Filed: Jun. 23, 2016
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 16-1072 _ MICHAEL B. SELIG, Appellant v. NORTH WHITEHALL TOWNSHIP ZONING HEARING BOARD; JUDGE J. BRIAN JOHNSON _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 5-14-cv-05303) District Judge: Honorable Lawrence F. Stengel _ Submitted Pursuant to Third Circuit LAR 34.1(a) June 22, 2016 Before: FISHER, SHWARTZ and COWEN, Circuit Judges (Opinion filed: June 23,
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 16-1072 _ MICHAEL B. SELIG, Appellant v. NORTH WHITEHALL TOWNSHIP ZONING HEARING BOARD; JUDGE J. BRIAN JOHNSON _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 5-14-cv-05303) District Judge: Honorable Lawrence F. Stengel _ Submitted Pursuant to Third Circuit LAR 34.1(a) June 22, 2016 Before: FISHER, SHWARTZ and COWEN, Circuit Judges (Opinion filed: June 23, ..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1072
_____________
MICHAEL B. SELIG,
Appellant
v.
NORTH WHITEHALL TOWNSHIP ZONING HEARING BOARD;
JUDGE J. BRIAN JOHNSON
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 5-14-cv-05303)
District Judge: Honorable Lawrence F. Stengel
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 22, 2016
Before: FISHER, SHWARTZ and COWEN, Circuit Judges
(Opinion filed: June 23, 2016)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Michael B. Selig, proceeding pro se, appeals from the judgment of the United
States District Court for the Eastern District of Pennsylvania, which dismissed his civil
rights complaint. We will affirm the Court’s judgment.
Because the procedural history of this case and the details of Selig’s claims are
well known to the parties, we discuss here only those facts that are necessary to our
opinion. In brief, Selig, through a limited liability corporation called Aerotierra,
purchased some land that he intended to use as a private airport/heliport. Selig filed a
zoning application, asking for a special exception and variance. After a series of
hearings, the North Whitehall Township Zoning Hearing Board (“ZHB”) denied his
application, determining that a heliport was not a permitted use on the property, and that
Selig did not meet the requirements for a special exception. Selig then filed an appeal in
the Court of Common Pleas of Lehigh County. That court dismissed his appeal, finding
that Selig lacked standing because the property was owned by Aerotierra, LLC, and the
Commonwealth Court of Pennsylvania also dismissed his appeal for lack of standing.
Selig v. Zoning Hearing Bd., No. 180 C.D. 2014, 2014 WL 3586255 (Pa. Commw. Ct.
July 22, 2014).
Selig then filed suit in the District Court. The District Court dismissed Selig’s
complaint without prejudice for failure to state a claim upon which relief could be
granted. Selig then filed an amended complaint, arguing that the ZHB and Judge J. Brian
Johnson violated his substantive due process rights. The District Court dismissed the
amended complaint with prejudice as to Judge Johnson on the basis of judicial immunity,
and dismissed it as to the ZHB because Selig lacked standing to bring a substantive due
2
process claim. The Court also denied Selig’s motion for reconsideration, and Selig then
appealed.
We have jurisdiction to review the final decision of the District Court. 28 U.S.C.
§ 1291. Our review of a decision granting a motion to dismiss is plenary. Santiago v.
Warminster Township, 629 F.3d 121, 128 (3d Cir. 2010). Dismissal is proper if the
plaintiff fails to allege sufficient factual matter which, if accepted as true, could “‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). We “may affirm the
District Court’s judgment on any basis supported by the record.” Murray v. Bledsoe,
650
F.3d 246, 247 (3d Cir. 2011) (per curiam).
Selig argues that he has standing to sue because he has some type of beneficial or
equitable ownership interest in the property under Pennsylvania law. Even if we assume
he does have some type of ownership interest, only property interests “of a particular
quality” are worthy of substantive due process protection under the federal Constitution,
and “this ‘particular quality’ is not determined by reference to state law, but rather
depends on whether that interest is ‘fundamental’ under the United States Constitution.”
Nicholas v. Pa. State Univ., 227 F.3d 133, 140 (3d Cir. 2000). We are not aware of any
case in which we have found that something other than full property ownership warrants
substantive due process protection. See DeBlasio v. Zoning Bd. of Adjustment for Twp.
of W. Amwell,
53 F.3d 592, 600 (3d Cir. 1995) (“[O]wnership is a property interest
worthy of substantive due process protection.”), abrogated on other grounds by United
3
Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 401 (3d Cir.
2003).
But even if Selig had a protected property interest in the property during the
zoning proceedings, 1 the District Court’s dismissal of Selig’s complaint was proper, as
the allegations of the complaint did not state a plausible substantive due process claim.
To state such a claim, Selig was required to show that the ZHB deprived him of a
protected property interest and that such deprivation “shocks the conscience.” Chainey v.
Street, 523 F.3d 200, 219 (3d Cir. 2008); see also United
Artists, 316 F.3d at 400-02.
“‘[O]nly the most egregious official conduct’” shocks the conscience. United
Artists,
316 F.3d at 400 (quoting County of Sacramento v. Lewis,
523 U.S. 833, 846 (1998)).
What is shocking depends on the factual context,
id. at 399-400, but, in the land use
context, the standard is sufficiently high to “avoid converting federal courts into super
zoning tribunals.” Eichenlaub v. Township of Indiana,
385 F.3d 274, 285 (3d Cir. 2004);
see also United
Artists, 316 F.3d at 402.
In Eichenlaub, we held that allegations of inconsistent application of zoning
requirements, unnecessary inspections, delaying permits and approvals, improperly
increasing tax assessments, and “malign[ing] and muzzl[ing]” a property owner were not
enough to shock the conscience, particularly where “[t]he local officials are not accused
of seeking to hamper development in order to interfere with otherwise constitutionally
protected activity at the project site, or because of some bias against an ethnic group.”
1
Selig has since transferred the property into his own name.
4
385 F.3d at 286. We noted that complaints related to zoning requirements, inspections,
and permits were “frequent in [land use] planning disputes” and that while adversely
affected property owners can couch such complaints as abuses of legal authority, such
complaints do not rise to the level of substantive due process violations.
Id.
Like the complaints in Eichenlaub, Selig’s complaints are of the sort frequently at
issue in zoning and land use disputes. The defendant’s alleged conduct 2 cannot be said to
shock the conscience. As Selig failed to state a substantive due process claim, the
District Court properly dismissed his complaint against the ZHB.
As for Selig’s claims against Judge Johnson, we agree with the District Court that
Selig’s claims are barred by judicial immunity. See Stump v. Sparkman, 435 U.S. 349,
356-57 (1978) (“A judge will not be deprived of immunity because the action he took
was in error, was done maliciously, or was in excess of his authority; rather, he will be
subject to liability only when he has acted in the clear absence of all jurisdiction.”)
(internal quotation omitted). Selig notes that after the zoning appeal concluded, Judge
Johnson granted Selig’s motion to recuse. He argues that the Judge’s recusal means the
judge lacked jurisdiction to consider Selig’s appeal in the first place. We disagree. Even
where a court determines that a judge should have recused himself, the reviewing court
need not vacate that judge’s decision. See Selkridge v. United of Omaha Life Ins. Co.,
360 F.3d 155, 171 (3d Cir. 2004) (citing Liljeberg v. Health Servs. Acquisition Corp.,
2
For example, Selig alleges that a ZHB member failed to disclose that he lived across the
street from the property Selig sought to develop, the city solicitor failed to recuse himself
although he had previously been terminated as Selig’s divorce lawyer, and a heliport was
approved at a different property under similar circumstances.
5
486 U.S. 847, 864 (1988)). And “a recused judge can enter ‘housekeeping’ orders until a
successor judge is assigned.” Moody v. Simmons,
858 F.2d 137, 138 (3d Cir. 1988).
Thus, as even a currently recused judge is not “act[ing] in the clear absence of all
jurisdiction” when he enters an order, Judge Johnson’s later decision to recuse himself
does not mean that he acted without jurisdiction in deciding Selig’s appeal from the ZHB.
We conclude that the District Court properly dismissed claims against Judge Johnson on
the grounds of judicial immunity.
For the foregoing reasons, we will affirm the District Court’s judgment.
6
