Third Circuit upholds dismissal of developer's action against City of Philadelphia, City Council

By Nicholas Malfitano | Oct 3, 2016

PHILADELPHIA -- Citing the U.S. District Court for the Eastern District of Pennsylvania’s “excellent opinion,” the U.S. Court of Appeals for the Third Circuit has upheld a ruling dismissing a developer’s lawsuit for failure to state a claim.

With Judge Thomas M. Hardiman authoring the court’s opinion for colleagues Theodore A. McKee and Marjorie O. Rendell on Sept. 23, the appellate judiciary relied upon virtually the same reasoning as the district court in dismissing Parker Avenue LP’s legal action versus the City of Philadelphia and the Philadelphia City Council.

Parker owns land in Philadelphia’s 21st Ward, where it has desired to build 48 residential units for nearly a decade. Though the planned development meets all necessary zoning ordinances and approvals from the city and the Commonwealth, the city council’s failure to pass an ordinance to pave Cinnaminson Street has prevented construction. Cinnaminson Street would provide the necessary access to and from the property.

Though two bills to pave Cinnaminson Street were introduced in 2007 and referred to the city council’s Committee on Streets and Services, they were taken off the council agenda at the insistence of the Ridge Park Civic Association (RPCA). The RPCA opposed Parker’s development plan and successfully lobbied the district’s then-councilwoman and her successor not to support the bills. Despite Parker meeting with the RPCA in an attempt to alleviate their concerns, the bills were never reintroduced for council discussion.

Parker initiated a lawsuit against the city and the city council, listing 39 paving ordinances introduced in the last decade (eight of which were pertinent to residential development) and explaining all were passed except the one to pave Cinnaminson Street. Parker indicated the city’s government treated them differently than other similar developers and as a result, has been prevented from maximizing the use of its property.

The district court dismissed Parker’s amended complaint, and the developer subsequently lost on motions for both reconsideration and leave to file a second amended complaint. These actions led Parker to appeal to the Third Circuit.

In its appeal, Parker believed the district court applied “an impermissibly high plausibility standard,” “erred in dismissing its equal protection claim because the Court evaluated its allegations under an improper standard,” “erred in dismissing its substantive due process claim” and “erred when it denied its motion for leave to amend.”

Hardiman examined each of Parker’s claims.

“The District Court properly applied the pleading standards set forth in Ashcroft v. Iqbal, and Bell Atlantic v. Twombly, and found that the amended complaint failed to state plausible claims for relief. And as we explain below, the District Court’s analysis was not erroneous,” the judge wrote.

Hardiman pointed out the district court dismissed the complaint for Parker’s failure to identify which landowners “who were alike in all relevant aspects” that it felt it was treated differently from.

“Although the amended complaint identified a number of approved paving ordinances, including some for residential developments, it failed to allege whether any of them were opposed by neighbors or local civic groups, as was the paving ordinance for Cinnaminson Street,” the judge wrote.

“Nor did the amended complaint allege whether the approved ordinances were similar regarding their locations or surroundings, including with respect to issues such as traffic, noise, density, or size of the residential development. Without more specific facts, Parker has not alleged that these landowners are similarly situated, and has therefore failed to state an equal protection claim.”

Hardiman said the district court was correct in dismissing the substantive due process claim as well.

“As explained by the District Court, however, Parker did not allege irrational and arbitrary governmental conduct. It merely alleged a difference of opinion between a landowner and a civic association over the propriety of paving of a city street. These competing interests of the two sides are for the City to resolve,” he wrote.

Finally, Hardiman said the trial court was right to deny Parker the ability to further amend its complaint.

“The proposed second amended complaint sought to add details about some of the residential developments for which paving bills had been passed, yet did not cure the deficiencies identified by the District Court,” the judge wrote. “The proposed amendments did not, for example, include factual allegations of irrational or arbitrary conduct by the City Council in weighing the competing interests of the civic association and developer. Nor did the amendments allege that any of the other paving bills were either supported or opposed by a local neighborhood association.

“Because Parker did not cure these deficiencies, the District Court reasonably found that a second opportunity to amend would prove futile. We perceive no error in this determination.”

The plaintiff is represented by Darwin R. Beauvais, Anthony R. Twardowski and Gary R. DeVito of Zarwin Baum DeVito Kaplan Schaer Toddy in Philadelphia.

The defendants are represented by Christopher H. Rider and Jane Lovitch Istvan of the City of Philadelphia’s Law Department, plus Anne B. Taylor of the U.S. Attorney’s Office in Camden, N.J.

U.S. Court of Appeals for the Third Circuit case 13-4049

U.S. District Court for the Eastern District of Pennsylvania 2:13-cv-00121

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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