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Herr v. Pequea Township

In a civil rights action in which plaintiff alleged defendants obstructed plaintiff's development of an industrial park, grant of summary judgment in favor of defendants affirmed; township and its supervisors were not subject to liability for delay occasioned by governmental agency proceedings solely because their participation was motivated by a desire to delay or prevent the project for which approval is sought.

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Argued May 14, 2001

E. Marvin Herr, a land developer, appeals the grant of summary judgment to Pequea Township (“Township”) and its three supervisors, Virginia Brady, Bruce Groff, and Martin Hughes (collectively, “defendants”), in this civil rights action. Herr alleges that his right to substantive due process was violated by an eleven year campaign of the Township and its officers to delay and obstruct his development of an industrial park.

The defendants adopted a land use plan and a sewer facilities plan based in part on their view that industrial development within the Township should be restricted. Over the next eleven years, Herr, who wished to construct an industrial park and who had applied to the Lancaster County Planning Commission (“LCPC”) for approval of a subdivision plan prior to the effective date of these plans, sought the necessary authorization for his development from the LCPC, the Department of Environmental Review (“DER”), the Environmental Hearing Board (“EHB”), the Zoning Hearing Board (“ZHB”), and the courts. The Township participated in the proceedings before each of these bodies. While it acknowledged that Herr’s project was grandfathered under the prior land use plan if he completed it within five years, the Township insisted that he had no vested right to municipal sewer services under the prior sewer facilities plan and argued that the Township’s new plan should be enforced. After Herr secured an order from the DER directing the Township to amend its sewer facilities plan so as to provide municipal sewer service to his property and obtained a land use permit from the LCPC, the Township took the position in further proceedings that not all conditions of the LCPC’s approval had been fulfilled and that the five year grandfathering had expired before completion of the project. Ultimately, Herr secured the necessary authority to go forward with his industrial park.

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