HARRISBURG – The Borough of Gettysburg says that a lawsuit from a local business owner who claims it retaliated against her for opposing a zoning dispute by reinstating a decades-old parking ordinance is groundless and should be thrown out.
Plaintiff Linda Atiyeh and her businesses initially filed a complaint in the U.S. District Court for the Middle District of Pennsylvania on Aug. 14, 2019.
Atiyeh, who owns those 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 and dismissed the claims.
UPDATE
The Borough filed an answer to the complaint on July 10, denying Atiyeh and her businesses’ allegations and asserting 20 separate affirmative defenses against them.
“Plaintiffs’ recoverable damages, proof of claim and evidence of damages, if any, are subject to the limitations provided in 42 Pa. Cons. Stat. Section 8553. Plaintiffs’ claims, if any, are barred or limited by the applicable statute of limitations,” the defendant’s answer read, in part.
“Plaintiffs’ claims may be barred or limited by the Doctrines of Qualified Immunity, Legislative Immunity, Equitable Estoppel, Collateral Estoppel and Unclean Hands.”
Additionally, the answer argues that any injury sustained by the plaintiffs was caused solely, directly and proximately by their own conduct, that some or all of the plaintiffs’ damage claims may be barred by their failure to mitigate damages and that those claims are barred in whole or in part to the extent the plaintiffs attempt to expand the protections afforded under the United States Constitution.
The plaintiff 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