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Acierno v. Cloutier

filed: October 18, 1994; As Amended October 24, 1994.

FRANK E. ACIERNO
v.
PHILIP CLOUTIER; RICHARD CECIL; ROBERT POWELL; ROBERT WOODS; CHRISTOPHER ROBERTS; PENROSE HOLLINS; KAREN VENEZKY; NEW CASTLE COUNTY; MICHAEL MITCHELL, PHILIP CLOUTIER, RICHARD CECIL, ROBERT POWELL, ROBERT WOODS, CHRISTOPHER ROBERTS, PENROSE HOLLINS AND KAREN VENEZKY, APPELLANTS IN NO. 93-7456; MICHAEL T. MITCHELL, APPELLANT IN NO. 93-7617



Appeal from the United States District Court for the District of Delaware. (D.C. Civ. No. 92-00385).

Before: Greenberg, Cowen and Nygaard Circuit Judges. Before: Sloviter, Chief Judge, Becker, Stapleton, Mansmann, Greenberg, Hutchinson, Scirica, Cowen, Nygaard, Alito, Roth, Lewis and McKEE Circuit Judges .

Author: Cowen

Opinion OF THE COURT

COWEN, Circuit Judge.

In this action under 42 U.S.C. § 1983, the defendants have appealed the denial of their motions to dismiss on absolute and qualified immunity grounds. These appeals were first heard by a panel of this court, which was bound by Prisco v. United States Dep't of Justice, 851 F.2d 93 (3d Cir. 1988), cert. denied, 490 U.S. 1089, 109 S. Ct. 2428 (1989). In that case it was held that a defendant may not appeal the denial of a claim of qualified immunity under the collateral order doctrine if the defendant would nevertheless be required to go to trial on a claim for injunctive relief. When the panel opinion was circulated to the full court before publication, the court voted to grant rehearing in banc for the purpose of reconsidering Prisco. Having done so, the full court has decided that Prisco should be overruled. Part IIB of this opinion, which represents the opinion of the court sitting in banc, addresses that issue. The issues addressed in the remainder of this opinion have been considered by the panel only.

In still another chapter in the extensive volume of litigation between Frank Acierno and the members of the New Castle County Council ("County Council") in Delaware concerning Acierno's various development projects, we are called upon to decide whether the members of the County Council are entitled to immunity from suit for their actions of enacting two ordinances which down-zoned Acierno's commercial property. We conclude that both the present and former members of the County Council are immune from suit because the actions they took with respect to Acierno's commercial property were either substantively and procedurally legislative in nature, or did not abrogate a clearly established property interest. Accordingly, we will reverse the district court's denial of the motion for summary judgment made by the present and former members of the County Council on immunity grounds. We will also reverse the district court's order denying First Assistant County Attorney Mitchell's motion to dismiss on immunity grounds.

I.

A. Factual Background

Plaintiff Frank E. Acierno, a real estate developer, purchased a thirty-eight acre parcel of land located in New Castle County, Delaware (the "property") on October 5, 1984 for slightly more than $1,000,000. As of April, 1971, the property had a classification under New Castle County's zoning ordinance as a "diversified planned unit development" ("DPUD"). A major land development plan for the property was approved by the County and recorded on April 11, 1974. The approved record development plan provided for the construction of a 322 unit apartment complex (to be called "The Maples Apartments"), together with the development of .87 acres of land for commercial use.

It is undisputed that Acierno's interest in owning the property was partly by reason of its DPUD zoning classification and the fact that the property was the subject of an approved record development plan. Before closing on the property, Acierno sought and received assurances from the New Castle County Department of Planning ("Department of Planning") regarding the current zoning and record plan status of the property. In response to Acierno's request, the Department of Planning issued a letter opinion which stated the following: "The land is still currently zoned Diversified Planned Unit Development (DPUD). The status of the record plan is that it is current and, therefore, the uses permitted are noted on the plan subject to limitations regarding the density, commercial area, etc." Appendix ("App.") (No. 93-7456) at 131. In reliance on these factors, Acierno paid a premium of approximately $900,000 for the property. At the time of purchase, the description of the property specifically noted that the parcel had been approved by County officials for the construction of 322 apartment units.

In October, 1985, Acierno filed with the Department of Planning a revised development plan for the property, which was now to be known as the "Westhampton project." Thereafter, in December, 1985, the County Council issued a resolution pursuant to section 23-81(21) of the County Code*fn1 requesting that the Department of Planning provide a recommendation as to whether the existing record plan for the property should be voided. The County Council issued this resolution based on concerns that DPUD rezonings were not being developed in a timely fashion, that the density of housing might adversely impact on the general quality of life in the County, that an updated review of traffic, water, and sewer facilities was necessary, and that the Subdivision Advisory Committee should review the project in light of the character of the existing neighborhood. The record reflects that the project was the only DPUD-zoned property with a record development plan subject to review by the County.

In response to the resolution, the Department of Planning solicited comments from various municipal departments and determined that the property had adequate traffic, water, and sewer capacity. Therefore, the Department of Planning did not make a recommendation that the County Council void the record development plan. Two months later, the then Council Attorney sent a memorandum to the County Council pertaining to the resolution. The memo stated that there was nothing more for the County Council to consider since the voiding provision of the New Castle County Code, § 23-81(21), "indicates that the [Department of Planning] must affirmatively support the voiding of a record plan before Council's discretion comes into being. Without such prerequisite support, Council has no discretion to act. If this were not the case, review by the [Department of Planning] would be meaningless." App. (No. 93-7456) at 140.

On March 11, 1986, then County Council President Karen Peterson informed Acierno that nothing remained for the County Council to consider regarding the resolution and that no further ordinances or resolutions had been proposed concerning the property. Acierno then undertook a revision of the subdivision plan*fn2 for the property to address concerns raised by the County regarding the planned use for the site. The Department of Planning informed Acierno that his revised and updated subdivision plan for the Westhampton project was approved and recorded on April 18, 1986. A subsequent revised subdivision plan, superseding the April plan, was approved and recorded on December 5, 1986.

During 1987 the County Council revised, updated, and amended the DPUD zoning classification. At the time a workshop concerning the zoning amendment effort was held in October, 1987, the proposed amended DPUD ordinance contained a "savings clause" which provided as follows:

Section 4. This ordinance shall become effective immediately upon its adoption and approval except for rezoning applications currently pending DPUD approval which shall be exempt from the provisions of this ordinance, but subject to the provisions of the Code in effect at the time of rezoning to DPUD.

App. (No. 93-7456) at 92. This proposed DPUD ordinance, known as "Substitute Ordinance No. 1 to Ordinance 87-025," was not enacted into law. In response to suggestions made during the workshop, the savings clause was revised to read as follows:

Section 4. This ordinance shall become effective immediately upon its adoption and approval except for rezoning applications currently pending DPUD approval which shall be exempt from the provisions of this ordinance except Section 23-81(18), but subject to the provisions in the Code in effect at the time of rezoning to DPUD.

App. (No. 93-7456) at 113 (emphasis added).*fn3 This revised DPUD ordinance, known as "Substitute Ordinance No. 2 to Ordinance 87-025," was adopted into law by the County Council on October 13, 1987. Id. at 93, 113. The language of the savings clause is relevant to this dispute because Acierno alleges that the County Council, through an opinion issued by First Assistant County Attorney Michael T. Mitchell, relied upon the unenacted version to conclude that it had discretion to void Acierno's record development plan.

In 1988, Acierno further revised the Westhampton project subdivision plan and submitted it for County review. In June, 1988, the Department of Planning informed Acierno that the subdivision plan, superseding the December 5, 1986 subdivision plan, was approved and recorded. By December, 1988 when a further revised subdivision plan was approved and recorded, Acierno had spent in excess of $1,000,000 to further his development plans for the property, including expenses for mortgage interest, engineering fees, and real estate taxes. It is not disputed, however, that Acierno never obtained a building permit from the County allowing him to start construction of the Westhampton project.

The County Council again introduced a resolution in April, 1991 requesting the Department of Planning's recommendation whether to void the existing record development plan for the property. The record reflects that the County Council had concerns similar to those present when a voiding resolution had been introduced in December, 1985. Acting upon this resolution and enclosing a copy of the December, 1988 subdivision plan, the then Director of the Department of Planning contacted the Delaware Department of Transportation for comments concerning road access and traffic impact.

In a memorandum to the County Council dated May 22, 1991, the then Director advised the County Council that Subdivision Advisory Committee members had been asked to comment on the Westhampton project and to identify any issues that might preclude development of the site as depicted by the record development and subdivision plans. The memo stated that various government agencies had identified deficiencies in the subdivision plan, but acknowledged that the situation could be remedied by Acierno through voluntary revisions to the plan. In fact, Acierno responded to the Department of Planning by letter dated May 29, 1991 that he intended to cooperate in order to address and resolve any deficiencies. By June, 1991, Acierno had submitted a wetlands delineation report, thereby fulfilling one of the cited deficiencies.

Defendant-appellant Michael T. Mitchell, First Assistant County Attorney, was also involved in reviewing the voiding resolution proposed in April, 1991. He provided a legal memorandum to the County Council on July 2, 1991 which set forth his opinion as to whether the Council had authority to void Acierno's approved record development plan. Mitchell's opinion concluded that the County Council had discretion to void the record development plan for the Westhampton project upon recommendation by the Department of Planning because the old five-year sunsetting provision of the County Code, repealed § 23-81(21), applied rather than the newly enacted ten-year sunsetting provision, § 23-81(18). In coming to this Conclusion, Mitchell relied upon the unenacted savings clause contained in Substitute Ordinance No. 1 to Ordinance 87-025, rather than the enacted savings clause which was introduced as part of Substitute No. 2 to that ordinance.

From May, 1991 through April, 1992 Acierno proceeded with his development efforts by attempting to remedy the purported deficiencies in the Westhampton plan. Some changes in the proposed development were incorporated into a revised plan which was submitted to the Department of Planning for review and approval. The Department of Planning allegedly informed Acierno in September, 1991 that he had complied with all material deficiencies contained in the May 22, 1991 memorandum from the Department of Planning to the County Council. The County Council tabled the resolution to void Acierno's record development plan in September, 1991.

The resolution was reexamined the next spring. In a letter to the County Council dated April 2, 1992, the Department of Planning indicated that Acierno had submitted a new subdivision plan which resolved the wetlands, fire prevention, and a majority of the public works concerns. The traffic and road access issues were the only remaining deficiencies that had not been completely resolved. The Department of Planning concluded:

In summary, it would appear that the only remaining issue with respect to our memorandum of May 22, 1991, is access through the Oakwood Hills subdivision. The Department has been given no indication that the applicant will voluntarily remove this access from the plan. Further, we see no evidence that any meaningful dialogue is ongoing between the applicant and community to find a compromise position. Should [the County] Council be of the opinion that this issue warrants voiding of the plan, the Department would recommend that it proceed with action on [the voiding resolution] as this appears to be the only method of bringing closure on this issue.

App. (No. 93-7456) at 39.

After notice and a public hearing, on April 14, 1992 the County Council enacted Ordinance 91-190 voiding the approved record development plan and related subdivision plans for the property. The next day, defendant-appellant Philip Cloutier, then a member of the County Council, informed the Director of Planning that he intended to introduce an ordinance to rezone the property from DPUD back to R-2, its residential zoning classification prior to its rezoning to DPUD in 1971. As required by statute, legal notice of the proposed zoning ordinance was published on June 20, 1992; below the title of the proposed ordinance contained in the notice was bracketed language indicating that enactment would rezone the property from DPUD to an R-2 zoning classification.

A statutorily required public hearing was held before the Department of Planning and Planning Board on July 7, 1992 concerning the proposed rezoning ordinance. Two weeks later, the Department of Planning recommended the adoption of a substitute ordinance which would rezone the property from DPUD to an R-1-B classification instead of an R-2 classification. The R-1-B zoning classification, which requires an average minimum lot size of 15,000 square feet, is less restrictive than the R-2 zoning classification, which requires an average minimum lot size of 21,780 square feet. Compare New Castle County, Del., Code § 23-39(3) (the R-1-B residence district requires a minimum lot area of 15,000 square feet) with id. § 23-39(6) (the R-2 residence district requires a one-half acre or 21,780 square feet minimum lot area).

On September 9, 1992 the County Council enacted Substitute No. 1 to Ordinance No. 92-119 rezoning the property from DPUD to an R-1-B zoning classification. This action was taken even though all public notices concerning the rezoning had indicated that upon enactment the property would be rezoned from DPUD to an R-2 classification. The effect of the rezoning was that Acierno had to suspend his plans to develop a large apartment building on the property because the R-1-B zoning classification permits only a variety of less intensive uses. The district court made a finding of fact that Acierno had spent more than $1,000,000 pursuing his plan to develop the property.*fn4

B. Procedural Background

Acierno filed a complaint on July 1, 1992 in the United States District Court for the District of Delaware alleging that the defendants, through the voiding of his approved record development plan and the rezoning of his property, violated his constitutional rights. The original complaint named as defendants the County and present and former members of the County Council.*fn5 The complaint was subsequently amended in April, 1993 to include First Assistant County Attorney Michael T. Mitchell as a party defendant.

The amended complaint contains two counts. In count one, Acierno seeks compensatory damages and injunctive relief against all defendants pursuant to 42 U.S.C. § 1983. Specifically, Acierno alleges that the defendants violated his equal protection and procedural and substantive due process rights by down-zoning his property. In count two, Acierno seeks injunctive relief against the County under an equitable estoppel theory.

The present and former County Council members had filed an answer to the original complaint in which they allege defenses of legislative and qualified immunity. These defendants and the County filed a motion for summary judgment on December 4, 1992. After the filing of various motions and responses which are not relevant to this appeal, the district court made a determination to treat the motion by the defendants other than Mitchell as a motion for partial summary judgment. In a Memorandum Opinion and Order dated June 9, 1993, the district court granted the motion for summary judgment on Acierno's procedural due process claim,*fn6 but denied the motion as to the substantive due process and equal protection claims. See Acierno v. Cloutier, No. 92-385, 1993 WL 215133, at 23-26 (D. Del. June 9, 1993), reh'g in banc granted, No. 93-7456, 93-7617, 1994 WL 319783 (3d Cir. July 7, 1994). The district court also concluded that the defendants were not entitled to summary judgment with respect to their defenses of legislative and qualified immunity. Id. at 27-30.

The district court separately addressed the defenses of legislative and qualified immunity. The district court articulated a two-part test for entitlement to legislative immunity which requires that the action taken be legislative in nature rather than administrative, and that the action be taken in accordance with statutory procedures. Id. at 27. The court concluded that the enactment of the two ordinances which down-zoned Acierno's property was administrative, rather than legislative, because the two ordinances were directed at a single property owner and not the community at large. Id. The court further held that the members of the County Council were not entitled to legislative immunity because they did not strictly comply with Delaware law when rezoning the property from DPUD to an R-1-B zoning classification. Id. at 27-29.

Turning to the defense of qualified immunity, the district court concluded that because Acierno had a vested right to develop his property pursuant to the DPUD zoning classification and approved record plan, see id. at 9-19, which was clearly established by Delaware state law at the time of the rezoning decisions, no reasonable official would have believed that the rezoning actions were lawful. Id. at 29. In rejecting the qualified immunity defense, the district court also found that a reasonable official would have known that the voiding of the record plan was precluded by County law. Id. Thus, the district court decided that the members of the County Council were not entitled to immunity from suit.

Defendant Mitchell filed a motion to dismiss the amended complaint on the grounds that it fails to state cognizable due process and equal protection claims against him and that he is entitled to qualified immunity from suit. The district court rejected Mitchell's motion to dismiss in a separate Memorandum Opinion and Order dated September 1, 1993. Acierno v. Cloutier, No. 92-385, slip op. at 13-19 (D. Del. Sept. 1, 1993). Addressing the defense of qualified immunity, the district court denied Mitchell's motion because it found that Mitchell had knowingly, or through his own incompetence, relied on unadopted ...


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