ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (C.A. No. 77-0557)
Before Adams, Rosenn and Weis, Circuit Judges.
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 ...