HARRISBURG – Three counts have been dismissed from a lawsuit filed against the Borough of Gettysburg by a local business owner, who alleged they re-instituted a decades-old parking ordinance in order to retaliate against her for leading an opposition to a zoning dispute.
According to the Aug. 14 complaint initially filed in the U.S. District Court for the Middle District of Pennsylvania, plaintiff Linda Atiyeh, who owns several businesses on York and Chambersburg streets in Gettysburg, filed the suit against defendants including the Borough of Gettysburg, Gettysburg Borough Mayor Theodore Streeter, Borough Manager Charles Gable, Borough Parking Manager Richard Miller II and others.
The plaintiff alleged the ordinance denies her the ability to reserve parking spaces in front of her businesses, which includes The Upper Crust and Gallery 30. The ordinance however “preserves” the reserved parking for other businesses in the area, Atiyeh claimed in her complaint.
“Defendants’ actions have interfered with Atiyeh’s ability to access her property and operate her businesses, and constitute an unconstitutional deprivation of plaintiffs’ rights guaranteed by the United States Constitution Equal Protection and Due Process Clauses, and the First Amendment,” the plaintiff’s complaint stated.
Atiyeh, who according to the suit has invested more than $8 million to restore and preserve the Borough’s historic properties, claimed the defendants began to harass her in late 2016 by “forcing” her to apply to the Borough’s Historic Architectural Review Board for signage and merchandise displays, through selective enforcement.
“The absurdity and vindictiveness of defendants’ actions garnered significant public attention and criticism, including numerous editorials in local media that were unfavorable to defendants,” the suit stated.
However, the borough claimed it was well within its rights to enforce parking ordinances and that the plaintiff showed no proof of disparate treatment compared to other people.
On Oct. 15, counsel for the defendants filed a motion to dismiss Atiyeh’s various claims and all defendants except the Borough of Gettysburg from the case – citing that if the officials in question are in service to the borough through their official capacities, then listing the borough as a defendant makes their further inclusion duplicative and redundant.
These defendants – Theodore H. Street, Susan Naugle, Wesley K. Heyser, Patricia A. Lawson, Jacob Schindel, Chris Berger, Charles Strauss, John Lawver, Charles R. Gable, and Richard L. Miller II – were dismissed from the case through an order from U.S. District Court Judge John E. Jones III on Nov. 12.
Furthermore, the defendants sought to dismiss the plaintiff’s equal protection violation, due process violation and promissory estoppel counts, for failure to state claims upon which relief could be granted.
Jones concurred with the defendants in an April 9 ruling.
“We find that restaurants and retail establishments are not similarly situated to hotels and bed and breakfasts in a bustling tourist town such as Gettysburg. Plaintiffs’ selective enforcement allegations must therefore necessarily fail. Nevertheless, we also consider the second prong of the test for selective enforcement and ask whether plaintiffs have alleged sufficient facts to satisfy the second element – whether this selective treatment was based on an unjustifiable standard. They have not,” Jones said.
“We further find that there is a “reasonably conceivable state of facts” under which the removal of reserved parking spots would create more public parking that would reduce street clutter and congestion. We thus hold that plaintiffs have failed to allege sufficient facts to satisfy the second element of an equal protection claim under a selective enforcement theory.”
Jones also found the Borough’s stated reason for amending the Parking Ordinance, to reduce cluttered parking and traffic on the Borough’s streets, to be a “legitimate state interest” – and that their promissory estoppel claim must also fail.
“Plaintiffs have not alleged that the meter bags issued to them were invalid or a mistake. Their cited cases [which established a landowner may only pursue a promissory estoppel claim on these grounds when the permit was “issued by a municipality illegally or under a mistake of fact”] are therefore inapplicable, and because plaintiffs have failed to allege the existence of a promise upon which they could rely, we find that plaintiff’s promissory estoppel claim cannot succeed,” Jones said.
Atiyeh seeks compensatory and punitive damages, attorneys’ fees and costs and a declaration that the Borough’s parking ordinance amendment is unconstitutional.
The plaintiff is represented by Danielle E. Ryan and Gerald E. Arth of Fox Rothschild, in Exton and Philadelphia.
The defendant is represented by Rolf E. Kroll of Margolis Edelstein, in Camp Hill.
U.S. District Court for the Middle District of Pennsylvania case 1:19-cv-01412
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com