Ruiz v. New Garden Township

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

7-26-2004

Ruiz v. New Garden Twp Precedential or Non-Precedential: Precedential

Docket No. 02-4434 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation "Ruiz v. New Garden Twp" (2004). 2004 Decisions. Paper 431. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/431

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PRECEDENTIAL (Civil Action No. 01-CV-5081) District Judge: Hon. Anita B. Brody UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Argued: December 15, 2003

Before: ROTH, McKEE, and ROSENN, No. 02-4434 Circuit Judges.

(Opinion Filed: July 26, 2004)

GUILERMINA RUIZ; RODOLFO VILLAGOMEZ; ANTONIO LOPEZ; ANTONIO ORTIZ; RAFAEL LUNA; ARTHUR W. LEFCO, ESQ. (Argued) ANGELICA SANCHEZ; JAMES W. GICKING, ESQ. JOSE J. PADRON; and J. Marshall, Dennehey, Warner, Coleman GUADALUPE LOPEZ & Goggin 1845 Walnut Street, 17th Floor v. Philadelphia, PA 19103-4717 Attorneys for Appellants NEW GARDEN TOWNSHIP; ROBERT N. TAYLOR, III; WILLARD H. ROBERT F. SALVIN, ESQ. (Argued) SMEDLEY; Community Impact Legal Services, Inc. PATRICK J. KENNEY; NORMAN S. 419 Avenue of the States NUNN; FRANK J. ZAGORSKIE; Crozer Building, Suite 201 THE ZONING HEARING BOARD OF Chester, PA 19013 NEW GARDEN TOWNSHIP; Attorney for Appellees DAVID CARLIN; ANGELO ZUNINO; JAMES DILUZIO, Appellants OPINION OF THE COURT DANTE DIUBLADO; LUCY M. DIUBLADO, (Intervenors in D.C.)

McKEE, Circuit Judge. We are asked to review an order of On Appeal from the United States the district court enjoining New Garden District Court Township and its employees (“the for the Eastern District of Pennsylvania

Township”) from enforcing a zoning Antonio Lopez, Antonio Ortiz, Rafael enforcement notice that would have Luna, Angelica Sanchez, Jose J. Padron resulted in the eviction of plaintiff and J. Guadalupe Lopez have been tenants tenants.1 The plaintiffs requested the in mobile homes located at 320 Ellicott injunction pursuant to 42 U.S.C. § 1983 Road in New Gard en Township , arguing that the Township had violated Pennsylvania. Since 1989, that property their Fourteenth Amendment right to has been designated as a C-I-2 Limited procedural due process in failing to notify Commercial Industrial District. 2 them of a zoning hearing into whether The plaintiffs paid rent in the their landlord was violating certain zoning amount of $500 to $600 per month ordinances by allowing mobile homes on pursuant to oral leases with Dante and property not zoned for residential use. We Lucy DiUbaldo.3 It is uncontested that agree that plaintiffs have not established a DiUbaldo agreed that at least one of the procedural due process violation, and we tenants could remain on the property for will therefore reverse. up to three years and that DiUbaldo would I. FACTS AND PROCEDURAL decide how long the tenant would have to HISTORY vacate the property if he decided to leave. Since the 1990s, plaintiffs On June 22, 2000, the Township Guillermina Ruiz, Rodolfo Villagomez, issued an enforcement notice citing DiUbaldo for violations of the township’s zoning ordinance. The violation resulted 1 from the presence of the plaintiffs’ mobile The defendants also ask us to homes on the property located at 320 reverse the district court’s decision to Ellicott Road. The zoning notice was deny its motion to dismiss pursuant to issued because the light industrial zoning Fed. R. Civ. P. 12(b)(6) and order that designation of that property did not allow the action be dismissed with prejudice. the property to be used as a trailer park.4 The record before us regarding the disposition of the motion to dismiss is unclear. The district court mentions it in 2 The property contains “mushroom its opinion in support of issuing the houses.” permanent injunction but does not explicitly state that it denied the motion 3 We will refer only to Mr. DiUbaldo or explain why it denied the motion. Nor in the rest of the opinion because he does the motion appear on the district managed the property. court docket included in the record on 4 appeal. As a result, we feel that the The property became part of the C-I- district court would be better equipped to 2 Limited Commercial Industrial District revisit its decision and the state of this when it was re-zoned in 1989, but had claim on remand. been zoned as residential beforehand.

The notice required DiUbaldo to begin As instructed, DiUbaldo served the removing the mobile homes within 10 days notices to quit on the tenants around and to complete the process within 45 March 1, 2001. Plaintiff Lopez testified days. The notice also informed him that that this was when he first learned that the he could appeal the enforcement action to Township was enforcing the zoning the New Garden Township Zoning ordinance and the effect it would have on Hearing Board (“ZHB”). him. Plaintiff Luna testified that he did not learn of the situation until after the DiUbaldo did appeal, and hearings hearing. Despite the notice to quit, the were held on November 15 and December tenants failed to vacate the property by 13, 2000, before the ZHB. None of the July 2001, and DiUbaldo thereafter tenants participated in that appeal although initiated eviction proceedings against notice of the hearings was apparently them. As a result of those proceedings, a posted on the Ellicott Road property. The local magistrate eventually ordered the ZHB denied DiUbaldo’s appeal on January plaintiffs’ eviction. 22, 2001, but it altered the terms of the aforementioned enforcement order. The tenants then filed this action in DiUbaldo was ordered to give the tenants the U.S. District Court for the Eastern notice to quit the property by March 1, District of Pennsylvania seeking to enjoin 2001 and he was ordered to remove the the ZHB’s order requiring DiUbaldo to mobile homes by July 2001.5 serve them with notices to quit. They argued that, given their property interest, they were entitled to notice of the 5 Although DiUbaldo served the proceedings before the ZHB. They notices to quit on the plaintiffs pursuant claimed that the Township’s failure to to the enforcement notice that issued notify them of those hearings violated their after he lost his appeal before the ZHB, right to procedural due process under the he also filed a conditional use application Fourteenth Amendment. 6 As we noted at with the New Garden Board of the outset, the district court agreed and Supervisors. At the hearings before the granted a permanent injunction. This Board of Supervisors, he argued that the appeal followed. mobile homes were a permissible II. JURISDICTION AND expansion of a pre-existing STANDARD OF REVIEW nonconforming use because one of the mobile homes was placed on the property before 1989 when the property was re- 6 zoned. It is undisputed that the tenants They also argued that some of the were properly given notice of these procedural safeguards that due process hearings, and that some of them attended required were codified in the hearing the hearings. The Board of Supervisors notification guidelines at 53 Pa. Stat. denied his application. Ann. § 10616.1 (2003).

The district court’s final order U.S. 564, 577 (1972). The parties agree granting a permanent injunction is that, under Pennsylvania law, leaseholders appealable under 28 U.S.C. § 1291. have the same right to possession of real Ameristeel Corp. v. Int’l Bhd. of estate as an owner during the term of the Teamsters, 267 F.3d 264, 267 (3d Cir. lease. The district court found that the 2001). We have jurisdiction over the plaintiffs had a protected property interest section 1983 claim under 28 U.S.C. § in the form of oral month-to-month leases 1331, and we have supplemental because the conduct between the parties jurisdiction over concomitant state law established that the plaintiffs each had a issues under 28 U.S.C. § 1367. “We month-to-month lease. However, we hold review a district court’s decision to grant that, even if plaintiffs did establish a or deny a permanent injunction under an protected interest based upon their abuse of discretion standard. However, leasehold estates, they were nevertheless because an abuse of discretion exists not denied procedural due process because where the district court’s decision rests the procedure utilized by the ZHB was not upon a clearly erroneous finding of fact, an constitutionally infirm. errant conclusion of law, or an improper “In Pennsylvania, if the landlord application of law to fact, we apply and tenant have failed to specify a definite plenary review to the District Court’s legal period of time for the lease to continue, the conclusions.” Ameristeel, 267 F.3d at 267 court may imply the type of tenancy (internal quotation marks and citations indicated by the conduct of the parties.” omitted). R ONALD M. F RIEDMAN, P A. L ANDLORD- III. DISCUSSION T ENANT L AW AND P RACTICE § 1.10 (3d ed. 2004). The tenants were required to In order to satisfy the requirements pay about $500 to $600 monthly, and such for a permanent injunction, plaintiffs must monthly rental payments generally support establish that they will ultimately succeed the existence of a month-to-month on their claim. Shields v. Zuccarini, 254 tenancy. See R ESTATEMENT (S ECOND) OF F.3d 476, 482 (3d Cir. 2001). In order to P ROPERTY § 1.5 (2003) (“Where the prevail on their section 1983 claim, parties enter into a lease of no stated plaintiffs must establish that persons acting duration and periodic rent is reserved or under color of law deprived them of a paid, a periodic tenancy is presumed. The protected property interest without due period thus presumed is equal to the process of law. Midnight Sessions et al. v. interval for which rent is reserved or paid City of Philadelphia, 945 F.2d 667, 680 to a maximum periodic tenancy of year to (3d Cir. 1991). year.”). State law defines property interests However, “[t]he presumption that a for purposes of procedural due process periodic tenancy is intended may be claims. See Bd. of Regents v. Roth, 408 rebutted by language or circumstances

showing a contrary intent.” Id. The record paid rent on a monthly basis, there is no here contains unchallenged evidence that evidence that the plaintiffs and DiUbaldo the plaintiffs could terminate their leases at explicitly agreed to month-to-month any time, and that DiUbaldo would then leases, and the district court does not decide how long tenants had to vacate their explain how it concluded that these were premises following such termination. month-to-month leases as opposed to Thus, the landlord or tenant could end the tenancies at will. tenancy abruptly at any time even though However, since the Township now the rent was calculated and paid monthly. agrees that tenants had month-to-month Since the tenancies were “for an uncertain leases, we will proceed as if they did. See or indeterminate term which is terminable Brief at 23 (“as month-to-month tenants, at the volition of either landlord or tenant,” plaintiffs had no legitimate expectation to plaintiffs arguably had interests analogous continued possession of property . . .”).8 to tenancies at will rather than month-to- Moreover, under Pennsylvania law, any month tenancies. P.L.E. 2d LANDLORD tenancy creates a property interest. Berrios AND T ENANT § 74.7 Although the tenants v. City of Lancaster, 798 F. Supp. 1153, 1157 (E.D. Pa. 1992) (stating that Pennsylvania law regards any lease as a 7 See Heck v. Borda, 6 A. 392, 393 property interest); see also Ward v. (Pa. 1886). There, the Pennsylvania Downtown Dev. Auth., 786 F.2d 1526, Supreme Court reversed a trial court’s holding that a lease established a tenancy at will, finding instead that the lease Id. Although the leases here also include established a year-to-year tenancy. The a periodic payment of rent, they Heck Court found that the parties expressly provide that either party can intended to create a tenancy from year- terminate them at any time. Unlike the to-year because the written lease stated lease in Heck, they do not limit the right that the tenancy would last as long as a to abruptly terminate to only one party, yearly royalty was paid. Id. Because the nor do these oral leases have any terms lessor had express authority to terminate suggesting that a future relationship is the lease in certain events, the court expected. The lease in Heck required the believed this authority tended “to exclude landlord’s investment in the leased the inference” that both parties had the property. power to terminate it at will, which is a 8 necessary element of a tenancy at will. The plaintiffs also argue that their Id. The court also held that a provision leases were year-to-year, but this requiring the landlord to spend a certain argument is waived because the plaintiffs amount to put the property in working raised it for the first time on appeal. See order further established that the parties Gass v. V.I. Telephone Corp., 311 F.3d did not intend to create a tenancy at will. 237, 246 (3d Cir. 2002).

1529 (11th Cir.) (discussing how Florida However, given the facts here, we law makes any tenancy a compensable need not decide whether plaintiffs had a property interest for purposes of Fifth cognizable property interest because even Amendment public takings). if they did, it is clear that they had no reaso nable e xpe c ta tion of future However, the plaintiffs’ property occupancy beyond the period which the interest here is tenuous at best because any landlord might agree to in the event of such interest appears to have been created termination.10 As noted, that period was in violation of a zoning ordinance. Cf. undefined and left completely to the Puleo v. Zoning Hearing Board of discretion of the landlord. However, Schuykill Township, 722 A.2d 789 (Pa. Pennsylvania law requires that tenants be Commw. 1999) (holding that property given at least 30 days’ notice of owners could not retain a structure on their termination. 68 Pa. C.S.A. § 250.501(c) property because they built the structure in (2001). Accordingly, it appears that the violation of a zoning ordinance and tenants could reasonably expect no more another municipal ordinance). 9 than present enjoyment of their leased premises and 30 days additional occupancy 9 upon notice that their landlord decided to Judge Rosenn’s analysis begins with terminate any of their leases. See Ward, the conclusion that “[i]t is undisputed 786 F.2d at 1529 (stating in dicta that that neither the landowner nor the legally sufficient notice to vacate would plaintiff-renters have complied with any terminate a tenant’s interest as of the end of [the applicable zoning] codes.” of the notice period). 11 Concurring Op. at 3. It then proceeds governed by the principle that “the unlawful occupation of the rental outcome of the zoning hearing does not property by the plaintiff-renters has adequately respond to the legal challenge vested no property right in them.” Id. at 5 implicit in plaintiffs’ appeal. (citing Puleo). However, the plaintiff- renters are complaining that they had no 10 Cf. U.S. v. Petty Motor Co., 327 opportunity to appear at the zoning U.S. 372 (1946). Petty held that a tenant hearing that found their property to be in can not have an expectation to remain on violation and therefore could not defend property following condemnation for against that allegation. Inasmuch as it public use given an express term in the appears that the trailers in question are lease to relinquish all rights upon such the only homes the plaintiffs have, their condemnation. Id. at 376. interest in defending against the 11 violations was at least as strong as that of The tenants in Ward had a protected DiUbaldo, the absentee owner. property interest beyond that period of Accordingly, an analysis that begins and notice and, based on that, a right to ends with charging the plaintiffs with the procedural due process because the state

The ZHB ordered DiUbaldo to C. Notice notify the tenants of its ruling by March 1, Because the plaintiffs were not 2001, and to remove the mobile homes deprived of a protected property interest in from the property by July 1, 2001. Thus, their leases, the Constitution did not from the time the tenants first heard of the mandate that they receive notice of the necessity of leaving the premises, they had hearing before the ZHB, and the district four months to depart. Their claimed court’s conclusion to the contrary can not property interest, however, entitled them to stand. only 30 additional days of tenancy after the notification by the landlord of termination The plaintiffs also argue that the of the lease. Thus, the actions of the ZHB Pennsylvania Municipalities Planning could not have deprived the tenants of any Code (“MPC”) gives them a right to property interest to remain on the notice. However, we are not persuaded. premises. In fact, the ZHB ruling gave the The MPC requires localities to send an tenants more notice of termination than enforcement notice to “the owner of record they would otherwise have been entitled of the parcel on which the violation has to. Accordingly, there could not have been occurred, to any person who has filed a an unconstitutional taking of a protected written request to receive enforcement property interest. 12 notices regarding that parcel, and to any other person requested in writing by the owner of record.” 53 Pa. Stat. Ann. § agency that acquired the property and 10616.1 (2001). A lessee is treated as an displaced the tenants did not meet the owner under section 10616.1 only “if he is “conditions set forth in the legislative authorized under the lease to exercise the grant of its authority,” including holding rights of the landowner” or otherwise has hearings on the hardship that the tenants a proprietary interest in the land. 53 Pa. would endure if they were displaced. Id. Stat. Ann. § 10107 (2001). The plaintiffs at 1532. meet none of these conditions precedent to 12 At oral argument, the plaintiffs cited Schuykill Township v. Overstreet, 454 A. 2d 695 (Pa. Commw. Ct. 1983), the determination of their right to as support for its contention that continued possession of a rental property plaintiffs’ leases entitled them to be that was violating zoning ordinances. Cf. present at the ZHB hearing. But City of New Orleans v. Buffa, 69 S.2d Overstreet held only that tenants had to 140, 140-41 (La. App. 1953) (bringing be joined in an action to enforce an an action against landlord and tenant to already-issued order terminating their enjoin the tenant’s use of the premises in rights to possess the rental property. Id. violation of city zoning ordinances; this at 695-96. It says nothing about whether case was also cited by the plaintiffs at the tenants had a right to be present for oral argument).

getting notice under section 10616.1. There is nothing in the record even ROSENN, Circuit Judge, Concurring. suggesting that they were authorized to exercise the DiUbaldos’ rights as property owners, that they had anything remotely I concur in the judgment reversing resembling a proprietary interest in the the District Court’s decision. I write property, or that the DiUbaldos requested separately, however, because I cannot that they receive notice of zoning agree with the majority’s analysis based on violations. Therefore, the district court an assumption that the plaintiffs have a properly held that the MPC did not protected property interest. I also believe mandate that plaintiffs be given notice of due process analysis is unnecessary to the zoning violation enforcement. However, disposition of this case. the court went further and concluded that the MPC was unconstitutional as applied I. because it did not mandate notice to the Where, as here, there is a claim of plaintiffs. We have already explained why an alleged deprivation of property without plaintiffs are not constitutionally entitled due process, a two-part inquiry is required. to notice. Accordingly, we must reverse Kovats v. Rutgers, 749 F.2d 1041, the district court’s ruling that the MPC is 1047 (3d Cir. 1984), cert. denied sub nom. unconstitutional as applied to them.13 Varma v. Bloustein, 489 U.S. 1014 (1989) IV. CONCLUSION (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1981)). For all of the above reasons, we will reverse the district court’s order The first question is whether granting a permanent injunction. the plaintiff[s] [w ere] deprived of a protected property interest. Property interests, while protected by th e [U nite d S t a t es] Constitution, are not created by the Constitution. “Rather they are created and their dimensions are defined by 13 existing rules or In doing so, we do not suggest that understandings that stem we are insensitive to the situation of the from an independent source plaintiffs. It appears from everything on such as state law.” Board of this record that these tenants are migrant Regents v. Roth, 408 U.S. farmers with few if any alternatives to 564, 577, 92 S. Ct. 2701, the plight in which they found 2709, 33 L.Ed.2d 548 themselves.

(1972); see also Leis v. first part of the two-part inquiry set forth Flynt, 439 U.S. 438, 441, 99 in Logan, 455 U.S. at 428, which is a S. Ct. 698, 700, 58 L.Ed.2d matter of state law, the second part of what 717 (1979). The definition process is due, or not due, which is a of property, therefore, may matter of federal law, is irrelevant. Where turn in some cases on a the plaintiffs’ claim can be adjudicated as question of state law. If a a matter of state law, we should not engage property interest is found to in any unnecessary constitutional due exist, the second process analysis. Neese v. Southern question—what process is Railway Co., 350 U.S. 77, 78 (1955). due— is a matter of federal The record in this case establishes law. Memphis Light, Gas & that the landowner unlawfully installed the Water Division v. Craft, 436 eleven mobile homes/trailers, without U.S. 1, 98 S. Ct. 1554, 56 having obtained the required permits from L.Ed.2d 30 (1978); see the state, county, and municipal authorities Logan, 455 U.S. at 432, 102 and in violation of state and local (zoning) S. Ct. at 1155. laws. These laws and ordinances were enacted to promote the health, welfare, and safety of not only the tenants, but also the Kovats, 749 F.2d at 1047. However, “[i]f general public in the community. For there is no property interest, there can be instance, the sewage permits are intended no valid due process claim.” Id. to protect the public against diseases. The Where, as here, it is undisputed that issue, overlooked by the District Court and a residential rental use of the property at the parties in dispute, is whether a private issue was set up by the landowner in rental arrangement between the landowner violation of state, county, and municipal and the plaintiffs executed and operated in laws, such use was null and void ab initio violation of state and local laws can ever under Pennsylvania law. The landowner give rise to constitutionally protected had acquired no vested property interest in property interests.14 We consider the issue his unlawful rental use of the property. sua sponte because of the “traditional The plaintiff-tenants, whose interest was practice of . . . refusing to decide derivative and at most coextensive with constitutional questions when the record the landowner’s interest, had acquired no discloses other grounds of decision, vested property interest either in the same whether or not they have been properly rental use of the property. Where there is raised . . . by the parties.” Neese, 350 U.S. no property right, there can be no viable due process claim as a matter of law. 14 Where the plaintiffs’ due process The Township’s briefs, particularly its reply brief, have touched on the issue, claim fails as a matter of law under the but failed to develop its argument.

at 78. occupancy permit before the owner could install the mobile home/trailers on his It is not disputed that the Zoning property and rent them to the plaintiffs. Hearing Board found, following a hearing The Township solicitor testified also that attended by the landowner, that he had the owner was required to comply with the violated local zoning laws and the state state and county health and safety codes statutes regarding health, safety, and real governing uses of electrical and estate regulation in installing the mobile construction anchoring. It is undisputed homes/trailers and that the landowner did that neither the landowner nor the not appeal the decision. The Board’s plaintiff-tenants have complied with any of findings of violations are conclusive now. those codes. Nor have they applied for The Township asserts that it had placed and obtained any health and safety permits valid zoning restrictions at least a decade necessary for the residential use of the before any of the eleven mobile property. home/trailers were placed on the land at Elliot Road, New Garden Township, Rental operation in Pennsylvania is Pennsylvania, which precluded the present governed and regulated by state, county, residential use by the plaintiffs. Even if and municipal laws. See Kelly v. Borough assuming that the owner had obtained a of Sayreville, N.J., 107 F.3d 1073, variance for residential use of his land, 1077 (3d Cir. 1997) (“State law creates the which is not the case here, residential use property rights protected by the Fourteenth of his land would still have required the Amendment.”). Because the mobile landowner to prepare a land development homes/trailers were installed and operated plan, obtain a conditional use permit, in violation of those laws, their use as sewage and other permits required by the rental property by either the landowner or Township ordinances for any residential the plaintiff-tenants is also unlawful. Thus, development before the owner could lease their rental agreement is likewise unlawful his property and the plaintiffs could and invalid. See generally Puleo v. Zoning occupy the property. Hearing Bd. of Schuylkill Township, 722 A.2d 789, 791 n.4 (Pa. Commw. Ct. 1999) The Township solicitor testified in (quoting Black’s Law Dictionary 1536 the District Court, and it is undisputed, that (6th ed. 1990) (an “unlawful” act is before the mobile homes were placed on “acting contrary to, or in defiance of the the property, the owner had not obtained law”; “unlawful” agreements are the required “sewage permit from the “ineffective in law, for they involve acts County Health Department for that mobile which, though not positively forbidden, are home park.” He also testified that disapproved by law and are therefore not installation of a sewage system would recognized as ground of legal rights interconnect with the township sewer because they are against public policy”)); plant, as required. He further stated that 6 Williston on Contracts 24 (4th ed. 1995) the Township required a use and

([O]ne who has participated in a violation appellate court, noted that the owner did of the law will not be allowed to assert in not challenge the validity of the zoning court any right based upon or directly ordinance, but instead argued that its connected with the illegal transaction.”) physical reconstruction of the billboards (citing federal and state case law)); within a year of their destruction should be Highpoint Townhouses, Inc. v. Rapp, 423 deemed to be in compliance with the A.2d 932, 935 (D.C. 1980) (“[A] contract ordinance and in continuation of the made in violation of a licensing statute that previous lawful nonconforming use. Id. at is designed to protect the public will 791. The appellate court rejected the usua lly be con sidered void and argument, concluding that the case was unenforceable.”) (internal quotation marks analogous to “an instance where a omitted) (quoting Truitt v. Miller, 407 landowner applie[d] for and secure[d] a A.2d 1073, 1079 (D.C. 1979)). building permit through misrepresentation or fraud.” Id. (citing D’Emilio v. Bd. of In Puleo, a new owner of a piece of Supervisors, 628 A.2d 1230 (Pa. Commw. real estate property, located in a “limited Ct. 1993)). “It follows, therefore, that if a industrial zone,” had a dispute with a person who applies for and secures a company as to the ownership of two building permit through fraudulent means billboards that it had installed. It was acquires no rights in the structure, then a undisputed that the billboards constituted person who completely ignores the lawful nonconforming use. The company requirement of securing a building permit ended the dispute by cutting down the altogether also cannot acquire any vested billboards with a chainsaw; there was no right in the structure.” Puleo, 722 A.2d at question that its act was knowing and 791 (emphasis added). The court intentional. Several months later, “without concluded that the owner’s “failure to first securing a building permit,” the new obtain a building permit, therefore, made owner “reconstructed the billboards.” the effect of its reconstruction a nullity.” Puleo, 722 A.2d at 790. The town denied Id. at 792 (emphasis added). the owner’s application after the fact for a building permit. The town’s zoning board The violation in this case is much also denied the owner’s request to more flagrant than in Puleo. The owner in continue the nonconforming use of the Puleo was at least trying to replace the two billboards because they were not destroyed billboards that had been “involuntarily” damaged and no building previously lawfully installed. In this case, permit was secured within one year of the eleven trailer/mobile homes were their destruction within the meaning of the installed not to replace any previous lawful local ordinance. A Pennsylvania trial use; they we re installed without court affirmed the board’s decision. permission, and without the knowledge of the Township, in knowing violation of On further ap peal, th e Commonwealth Court, a special state

state, county, and local laws.15 Under the holding of Puleo, a landowner who completely ignores the requirements of because of health and living conditions state and local laws cannot have acquired are inapposite. Because the alleged any vested right in the rental use of his leasehold interest in this case is legally property. Similarly, the unlawful non-existing, this case is materially occupation of the rental property by the different from those cases where lessees plaintiff-tenants has vested no property with lawfully constituted leasehold right in them. To rule otherwise, as did the interests challenge condemnation or District Court, would be to fashion a zoning ordinances that affect their property right that is not recognized property interests. See, e.g., Richman v. under— and contrary to—state law. Philadelphia Zoning Bd. of Adjustment, The tenants here do not, and cannot, 137 A.2d 280, 283 (Pa. 1958) (a long- have greater right than that of the owner term commercial lessee had standing to with regard to the rental property. See, apply for a use variance); Nicholson v. e.g., Adams Outdoor Advertising v. City Zoning Bd. of Adjustment, 140 A.2d of East Lansing, 614 N.W.2d 634, 639 604, 606 (Pa. 1958) (same); Mobil Oil (Mich. 2000) (“It is fundamental property Corp. v. Zoning Hearing Bd. of law that a lessor can transfer no greater Tredyffrin Township, 515 A.2d 78, 79 rights than he possesses”; lessees’ interest (Pa. Commw. Ct. 1986). rights are limited to those possessed by the For the same reasons, all the case lessor.); State v. Vaughan, 319 S.W.2d law regarding whether tenants have 349, 354 (Tex. Civ. App. 1959) standing to bring a condemnation action, (“[T]enants who occupy the property have alleging unlawful taking effected under a no greater right than the owners.”); Smith zoning ordinance or rezoning, is also v. Woolery, 137 N.E.2d 632 (Ohio Ct. inapposite. See, e.g., Millcreek App. 1955); Wilmington Housing Auth. v. Township v. N.E.A. Cross Co., 620 A.2d Nos. 500, 502, and 504 King St., and Nos. 558, 561 (Pa. Commw. Ct. 1993) 503, 505, and 507 French St., Commercial (commercial lessees with rights to Trust Co., 273 A.2d 280, 281 (Del. Super. explore natural gas and develop wells Ct. 1970).16 had standing to petition for de facto taking). Finally, this case is materially 15 The landowner has not claimed different from such cases as involving mistake or ignorance. condemnation of property occupied by tenants because of serious and dangerous 16 The cases cited by the tenants with living conditions. See, e.g., Grayden v. respect to their standing to apply for a Rhodes, 345 F.3d 1225 (11th Cir. 2003) zoning variance, to bring a condemnation (involving condemnation and eviction of action, or to challenge their eviction tenants in an apartment complex for their

at 1047. The District Court’s conclusion of due process violations predicated on a Where, as here, the owner has no nonexistent right is, therefore, reversible vested property right, it would be error. anomalous to conclude that the tenants have any vested property right. Because II. property rights, including leasehold In footnote 9 of the majority interests, are created by state law and the opinion, the majority characterizes my rental arrangement between the owner and analysis above as one that “begins and the tenants is unlawful, the plaintiffs ends with charging the plaintiffs with the obtained no vested right in the rental outcome of the zoning hearing. . . .” The property. Their rental agreement with the majority opines that unless the plaintiffs owner gave them no valid leasehold had an “opportunity to appear at the interest recognized and protected by state zoning hearing that found their property law. Under such circumstances, there can to be in violation and therefore could . . . be no valid due process claim as a matter defend against that allegation,” my of law because there can be no deprivation analysis “does not adequately respond to of a nonexistent right. 17 Kovats, 749 F.2d the legal challenge implicit in plaintiffs’ appeal.”

protection because of serious and Although the majority’s criticism dangerous living conditions). It was not has some surface appeal, it misses the disputed that the tenants in Grayden had real issue here. Conceivably the legal right to live in the apartment plaintiffs may not have become aware of complex. The tenants in all the cases their landlord’s zoning violations until cited above had lawful tenancy rights after the Township’s zoning enforcement established and recognized under state hearing, but when and how the plaintiffs laws. became aware of the violations does not, and cannot, affect the reality of the 17 Following the Township Zoning landlord’s zoning violations. My Hearing Board’s finding of violation analysis is grounded on the view that against the landowner and denial of his where the landowner’s rental use of his variance request, the owner filed an application for conditional use of the property as a trailer/mobile home park. the owner and the plaintiffs have no Some of the renters, as well as the owner, property right vested and recognized have appealed the zoning board’s under the state law for their unlawful use subsequent denial of the conditional use of the property, their joint conditional application to the state trial court. That use application is now an opportunity for appeal has been stayed pending the them to establish their lawful use for the resolution of this appeal. Because both first time.

property was invalid and void ab initio notice of a land use violation would be for violations of state and municipal valid if the Township brought an action laws, as established by the zoning against them for the land use violations, enforcement hearing attended by the instead of the landowner. Where, as landowner, his tenants did not acquire here, it is not disputed that the landowner any right in the same rental use as a had converted his property to a matter of law. To suggest otherwise residential rental use in violation of state, would be to accord tenants greater rights county, and municipal laws, when and than those possessed by the landowner in how the tenants should have become contravention of well established aware of their landowner’s unlawful use landlord-tenant laws. of his land is irrelevant to the issue of whether they have any valid property To the extent that the majority’s right. 18 Their interest in the residential criticism embraces the plaintiffs’ rental use of the property is at most co- argument that the Township’s zoning extensive with the landowner’s interest. enforcement decision cannot be valid and Pennsylvania law holds only the binding on the tenants unless they landowner, not his tenants, responsible participated in the enforcement hearing, for any zoning violations that occur on the majority, as well as the tenants, has his property. 19 Even if the tenants may shown no legal authority to support that argument. The majority’s own position has implicitly rejected that argument in 18 People who rent property usually run light of its holding that the plaintiffs, the risk that the ostensible owner of it with their de minimis interest, are not may not have good title to the property, entitled to actual notice of the zoning that it may be subject to foreclosure enforcement hearing because their because of a mortgage default or other tenancy interest can be terminated at lien delinquency, or that a lease may be thirty-days’ notice and the Township has void because it violates local zoning or given them several months to vacate the state laws. Interested parties can avoid property. legal complications by obtaining Admittedly, my analysis does not information pertaining to the title and answer the question of how or when the lien status of the property from the tenants knew or should have known that dockets of the county court house; their occupancy of the property was information concerning the applicable invalid because of the landowner’s zoning laws is generally available at the zoning violations prior to the Township’s clerk’s office for the local municipality. negative determination. That issue, 19 Under the Pennsylvania however, is not present in the tenants’ Municipalities Planning Code (MPC) § action here. The tenants’ argument, that 10616.1, the plaintiffs are not entitled to they should have been given adequate notice of a zoning enforcement hearing

not have become aware of their initial determination by making an landowner’s zoning violations until after assumption contrary to state law. the zoning enforcement hearing, the Furthermore, the majority’s established landowner’s violations, resolution of the tenants’ due process resulting in nullification of his rental use claim, by reasoning that there is no of his property, precludes the tenants’ deprivation of their property interest due process claim as a matter of law. because, at most, they have a month-to- There cannot be a due process violation month leasehold interest, which requires claim when the claimant has no valid only a thirty-day advance notice for property interest. termination under state law, and they For these reasons, I do not believe have been given more than thirty days to that assuming that the tenants have a vacate the property does not adequately valid property interest does not resolve respond to their due process claim. To their constitutional claim. Under well- the extent that such analysis is contingent established case law, where, as here, the on the tenants having a mere month-to- court is confronted with a due process month leasehold interest and an adequate claim, the court must determine first post-deprivation remedy, would the whether there is a valid property interest analysis be sustainable if the plaintiffs possessed by the plaintiffs. Kovats, 749 were year-to-year tenants, as some have F.2d at 1047 (citing Logan, 455 U.S. at claimed? The state statute, quoted in 428). I see no reason for the court to footnote 6 of this concurring opinion, shirk its responsibility of making this mandates no separate notice of zoning violation hearing to any type of tenants (unless they have filed a written request against the landowner. The statute with the municipality, or the landowner provides in relevant part: has requested in writing to the (b) The enforcement notice shall be sent to municipality that his tenants receive such [1] the owner of record of the parcel on notice), regardless of the length or type which the violation has occurred, to [2] of tenants’ leasehold interests. any person who has filed a written request III. to receive enforcement notices regarding that parcel, and to [3] any other person Mindful of the Supreme Court’s requested in writing by the owner of instruction that traditionally the courts record. should refuse to “decide constitutional questions when the record discloses other grounds of decision, whether or not they 53 Pa. Stat. Ann. § 10616.1 (emphases have been properly raised . . . by the added). The plaintiffs have not attacked parties,” Neese, 350 U.S. at 78, we the facial constitutionality of the statute. should not engage in a constitutional due

process analysis when the record discloses beyond dispute another ground for disposal of the plaintiffs’ claim. That ground is that the tenants have no vested property interest under state law. This approach is especially appropriate where the plaintiffs have not attacked the facial constitutionality of the state statute, MPC § 10616.1. I would, therefore, reverse the District Court’s judgment on the ground that the plaintiffs have shown no cognizable property interest under state law and eschew unnecessary federal due process analysis.