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Rogin v. Bensalem Township and Stephen J. Kelly


decided: February 21, 1980.



Before Adams, Rosenn and Weis, Circuit Judges.

Author: Adams


A real estate developer has cast an array of federal constitutional and statutory challenges to the application of a local zoning ordinance to a condominium project it was in the process of constructing. On this appeal from the dismissal on the pleadings of the developer's cross-claims, we are guided by well-settled principles in affirming the judgment of the district court.


In late 1972, Mark-Garner Associates, Inc., a real estate developer and the cross-claimant in this case, purchased approximately fifty acres of land in Bensalem Township, Bucks County, Pennsylvania, and drew up plans to build a 557-unit condominium project to be known as "Bensalem Village." On May 16, 1973, the Board of Supervisors of Bensalem Township granted final approval of the plans. In accordance with Pennsylvania law, Mark-Garner then filed a "Condominium Declaration" and a statement of "Rules and Regulations for Bensalem Village."*fn1 In reliance on the Supervisors' final approval of the Bensalem Village plans, construction of the Village community commenced in the spring of 1973, and continued until September 1976. By the latter date, 106 of the planned 557 condominium units had been approved and were under construction, and a major portion of the common area improvements had been completed.*fn2

On September 24, 1976, Mark-Garner applied for twelve additional building permits. For the first time, its request was denied.*fn3 The Township Zoning Officer, Stanley Horowitz, informed the developer that the plan for Bensalem Village no longer complied with the township's zoning ordinance, which had been amended in June 1973, a little over a month after the Supervisors approved the original plan. The amendment reduced the allowable density in the R-4 District, the classification applicable to Bensalem Village, from twelve to ten units per acre. Mark-Garner appealed the zoning officer's decision to the Zoning Hearing Board of Bensalem Township. On October 8, 1976, prior to the date of the hearing on the appeal, the Board of Supervisors again amended the ordinance to lower the permissible density in the R-4 District to four units per acre. As a result of the two amendments, the total number of units that lawfully could be built in Bensalem Village was reduced from 557 to 200.

After several hearings, the Zoning Hearing Board denied Mark-Garner's appeal. The developer appealed the Board's decision to the Court of Common Pleas of Bucks County, and also requested mandamus directing the Zoning Officer to issue the remaining permits. The Court reversed the Zoning Hearing Board's decision and ordered that all remaining permits be issued.*fn4 Because the project was "substantially undertaken," the Court concluded, Pennsylvania law prohibited the retroactive application of the zoning amendments to Bensalem Village.*fn5 The Court's mandate was stayed pending the appeal by the Zoning Hearing Board to the Commonwealth Court, which has not yet rendered its decision. As a consequence, the Zoning Officer has issued no permits to Mark-Garner since September 1976.

The present class action was filed during the pendency of Mark-Garner's appeal to the Court of Common Pleas by a group of homeowners who had purchased lots in Bensalem Village. The complaint requested injunctive relief directing the Zoning Officer to issue the remaining permits as well as money damages resulting from the delay in construction. Mark-Garner, which was named as a defendant, cross-claimed for damages, declaratory judgment, and injunctive relief against the Township, the members of the Board of Supervisors, the Zoning Hearing Board, and the Zoning Officer. The individual cross-defendants were named in both their official and personal capacities. Mark-Garner alleged that the cross-defendants, acting under color of state law, conspired to adopt and implement a policy of delay and cost escalation for the purpose of discouraging construction of Bensalem Village. The developer claimed that the value of its property was thereby diminished or destroyed, and that it was denied substantive due process, procedural due process, equal protection of the laws, and its rights under state and local statutes. Federal subject matter jurisdiction was premised both on civil rights statutes, 42 U.S.C. §§ 1983, 1985(3) and 1986 (1976), and on a purported direct cause of action under the Fourteenth Amendment.*fn6

Following a motion by the cross-defendants, the district court dismissed Mark-Garner's cross-claim for failure to state a claim on which relief could be granted,*fn7 and because the Court of Common Pleas' decision rendered the case moot.*fn8 Mark-Garner filed a timely appeal. We hold that the case is not moot, but affirm the district court's decision that the cross-claim does not state a cause of action.


It was suggested by the district court that Mark-Garner's claims were moot because it had received injunctive relief in the Court of Common Pleas. Inasmuch as mootness would divest us of jurisdiction to consider this appeal,*fn9 we are obligated to address this issue as a threshold matter.

The present dispute is unlike the traditional line of mootness cases in which changes extraneous to the judicial process terminate the legal controversy.*fn10 The district court apparently has held that Mark-Garner's federal civil rights claims are moot because similar claims based on state law were adjudicated in favor of the developer in a state tribunal. Such a ruling, we believe, incorrectly interprets the law of mootness.*fn11

"(A) case is moot," the Supreme Court has held, "when the issues presented are no longer "live' or the parties lack a legally cognizable interest in the outcome."*fn12 The Court has developed a two-pronged test for mootness. A case may become moot if (1) "it can be said with assurance that "there is no reasonable expectation . . .' that the alleged violation will recur," and (2) "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation."*fn13

In the occurrent case, neither prong is satisfied. The Court of Common Pleas' judgment determined only Mark-Garner's state law claim for injunctive relief; it was not presented, however, with any federal civil rights claims or with any claim for damages. Thus, the state court's relief cannot be said to have "completely eradicated" the effects of the alleged violation. Nor can it be said that there has been an "irrevocable eradication" even of the state law violations, for the Court of Common Pleas' decision has been appealed, and thus could be reversed by a higher Pennsylvania court. Finally, inasmuch as the Court of Common Pleas decided only questions of state law, there is no assurance that the federal constitutional violations alleged in the cross-claim will not recur. In short, there are present here "live" federal constitutional issues that have not been adjudicated in any other court. And in view of the large amount of unsettled damages, both parties have a legal interest in the outcome. Accordingly, we hold that the case is not moot and proceed to the substantive questions pressed by Mark-Garner regarding the dismissal of the cross-claim.


In reviewing the dismissal on the pleadings for failure to state a claim, we must take all of the well-pleaded allegations of the cross-claim as true, construe the cross-claim in the light most favorable to Mark-Garner, and determine whether, under any reasonable reading of the pleadings, the developer might be entitled to relief.*fn14

A. Direct Claims for Damages under the Fourteenth Amendment

Mark-Garner brought several of its claims directly under the Fourteenth Amendment. These claims alleging abridgements of due process and equal protection are premised on the assumption that there exists an implied cause of action for damages under the Fourteenth Amendment that is wholly independent of statutory authorization. The Supreme Court has not yet decided whether such a cause of action exists.*fn15 It has held, however, that there is an implied cause of action for damages under the Fourth*fn16 and Fifth*fn17 Amendments. We have declared that such an action exists for suits brought under the First Amendment,*fn18 but have reserved the question whether such a cause of action exists under the Fourteenth Amendment.*fn19 Other courts of appeals have held explicitly that there is an implied cause of action for damages under a number of constitutional provisions.*fn20

There is no occasion to decide, in the present case, whether the Fourteenth Amendment authorizes a direct cause of action for damages,*fn21 however, because Mark-Garner has alleged causes of action under § 1983 that are premised on its constitutional claims. Indeed, § 1983 was designed to afford plaintiffs a cause of action for constitutional violations on the part of local governmental bodies and other state officials.*fn22

In Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977), cert. denied, 438 U.S. 904, 98 S. Ct. 3122, 57 L. Ed. 2d 1147 (1978), two black citizens brought suit against the City of Pittsburgh as well as two of its police officers, alleging that the officers abused them on account of their race. The plaintiffs sought damages under 42 U.S.C. §§ 1981, 1983, and 1985 and under the Fourteenth Amendment. The district court dismissed the claims against the city on the basis of Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), in which the Supreme Court had held that municipalities were immune from suit under § 1983.*fn23 We affirmed the dismissal of the claims based on the Fourteenth Amendment and §§ 1983 and 1985, but reversed the dismissal of the claim based on § 1981. "In view of our holding in this case that plaintiffs have stated a cause of action against the city under 42 U.S.C. § 1981," we concluded, "a fourteenth amendment remedy should not be implied. . . . If plaintiffs prove the racially motivated deprivations of their rights which they allege, section 1981 will afford them the redress in federal court which they seek. Bivens teaches that the existence of an effective and substantial federal statutory remedy for the plaintiffs obviates the need to imply a constitutional remedy on (their) behalf."*fn24

The principle enunciated in Mahone applies to the present action. Section 1983 affords Mark-Garner remedies at law or equity against the named defendants for any constitutional violations that can be established.*fn25 It is now settled that cities and other municipal bodies, such as the Bensalem Zoning Hearing Board, are "persons" within the meaning of § 1983.*fn26 Therefore, it would be a redundant and wasteful use of judicial resources to permit the adjudication of both direct constitutional and § 1983 claims where the latter wholly subsume the former.*fn27

B. Section 1983 Claims

The developer alleges that the defendants deprived it of four constitutional rights for which § 1983 authorizes remedial causes of action.*fn28 Specifically, it claims a denial of equal protection, a deprivation of substantive due process, that its property was taken without just compensation, and that it was deprived of procedural due process. Inasmuch as a reading of well-settled case law convinces us that Mark-Garner could not prevail on any of its § 1983 allegations, we hold that the district court did not err in dismissing them.

1. Equal Protection

Mark-Garner charges that the cross-defendants denied it the equal protection of the laws because they passed zoning amendments for the purpose of discriminating against developers that had previously obtained construction approval for plans of greater density than that authorized by the amendments. Essentially, the charge is that the amendments unconstitutionally classified developers into two groups those that had obtained construction approval at the time of the passage of the amendments and those that had not.

The allegations in the cross-claim suggests no basis for applying any equal protection standard except the rational relationship test.*fn29 In applying this test to legislation that affects business or other economic activity, the Supreme Court has accorded great deference to the legislative decision to establish the challenged classification. The Court's most recent statement of the rule was in Vance v. Bradley, 440 U.S. 93, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979), a case involving a challenge to a federal law mandating that participants in the Foreign Service Retirement System retire at ate sixty. The Court held that "we will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational."*fn30

Such broad deference is extended to legislative judgments dealing with business and economic matters because of the recognition that the process of democratic political decisionmaking often entails the accommodation of competing interests, and thus necessarily produces laws that burden some groups and not others. In the absence of special justification for more searching judicial examination such as an allegation that the legislative body has classified on the basis of a suspect characteristic for a court to undo the fruits of this process would be "to condemn as unconstitutional the most characteristic product of a democratic (perhaps of any) political system."*fn31

To prevail on its equal protection claim, Mark-Garner must persuade us that the passage and application to it of the zoning amendments "so lack rationality that they constitute a constitutionally impermissible denial of equal protection."*fn32 Construing its cross-claim in the light most favorable to the developer, we conclude that it cannot discharge this burden.

Although zoning laws "must find their justification in some aspect of the police power, asserted for the public welfare," it is well-settled that such measures are constitutional if they bear a "substantial relation to the public health, safety, morals, or general welfare." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387, 395, 47 S. Ct. 114, 118, 121, 71 L. Ed. 303 (1926). The concept of general welfare has been broadly construed: "The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled." Berman v. Parker, 348 U.S. 26, 33, 75 S. Ct. 98, 102-03, 99 L. Ed. 27 (1954).

Relying on these decisions, the Supreme Court, in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974), upheld a zoning law that defined the term "family" so as to exclude the plaintiffs a group of six unrelated college students who had rented a house in the Village. Identifying the legitimate governmental purpose, the Court observed:

A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one within Berman v. Parker (348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954)). The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.*fn33

Under these standards of rationality and legitimacy Mark-Garner cannot succeed with its equal protection claim. The Supervisors legitimately could have concluded that it was in the best environmental and economic interests of Bensalem Township to limit the number of residents and to prevent overcrowding. Reduction of the allowable density level of the R-4 zoning previously obtained district is a rational and reasonable means to accomplish this goal.*fn34 That the zoning amendments burden developers who had previously obtained construction approval more than they burden developers that may, in the future, plan to build in an R-4 zone, does not, under an equal protection analysis, vitiate either the reasonableness or the legitimacy of the density restrictions. In passing the amendments, the Supervisors reasonably could have concluded that it was necessary to limit growth immediately because the completion of Bensalem Village, as originally approved, would so add to both the population and density that the purposes of the amendments would be frustrated. Inasmuch as we must defer to that judgment unless we find it to be so unrelated to the achievement of the Township's objectives as to be irrational*fn35 and we do not we hold that the district court did not err in concluding that Mark-Garner did not state an equal protection claim under § 1983.

2. Substantive Due Process

Zoning laws are most commonly challenged on the ground that they violate substantive due process. At one time, the Supreme Court was willing to question the fairness and wisdom of a particular state statute and, despite disclaimers to the contrary,*fn36 to substitute its judgment about social policy for that of the legislative body. If the statute, in the Court's opinion, did not further the public interest in safety, morals, or welfare, the law was held to exceed the authority of the legislature and therefore to abridge the liberty and property protections of the due process clause.*fn37 In more recent years, the Court has abjured this supervisory role, however, and now applies virtually the same standard of review under the due process clause as it does in equal protection cases involving economic classifications.*fn38 The test for determining whether a law comports with substantive due process is whether the law is rationally related to a legitimate state interest. "(T)he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it."*fn39 Unlike equal protection, however, the focus of due process analysis is not whether the Township has irrationally distinguished between similarly situated classes, but whether it was irrational for the Township to have passed the law at all and to have applied it to Mark-Garner.*fn40

As we observed in deciding whether Mark-Garner stated an equal protection cause of action,*fn41 the Township has a legitimate interest in controlling population growth and density and the zoning amendments are a rational and reasonable means to accomplish that purpose. Therefore, the zoning amendments were not arbitrary or irrational and the district court did not err in dismissing the § 1983 substantive due process claim.*fn42

3. Taking Without Just Compensation

Although a zoning ordinance or other law comports with the requirements of substantive due process, it nonetheless may violate the "taking" clause of the Fifth Amendment that is applicable to the states through the Fourteenth Amendment.*fn43 Thus, if an otherwise valid law severely diminishes the value or impairs the use of a parcel of land, the state or local government may be constitutionally obligated to compensate the owner.*fn44 Mark-Garner predicates the third of its § 1983 claims on the ground that the defendants' actions unconstitutionally diminished the value of Bensalem Village and therefore constituted a taking of property.

In this regard, the Supreme Court recently observed: "The question of what constitutes a "taking' for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty" involving "essentially ad hoc, factual inquiries."*fn45 Two factors appear to be of more importance to the Court than others. First, if the law in question applies generally to a broad class of properties, the Court is likely to sustain it.*fn46 The Court has stated that zoning laws are the classic example of this kind of general, social welfare legislation.*fn47 Second, unless application of the law destroys or severely diminishes the value of the property, the Court will uphold the application. This is true even if the legislation prohibits "a beneficial use to which individual parcels had previously been devoted and thus cause(s) substantial individualized harm."*fn48

Two cases aptly illustrate the Court's approach to "taking" questions. Goldblatt v. Hempstead, 369 U.S. 590, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962), dealt with a challenge to a city ordinance that banned any excavations below the water table and which had the effect of preventing the claimant from continuing a sand and gravel business he had operated for thirty years. In upholding the application of the ordinance, the Court noted that, as a safety measure, the law was a valid exercise of the police power.*fn49 It then concluded that, although the ordinance deprived the property of its most beneficial use, it was not unconstitutional. So long as the lot retained value, and there was no indication to the contrary, the ordinance was valid.*fn50 More recently, in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978), the Court rejected a "taking" challenge to New York City's Landmarks Preservation Law. The City had declared Grand Central Terminal to be a landmark and invoked the statute to block construction of a high-rise office building on top of the Terminal. Application of the law was not a taking, the Court held, because the "restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties."*fn51

Applying the principles of these cases to the matter at hand, we conclude that the district court did not err in dismissing Mark-Garner's § 1983 "taking" claim. We have already held that the zoning amendments are valid exercises of the police power, passed as a means to limit the number of persons who might move into the area and to prevent overcrowding.*fn52 The amendments apply generally to all land within the R-4 zone, not only to Bensalem Village. The burden of the restrictions, although perhaps affecting Mark-Garner more than other landowners, is distributed over a substantial portion of the citizenry. Moreover, the general reduction in population density very likely will benefit the developer to some extent by making the remaining units in Bensalem Village more desirable. The first element of the "taking" calculus therefore operates in favor of validity in this case. In Penn Central, the Supreme Court remarked:

It is, of course, true that the Landmarks Law has a more severe impact on some landowners than on others, but that in itself does not mean that the law effects a "taking." Legislation designed to promote the general welfare commonly burdens some more than others . . . (Z)oning laws often affect some property owners more severely than others but have not been held to be invalid on that account. For example, the property owner in Euclid who wished to use its property for industrial purposes was affected far more severely by the ordinance than its neighbors who wished to use their land for residences.

The second element of the "taking" formula also supports a conclusion in favor of validity. When as a result of governmental actions the diminution in the value of land reaches a "certain magnitude," the Court has held that compensation must be paid.*fn54 Although it has never attempted to delineate what constitutes a "certain magnitude," the Court has required compensation only in cases in which the value of the property was reduced drastically.*fn55 In Penn Central, for example, the Court sustained the application of the Landmarks Preservation Law despite the fact that the legislation denied the claimants income that would have been generated by a fifty-five story office building in midtown Manhattan.*fn56 The Court also cited approvingly cases in which the challenged law had reduced the value of the land by as much as seventy-five and eighty-seven percent.*fn57

Mark-Garner asserts in its cross-claim that it purchased the land which now comprises Bensalem Village for approximately $3 million. As a result of the application of the zoning amendments, it alleges that the current market value of the property is about $2 million. In view of the Supreme Court's long-standing tolerance of much greater diminutions in value, the averments in the cross-claim do not set forth a colorable claim in this regard.*fn58 Since both elements of the taking equations weigh heavily in favor of the constitutionality of the amendments' application to Bensalem Village, we conclude that the district court did not err in dismissing Mark-Garner's § 1983 taking claim.*fn59

4. Procedural Due Process

Mark-Garner's final § 1983 theory is that it was denied procedural due process. The developer alleges that the cross-defendants conspired to violate its substantive constitutional rights and that the supervisors announced publicly that they would take all steps necessary to stop the construction of Bensalem Village and similar real estate developments. Mark-Garner does not allege, however, that the Township's zoning and appellate procedures are constitutionally deficient or that the cross-defendants failed to comply with those procedures.

The due process claim against the Board of Supervisors is without merit because, in passing the amendments, the Board was acting in a legislative capacity. The amendments applied to all property within the R-4 district, not merely to Bensalem Village. They constitute general statements of Township policy rather than specific applications of policy to a particular landowner, and therefore can be characterized only as legislative acts.*fn60 Long ago, the Supreme Court decided that the protections of procedural due process do not extend to legislative actions. In Bi-Metallic Investment Co. v. State Board of Equalization of Colorado, 239 U.S. 441, 36 S. Ct. 141, 60 L. Ed. 372 (1915), the Court rejected a landowner's assertion that he had a due process right to a hearing before the State Board of Equalization voted on an order increasing by forty percent the valuation for tax purposes of all property in Denver. Writing for a unanimous Court, Justice Holmes observed:

Where a rule of conduct applies to more than a few people, it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. . . . There must be a limit to individual argument in such matters if government is to go on.

Id. at 445, 36 S. Ct. at 142. See Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 96 S. Ct. 2358, 49 L. Ed. 2d 132 (1976) (city charter provision requiring proposed land use changes to be ratified by fifty-five percent of electorate does not violate due process rights of landowner applying for zoning change).

To provide every person affected by legislation the various rights encompassed by procedural due process including hearings, opportunity for confrontation and response, clear standards, an impartial arbiter, and possibly judicial review would be inconsistent with the structure of our system of government. The act of legislating necessarily entails political trading, compromise, and ad hoc decisionmaking which, in the aggregate, produce policies that at least approximate a fair and equitable distribution of social resources and obligations.

Absent an indication that this process inherently treats a particular class of persons inequitably,*fn61 it is unnecessary for the courts to intervene because the relatively large number of persons affected works to ensure that the legislature will not act unreasonably toward the populace.*fn62 In short, the general theory of republican government is not due process through individual hearings and the application of standards of behavior, but through elective representation, partisan politics, and the ultimate sovereignty of the people to vote out of office those legislators who are unfaithful to the public will.*fn63 Inasmuch as the Supervisors, in passing the zoning amendments, were acting in a legislative capacity, Mark-Garner has no procedural due process claim against their actions.

We also conclude that Mark-Garner has failed to state a procedural due process claim in regard to the actions of the Zoning Officer and Zoning Hearing Board. Their actions were administrative in nature because they involved application of the Township's general zoning policies as manifested in the amendments to a particular parcel of land. Thus, Mark-Garner is entitled to claim the procedural protections of the due process clause in challenging the officials' refusal to grant it further building permits. The fatal flaw in the developer's claim in this respect, however, is that it fails to set forth any behavioral or structural allegations from which we can infer that Bensalem's process was unconstitutional.

Before a governmental body may deprive a landowner of a property interest, it must provide due process. The exact process required varies with the demands of the particular situation in question.*fn64 A balancing test has been articulated by the Supreme Court to determine the requirements of due process for any given situation: the private interest affected by the governmental action and the value of additional procedural safeguards are to be weighed against the fiscal and administrative burdens that additional procedures would impose on the government.*fn65 The Court has identified the following as elements of due process: (1) notice of the basis of the governmental action; (2) a neutral arbiter; (3) an opportunity to make an oral presentation; (4) a means of presenting evidence; (5) an opportunity to cross-examine witnesses or to respond to written evidence; (6) the right to be represented by counsel; and (7) a decision based on the record with a statement of reasons for the result.*fn66 Whether all or any one of these safeguards are required in a particular situation depends on the outcome of the balancing test mentioned above.*fn67

In order to resolve this appeal, it is not necessary to decide which procedural protections are mandated by due process in the present context. Rather, we hold that Mark-Garner's cross-claim, beyond making a general assertion of denial of due process, fails to allege that Bensalem's permit and appellate procedures were constitutionally deficient in any way.

The Pennsylvania legislature has enacted a system for processing challenges to zoning ordinances. The Zoning Officer, the primary administrator of the ordinance, is charged with its execution "in accordance with its literal terms, and shall not have the power to permit any construction or any use or change of use which does not conform to the zoning ordinance."*fn68 The inflexible ministerial nature of the Zoning Officer's role is mitigated by the zoning appeals process. A landowner who wishes to challenge the validity of a zoning ordinance or amendment that restricts the use or development of its land may file a challenge with the Zoning Hearing Board*fn69 and may appeal from any decision by the Zoning Officer applying the ordinance.*fn70 The latter course may be taken when, as here, the landowner believes that the Zoning Officer misapplied an applicable rule of law.*fn71

The Zoning Hearing Board is an administrative-adjudicatory agency. Its members must be residents of the municipality, and are appointed by the Board of Supervisors for terms of three years.*fn72 Whenever an appeal or challenge to a zoning ordinance is brought to the Zoning Hearing Board, it is required by statute to conduct a hearing on the claim. Section 10908 of the Commonwealth's Municipal Corporations Code mandates that the Board provide the following procedures: (1) Notice must be given to the public, the Zoning Officer, and the person challenging the ordinance or action. (2) The Board or hearing officer must conduct the hearings and, unless the parties waive this right, the Board itself must make findings and render the decision on the merits. (3) The Board has the power to administer oaths, and to compel the appearance of witnesses and the production of documents requested by the parties. (4) Each party has the right to be represented by counsel. (5) Each party has the right to present evidence and argument, and to cross-examine adverse witnesses. (6) The Board is required to maintain a record of the proceedings. (7) Ex parte communication between the Board or the hearing officer and any party is prohibited. (8) The Board is required to publish its findings and conclusions within forty-five days of the last hearing.*fn73 If the landowner is dissatisfied with the Board's decision, it then has the right to appeal to the Court of Common Pleas.*fn74 The appeal may take the form of direct judicial review of the Board's decision, or the court may take new evidence and enter its own findings of fact after trial de novo.*fn75 The Court is authorized "to declare any ordinance or map invalid and to set aside or modify" any action, decision, or order of the Township, Zoning Officer, or Zoning Hearing Board.*fn76

In Pennsylvania the procedure for challenging zoning ordinances substantially conforms with the general due process guidelines enunciated by the Supreme Court.*fn77 Mark-Garner acknowledges in its cross-claim that it submitted to this process that it received a hearing, a decision on the merits by the board, and obtained judicial review of that decision. Indeed, on review, the Court of Common Pleas granted the developer the relief it requested.*fn78 Although it asserts that it was denied procedural due process during the course of the adjudication before the Zoning Hearing Board, Mark-Garner makes no specific allegation of deficiency in this process. As a consequence, and in view of the fact that Pennsylvania's system of adjudicating zoning challenges appears to be consistent with the requirements of due process, the district court did not err in holding that Mark-Garner fails to state a colorable procedural due process claim.

C. Sections 1985(3) and 1986

Mark-Garner's final federal claims arise under two provisions of the Ku Klux Klan Act of 1871, 42 U.S.C. §§ 1985(3) and 1986 (1976). The purpose of this Act was to place each newly freed black "on an equal footing before the law with his former master."*fn79 Section 1985(3) establishes a cause of action against any person who enters into a private conspiracy for the purpose of depriving the claimant of the equal protection of the laws.*fn80 Section 1986 is a companion to § 1985(3) and provides the claimant with a cause of action against any person who, knowing that a violation of § 1985 is about to be committed and possessing power to prevent its occurrence, fails to take action to frustrate its execution.*fn81 Because transgressions of § 1986 by definition depend on a preexisting violation of § 1985, if the claimant does not set forth a cause of action under the latter, its claim under the former necessarily must fail also.*fn82

The Supreme Court's most thorough discussion of these sections was in Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). There, several black persons brought suit under § 1985(3) alleging that the defendants, a group of white Mississippians, conspired and acted to deprive the plaintiffs of their equal rights by beating and threatening to kill them. The Court rejected the defendants' argument that the statute required state action, and interpreted it as covering purely private conspiracies as well.*fn83 To effect Congress' intent not to embrace all tortious conspiratorial interferences with the rights of others, however, the Court held that § 1985(3) applied only to private conspiracies predicated on "racial, or perhaps otherwise class-based, insidiously discriminatory animus."*fn84

We need not decide today whether § 1985(3) embraces private conspiracies to discriminate on the basis of factors other than race.*fn85 At most, that statute proscribes private conspiracies to engage in discrimination that, but for the lack of state action, would violate the equal protection clause. Inasmuch as we have already concluded that the defendants did not deprive Mark-Garner of equal protection, we hold that the developer has not stated a cause of action under §§ 1985(3) and 1986. Consequently, the district court did not err in dismissing these claims.

D. Pendent State Claims

Along with the federal civil rights claims, Mark-Garner asserted several claims based on state and local law. In United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966), the Supreme Court declared that federal courts have the power to entertain pendent state claims if the federal and state claims "derive from a common nucleus of operative facts" such that the plaintiff "would ordinarily be expected to try them all in one judicial proceeding." The Court went on to observe, however, that "(certainly), if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."*fn86 In Rosado v. Wyman, 397 U.S. 397, 402-05, 90 S. Ct. 1207, 1212-1214, 25 L. Ed. 2d 442 (1970), the Court modified this position somewhat in approving the district court's retention of pendent state claims after dismissing the federal claims for mootness. Because the district court had invested substantial time in the case prior to the federal claims becoming moot, the Court held that the trial judge had discretion to retain jurisdiction over the remaining state claims.*fn87

Upon dismissing the federal claims in this action, the district judge declined to retain jurisdiction over the pendent state claims. In view of the fact that the dismissal of the federal claims occurred during the pleading stage of the proceedings, we find no abuse of discretion in this regard, and accordingly affirm the district court's decision.*fn88


In the past century the nation has witnessed the rise and decline of federal judicial protection of rights inhering in the ownership of interests in real property. Today, the Supreme Court affords state and local governments broad latitude in enacting and implementing legislation affecting the use of land. Implicit in this deference is the recognition that land-use regulation generally affects a broad spectrum of persons and social interests, and that local political bodies are better able than federal courts to assess the benefits and burdens of such legislation. Thus, absent defects in the process of enacting the legislation, or manifest irrationality in the results flowing from that process, courts will uphold state and local land use regulations against challenges based on federal constitutional grounds.

Mark-Garner has advanced a broad series of federal statutory and constitutional challenges to the Township's retroactive application of the zoning amendments to the Bensalem Village project. The cost of delay incurred by the developer were indeed substantial. Yet this factor alone does not permit us to afford relief where neither Congress nor the Constitution provides a basis for such remedial action. Despite its sweeping attempts, Mark-Garner simply does not state claims that would, if proved, entitle it to federal statutory or constitutional relief. Therefore, we hold that the district court did not err in dismissing the federal claims. And, because the trial judge did not abuse his discretion in dismissing the remaining pendent state claims, the judgment of the district court will be affirmed.

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