Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-10-1994

Acierno v. New Castle Co.
Precedential or Non-Precedential:

Docket 94-7134




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                    UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                             ___________

                             No. 94-7134
                             ___________


                          FRANK E. ACIERNO,
                                       Appellee

                                   v.

                         NEW CASTLE COUNTY,
                                      Appellant

                             ___________

           Appeal from the United States District Court
                   for the District of Delaware
               (D.C. Civil Action No. 93-cv-00579)

                             ___________

                        Argued:   June 24, 1994


         PRESENT:   BECKER and HUTCHINSON, Circuit Judges,
                     and PADOVA, District Judge*


                      (Filed November 10, 1994)

                             ____________


Collins J. Seitz, Jr., Esquire       (Argued)
N. Richard Powers, Esquire
Connolly, Bove, Lodge & Hutz
1220 Market Building
P.O. Box 2207
Wilmington, DE   19899
               Attorneys for Appellant



_______________

*   Hon. John R. Padova, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Thomas S. Neuberger, Esquire           (Argued)
Thomas S. Neuberger, P.A.
Suite 702
200 West Ninth Street
Ninth Street Plaza
Wilmington, DE   19801-1646

          and

John J. Yannacone, Esquire           (Argued)
Yannacone, Fay, Baldo & Daly
Suite 107
200 East State Street
Media, PA     19063
               Attorneys for Appellee


                             ____________

                       OPINION OF THE COURT
                           ____________


HUTCHINSON, Circuit Judge.



          This appeal presents yet another dispute between real

estate developer Frank Acierno ("Acierno") and New Castle County,

Delaware ("the County") over Acierno's commercial development

plans for land in the County.    The underlying action is Acierno's

request for declaratory and injunctive relief and compensatory

and punitive damages for the County's alleged violations of the

Constitution and laws of the United States and 42 U.S.C.A. § 1983

(West 1994).1   Presently before us is the County's appeal from an
1
.   42 U.S.C.A. § 1983 provides, in relevant part:

          Every person who, under color of [law],
          subjects, or causes to be subjected, any
          . . . person . . . to the deprivation of any
          rights, privileges, or immunities secured by
          the Constitution and laws, shall be liable to
          the party injured . . . .
order entered by the United States District Court for the

District of Delaware granting Acierno's motion for a mandatory

preliminary injunction directing the County to issue Acierno a

building permit for development of a shopping mall.    The

preliminary injunction also enjoins and restrains the County from

interfering with Acierno's right to develop the parcel in

question as a shopping mall.

          In issuing its preliminary injunction, the district

court held that Acierno established a substantial likelihood that

the County's actions interfered with Acierno's Fourteenth

Amendment property interests and his liberty interest to conduct

his business as a real estate developer.    The district court also

concluded that Acierno would suffer irreparable harm unless the

County was compelled to issue the building permit and halt its

interference with Acierno's development.   Finally, the court

concluded that neither potential hardship to the County nor the

public interest outweighed the benefits of issuing the

preliminary injunction.

          On appeal, the County argues Acierno failed to show he

will be irreparably harmed unless a preliminary injunction issues

against the County.   We agree.   A primary purpose of a

preliminary injunction is maintenance of the status quo until a

decision on the merits of a case is rendered.    A mandatory

preliminary injunction compelling issuance of a building permit

fundamentally alters the status quo.    There is no evidence in

this record to show that a delay in issuance of the building

permit until this case can be decided on its merits would cause
irreparable harm to Acierno.      We will therefore reverse the

district court's order entering this mandatory preliminary

injunction against the County.2



                   I.    Factual & Procedural History

                    A.   General Factual Background

             In 1971 Acierno was a long term lessor of a large part

of some forty acres of land situated in New Castle County,

Delaware near the intersection of Interstate Highway 95 and State

Route 273.    This forty acre parcel was zoned M-1, Manufacturing,

and the County's zoning ordinance then in effect permitted

commercial development in an M-1 manufacturing zone.3     Acierno

also owned an adjacent smaller parcel of land zoned C-2,

Commercial, a portion of which is directly adjacent to Route 273.

These two parcels comprise the property ("the Property").

             In 1971, County planning law required developers to

file an "exploratory sketch plan" before the County would finally

approve a subdivision plan.      On May 11, 1971, Acierno filed an

"exploratory sketch plan" with the County Department of Planning

2
 . On appeal, the County also challenges the district court's
conclusions that Acierno demonstrated a likelihood of success on
his procedural and substantive due process claims. We do not
decide these issues because of our conclusion that Acierno failed
to show irreparable harm.
3
 . Zoning theory once took a hierarchial view of use zones. In
the hierarchy, a manufacturing use usually ranked below a
commercial use. The theory thus resulted in mixed uses within a
single use zone. It has been generally displaced because such
mixed uses have come into disfavor among planners and many of the
communities they serve.
("the Planning Department") proposing development of an enclosed

shopping mall on the Property.   On October 8, 1971, in accordance

with County regulations, Acierno submitted a more detailed

"preliminary-tentative building plan."    It described the enclosed

mall as located entirely on the larger, forty acre portion of the

Property zoned M-1.   On October 22, 1971, the Planning Department

disapproved Acierno's preliminary-tentative plan.4

          On November 16, 1971, the New Castle County Council

("County Council") adopted an amendment to section 23-34 of the

County Zoning Code prohibiting the commercial uses previously

allowed in an M-1 Manufacturing zone.    Before this amendment was

adopted, Acierno requested the County's Planning Board ("Planning

Board")5 to hold an expedited special meeting to reconsider

Acierno's preliminary-tentative plan.    At this meeting on

November 8, 1971, the Planning Board reversed the Planning

Department and approved Acierno's preliminary-tentative plan.

          On January 24, 1972, Acierno filed a final plan

("Plan") for his shopping center with the Planning Department

but, on February 24, 1972, the Planning Department voted to
4
 . The Planning Department found that the proposed plan was
inconsistent with the County's comprehensive plan, would create
adverse traffic congestion and had an unsuitable internal design.
5
 . Under Delaware law pertaining specifically to New Castle
County, the Planning Department initially reviews subdivision
proposals. Del. Code Ann. tit. 9, § 1345 (1989). A developer
has a right of appeal from an adverse decision of the Planning
Department to the Planning Board. New Castle County Subdivision
Regulations § 8.31; see Acierno v. Folsom, 

, 311
(1975). The Planning Board consists of seven members appointed
by the County Executive with the advice and consent of the
County's attorney. Del. Code Ann. tit. 9, § 1342 (1989).
reject the final plan (1) because it conflicted with the general

comprehensive development plan adopted for the County, (2)

because the shape of the tract in issue made it unsuitable for

the construction of a shopping center and (3) because of the

impact of the increased traffic the proposed shopping center

would bring.     Acierno appealed but this time, on April 26, 1972,

the Planning Board affirmed the Planning Department's rejection.

See Acierno v. Folsom, 

, 905 (Del. Ch. 1973), aff'd

(Del. 1973).

          A series of administrative and judicial appeals

followed and, during a further hearing before the Planning Board,

Board members voted as follows:
          (1) 6 to 0 in favor of Acierno on the
          incompatibility of the Plan with the County's
          comprehensive development plan;

          (2) 4 to 2 in favor of Acierno on the issue
          of unsuitable internal design of the project;
          and

          (3) 3 to 3 to sustain Planning's rejection of
          Acierno's Plan because that the proposed
          development would have an adverse effect on
          vehicular traffic in the area.

   A member of the Planning Board who was absent

from this hearing later advised the Chairman of the Planning

Board that he would have voted to overrule the Planning

Department on all three resolutions if he had been present.    See

   County Council nevertheless affirmed the Planning

Board's decision on January 9, 1973.     

14, 1975, however, the Delaware Supreme Court

ordered County Council to approve and file Acierno's Plan.        See

Acierno v. Folsom, 

, 317 (Del. 1975) (reversing

unreported Delaware Court of Chancery order granting summary

judgment to County).     The supreme court first held that "an

approval of the Planning Board was binding upon the Planning

Department . . . and that . . . the County Council was obliged,

as a ministerial function, to register its approval . . . ."       

  It also concluded that the Chairman of the Planning

Board acted unlawfully in failing to recuse himself during the

vote because of his apparent bias and prejudice towards Acierno

and accordingly refused to count the Chairman's vote.     

  This changed the vote on the effect of increased traffic,

the only issue which had gone against Acierno, to 3-2 in his

favor.    

  The state's highest court therefore held

that a majority of the Planning Board members properly voting had

approved Acierno's proposed development and County Council was

bound by this decision.     

County Council

approved Acierno's Plan on October 28, 1975.

           Almost twelve years later, in September of 1987,

Acierno submitted a revised subdivision plan ("Revised Plan") to

the Planning Department.6    In it he proposed to:   (1) subdivide

the Property into three parcels; (2) change building locations

and sizes to accommodate the present market; and (3) correct

drafting errors along some boundary courses.
6
 . In the early 1980's, Acierno purchased the forty acre parcel,
which he had previously leased.
            In a memorandum dated January 26, 1988, Charles D.

McCombs II of the Planning Department directed Acierno's

engineers to "[p]rovide a note referencing previous court action

that permitted commercial development in the M-1 zoning

district[]" on the Revised Plan.    Appendix ("App.") at 335.    They

did so and on February 25, 1988, County Planning Director Wayne

Grafton ("Grafton") approved the Revised Plan for recording

purposes.    On May 15, 1988, Grafton approved development of a

"Hampton Inn" on the portion of the Property zoned M-1.

            In November of 1988, Acierno submitted a revised

subdivision plan amending the Revised Plan ("Revised Plan II").

Revised Plan II stated its purpose was to "'revise buildings &

parking for buildings 1, 2 & 3' and to 'correct drafting errors

along some boundary courses.'"    App. at 336.   Otherwise, it was

consistent with Revised Plan I.    On March 7, 1989, Grafton

approved Revised Plan II.7




7
 . On April 4, 1989, following Grafton's approval of Revised
Plan II, the Department of Public Works notified Acierno's
engineers that it had approved facility support plans for a
McDonald's which Acierno planned to locate on the part of the
Property zoned for commercial use. On April 20, 1989, the
Delaware Department of Transportation ("DELDOT") approved a
permit for a commercial entrance to the Property at Route 273
presumably in connection with the plans for the McDonald's.
     B.    The County's Conduct Leading to the Present Action

           On April 18, 1991, County Attorney Michael Mitchell

("Mitchell") sent a memorandum to David J. Biloon ("Biloon"),

Chief, Development and Licensing Division, Department of Public

Works, New Castle County.    Mitchell's memorandum stated that he

had reviewed the Delaware Chancery and Supreme Court opinions in

the initial litigation in the mid-1970's over development of the

Property, as well as a copy of the original Plan, the Revised

Plan, and Revised Plan II.   Attorney Mitchell's memorandum

concluded that most of the Property was not zoned for retail use,

stating:
           "[N]o building permit should be issued for
           any construction on this site until extensive
           review and consultation between the Division
           of Development and Licensing, Department of
           Planning and Department of Law is initiated
           and concluded concerning any proposed use.
           Given the types of tenants that he has
           approached; i.e., the movie theater chain, it
           is clear that Mr. Acierno intends to initiate
           a use of the property that is not in
           conformity with the New Castle Zoning Code.

           In order to implement this directive, a
           general hold should be placed on any building
           permits that could be issued for this site.
           If that cannot be accomplished, all plan
           examiners and other officials involved in the
           building permit process should be advised of
           this situation and ordered to report any
           application for a building permit directly to
           you. If Mr. Acierno applies for a Building
           Permit for the 273 Mall, please contact this
           Department so that the review discussed above
           may be initiated."
Acierno v. New Castle County, No. 93-579-SLR, 1994 U.S. Dist.

LEXIS 1683, at *34-35 (D. Del. Feb. 11, 1994) (emphasis added and

emphasis in original deleted).

          On May 3, 1991, Biloon circulated a memo within the

County's Division of Development & Licensing which stated:
          "Please inform your respective staffs to keep
          an eye out for any activity, i.e., building
          permit applications, for . . . the 273 Mall
          . . . .

          We have been advised by the Law Department
          that there is a zoning problem at the 273
          Mall site. Basically, the site is zoned M-1
          which will not support retail shopping uses.
          At this point in time, I will not try to
          explain the legal reasons as to why there is
          a valid Record Plan or why the Record Plan
          cannot be rescinded by the County; but, never
          the less [sic], we have been instructed by
          the Law Department to withhold building
          permits for any activity. . . ."

(emphasis deleted).

          On July 9, 1991, Mitchell sent a memorandum to Bryan C.

Shuler, Director of Planning.    In it, Mitchell recounted the

history of the legal dispute over development of the Property and

stated that Acierno's record plans should not be accorded "'any

effect inasmuch as they purport to permit that which is not

permitted by the Zoning Code.'"     

  Mitchell's

conclusion that Acierno's recorded plans had no effect was based

on his reading of section 23-6(a) of the New Castle County Code.8


8
.   Section 23-6(a) and (c) provides:

          (a) No proposed ordinance to amend the
          zoning map shall be acted upon by county
Applying section 23-6(a) and (c) to Acierno's case, Mitchell's

memorandum went on to state:
          "Since this property would have been accorded
          the three-year stability protection regarding
          a proposed rezoning for the site, it also
          received the protection accorded by Section
          23-6(c) of the Code . . . .

          The purpose of the three-year 'moratorium'
          provision is to provide stability to the
          process. In this case, Section 23-6(c)
          permits a lot owner three (3) years to
          establish a use that but for a recent Zoning
          amendment would have been permitted in that
          district if the particular parcel was
(..continued)
          council within three (3) years after the
          latest of any of the following actions:

                              * * *

               (3)       Prior approval under the
               subdivision regulations of a preliminary
               plan involving any parcel of land, or
               portion thereof, whose zoning
               classification would be changed by the
               proposed amendment; provided, that the
               applicant and owner of such parcel may
               withdraw such plan and the provisions of
               this paragraph shall then cease to be
               applicable to such parcel or parcels.
               In no event shall the period permitted
               under this paragraph exceed three (3)
               years from the earlier approval under
               the subdivision regulations of a
               preliminary plan involving such parcel,
               or portion thereof.

          (c) No amendment to the zoning code
          regulations shall be applicable to any parcel
          or parcels of land protected by subparagraphs
          . . . (3) . . . of subsection (a) of this
          section during the period of such protection
          . . . .

New Castle County, Del., Code § 23-6(a),(c) (1992); see Acierno,

, at *46.
          protected by Paragraph (1), (3) or (4) of
          Section 23-6(a). The protection is afforded
          only for the three-year period and the
          property owner must establish the non-
          conforming use during that time. If the use
          is not established, the Code affords no
          further protection to that particular parcel.
          Thereafter, the property owner must comply
          with the revised provisions of the Zoning
          Code.

          Nor does the recordation of a plan create any
          rights, vested or otherwise. It is the use
          that is conferred non-conforming status, not
          a plan or a permit of any kind. Therefore,
          since Mr. Acierno did not establish a non-
          conforming commercial use within the three-
          year period provided for in Section 23-6(c),
          he is no longer entitled to establish any
          commercial use except those very limited
          instances where such commercial uses are now
          presently permitted in a M-1 district
          accessory to the permitted
          manufacturing/industrial use."

          Mitchell forwarded a copy of his July 9, 1991

memorandum to Robert O'Brien, Director, Department of Public

Works, so that O'Brien could "'take appropriate action to ensure

that no building permit is issued for any principal commercial

use [on the 273 Property] . . . .'"   

   Mitchell then

asked O'Brien, "[a]ccordingly, would you please take any steps

necessary to ensure that no permits are issued for this site

until complete review and consultation is accomplished with this

Department and the Department of Planning.'"   

was writing these memos, Acierno was

negotiating with prospective commercial tenants for space within

his proposed development.   Caldor, Inc. ("Caldor") was an
important prospect.     In late 1991 Acierno applied for a permit to

build a Caldor store.     Biloon, by letter dated December 18, 1991,

told him:
            "Please be advised that New Castle County
            cannot accept your building permit
            application for the proposed Caldor
            Department Store at this site. Commercial
            ventures of this nature cannot be situated on
            lands which contain a manufacturing zoning
            classification. Additionally, the existing
            Record Plan . . . allows for a 70,000 square
            foot building denoted as Building #4. The
            proposed structure is 112,000 square feet.
            This is also a discrepancy which must be
            rectified prior to the issuance of any
            permits."

            In February, 1992, the Delaware Department of Natural

Resources and Environmental Control approved Acierno's temporary

erosion and sediment control plan.     In May, 1992, Acierno

resubmitted his application for a building permit in connection

with the Property.     The accompanying plan provided for a 70,000

square foot building drawn in accord with County standards.        On
May 27, 1992, Biloon contacted Mitchell and informed him of

Acierno's latest application:     "'We have another application for

the dept. store.     This time the building plans agree with the

record plan.     What is out next move?'"   

  Mitchell

responded:    "'It is not zoned for a retail department store.       He

does not get a permit.'"    

assigned and

then voided a building permit number for the proposed development

project on the Property.     By letter dated June 4, 1992, Biloon
advised Acierno:    "New Castle County still cannot accept your

building permit application for the proposed 70,000 square foot

Caldor Department Store at [the 273 Property]."      

                       C.   Procedural History

            On July 1, 1992, Acierno filed a complaint under 42

U.S.C.A. § 1983 against the County and others in the district

court.   He alleged the County's decision to deny him a building

permit violated his constitutional rights to due process (both

substantive and procedural) and equal protection.

            On December 30, 1992, the district court granted

Acierno's motion for a mandatory preliminary injunction directing

the County to issue him a building permit.       See Acierno v.

Mitchell, No. 92-384-SLR, 

, at *52

(D. Del. Dec. 30, 1992) (order granting preliminary injunction).

The County then filed an interlocutory appeal.      On October 4,

1993, this Court vacated the district court's opinion and order,

held the case was not ripe and remanded with instructions to

dismiss Acierno's section 1983 action without prejudice because

Acierno had failed to appeal the County's refusal to issue the

building permit to the New Castle Board of Adjustment (the

"Board").   Acierno v. Mitchell, 

, 977-78 (3d Cir.
1993).

            Acierno then appealed to the Board, which held an

evidentiary hearing on December 2, 1993 and on December 16, 1993

voted to deny Acierno a building permit.    The next day,

December 17, 1993, Acierno filed the present suit in district
court, repeating the allegations he made in his prior section

1983 complaint.   On the same day, the County filed a state court

action seeking a declaratory judgment that Acierno had no right

to develop the Property for commercial purposes.   New Castle

County v. Acierno, No. 13302 (Del. Ch. filed Dec. 17, 1993).    The

state action remains pending.

          On January 4, 1994, the district court held an

evidentiary hearing on Acierno's motion for a preliminary

injunction and, on February 11, 1994, issued its opinion in

support of the mandatory injunction Acierno requested.     On

February 16, 1994, the order granting Acierno's motion for a

mandatory preliminary injunction requiring the County to issue a

building permit and accord Acierno favorable treatment during

inspections of the building process was entered.   See Acierno v.

New Castle County, No. 93-579-SLR (D. Del. Feb. 16, 1994) (order

granting preliminary injunction).

          On February 17, 1994, the County filed its timely

notice of appeal.   It also filed a motion for stay of the

injunction pending the appeal.   On March 18, 1994, the district

court denied the motion for a stay.   On April 6, 1994, this Court

denied the County's March 23, 1994 motion for a stay pending

appeal.
                      D.     Acierno's Damages

          During the Board of Adjustment hearing convened to

determine whether Biloon had correctly denied Acierno a building

permit, a board member asked for specific information about

Acierno's expenses in the planning and development stages of the

subdivision and resubdivision process.     Acierno's attorney

refused to permit Acierno to respond, stating that he would

"absolutely not" provide such information and that evidence of

Acierno's expenditures could be found at "page 8, paragraph 19 of

[the district court's December 30, 1992] Opinion."9    App. at 332.

The Board of Adjustment found:
          Acierno refused to testify concerning costs,
          and the documentary evidence does not prove
          that expensive and permanent improvements
          were constructed in reliance upon M-1
          sections of the subdivision and re-
          subdivision plans. No credible evidence was
          presented to the Board which proved that
          Acierno made a substantial change in position
          or incurred substantial obligations in
          reliance on the M-1 sections of the
          subdivision or re-subdivision approvals. Any
          expenses, plans or obligations undertaken by
          Acierno were related to the commercially
          zoned portion of the plan.

9
.   This Paragraph states:

          In connection with these Record Plans,
          plaintiff submitted surveys, drainage area
          plans, site plans, grading and utility plans,
          sanitary sewer plans, lines and grades plans,
          entrance details, and road plans. All of
          these plans were accepted by the various
          County and State agencies. Plaintiff
          expended thousands of dollars in connection
          with this work.

Acierno, 

, at *10-11 (emphasis added).


  The Board also found that "any pre-construction

expenses were attributable to the commercial portion of the site

(for a McDonalds location) which was not the subject of the

building permit, submitted by Acierno."   

          On the issue of Acierno's damages and irreparable harm

stemming from them, the district court made these additional

findings of fact:
          *    Acierno has permanently lost the
               opportunity to lease space to Caldor;

          *    If Acierno, who is presently negotiating
               to lease space on the Property to other
               tenants, is unable to obtain building
               permits, those prospective tenants with
               whom he is negotiating will lease at
               other sites; and

          *    The continued denial of the building
               permit will diminish Acierno's ability
               to develop the property because of
               competitive market demands and land use
               limitations.



See Acierno, 

, at *61-62.

10
 . The district court did not explain why it refused to defer
to this finding or failed to conclude it was not supported by the
evidence before adopting contrary findings. On appeal, the
County challenges the district court's failure to give preclusive
effect to the factual findings of the Board. The district court
acknowledged that University of Tennessee v. Elliott, 

, 797-99 (1986), required it to give preclusive effect to the
Board's factual findings but seems to have concluded the quoted
finding left the question of harm open. See Acierno, 1994 U.S.
Dist. LEXIS 1683, at *9. Its reasons for rejecting the second
finding allocating pre-construction expenses to the McDonalds are
not clear. Under Kollock v. Sussex Count Bd. of Adjustment, 

(Del. Super. 1987), a court reviewing the factual
findings of the Board may only ignore such findings upon a
determination that they are not supported by substantial evidence
in the record. 

               II.   Jurisdiction & Standard of Review

          The district court had subject matter jurisdiction over

Acierno's section 1983 claim under 28 U.S.C.A. §§ 1331, 1343(3)

(West 1993).   We have appellate jurisdiction over a district

court's interlocutory order granting a preliminary injunction

under 28 U.S.C.A. § 1292(a)(1) (West 1993) providing for appeals

from "[i]nterlocutory orders of the district courts . . .

granting, continuing, modifying, refusing or dissolving

injunctions . . . ."    Id.; see also Cohen v. Board of Trustees of

Univ. of Medicine and Dentistry of New Jersey, 

,

1464 (3d Cir. 1989) (in banc) (injunctive order immediately

appealable).

          We review an order granting a preliminary injunction

for abuse of discretion, see Merchant & Evans, Inc. v. Roosevelt

Bldg. Prods. Co., 

, 633 (3d Cir. 1992), but we review

the district court's underlying factual determinations under a

clearly erroneous standard and consider the court's

determinations on questions of law de novo.    See In re Assets of
Myles Martin, 

, 1357 (3d Cir. 1993); John F. Harkins

Co. v. Waldinger Corp., 

, 658-59 (3d Cir. 1986),

cert. denied, 

(1987).



                            III.   Analysis

          On appeal, the County challenges the district court's

conclusion that Acierno demonstrated the threat of immediate

irreparable injury necessary to justify the mandatory preliminary
injunctive relief granted here and also argues that the district

court abused its discretion in crafting the terms of the

injunction and in providing overly broad relief to Acierno.

          In order to obtain a preliminary injunction, "'the

moving party must generally show:   (1) a reasonable probability

of eventual success in the litigation, and (2) that it will be

irreparably injured pendente lite if relief is not granted to

prevent a change in the status quo.'"   Delaware River Port Auth.

v. Transamerican Trailer Transp., Inc., 

, 919-20 (3d

Cir. 1974) (quoting A.L.K. Corp. v. Columbia Pictures Indus.,

Inc., 

, 763 (3d Cir. 1971)).     Moreover, while the

burden rests upon the moving party to make these two requisite

showings, the district court "should take into account, when they

are relevant, (3) the possibility of harm to other interested

persons from the grant or denial of the injunction, and (4) the

public interest."   

(footnote omitted).

          In general, to show irreparable harm a plaintiff must

"demonstrate potential harm which cannot be redressed by a legal

or an equitable remedy following a trial."    Instant Air Freight
Co. v. C.F. Air Freight, Inc., 

, 801 (3d Cir. 1989).

Economic loss does not constitute irreparable harm:
          [I]t seems clear that the temporary loss of
          income, ultimately to be recovered, does not
          usually constitute irreparable injury:

               "The key word in this consideration
               is irreparable. Mere injuries,
               however substantial, in terms of
               money, time and energy necessarily
               expended in the absence of a stay,
               are not enough. The possibility
               that adequate compensatory or other
               corrective relief will be available
               at a later date, in the ordinary
               course of litigation, weighs
               heavily against a claim of
               irreparable harm."



Sampson v. Murray, 

, 90 (1974) (footnotes omitted)

(quoting Virginia Petroleum Jobbers Ass'n v. FPC, 

,

925 (D.C. Cir. 1958)).   Thus, in order to warrant a preliminary

injunction, the injury created by a failure to issue the

requested injunction must "'be of a peculiar nature, so that

compensation in money cannot atone for it . . . .'"     A. O. Smith
Corp. v. F.T.C., 

, 525 (3d Cir. 1976) (quoting Gause

v. Perkins, 

, 69 Am. Dec. 728 (1857)).      The word

irreparable connotes "'that which cannot be repaired, retrieved,

put down again, atoned for. . . .'"   

3 Jones

Eq. 177, 69 Am. Dec. 728).   A party seeking a mandatory

preliminary injunction that will alter the status quo bears a

particularly heavy burden in demonstrating its necessity.

Punnett v. Carter, 

, 582 (3d Cir. 1980).

          In concluding that Acierno demonstrated irreparable

harm, the district court stated:
               It is evident from the record that
          plaintiff alleges economic losses in
          connection with his claims that defendant
          deprived him of his constitutional rights to
          due process and equal protection under the
          law. Plaintiff claims other harm as well,
          however, including damage to his reputation
          as a business person and lost capacity to
          develop as a result of lost time and tenants
          due to the instant controversy, County
          limitations on development, and competing
          development.
Acierno, 

, at *93-94.    The district

court relied heavily on Opticians Association of America v.

Independent Opticians of America, 

(3d Cir. 1990), in

support of its conclusion that Acierno would suffer irreparable

harm if he were not immediately granted a building permit,

pointing to our statement that "[g]rounds for finding irreparable

injury include loss of control of reputation, loss of trade, and

loss of good will."   

(citing 2 J. McCarthy, Trademarks

and Unfair Competition § 32:44 (2d ed. 1984)).    We think our

decision in Opticians Association of America is distinguishable,

however, because the result in that case was heavily influenced

by the special problem of confusion that exist in cases involving

trademark infringement and unfair competition.    Acierno's problem

is not analogous.11

          The district court's reliance on Fitzgerald v. Mountain

Laurel Racing, Inc., 

(3d Cir. 1979), cert. denied,

(1980), is also misplaced.   There, we concluded


11
 . In Opticians Association of America, this Court reversed an
order denying a motion for a preliminary injunction and instead
instructed the district court to enter an order granting the
preliminary injunction because the court incorrectly applied
trademark law. Opticians Ass'n of 

.
Relying on McCarthy's treatise, Trademarks and Unfair
Competition, we concluded that the district court had not fully
considered the severe detriment to the association's reputation
because of the likelihood of confusing the association's services
with those of the other group using the association's trademarks.

-96 (citing 2 J. McCarthy, Trademarks and Unfair
Competition § 32:44 (2d ed. 1984)). Thus, we held that
"[p]otential damage to reputation constitutes irreparable injury
for the purpose of granting a preliminary injunction in a
trademark case." 

(emphasis added).
there was irreparable injury to the business and reputation of a

licensed harness racing trainer as a result of his eviction from

a racetrack.    

  The case does not stand for the

proposition that any showing of potential harm to a plaintiff's

reputation is sufficient to warrant a mandatory preliminary

injunction that fundamentally changes the status quo.       Cf. Morton

v. Beyer, 

(3d Cir. 1987) (reversing order granting

preliminary injunction compelling reinstatement of a corrections

officer with back pay following his suspension by New Jersey

Department of Corrections).     In Morton, we decided that showing

some potential harm to reputation is usually insufficient to

support a conclusion that irreparable harm exists.     We

distinguished Fitzgerald, stating "the licensee in Fitzgerald was

potentially barred, not merely impaired, from obtaining

employment.    No such extreme deprivation is present here."    

n.13 (citation omitted).

          This record does not show that Acierno's reputation has

been significantly damaged by the County's denial of a building

permit.   Acierno's application seeks permission for a use that is

incompatible with the current zoning ordinance.     Acierno could

have avoided his problem if he had acted within three years after

his Plan was filed.    It is difficult for us to see how the

County's denial of a building permit that Acierno waited almost

twelve years to apply for is the cause of any damage Acierno's

reputation as a real estate developer may suffer.     It is also

difficult for us to believe that this particular development is

uniquely important to Acierno in light of the testimony he gave
at his deposition about all the other real estate projects in

which he is interested.    See App. at 184-97.

          Rather, we think the inquiry into irreparable harm in

Acierno's case must focus on whether money damages can make him

whole if his wish to develop the property as a commercial mall is

wrongfully delayed.    Acierno testified on deposition that

"[potential tenants] are lined up at the door to lease space at

the site . . . ."     

  He acknowledged that no potential

tenant had threatened to locate elsewhere if the district court

denied the preliminary injunction.     

  His testimony

indicates that no other site in the area presently poses any

direct threat to his development:
          [O]ther sites in the area, are either not
          zoned or if they are they don't have the
          traffic capacity to be able to use them for a
          store as large [as required by one potential
          tenant]. . . . [My site] is probably the
          only site . . . that can be developed
          nowadays in [the metropolitan] area because
          of the traffic problems that exist there.

  The district court's finding that intervening

commercial development might reduce the feasibility of Acierno's

development is clearly erroneous.12



12
 . The only evidence which may indicate otherwise is said to
appear at page 22 of the transcript of Acierno's deposition,
where he testified: "Every major tenant we've talked to
. . . has said that they will go elsewhere . . . if the
[building] permit does not issue." Brief for Appellee at 41. We
assume this reference is accurate, though it is not included in
the appendix, but we believe it is nevertheless insufficient to
demonstrate a right to a mandatory preliminary injunction.
             Finally, we consider Acierno's contention that he will

lose a key anchor tenant with whom he is presently negotiating if

he does not get a building permit forthwith.     He argues that the

loss of this anchor tenant will have a domino effect on his

ability to attract other tenants.    He says that there is no way

to measure his financial loss if the deal falls through because

he is only engaged in negotiations with the proposed anchor

tenant and has reached no final agreement with it on financial

terms.     Like Janus gazing forward and backward each New Year,

this argument points in two directions.     The negotiating stage

Acierno is now engaged in could be thought of as making any harm

he will suffer if the building permit is delayed too remote and

speculative to justify a mandatory injunction.     As we stated in

Continental Group, Inc. v. Amoco Chemicals Corp., 

(3d Cir. 1980):
          [M]ore than a risk of irreparable harm must
          be demonstrated. The requisite for
          injunctive relief has been characterized as a
          "clear showing of immediate irreparable
          injury," or a "presently existing actual
          threat; [an injunction] may not be used
          simply to eliminate a possibility of a remote
          future injury . . . ."

(citations omitted) (quoting Ammond v. McGahn, 

, 329 (3d Cir. 1976) and     Holiday Inns of America, Inc.

v. B & B Corp., 

, 618 (3d Cir. 1969)); see also

Campbell Soup Co. v. Conagra, Inc., 

, 91-92 (3d Cir.

1992) (establishing some remote risk of irreparable harm not

enough).
          Even if we view Acierno's anchor tenant's problem in

the direction he asks, his problem is not solved on this record's

showing of irreparable harm.   An inability to precisely measure

financial harm does not make that harm irreparable or

immeasurable.   If Acierno has a right to proceed with commercial

development on the land he has allowed to remain undeveloped more

than twelve years after the Delaware Supreme Court directed the

County to approve and file his Plan, we think any actionable harm

he may suffer, if it is ultimately determined that the County

violated his constitutional rights, can be remedied by an award

of money damages.   This record shows no more than a potential for

purely economic injury to Acierno.   If Acierno succeeds on the

merits of his claim, we believe that economic loss, if it occurs,

can be measured in monetary terms and satisfied by a damage award

after trial on the merits.13

13
 . On remand, however, we think the district court would be
wise to reconsider whether it should abstain from further action
in this case, particularly in connection with the injunctive
relief it is asked to issue, in light of the pending state court
action in which the County seeks a declaratory judgment affirming
the County's refusal to issue a building permit to Acierno. A
party arguing in favor of abstention under the principles of
Younger v. Harris, 

(1971), must show:

          (1) there are ongoing state proceedings
          involving the would-be federal plaintiffs
          that are judicial in nature, (2) the state
          proceedings implicate important state
          interests, and (3) the state proceedings
          afford an adequate opportunity to raise the
          federal claims . . . .

Marks v. Stinson, 

, 882 (3d Cir. 1994) (citing
Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 

, 432 (1982)). The existence of these facts, however,
does not compel abstention. Id.; see also Gwynedd Properties,
                         IV.   Conclusion

          For these reasons, the district court's order granting

Acierno a preliminary injunction compelling the County to issue a

building permit and discontinue any interference with Acierno's

development of the Property will be reversed and the case

remanded for further proceedings consistent with this opinion.




(..continued)
Inc. v. Lower Gwynedd Township, 

, 1201 (3d Cir.
1992) ("[W]here federal proceedings parallel but do not interfere
with the state proceedings, the principles of comity underlying
Younger abstention are not implicated."). Indeed,

         [a] federal plaintiff may pursue parallel
         actions in the state and federal courts so
         long as the plaintiff does not seek relief in
         the federal court that would interfere with
         the state judicial process. Moreover, since
         parallel proceedings always involve a
         likelihood that a final merits judgment in
         one will effectively terminate the other, it
         necessarily follows that the mere fact that a
         judgment in the federal suit might have
         collateral effects in the state proceeding is
         not interference for Younger purposes.

(footnote omitted) (citing Gwynedd
Properties, 

).