Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-13-2002

Thompson v. Munhall
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4120




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Recommended Citation
"Thompson v. Munhall" (2002). 2002 Decisions. Paper 496.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/496


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                                               NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                          NO. 01-4120
                           __________

                WAYNE THOMPSON; ROBERT WARNOCK;
                CHARLES SECKEL; MARK BRACKARELL,
                   t/a WOODLAWN ENTERPRISES,
                                              Appellants

                               v.

                       BOROUGH OF MUNHALL
                           __________

       On Appeal from the United States District Court
           for the Western District of Pennsylvania
                 (D.C. Civil No. 00-cv-00894)
        District Judge: Honorable William L. Standish
                          __________

          Submitted Under Third Circuit LAR 34.1(a)
                      on August 1, 2002

      Before:   ROTH, RENDELL, and AMBRO, Circuit Judges

                (Filed: August 13, 2002)_______

                      OPINION OF THE COURT
                           __________




RENDELL, Circuit Judge.
     Appellants (hereinafter "Woodlawn") appeal the District Court’s 12(b)(1)
dismissal of their constitutional and Fair Housing Act claims. The District Court
determined that the claims were not ripe, and therefore dismissed both claims for lack of
subject matter jurisdiction. For the reasons set forth below we will affirm the District
Court’s dismissal.
     Appellants purchased the Woodlawn School, located in the Borough of Munhall,
Pennsylvania, intending to renovate it into a senior citizen home. The school was located
in a R-1 residential zone and the proposed senior citizen home would require a variance
or rezoning of the area to a R-4 zone. Woodlawn, allegedly acting on informal advice
from the Borough Manager, decided not to apply for a variance and applied instead for
rezoning. The zoning board denied the rezoning request. Woodlawn’s claims are based
on alleged prejudice of the zoning board in denying the rezoning request. After the
denial, the solicitor for the Borough of Munhall, in a sworn affidavit, advised Woodlawn
that they could seek a variance. He also indicated that he would recommend approval of
a variance to the board. Woodlawn has not requested a variance to date.
     While the District Court concluded that it did not have jurisdiction over this
matter, we have jurisdiction to review the District Court’s dismissal pursuant to 28
U.S.C. 1291. In reviewing a 12(b)(1) dismissal for lack of ripeness we exercise
plenary review. Ne Hub Partners, L.P. v. CNG Transmission Co., 

, 341 (3d
Cir. 2001). We treat the allegations in the complaint as true and assess the "facial
challenge." Id.
     There must be a true and ripe case or controversy for a federal court to have
jurisdiction over an action. Ripeness involves a determination as to the point in time at
which a party may pursue a claim. Philadelphia Fed’n of Teachers v. Ridge, 

, 323 (3d Cir. 1998). There must be a final judgment on the nature and extent of the
zoning ordinance’s impact on the land before constitutional claims arising out of land use
decisions are ripe. See Williamson County Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 

 (1985); Taylor Inv., Ltd. v. Upper Darby Township, 

, 1291-92 (3d Cir. 1993). Likewise, for a Fair Housing Act violation regarding
land use there must also be a final decision for the claim to be ripe. See Oxford House-C
v. City of St. Louis, 

 (8th Cir. 1996); United States v. Village of Palatine, Ill.,

 (7th Cir. 1994).
     In this case there has been no final decision. The fact that Woodlawn was denied a
rezoning request is not a final decision regarding their use of the land because the
unpursued option of seeking a variance remains. The Borough Solicitor not only signed
a sworn affidavit stating that Woodlawn could apply for a variance, but even declared he
would recommend that the borough not oppose the request. Because Woodlawn is still
free to formally pursue a variance, there is no final decision on the land and the claims
are unripe.
     Accordingly, we will AFFIRM the District Court’s order.___________________________
TO THE CLERK OF COURT:
     Please file the foregoing Not Precedential Opinion.



                                                            ____/s/ Marjorie O. Rendell_______
                                                                      Circuit Judge