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Herr v. Pequea Township

ELR Citation: 32 ELR 20365
Nos. No. 00-2473, 274 F.3d 109/(3d Cir., 12/11/2001)

The court holds that a Pennsylvania township and its supervisors did not violate a developer's substantive due process rights by conspiring to delay and obstruct the developer's construction of an industrial park. The developer claims that the township and its supervisors conspired to delay the county land use authority's and several state agencies' approval of the industrial park. To further this allegation, the developer produced a letter from a township supervisor indicating that the township must make all efforts to delay development so that the developer's authorization from the land use authority would lapse. The court first holds, however, that where a township participates in government proceedings to resolve issues such as the developer's application, the township and its supervisors are not subject to liability for delay from these proceedings because of their participation if such participation is based on a reasonable basis to delay or prevent the project. The First Amendment right to petition extends to all governments, and this right includes the right to petition in opposition to applications for relief by others. Nevertheless, liability can be imposed if a government's petitions lack any reasonable basis. Here, the record indicates that the township's opposition to the developer's application for development was not frivolous or lacking a reasonable basis. In fact, at one stage of their opposition, the township prevailed. Further, the letter from the township supervisor indicated that the supervisor thought the township's opposition might prevail before a state agency. Moreover, the developer failed to articulate any specific reasons why the township's opposition was not a reasonably litigable one. In addition, the immunity from liability extends to both the municipal corporation and the supervisors.

Counsel for Appellant
Edward M. Posner
Drinker, Biddle & Reath
18th and Cherry Sts., Philadelphia PA 19103
(215) 988-2700

Counsel for Appellees
Kevin J. O'Brien
Marks, O'Neil, O'Brien & Courtney
1880 JFK Blvd., Ste. 1200, Philadelphia PA 19103
(215) 564-6688

Stapleton, J. Before Garth, J., dissenting, and Scirica, J.