENN,
No. 02-4434 Circuit Judges.

(Opinion Filed: July 26, 2004)

GUILERMINA RUIZ; RODOLFO
VILLAGOMEZ; ANTONIO LOPEZ;
ANTONIO ORTIZ; RAFAEL LUNA; ARTHUR W. LEFCO, ESQ. (Argued)
ANGELICA SANCHEZ; JAMES W. GICKING, ESQ.
JOSE J. PADRON; and J. Marshall, Dennehey, Warner, Coleman
GUADALUPE LOPEZ & Goggin
1845 Walnut Street, 17th Floor
v. Philadelphia, PA 19103-4717
Attorneys for Appellants
NEW GARDEN TOWNSHIP; ROBERT
N. TAYLOR, III; WILLARD H. ROBERT F. SALVIN, ESQ. (Argued)
SMEDLEY; Community Impact Legal Services, Inc.
PATRICK J. KENNEY; NORMAN S. 419 Avenue of the States
NUNN; FRANK J. ZAGORSKIE; Crozer Building, Suite 201
THE ZONING HEARING BOARD OF Chester, PA 19013
NEW GARDEN TOWNSHIP; Attorney for Appellees
DAVID CARLIN; ANGELO ZUNINO;
JAMES DILUZIO,
Appellants
OPINION OF THE COURT
DANTE DIUBLADO; LUCY M.
DIUBLADO, (Intervenors in D.C.)

McKEE, Circuit Judge.
We are asked to review an order of
On Appeal from the United States
the district court enjoining New Garden
District Court
Township and its employees (“the
for the Eastern District of Pennsylvania
Township”) from enforcing a zoning Antonio Lopez, Antonio Ortiz, Rafael
enforcement notice that would have Luna, Angelica Sanchez, Jose J. Padron
resulted in the eviction of plaintiff and J. Guadalupe Lopez have been tenants
tenants.1 The plaintiffs requested the in mobile homes located at 320 Ellicott
injunction pursuant to 42 U.S.C. § 1983 Road in New Gard en Township ,
arguing that the Township had violated Pennsylvania. Since 1989, that property
their Fourteenth Amendment right to has been designated as a C-I-2 Limited
procedural due process in failing to notify Commercial Industrial District. 2
them of a zoning hearing into whether
The plaintiffs paid rent in the
their landlord was violating certain zoning
amount of $500 to $600 per month
ordinances by allowing mobile homes on
pursuant to oral leases with Dante and
property not zoned for residential use. We
Lucy DiUbaldo.3 It is uncontested that
agree that plaintiffs have not established a
DiUbaldo agreed that at least one of the
procedural due process violation, and we
tenants could remain on the property for
will therefore reverse.
up to three years and that DiUbaldo would
I. FACTS AND PROCEDURAL decide how long the tenant would have to
HISTORY vacate the property if he decided to leave.
Since the 1990s, plaintiffs On June 22, 2000, the Township
Guillermina Ruiz, Rodolfo Villagomez, issued an enforcement notice citing
DiUbaldo for violations of the township’s
zoning ordinance. The violation resulted
1 from the presence of the plaintiffs’ mobile
The defendants also ask us to
homes on the property located at 320
reverse the district court’s decision to
Ellicott Road. The zoning notice was
deny its motion to dismiss pursuant to
issued because the light industrial zoning
Fed. R. Civ. P. 12(b)(6) and order that
designation of that property did not allow
the action be dismissed with prejudice.
the property to be used as a trailer park.4
The record before us regarding the
disposition of the motion to dismiss is
unclear. The district court mentions it in 2
The property contains “mushroom
its opinion in support of issuing the
houses.”
permanent injunction but does not
explicitly state that it denied the motion 3
We will refer only to Mr. DiUbaldo
or explain why it denied the motion. Nor in the rest of the opinion because he
does the motion appear on the district managed the property.
court docket included in the record on
4
appeal. As a result, we feel that the The property became part of the C-I-
district court would be better equipped to 2 Limited Commercial Industrial District
revisit its decision and the state of this when it was re-zoned in 1989, but had
claim on remand. been zoned as residential beforehand.

2
The notice required DiUbaldo to begin As instructed, DiUbaldo served the
removing the mobile homes within 10 days notices to quit on the tenants around
and to complete the process within 45 March 1, 2001. Plaintiff Lopez testified
days. The notice also informed him that that this was when he first learned that the
he could appeal the enforcement action to Township was enforcing the zoning
the New Garden Township Zoning ordinance and the effect it would have on
Hearing Board (“ZHB”). him. Plaintiff Luna testified that he did
not learn of the situation until after the
DiUbaldo did appeal, and hearings
hearing. Despite the notice to quit, the
were held on November 15 and December
tenants failed to vacate the property by
13, 2000, before the ZHB. None of the
July 2001, and DiUbaldo thereafter
tenants participated in that appeal although
initiated eviction proceedings against
notice of the hearings was apparently
them. As a result of those proceedings, a
posted on the Ellicott Road property. The
local magistrate eventually ordered the
ZHB denied DiUbaldo’s appeal on January
plaintiffs’ eviction.
22, 2001, but it altered the terms of the
aforementioned enforcement order. The tenants then filed this action in
DiUbaldo was ordered to give the tenants the U.S. District Court for the Eastern
notice to quit the property by March 1, District of Pennsylvania seeking to enjoin
2001 and he was ordered to remove the the ZHB’s order requiring DiUbaldo to
mobile homes by July 2001.5 serve them with notices to quit. They
argued that, given their property interest,
they were entitled to notice of the
5
Although DiUbaldo served the proceedings before the ZHB. They
notices to quit on the plaintiffs pursuant claimed that the Township’s failure to
to the enforcement notice that issued notify them of those hearings violated their
after he lost his appeal before the ZHB, right to procedural due process under the
he also filed a conditional use application Fourteenth Amendment. 6 As we noted at
with the New Garden Board of the outset, the district court agreed and
Supervisors. At the hearings before the granted a permanent injunction. This
Board of Supervisors, he argued that the appeal followed.
mobile homes were a permissible
II. JURISDICTION AND
expansion of a pre-existing
STANDARD OF REVIEW
nonconforming use because one of the
mobile homes was placed on the property
before 1989 when the property was re-
6
zoned. It is undisputed that the tenants They also argued that some of the
were properly given notice of these procedural safeguards that due process
hearings, and that some of them attended required were codified in the hearing
the hearings. The Board of Supervisors notification guidelines at 53 Pa. Stat.
denied his application. Ann. § 10616.1 (2003).

3
 The district court’s final order U.S. 564, 577 (1972). The parties agree
granting a permanent injunction is that, under Pennsylvania law, leaseholders
appealable under 28 U.S.C. § 1291. have the same right to possession of real
Ameristeel Corp. v. Int’l Bhd. of estate as an owner during the term of the
Teamsters, 267 F.3d 264, 267 (3d Cir. lease. The district court found that the
2001). We have jurisdiction over the plaintiffs had a protected property interest
section 1983 claim under 28 U.S.C. § in the form of oral month-to-month leases
1331, and we have supplemental because the conduct between the parties
jurisdiction over concomitant state law established that the plaintiffs each had a
issues under 28 U.S.C. § 1367. “We month-to-month lease. However, we hold
review a district court’s decision to grant that, even if plaintiffs did establish a
or deny a permanent injunction under an protected interest based upon their
abuse of discretion standard. However, leasehold estates, they were nevertheless
because an abuse of discretion exists not denied procedural due process because
where the district court’s decision rests the procedure utilized by the ZHB was not
upon a clearly erroneous finding of fact, an constitutionally infirm.
errant conclusion of law, or an improper
“In Pennsylvania, if the landlord
application of law to fact, we apply
and tenant have failed to specify a definite
plenary review to the District Court’s legal
period of time for the lease to continue, the
conclusions.” Ameristeel, 267 F.3d at 267
court may imply the type of tenancy
(internal quotation marks and citations
indicated by the conduct of the parties.”
omitted).
R ONALD M. F RIEDMAN, P A. L ANDLORD-
III. DISCUSSION T ENANT L AW AND P RACTICE § 1.10 (3d
ed. 2004). The tenants were required to
In order to satisfy the requirements
pay about $500 to $600 monthly, and such
for a permanent injunction, plaintiffs must
monthly rental payments generally support
establish that they will ultimately succeed
the existence of a month-to-month
on their claim. Shields v. Zuccarini, 254
tenancy. See R ESTATEMENT (S ECOND) OF
F.3d 476, 482 (3d Cir. 2001). In order to
P ROPERTY § 1.5 (2003) (“Where the
prevail on their section 1983 claim,
parties enter into a lease of no stated
plaintiffs must establish that persons acting
duration and periodic rent is reserved or
under color of law deprived them of a
paid, a periodic tenancy is presumed. The
protected property interest without due
period thus presumed is equal to the
process of law. Midnight Sessions et al. v.
interval for which rent is reserved or paid
City of Philadelphia, 945 F.2d 667, 680
to a maximum periodic tenancy of year to
(3d Cir. 1991).
year.”).
State law defines property interests
However, “[t]he presumption that a
for purposes of procedural due process
periodic tenancy is intended may be
claims. See Bd. of Regents v. Roth, 408
rebutted by language or circumstances

4
showing a contrary intent.” Id. The record paid rent on a monthly basis, there is no
here contains unchallenged evidence that evidence that the plaintiffs and DiUbaldo
the plaintiffs could terminate their leases at explicitly agreed to month-to-month
any time, and that DiUbaldo would then leases, and the district court does not
decide how long tenants had to vacate their explain how it concluded that these were
premises following such termination. month-to-month leases as opposed to
Thus, the landlord or tenant could end the tenancies at will.
tenancy abruptly at any time even though
However, since the Township now
the rent was calculated and paid monthly.
agrees that tenants had month-to-month
Since the tenancies were “for an uncertain
leases, we will proceed as if they did. See
or indeterminate term which is terminable
Brief at 23 (“as month-to-month tenants,
at the volition of either landlord or tenant,”
plaintiffs had no legitimate expectation to
plaintiffs arguably had interests analogous
continued possession of property . . .”).8
to tenancies at will rather than month-to-
Moreover, under Pennsylvania law, any
month tenancies. P.L.E. 2d LANDLORD
tenancy creates a property interest. Berrios
AND T ENANT § 74.7 Although the tenants
v. City of Lancaster, 798 F. Supp. 1153,
1157 (E.D. Pa. 1992) (stating that
Pennsylvania law regards any lease as a
7
See Heck v. Borda, 6 A. 392, 393 property interest); see also Ward v.
(Pa. 1886). There, the Pennsylvania Downtown Dev. Auth., 786 F.2d 1526,
Supreme Court reversed a trial court’s
holding that a lease established a tenancy
at will, finding instead that the lease Id. Although the leases here also include
established a year-to-year tenancy. The a periodic payment of rent, they
Heck Court found that the parties expressly provide that either party can
intended to create a tenancy from year- terminate them at any time. Unlike the
to-year because the written lease stated lease in Heck, they do not limit the right
that the tenancy would last as long as a to abruptly terminate to only one party,
yearly royalty was paid. Id. Because the nor do these oral leases have any terms
lessor had express authority to terminate suggesting that a future relationship is
the lease in certain events, the court expected. The lease in Heck required the
believed this authority tended “to exclude landlord’s investment in the leased
the inference” that both parties had the property.
power to terminate it at will, which is a
8
necessary element of a tenancy at will. The plaintiffs also argue that their
Id. The court also held that a provision leases were year-to-year, but this
requiring the landlord to spend a certain argument is waived because the plaintiffs
amount to put the property in working raised it for the first time on appeal. See
order further established that the parties Gass v. V.I. Telephone Corp., 311 F.3d
did not intend to create a tenancy at will. 237, 246 (3d Cir. 2002).

5
1529 (11th Cir.) (discussing how Florida However, given the facts here, we
law makes any tenancy a compensable need not decide whether plaintiffs had a
property interest for purposes of Fifth cognizable property interest because even
Amendment public takings). if they did, it is clear that they had no
reaso nable e xpe c ta tion of future
However, the plaintiffs’ property
occupancy beyond the period which the
interest here is tenuous at best because any
landlord might agree to in the event of
such interest appears to have been created
termination.10 As noted, that period was
in violation of a zoning ordinance. Cf.
undefined and left completely to the
Puleo v. Zoning Hearing Board of
discretion of the landlord. However,
Schuykill Township, 722 A.2d 789 (Pa.
Pennsylvania law requires that tenants be
Commw. 1999) (holding that property
given at least 30 days’ notice of
owners could not retain a structure on their
termination. 68 Pa. C.S.A. § 250.501(c)
property because they built the structure in
(2001). Accordingly, it appears that the
violation of a zoning ordinance and
tenants could reasonably expect no more
another municipal ordinance). 9
than present enjoyment of their leased
premises and 30 days additional occupancy
9 upon notice that their landlord decided to
Judge Rosenn’s analysis begins with
terminate any of their leases. See Ward,
the conclusion that “[i]t is undisputed
786 F.2d at 1529 (stating in dicta that
that neither the landowner nor the
legally sufficient notice to vacate would
plaintiff-renters have complied with any
terminate a tenant’s interest as of the end
of [the applicable zoning] codes.”
of the notice period). 11
Concurring Op. at 3. It then proceeds
governed by the principle that “the
unlawful occupation of the rental
outcome of the zoning hearing does not
property by the plaintiff-renters has
adequately respond to the legal challenge
vested no property right in them.” Id. at 5
implicit in plaintiffs’ appeal.
(citing Puleo). However, the plaintiff-
renters are complaining that they had no 10
Cf. U.S. v. Petty Motor Co., 327
opportunity to appear at the zoning U.S. 372 (1946). Petty held that a tenant
hearing that found their property to be in can not have an expectation to remain on
violation and therefore could not defend property following condemnation for
against that allegation. Inasmuch as it public use given an express term in the
appears that the trailers in question are lease to relinquish all rights upon such
the only homes the plaintiffs have, their condemnation. Id. at 376.
interest in defending against the
11
violations was at least as strong as that of The tenants in Ward had a protected
DiUbaldo, the absentee owner. property interest beyond that period of
Accordingly, an analysis that begins and notice and, based on that, a right to
ends with charging the plaintiffs with the procedural due process because the state

6
 The ZHB ordered DiUbaldo to C. Notice
notify the tenants of its ruling by March 1,
Because the plaintiffs were not
2001, and to remove the mobile homes
deprived of a protected property interest in
from the property by July 1, 2001. Thus,
their leases, the Constitution did not
from the time the tenants first heard of the
mandate that they receive notice of the
necessity of leaving the premises, they had
hearing before the ZHB, and the district
four months to depart. Their claimed
court’s conclusion to the contrary can not
property interest, however, entitled them to
stand.
only 30 additional days of tenancy after the
notification by the landlord of termination The plaintiffs also argue that the
of the lease. Thus, the actions of the ZHB Pennsylvania Municipalities Planning
could not have deprived the tenants of any Code (“MPC”) gives them a right to
property interest to remain on the notice. However, we are not persuaded.
premises. In fact, the ZHB ruling gave the The MPC requires localities to send an
tenants more notice of termination than enforcement notice to “the owner of record
they would otherwise have been entitled of the parcel on which the violation has
to. Accordingly, there could not have been occurred, to any person who has filed a
an unconstitutional taking of a protected written request to receive enforcement
property interest. 12 notices regarding that parcel, and to any
other person requested in writing by the
owner of record.” 53 Pa. Stat. Ann. §
agency that acquired the property and 10616.1 (2001). A lessee is treated as an
displaced the tenants did not meet the owner under section 10616.1 only “if he is
“conditions set forth in the legislative authorized under the lease to exercise the
grant of its authority,” including holding rights of the landowner” or otherwise has
hearings on the hardship that the tenants a proprietary interest in the land. 53 Pa.
would endure if they were displaced. Id. Stat. Ann. § 10107 (2001). The plaintiffs
at 1532. meet none of these conditions precedent to
12
At oral argument, the plaintiffs
cited Schuykill Township v. Overstreet,
454 A. 2d 695 (Pa. Commw. Ct. 1983), the determination of their right to
as support for its contention that continued possession of a rental property
plaintiffs’ leases entitled them to be that was violating zoning ordinances. Cf.
present at the ZHB hearing. But City of New Orleans v. Buffa, 69 S.2d
Overstreet held only that tenants had to 140, 140-41 (La. App. 1953) (bringing
be joined in an action to enforce an an action against landlord and tenant to
already-issued order terminating their enjoin the tenant’s use of the premises in
rights to possess the rental property. Id. violation of city zoning ordinances; this
at 695-96. It says nothing about whether case was also cited by the plaintiffs at
the tenants had a right to be present for oral argument).

7
getting notice under section 10616.1.
There is nothing in the record even
ROSENN, Circuit Judge, Concurring.
suggesting that they were authorized to
exercise the DiUbaldos’ rights as property
owners, that they had anything remotely
I concur in the judgment reversing
resembling a proprietary interest in the
the District Court’s decision. I write
property, or that the DiUbaldos requested
separately, however, because I cannot
that they receive notice of zoning
agree with the majority’s analysis based on
violations. Therefore, the district court
an assumption that the plaintiffs have a
properly held that the MPC did not
protected property interest. I also believe
mandate that plaintiffs be given notice of
due process analysis is unnecessary to the
zoning violation enforcement. However,
disposition of this case.
the court went further and concluded that
the MPC was unconstitutional as applied I.
because it did not mandate notice to the
Where, as here, there is a claim of
plaintiffs. We have already explained why
an alleged deprivation of property without
plaintiffs are not constitutionally entitled
due process, a two-part inquiry is required.
to notice. Accordingly, we must reverse
Kovats v. Rutgers, 749 F.2d 1041,
the district court’s ruling that the MPC is
1047 (3d Cir. 1984), cert. denied sub nom.
unconstitutional as applied to them.13
Varma v. Bloustein, 489 U.S. 1014 (1989)
IV. CONCLUSION (citing Logan v. Zimmerman Brush Co.,
455 U.S. 422, 428 (1981)).
For all of the above reasons, we
will reverse the district court’s order The first question is whether
granting a permanent injunction. the plaintiff[s] [w ere]
deprived of a protected
property interest. Property
interests, while protected by
th e [U nite d S t a t es]
Constitution, are not created
by the Constitution. “Rather
they are created and their
dimensions are defined by
13 existing rules or
In doing so, we do not suggest that
understandings that stem
we are insensitive to the situation of the
from an independent source
plaintiffs. It appears from everything on
such as state law.” Board of
this record that these tenants are migrant
Regents v. Roth, 408 U.S.
farmers with few if any alternatives to
564, 577, 92 S. Ct. 2701,
the plight in which they found
2709, 33 L.Ed.2d 548
themselves.

8
 (1972); see also Leis v. first part of the two-part inquiry set forth
Flynt, 439 U.S. 438, 441, 99 in Logan, 455 U.S. at 428, which is a
S. Ct. 698, 700, 58 L.Ed.2d matter of state law, the second part of what
717 (1979). The definition process is due, or not due, which is a
of property, therefore, may matter of federal law, is irrelevant. Where
turn in some cases on a the plaintiffs’ claim can be adjudicated as
question of state law. If a a matter of state law, we should not engage
property interest is found to in any unnecessary constitutional due
exist, the second process analysis. Neese v. Southern
question—what process is Railway Co., 350 U.S. 77, 78 (1955).
due— is a matter of federal
The record in this case establishes
law. Memphis Light, Gas &
that the landowner unlawfully installed the
Water Division v. Craft, 436
eleven mobile homes/trailers, without
U.S. 1, 98 S. Ct. 1554, 56
having obtained the required permits from
L.Ed.2d 30 (1978); see
the state, county, and municipal authorities
Logan, 455 U.S. at 432, 102
and in violation of state and local (zoning)
S. Ct. at 1155.
laws. These laws and ordinances were
enacted to promote the health, welfare, and
safety of not only the tenants, but also the
Kovats, 749 F.2d at 1047. However, “[i]f
general public in the community. For
there is no property interest, there can be
instance, the sewage permits are intended
no valid due process claim.” Id.
to protect the public against diseases. The
Where, as here, it is undisputed that issue, overlooked by the District Court and
a residential rental use of the property at the parties in dispute, is whether a private
issue was set up by the landowner in rental arrangement between the landowner
violation of state, county, and municipal and the plaintiffs executed and operated in
laws, such use was null and void ab initio violation of state and local laws can ever
under Pennsylvania law. The landowner give rise to constitutionally protected
had acquired no vested property interest in property interests.14 We consider the issue
his unlawful rental use of the property. sua sponte because of the “traditional
The plaintiff-tenants, whose interest was practice of . . . refusing to decide
derivative and at most coextensive with constitutional questions when the record
the landowner’s interest, had acquired no discloses other grounds of decision,
vested property interest either in the same whether or not they have been properly
rental use of the property. Where there is raised . . . by the parties.” Neese, 350 U.S.
no property right, there can be no viable
due process claim as a matter of law.
14
Where the plaintiffs’ due process The Township’s briefs, particularly
its reply brief, have touched on the issue,
claim fails as a matter of law under the
but failed to develop its argument.

9
at 78. occupancy permit before the owner could
install the mobile home/trailers on his
It is not disputed that the Zoning
property and rent them to the plaintiffs.
Hearing Board found, following a hearing
The Township solicitor testified also that
attended by the landowner, that he had
the owner was required to comply with the
violated local zoning laws and the state
state and county health and safety codes
statutes regarding health, safety, and real
governing uses of electrical and
estate regulation in installing the mobile
construction anchoring. It is undisputed
homes/trailers and that the landowner did
that neither the landowner nor the
not appeal the decision. The Board’s
plaintiff-tenants have complied with any of
findings of violations are conclusive now.
those codes. Nor have they applied for
The Township asserts that it had placed
and obtained any health and safety permits
valid zoning restrictions at least a decade
necessary for the residential use of the
before any of the eleven mobile
property.
home/trailers were placed on the land at
Elliot Road, New Garden Township, Rental operation in Pennsylvania is
Pennsylvania, which precluded the present governed and regulated by state, county,
residential use by the plaintiffs. Even if and municipal laws. See Kelly v. Borough
assuming that the owner had obtained a of Sayreville, N.J., 107 F.3d 1073,
variance for residential use of his land, 1077 (3d Cir. 1997) (“State law creates the
which is not the case here, residential use property rights protected by the Fourteenth
of his land would still have required the Amendment.”). Because the mobile
landowner to prepare a land development homes/trailers were installed and operated
plan, obtain a conditional use permit, in violation of those laws, their use as
sewage and other permits required by the rental property by either the landowner or
Township ordinances for any residential the plaintiff-tenants is also unlawful. Thus,
development before the owner could lease their rental agreement is likewise unlawful
his property and the plaintiffs could and invalid. See generally Puleo v. Zoning
occupy the property. Hearing Bd. of Schuylkill Township, 722
A.2d 789, 791 n.4 (Pa. Commw. Ct. 1999)
The Township solicitor testified in
(quoting Black’s Law Dictionary 1536
the District Court, and it is undisputed, that
(6th ed. 1990) (an “unlawful” act is
before the mobile homes were placed on
“acting contrary to, or in defiance of the
the property, the owner had not obtained
law”; “unlawful” agreements are
the required “sewage permit from the
“ineffective in law, for they involve acts
County Health Department for that mobile
which, though not positively forbidden, are
home park.” He also testified that
disapproved by law and are therefore not
installation of a sewage system would
recognized as ground of legal rights
interconnect with the township sewer
because they are against public policy”));
plant, as required. He further stated that
6 Williston on Contracts 24 (4th ed. 1995)
the Township required a use and

10
([O]ne who has participated in a violation appellate court, noted that the owner did
of the law will not be allowed to assert in not challenge the validity of the zoning
court any right based upon or directly ordinance, but instead argued that its
connected with the illegal transaction.”) physical reconstruction of the billboards
(citing federal and state case law)); within a year of their destruction should be
Highpoint Townhouses, Inc. v. Rapp, 423 deemed to be in compliance with the
A.2d 932, 935 (D.C. 1980) (“[A] contract ordinance and in continuation of the
made in violation of a licensing statute that previous lawful nonconforming use. Id. at
is designed to protect the public will 791. The appellate court rejected the
usua lly be con sidered void and argument, concluding that the case was
unenforceable.”) (internal quotation marks analogous to “an instance where a
omitted) (quoting Truitt v. Miller, 407 landowner applie[d] for and secure[d] a
A.2d 1073, 1079 (D.C. 1979)). building permit through misrepresentation
or fraud.” Id. (citing D’Emilio v. Bd. of
In Puleo, a new owner of a piece of
Supervisors, 628 A.2d 1230 (Pa. Commw.
real estate property, located in a “limited
Ct. 1993)). “It follows, therefore, that if a
industrial zone,” had a dispute with a
person who applies for and secures a
company as to the ownership of two
building permit through fraudulent means
billboards that it had installed. It was
acquires no rights in the structure, then a
undisputed that the billboards constituted
person who completely ignores the
lawful nonconforming use. The company
requirement of securing a building permit
ended the dispute by cutting down the
altogether also cannot acquire any vested
billboards with a chainsaw; there was no
right in the structure.” Puleo, 722 A.2d at
question that its act was knowing and
791 (emphasis added). The court
intentional. Several months later, “without
concluded that the owner’s “failure to
first securing a building permit,” the new
obtain a building permit, therefore, made
owner “reconstructed the billboards.”
the effect of its reconstruction a nullity.”
Puleo, 722 A.2d at 790. The town denied
Id. at 792 (emphasis added).
the owner’s application after the fact for a
building permit. The town’s zoning board The violation in this case is much
also denied the owner’s request to more flagrant than in Puleo. The owner in
continue the nonconforming use of the Puleo was at least trying to replace the two
billboards because they were not destroyed billboards that had been
“involuntarily” damaged and no building previously lawfully installed. In this case,
permit was secured within one year of the eleven trailer/mobile homes were
their destruction within the meaning of the installed not to replace any previous lawful
local ordinance. A Pennsylvania trial use; they we re installed without
court affirmed the board’s decision. permission, and without the knowledge of
the Township, in knowing violation of
On further ap peal, th e
Commonwealth Court, a special state

11
state, county, and local laws.15 Under the
holding of Puleo, a landowner who
completely ignores the requirements of
because of health and living conditions
state and local laws cannot have acquired
are inapposite. Because the alleged
any vested right in the rental use of his
leasehold interest in this case is legally
property. Similarly, the unlawful
non-existing, this case is materially
occupation of the rental property by the
different from those cases where lessees
plaintiff-tenants has vested no property
with lawfully constituted leasehold
right in them. To rule otherwise, as did the
interests challenge condemnation or
District Court, would be to fashion a
zoning ordinances that affect their
property right that is not recognized
property interests. See, e.g., Richman v.
under— and contrary to—state law.
Philadelphia Zoning Bd. of Adjustment,
The tenants here do not, and cannot, 137 A.2d 280, 283 (Pa. 1958) (a long-
have greater right than that of the owner term commercial lessee had standing to
with regard to the rental property. See, apply for a use variance); Nicholson v.
e.g., Adams Outdoor Advertising v. City Zoning Bd. of Adjustment, 140 A.2d
of East Lansing, 614 N.W.2d 634, 639 604, 606 (Pa. 1958) (same); Mobil Oil
(Mich. 2000) (“It is fundamental property Corp. v. Zoning Hearing Bd. of
law that a lessor can transfer no greater Tredyffrin Township, 515 A.2d 78, 79
rights than he possesses”; lessees’ interest (Pa. Commw. Ct. 1986).
rights are limited to those possessed by the For the same reasons, all the case
lessor.); State v. Vaughan, 319 S.W.2d law regarding whether tenants have
349, 354 (Tex. Civ. App. 1959) standing to bring a condemnation action,
(“[T]enants who occupy the property have alleging unlawful taking effected under a
no greater right than the owners.”); Smith zoning ordinance or rezoning, is also
v. Woolery, 137 N.E.2d 632 (Ohio Ct. inapposite. See, e.g., Millcreek
App. 1955); Wilmington Housing Auth. v. Township v. N.E.A. Cross Co., 620 A.2d
Nos. 500, 502, and 504 King St., and Nos. 558, 561 (Pa. Commw. Ct. 1993)
503, 505, and 507 French St., Commercial (commercial lessees with rights to
Trust Co., 273 A.2d 280, 281 (Del. Super. explore natural gas and develop wells
Ct. 1970).16 had standing to petition for de facto
taking).
Finally, this case is materially
15
The landowner has not claimed different from such cases as involving
mistake or ignorance. condemnation of property occupied by
tenants because of serious and dangerous
16
The cases cited by the tenants with living conditions. See, e.g., Grayden v.
respect to their standing to apply for a Rhodes, 345 F.3d 1225 (11th Cir. 2003)
zoning variance, to bring a condemnation (involving condemnation and eviction of
action, or to challenge their eviction tenants in an apartment complex for their

12
 at 1047. The District Court’s conclusion
of due process violations predicated on a
Where, as here, the owner has no
nonexistent right is, therefore, reversible
vested property right, it would be
error.
anomalous to conclude that the tenants
have any vested property right. Because II.
property rights, including leasehold
In footnote 9 of the majority
interests, are created by state law and the
opinion, the majority characterizes my
rental arrangement between the owner and
analysis above as one that “begins and
the tenants is unlawful, the plaintiffs
ends with charging the plaintiffs with the
obtained no vested right in the rental
outcome of the zoning hearing. . . .” The
property. Their rental agreement with the
majority opines that unless the plaintiffs
owner gave them no valid leasehold
had an “opportunity to appear at the
interest recognized and protected by state
zoning hearing that found their property
law. Under such circumstances, there can
to be in violation and therefore could . . .
be no valid due process claim as a matter
defend against that allegation,” my
of law because there can be no deprivation
analysis “does not adequately respond to
of a nonexistent right. 17 Kovats, 749 F.2d
the legal challenge implicit in plaintiffs’
appeal.”

protection because of serious and Although the majority’s criticism
dangerous living conditions). It was not has some surface appeal, it misses the
disputed that the tenants in Grayden had real issue here. Conceivably the
legal right to live in the apartment plaintiffs may not have become aware of
complex. The tenants in all the cases their landlord’s zoning violations until
cited above had lawful tenancy rights after the Township’s zoning enforcement
established and recognized under state hearing, but when and how the plaintiffs
laws. became aware of the violations does not,
and cannot, affect the reality of the
17
Following the Township Zoning landlord’s zoning violations. My
Hearing Board’s finding of violation analysis is grounded on the view that
against the landowner and denial of his where the landowner’s rental use of his
variance request, the owner filed an
application for conditional use of the
property as a trailer/mobile home park. the owner and the plaintiffs have no
Some of the renters, as well as the owner, property right vested and recognized
have appealed the zoning board’s under the state law for their unlawful use
subsequent denial of the conditional use of the property, their joint conditional
application to the state trial court. That use application is now an opportunity for
appeal has been stayed pending the them to establish their lawful use for the
resolution of this appeal. Because both first time.

13
property was invalid and void ab initio notice of a land use violation would be
for violations of state and municipal valid if the Township brought an action
laws, as established by the zoning against them for the land use violations,
enforcement hearing attended by the instead of the landowner. Where, as
landowner, his tenants did not acquire here, it is not disputed that the landowner
any right in the same rental use as a had converted his property to a
matter of law. To suggest otherwise residential rental use in violation of state,
would be to accord tenants greater rights county, and municipal laws, when and
than those possessed by the landowner in how the tenants should have become
contravention of well established aware of their landowner’s unlawful use
landlord-tenant laws. of his land is irrelevant to the issue of
whether they have any valid property
To the extent that the majority’s
right. 18 Their interest in the residential
criticism embraces the plaintiffs’
rental use of the property is at most co-
argument that the Township’s zoning
extensive with the landowner’s interest.
enforcement decision cannot be valid and
Pennsylvania law holds only the
binding on the tenants unless they
landowner, not his tenants, responsible
participated in the enforcement hearing,
for any zoning violations that occur on
the majority, as well as the tenants, has
his property. 19 Even if the tenants may
shown no legal authority to support that
argument. The majority’s own position
has implicitly rejected that argument in 18
People who rent property usually run
light of its holding that the plaintiffs, the risk that the ostensible owner of it
with their de minimis interest, are not may not have good title to the property,
entitled to actual notice of the zoning that it may be subject to foreclosure
enforcement hearing because their because of a mortgage default or other
tenancy interest can be terminated at lien delinquency, or that a lease may be
thirty-days’ notice and the Township has void because it violates local zoning or
given them several months to vacate the state laws. Interested parties can avoid
property. legal complications by obtaining
Admittedly, my analysis does not information pertaining to the title and
answer the question of how or when the lien status of the property from the
tenants knew or should have known that dockets of the county court house;
their occupancy of the property was information concerning the applicable
invalid because of the landowner’s zoning laws is generally available at the
zoning violations prior to the Township’s clerk’s office for the local municipality.
negative determination. That issue, 19
Under the Pennsylvania
however, is not present in the tenants’
Municipalities Planning Code (MPC) §
action here. The tenants’ argument, that
10616.1, the plaintiffs are not entitled to
they should have been given adequate
notice of a zoning enforcement hearing

14
not have become aware of their initial determination by making an
landowner’s zoning violations until after assumption contrary to state law.
the zoning enforcement hearing, the
Furthermore, the majority’s
established landowner’s violations,
resolution of the tenants’ due process
resulting in nullification of his rental use
claim, by reasoning that there is no
of his property, precludes the tenants’
deprivation of their property interest
due process claim as a matter of law.
because, at most, they have a month-to-
There cannot be a due process violation
month leasehold interest, which requires
claim when the claimant has no valid
only a thirty-day advance notice for
property interest.
termination under state law, and they
For these reasons, I do not believe have been given more than thirty days to
that assuming that the tenants have a vacate the property does not adequately
valid property interest does not resolve respond to their due process claim. To
their constitutional claim. Under well- the extent that such analysis is contingent
established case law, where, as here, the on the tenants having a mere month-to-
court is confronted with a due process month leasehold interest and an adequate
claim, the court must determine first post-deprivation remedy, would the
whether there is a valid property interest analysis be sustainable if the plaintiffs
possessed by the plaintiffs. Kovats, 749 were year-to-year tenants, as some have
F.2d at 1047 (citing Logan, 455 U.S. at claimed? The state statute, quoted in
428). I see no reason for the court to footnote 6 of this concurring opinion,
shirk its responsibility of making this mandates no separate notice of zoning
violation hearing to any type of tenants
(unless they have filed a written request
against the landowner. The statute with the municipality, or the landowner
provides in relevant part: has requested in writing to the
(b) The enforcement notice shall be sent to municipality that his tenants receive such
[1] the owner of record of the parcel on notice), regardless of the length or type
which the violation has occurred, to [2] of tenants’ leasehold interests.
any person who has filed a written request
III.
to receive enforcement notices regarding
that parcel, and to [3] any other person Mindful of the Supreme Court’s
requested in writing by the owner of instruction that traditionally the courts
record. should refuse to “decide constitutional
questions when the record discloses other
grounds of decision, whether or not they
53 Pa. Stat. Ann. § 10616.1 (emphases
have been properly raised . . . by the
added). The plaintiffs have not attacked
parties,” Neese, 350 U.S. at 78, we
the facial constitutionality of the statute.
should not engage in a constitutional due

15
process analysis when the record
discloses beyond dispute another ground
for disposal of the plaintiffs’ claim. That
ground is that the tenants have no vested
property interest under state law. This
approach is especially appropriate where
the plaintiffs have not attacked the facial
constitutionality of the state statute, MPC
§ 10616.1.
I would, therefore, reverse the
District Court’s judgment on the ground
that the plaintiffs have shown no
cognizable property interest under state
law and eschew unnecessary federal due
process analysis.

16