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Taylor Inv., Ltd. v. Upper Darby Tp.

filed: January 25, 1993.

TAYLOR INVESTMENT, LTD., COLLEEN DUFFY PRICE, JAMES P. DUFFY, APPELLANTS IN 92-1180 VGM CORPORATION, GREGORY PATLAKH, APPELLANTS IN 92-1219
v.
UPPER DARBY TOWNSHIP, DONALD C. PHILLIPS, JAMES C. WARD, RUDOLPH D'ALESIO, MARIO L. CIVERA, NANCY WHITE



On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action Nos. 91-01575 & 91-02910).

Before: Stapleton, Scirica and Nygaard, Circuit Judges.

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge.

In this zoning dispute, plaintiffs Taylor Investment, Ltd., Colleen Duffy Price, and James P. Duffy appeal an order of the district court granting summary judgment for defendants. The district court found plaintiffs' civil rights claims, 42 U.S.C. § 1983, were not ripe for judicial review. We agree that plaintiffs' claims are premature.

I.

Taylor Investment owns property in Upper Darby Township, Delaware County, Pennsylvania. Price and Duffy are limited partners of Taylor Investment. The individual defendants are a collection of Township officials: Donald Phillips is the Director of the Department of Licenses and Inspection and the zoning officer for the Township; James Ward was the Mayor of the Township;*fn1 Rudolph D'Alesio is the Vice President of Township Council; Mario Civera is the State Representative for the 164th Legislative District and the Councilperson-at-large for the Township; and Nancy White is a member of Township Council. Plaintiffs allege that these individuals participated in the decision to revoke a use permit held by plaintiffs' tenant. Plaintiffs assert that the revocation of the permit violated the substantive and procedural due process and equal protection provisions of the Fourteenth Amendment.

A.

The property is located in a district zoned C-1, a classification for neighborhood-commercial establishments such as grocery and variety stores, barber and beauty shops, tailors and dressmakers, banks, and offices for attorneys, realtors, and health care professionals. Upper Darby Zoning Ordinance § 501. The purpose of the C-1 classification, by the terms of the Ordinance, "is to make provisions in appropriate locations for convenience type commercial and service uses primarily to meet the needs of individuals living in the immediate neighborhood." Id.

Before plaintiffs purchased the property, the previous owner used it as a health and fitness club, under a nonconforming use granted by the Township's zoning hearing board. That use fell within the C-2 zoning classification for general commercial districts. See Ordinance § 502. When the property was purchased, plaintiffs had the right, under the Ordinance, to operate an establishment as "a nonconforming use of the same or more restricted classification" as that granted to the previous owner. Ordinance § 1202(B). Plaintiffs sought a tenant who would use the property either in conformance with the C-1 neighborhood-commercial classification or as a continuation of the previous nonconforming use. Gregory Patlakh approached plaintiffs, seeking to rent the property and open a "physical fitness/sports center."

On July 26, 1990, Patlakh applied to the Township for a use permit. Under the Township's Ordinance, a use permit serves two primary functions. First, the use permit application allows the zoning officer to determine whether the intended use conforms to the allowed uses of the property under the zoning laws. Ordinance § 1601. Second, the use permit is a necessary predicate to any structural alteration of the property. Id. A use permit application must "contain all information necessary for [a] Zoning Officer to ascertain whether the proposed . . . alteration, use, or change in use complies with the provisions" of the zoning laws. Id.

In his use permit application, Patlakh asked for permission to "operate a physical fitness/sports center with indoor golf, basketball, billiards and . . . snack bar." The Township's zoning officer, Donald Phillips, issued a use permit on August 1, 1990, describing the authorized use as a "physical fitness/sports center." Patlakh and plaintiffs thereafter signed a lease for the property. Patlakh then formed a corporation, VGM Corporation, and applied for a second use permit on September 4, 1990 -- this time in VGM's name. In the application, Patlakh represented that his establishment would house "billiards (25), indoor baseball[,] hockey, [and a] snack bar." Phillips issued a use permit to VGM on September 11, 1990, describing the authorized use as a "sport club" for "billiards; indoor baseball; hockey; [and] snack bar."

In preparation for the opening, Patlakh modified the property. The modifications required construction for which the Township issued a building permit. The Township's fire marshal and plumbing inspector inspected the property and voiced their approval of Patlakh's work. The Township's health inspector did not grant approval and required Patlakh to make additional structural modifications. Patlakh did not complete the work until after the use permit was revoked. The health inspector never approved the work.

B.

Under Pennsylvania's Health and Safety Code, every alteration of a building or structure must be inspected and approved before use or occupancy of the building. Pa. Stat. Ann. tit. 35, § 1229 (1977). Without such inspection and approval, no certificate of occupancy may issue. Id. These provisions of the Code are reflected in the Township's zoning ordinance. Under the Ordinance, a use permit holder must notify the zoning officer that all building work is complete, and the zoning officer must certify and approve the completion before the property can be occupied or used under the use permit. Ordinance § 1602. Patlakh did not notify Phillips that the work was complete, and Phillips never certified such completion. Under the terms of the Ordinance, Patlakh's and VGM's use permit was not "complete or permanently effective," see id., without Phillips's approval of the structural-modification work.*fn2 In short, Patlakh could not lawfully operate his club at the time the use permit was revoked.

In January 1990, Patlakh advertised the opening of a "Billiard Sports Club" in newspapers and leaflets. The leaflets advertised "Delaware County's Largest Billiard Club," open twenty-four hours a day, seven days a week. The advertisements listed "25 Pool Tables" and "Pin Ball Machines" as the club's main attractions. In fact, Patlakh had twenty-five pool tables, one pinball machine, one video game, a compact-disc jukebox, ...


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