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Bello v. Walker

filed: March 1, 1988.

DINO BELLO, AN INDIVIDUAL AND SIMMONS PARK PROPERTIES, INC., A CORPORATION,
v.
NORMAN L. WALKER, JOHN E. KANON, JAMES M. MARTIN, JOSEPH J. URBANOWICZ, HARRY E. BABINGER, JAMES E. HADSELL, YVONNE A. RIGATTI, GLENN TRAUTMEN, WILLIAM W. RUHL, WILLIAM G. DODDS, PATRICIA M. PRICE, CONCETTA SERDY, AND REID W. MCGIBBENY, INDIVIDUALS. DINO BELLO AND SIMMONS PARK PROPERTIES, INC., APPELLANTS. DINO BELLO, AN INDIVIDUAL AND SIMMONS PARK PROPERTIES, INC., A CORPORATION, V. MUNICIPALITY OF BETHEL PARK. DINO BELLO AND SIMMONS PARK PROPERTIES, INC., APPELLANTS



On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil Nos. 80-1264 & 81-346.

Sloviter and Cowen, Circuit Judges, and Debevoise, District Judge*fn*

Author: Cowen

Opinion OF THE COURT

COWEN, Circuit Judge.

These cases arise from a municipality's delay in issuing a building permit. They require us to decide whether a person's constitutional right to due process can be violated when municipal officials process an application for a building permit pursuant to a constitutionally adequate procedure, but deliberately and arbitrarily abuse government power to deny the application. We hold that such acts can violate a person's right to substantive due process. One of the cases also presents the issue whether a lengthy delay in obtaining a building permit can result in an unconstitutional taking of property without just compensation. We hold that absent extraordinary circumstances not presented by this case, delays in issuing a building permit do not result in a "taking" of property such that just compensation is constitutionally mandated.*fn1 We will reverse the district court's grant of summary judgment in favor of defendants as to plaintiffs' due process claims, but will affirm the grant of summary judgment as to the remainder of plaintiffs' claims.

I.

Plaintiff Dino Bello is the principal stockholder of Simmons Park Properties, Inc. ("Simmons Park"), also a plaintiff in this case. In July of 1976, Bello and Simmons Park applied to the municipality of Bethel Park for review and approval of a subdivision plan. The site plan they submitted indicated that the plan had five phases, numbered I through V, each separated by a boundary line.

The plan was eventually approved, and the plaintiffs had no difficulty obtaining building permits for phase I of the project. Forty-seven housing units, comprising phase I, were completed in the spring of 1979. In May of 1979 the plaintiffs applied for building permits allowing them to commence construction of the housing units comprising phase V of the project. Norman Walker, Bethel Park's Code Enforcement Officer, denied the plaintiffs' application, ostensibly because the plaintiffs sought to construct phase V of the project before completing phases II-IV. The plaintiffs, however, had never agreed to develop the project in the order suggested by the phases.

On June 8, 1979, Bello and Simmons Park instituted an action in mandamus in the Court of Common Pleas of Allegheny County seeking issuance of the permits and damages, and a peremptory judgment. The case was referred to a referee, who filed a tentative decision denying the motion for a peremptory judgment. On March 26, 1980, the court of common pleas granted peremptory judgment. On January 23, 1981, the court vacated its previous order and adopted the referee's decision. The court then held a hearing on the matter and on May 5, 1981, ordered the municipality to issue the building permits. An appeal from that order was quashed for failure to preserve objections.

On September 3, 1980, the plaintiffs filed a complaint under 42 U.S.C. ยง 1983 in the United States District Court for the Western District of Pennsylvania against the individual defendants,*fn2 and on March 11, 1981, a separate complaint against the Municipality of Bethel Park. Plaintiffs alleged, essentially, that a number of municipal officials improperly influenced the decision to deny them building permits. These actions allegedly deprived them of their constitutional rights to due process and equal protection, and violated federal antitrust laws. An amended complaint filed against the individual defendants also alleged that these actions constituted an unconstitutional taking of property without just compensation.

The defendants moved for summary judgment on October 9, 1984, and the motion was referred to a magistrate for a report and recommendation. In support of their motion defendants presented, among other evidence, the affidavit of defendant Walker. Walker stated that he individually made the decision to deny the building permits on the basis that the plaintiffs sought to develop phase V before phases II-IV, and that no other defendant or town official influenced his decision making process.

In opposition to the motion, the plaintiffs presented evidence indicating that certain members of the town council were strongly opposed to multi-unit housing, including their project, and that two members of the council had personal animosity towards one of the plaintiffs' employees, Raymond Kirich. In particular, plaintiffs point to the alleged acts and statements of defendants Yvonne Rigatti, whom Kirich had opposed in a municipal election, and Joseph Urbanowicz. According to the affidavits of Kirich and Bello, various defendant members of the council admitted in conversations that Rigatti and Urbanowicz had pressured them to hinder plaintiffs' development as long as Simmons Park employed Kirich. Bello's affidavit states that he discussed the matter of the permits with members of the council who told him that they spoke to defendant Walker regarding the issuance of the building permits.

The magistrate filed her report and recommendation on April 28, 1987, and recommended that the district court grant defendants' motion for summary judgment. After the plaintiffs filed objections to the report and recommendation, and the defendants responded to those objections, the district court granted the defendants' motion by order dated June 4, 1987.

The plaintiffs subsequently filed a motion to vacate the district court's order. They argued that in light of the Supreme Court's then recent decision in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987), the district court improperly dismissed their claim that their property was taken without just compensation. The plaintiffs' motion to vacate was denied by order dated July 22, 1987. ...


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