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Both sides won important victories in a recent decision in Thornbury Noble Ltd. v. Thornbury Township, a civil rights suit brought by a developer that accuses zoning officials of purposely delaying approval of its plans for a supermarket because it had refused to make a monetary “contribution” to the township. The suit says the township approved a competitor’s plan for a supermarket after receiving a $600,000 contribution that allowed the township to purchase a tract of land to preserve as open space. In a victory for the plaintiff, Senior U.S. District Judge Thomas N. O’Neill Jr. of the Eastern District of Pennsylvania held that Thornbury Noble has a valid claim that the township violated its substantive due process rights and that zoning officials are not entitled to qualified immunity on that claim because the right was “clearly established” at the time. But in a victory for the defense, O’Neill dismissed a state tort claim for prospective interference with contractual relations after finding that the zoning board members are entitled to absolute immunity as “high public officials” under Pennsylvania law. Both holdings may soon be tested by the 3rd U.S. Circuit Court of Appeals, however, because O’Neill ended his decision by certifying an immediate appeal. O’Neill found that each of the holdings is a “controlling issue of law over which there is substantial grounds for differences of opinion.” As a result, he found that “an immediate appeal would materially advance the ultimate termination of this litigation.” In the suit, Thornbury Noble’s lawyers — Craig A. Styer and William B. Cooper of Fox, Rothschild, O’Brien & Frankel’s Exton, Pa., office, along with Mary Ann Rossi of MacElree Harvey in West Chester, Pa. — contend that the township’s entire handling of the proposals from the competing supermarkets was driven by an improper bias in favor of the developer that agreed to make the contribution. Thornbury Noble owns a property known as Thornbury Commons at the intersection of Routes 926 and 202 in West Chester. In March 1995, the suit says, Thornbury Noble received approval for a zoning and site plan for the property that called for an L-shaped strip-mall shopping center. In November 1997, the developer wanted to change the approved plan to allow for a 50,000-square-foot supermarket. But when the revised plan was taken before the board in July 1998, the suit alleges, two board members requested a “contribution” to compensate the township for the loss of residential zoning. Thornbury Noble refused to make any contribution, saying such a payment would constitute “contract zoning” in violation of the Pennsylvania Municipalities Planning Code. (The MPC states: “No municipality shall have the power to require as a condition for approval of a land development or subdivision application the construction, dedication or payment of any offsite improvements or capital expenditures of any nature whatsoever or impose any contribution in lieu thereof, exaction fee, or any connection, tapping or similar fee except as may be specifically authorized under this act.”) But the suit says one of the board members responded that such contributions had previously been made to the township “voluntarily.” About the same time, R.J. Waters Associates, a second developer, was also pursuing plans for a supermarket in the township. The suit says Waters agreed to make a contribution of $600,000 in exchange for the rezoning that was necessary to build the supermarket. At that point, the suit says, the board stopped considering Thornbury Noble’s zoning requests in an effort to promote the Waters project. The suit alleges that the board “took its actions based solely on its desire to extract money from Waters in exchange for the rezoning,” and thereby “wrongfully favored Waters over Thornbury Noble on account of the former’s donation of money and the latter’s refusal to accede to an illegal request.” In November 1998, the board rejected Thornbury Noble’s plans. The Waters’ project was approved at the same meeting. Thornbury Noble claims that the township was initially opposed to Waters’ plan but changed its tune soon after Waters made the contribution. It also claims the township actively encouraged the Genaurdi’s supermarket chain to locate its grocery store on the Waters tract, assuring Genaurdi’s that Waters’ approvals would be forthcoming sooner than Thornbury Noble’s. The township’s lawyer, Andrew J. Bellwoar of Siana & Vaughn, urged O’Neill to dismiss the entire suit, arguing that the plaintiff didn’t have enough evidence to prove the board had an improper motive; that the board is entitled to absolute legislative immunity; and that Thornbury Noble can’t show a “property right” in its interest in having the tract rezoned for a supermarket. But O’Neill found that Bellwoar had mischaracterized the suit and that the plaintiff had evidence to prove the crux of its claim. “Plaintiff has provided evidence that its development plan was deliberately impeded in favor of the Waters project following Waters’ $600,000 ‘voluntary contribution’ to the township,” O’Neill wrote. To establish a substantive due process claim, O’Neill said, a plaintiff “must prove that it was deprived of a protected property interest by arbitrary or capricious government action.” Bellwoar argued that the only evidence of the alleged request for a contribution was that two out of the five members of the board “communicated the possibility of making contributions to the township as part of the rezoning process.” O’Neill disagreed, saying the board’s minutes for a July 1998 meeting show that two board members discussed the issue openly and that all of the board members were therefore aware. The minutes show that one board member asked Thornbury Noble if it was interested in “helping the township” compensate for loss of residential zoning. When the developer’s representative said it would do so if required by ordinance, another board member said such contributions have been made “voluntarily” in the past. “These two statements were made in a public meeting attended by the entire board. There is no question then that a majority of the board had knowledge of this motive,” O’Neill wrote. O’Neill said minutes from a previous meeting also showed that the board was not receptive to Waters’ plan, but that “multiple board members mentioned that rezoning might be possible if a suitable trade-off benefiting the town could be reached.” Evidence of the improper motive was also found in letters written by board members, O’Neill said, that showed the township favored the Waters project over the plaintiff’s. In one letter, a board member said it was important that Waters was assured that its was the next supermarket to be built in order to make sure that the open space property was developed. The same letter said the member would not vote for any additional commercial property to be granted to Thornbury Noble so that it was “not likely to get Genaurdi as a lead tenant.” NO LEGISLATIVE IMMUNITY Bellwoar urged O’Neill to dismiss the � 1983 claim on legislative immunity grounds, but O’Neill found that the board’s actions on two zoning applications could not be considered true legislation. Instead, he said, such individual matters are considered part of the “administrative” function of a lawmaking body that is not entitled to such immunity. “If plaintiff’s allegations are accepted as true the board was improperly obstructing plaintiff’s legitimate requests to proceed with its development plans. Since the board took no affirmative action, instead simply rejecting plaintiff’s rezoning request and refusing to recognize its alternative plan as an ‘amended final plan,’ in my view its actions cannot be characterized as the ‘enactment or amendment of zoning legislation,’” O’Neill wrote. O’Neill also rejected a qualified immunity defense, finding that the plaintiff had evidence to show the involvement of each of the five board members. “In my view the right defendants are alleged to have violated was clearly established at the time of their actions. The members of the board should have been aware that their alleged actions were unconstitutional,” O’Neill wrote. TORT CLAIM DISMISSED But Bellwoar succeeded in his argument that all of the board members are entitled to summary judgment on the state tort claim. Citing the Pennsylvania Supreme Court’s 1996 decision in Lindner v. Mollan, Bellwoar argued that the individual township supervisors cannot be sued for prospective interference with contractual relations since their actions were taken in the course of their official duties. Lindner held that � 8550 of the Political Subdivision Tort Claims Act does not abrogate the common-law doctrine of absolute privilege afforded high public officials. O’Neill found that Lindner exempted high public officials from lawsuits for defamation, but that the Supreme Court of Pennsylvania has yet to decide whether the immunity for high public officials extends to other intentional torts. But just last year, O’Neill said, another Eastern District judge predicted in Smith v. School District of Philadelphia that the immunity would be extended. Plaintiffs’ lawyers argued that since the board members were acting outside their duties, they cannot invoke the shield of immunity. But O’Neill said the plaintiff could not have it both ways and that its own pleadings show they are suing the board members in their “official capacities.” “Construing the facts in the light most favorable to plaintiff, they do not show that the individual defendants acted for their own benefit, profited at the public’s expense, spent the money at issue for any non-public purpose, or acted in any capacity other than their official one,” O’Neill wrote. Adopting the Smith court’s rationale, O’Neill said, “I believe that the Supreme Court of Pennsylvania would hold that absolute immunity protects high officials from civil suits for intentional interference with prospective contractual relations.”

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