2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-14-2013

CMR DN CORP and Marina Towers v. City of

Philadelphia

Precedential or Non-Precedential: Precedential

Docket No. 11-4362

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2013

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2013 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"CMR DN CORP and Marina Towers v. City of Philadelphia" (2013). 2013 Decisions. Paper 1277.

http://digitalcommons.law.villanova.edu/thirdcircuit_2013/1277
PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-4362

_____________

CMR D.N. CORP. AND MARINA TOWERS LTD., 

t/a Waterfront Renaissance Associates, LLP,

Appellant

v.

THE CITY OF PHILADELPHIA; CITY COUNCIL OF THE 

CITY OF PHILADELPHIA; PHILADELPHIA CITY 

PLANNING COMMISSION; OLD CITY CIVIC 

ASSOCIATION; RIVER'S EDGE CIVIC ASSOCIATION; 

THE PENN'S LANDING NORTH CIVIC ASSOCIATION; 

ANDREW SACKSTEDER; RICHARD HORROW; BRIAN 

ABERNATHY; RICHARD THOM; ELIZABETH E. 

WHITAKER; JOHN AND JANE DOES 1 THROUGH 10

_____________

On Appeal from the District Court

for the Eastern District of Pennsylvania

(No. 2:07-cv-01045)

District Judge: Honorable Lawrence F. Stengel

_____________

Argued October 1, 2012
2

Before: FUENTES, FISHER and GREENBERG, Circuit 

Judges

(Opinion Filed: January 14, 2013)

Thomas A. Leonard, Esq. [ARGUED]

Richard P. Limburg, Esq.

H. David Seidman, Esq.

Obermayer Rebmann Maxwell & Hippel LLP

One Penn Center, 19th Floor

1617 John F. Kenney Blvd.

Philadelphia, PA 19103-1895

Counsel for Appellant, CMR D.N. Corp. and Marina 

Towers Ltd., t/a Waterfront Renaissance Associates, 

LLP

City of Philadelphia Law Department

Shelley R. Smith, Esq., City Solicitor

Jane Lovitch Istvan, Esq. [ARGUED]

1515 Arch Street, 17th Floor

Philadelphia, PA 19102-1595

Counsel for Appellees, The City of Philadelphia, Brian 

Abernathy, Philadelphia City Planning Commission, 

and Philadelphia City Council

OPINION OF THE COURT

FUENTES, Circuit Judge:
3

Waterfront Renaissance Associates, LLP 

(―Waterfront‖) owns a lot in the Delaware River waterfront 

neighborhood of Philadelphia, Pennsylvania. For almost 

twenty years, Waterfront pursued the development of a large 

commercial and residential real estate project on this lot. In 

2006 the City of Philadelphia (―City‖) enacted an ordinance 

that extended certain construction restrictions from a nearby

neighborhood to most lots within the area known as the 

Central Riverfront District, including Waterfront‘s property. 

Asserting that the construction height restriction imposed by 

the extension foreclosed its development plans, Waterfront 

sued. 

In 2010, however, the City rescinded the application of 

the height restriction to Waterfront‘s property. The City then

sought to dismiss Waterfront‘s constitutional claims based on 

the height restriction as moot, and moved for summary 

judgment on all other claims. Waterfront opposed these 

motions and, to avoid the mootness problem, sought leave to 

amend its complaint to challenge as unconstitutional a width 

restriction that had also been extended by the 2006 ordinance

but had not been rescinded in 2010. Waterfront also sought 

to add a claim that an ordinance enacted in 2009, which had 

imposed additional requirements on construction along the 

Central Delaware River waterfront, was unconstitutional.

At issue in this appeal are the District Court‘s rulings 

on these motions. The District Court held that the rescission 

of the height restriction mooted Waterfront‘s federal 

constitutional claims against the 2006 ordinance, denied 

Waterfront‘s motion to further amend its complaint to attack 

the width restriction, and granted summary judgment for the 
4

City on all other claims, including those based on the 2009 

ordinance. 

For the reasons that follow, we find no reason to 

disturb any of the District Court‘s rulings. We will, therefore,

affirm the judgment of the District Court.

I. Factual Background

A. The Initial Stages of Waterfront’s World 

Trade Center Project

The key facts relevant to this appeal are not in dispute. 

The origins of this protracted controversy can be traced to 

1987, when Waterfront purchased a 5.3-acre lot (the ―Site‖)

to develop a high-rise project (the ―Project‖) in the Central 

Riverfront District of Philadelphia, Pennsylvania. The Site is

located at the southwest corner of Delaware Avenue (now

known as Columbus Boulevard) and Noble Street.

Waterfront pursued the development of the Project

over the next several years. In 1988, with the support of a 

recommendation letter from Philadelphia Mayor Wilson 

Goode, Waterfront obtained an exclusive license to develop 

its Project as a World Trade Center-type development. At the 

time of Waterfront‘s purchase, the Site was zoned G-2 

industrial. Consequently, Waterfront worked with the 

Philadelphia City Planning Commission (―Planning 

Commission‖) to obtain rezoning of the Site. The Planning 

Commission is the Philadelphia agency empowered to 

propose zoning ordinances to the Philadelphia City Council 

(―City Council‖), and is required by law to make 

recommendations to the Mayor for transmission to the City 

Council on any matters that may affect zoning. See 351 PA.
5

CODE §§ 4.4-601, 4.4-604 (Supp. 2012). The Planning 

Commission agreed to support Waterfront‘s request to rezone

the Site C-4 commercial, a permissive designation that would 

allow Waterfront to build a mixed-use, high-rise project. In 

exchange, Waterfront agreed to enter into a series of 

restrictive zoning covenants with certain civic associations to 

govern any construction on the Site. In 1989, per the 

Planning Commission‘s recommendation, the City Council 

rezoned the Site C-4 commercial, and Waterfront 

subsequently entered into the required covenants. 

Waterfront also explored ways to finance the World 

Trade Center Project, including forming a committee with the 

City and several business associations to analyze the Project‘s 

feasibility, and entering into a partnership with the Delaware 

River Port Authority to develop a plan for construction 

financed in part by the Port Authority.1 

When financing for the project became a concrete 

possibility in early 2005, Waterfront obtained a permit from 

the City‘s Department of Licenses & Inspections, the agency 

with actual authority to issue building permits, see 351 PA.

CODE § 5.5-1002 (the ―Licensing Department‖), that allowed

demolishing existing structures on the Site and constructing a 

28-story apartment tower upon the issuance of a building 

 

1

The Port Authority, a public organization wholly 

independent from the City, was created by an interstate 

compact between the Commonwealth of Pennsylvania and the 

State of New Jersey and is charged with maintaining and 

operating the Philadelphia-Camden port. See 36 PA. STAT.

ANN. § 3503 (West 2012).
6

permit.

2

 Waterfront also entered into a financing agreement 

with a major bank, with a loan closing date of January 2006

and a construction start date of February 2006. 

Unfortunately, however, Waterfront had to postpone

construction so it could rework the financing due to rising 

costs. 

B. The March 2006 Ordinance 

The loan scheduled to close in early 2006 was the 

closest Waterfront would get to the development of its 

Project. On March 16, 2006, the City enacted a zoning 

ordinance (the ―March 2006 Ordinance‖) that extended to

certain areas of the Central Riverfront District, including 

Waterfront‘s Site, a zoning overlay known as the ―Old City 

Residential Area Special District Controls‖ (the ―Old City 

Overlay‖). See R. 578. The Old City Overlay included a 

building height restriction of 65 feet, as well as a width 

restriction of 70 feet. See PHILADELPHIA, PA., ZONING CODE

 

2 Waterfront states that it obtained an ―as-of-right‖ zoning 

permit for a 26-story apartment tower in May of 2005 but 

cites to a permit in the record that relocated lot lines, and was 

issued in March of 2006. See Appellant‘s Br. at 13 (citing R. 

1372); see also R. 706 (Waterfront‘s counterstatement of 

facts in opposition to the City‘s motion for summary 

judgment incorrectly stating that the permit found at R. 1372 

was issued on March 3, 2005). The March 3, 2005 permit can 

be found at R. 571 but the record contains no permit issued in 

May of 2005. Regardless, both the March 2005 and the 

March 2006 zoning permits required Waterfront to obtain an 

actual building permit before construction could begin. See 

R. 571, 1372.
7

§ 14-1610(4), (5) (1990), repealed by Bill No. 110845 (Dec. 

22, 2011); R. 159-61.

3

Waterfront alleges that its Site was never intended to 

be included in the March 2006 Ordinance. It alleges that City 

Councilman Frank DiCicco, whose jurisdiction includes the 

Site, admitted to Waterfront‘s attorney that the inclusion of 

the Site in the area covered by the March 2006 Ordinance was 

a ―mistake,‖ R. 682, and that Philadelphia Mayor John Street 

stated that he would not have signed the legislation had he

known that the 65-foot height restriction applied to the Site. 

The City disputes Waterfront‘s characterization of these 

statements. However, Waterfront asked Councilman DiCicco

to repeal the inclusion of the Site from the extension of the 

Old City Overlay, but he refused. Moreover, Waterfront 

never applied for, or was denied, a permit under the March 

2006 Ordinance, and it did not seek a variance. 

II. Procedural History

A. Initial Stages of the Litigation

On February 23, 2007, Waterfront sued the City, the

Planning Commission, the City Council, City Councilman 

aide Brian Abernathy, three civic associations with which it

had entered into zoning covenants, and certain members of 

 

3

The parties cite the Philadelphia Zoning Code as it existed 

before it was repealed in 2011. We use the citation shorthand 

―FORMER PHILA. CODE‖ to refer to pre-repeal Zoning Code 

sections. Both old and new versions of the Code are available 

at http://www.amlegal.com/library/pa/philadelphia.shtml. We 

also cite to the parties‘ reproduction in the record of the 

relevant code provisions when they are provided.
8

those associations, in state court. The City removed the case 

to federal court on March 15, 2007. 

An amended complaint, filed in 2008, alleges fourteen 

counts of constitutional and state law claims, focusing on the 

fact that the March 2006 Ordinance ―impos[ed] a sixty-five 

foot (65‘) height restriction on [Waterfront‘s] Site.‖ R. 87

(Compl. ¶ 5).

4

 Counts I through VIII are directed at the City. 

Count I seeks a declaratory judgment, claiming that the 

March 2006 Ordinance is ―defective‖ because the City ―did 

not at any time discuss or consider the effect that extending 

the 65‘ height restriction would have on the public and 

private objectives established for the Site,‖ and, therefore, the 

Site‘s inclusion within the ordinance was a ―product of

mistake‖ and ―constitute[d] an instance of arbitrary and 

unreasonable zoning bearing no substantial relationship to the 

public health, safety, and welfare of the City and its 

inhabitants.‖ R. 111-13 (Compl. ¶¶ 148-63). Count II seeks

a declaratory judgment that the ordinance was ―procedurally 

invalid‖ because ―the newspaper advertising of the March 

2006 Ordinance was insufficient to put [Waterfront] on 

notice‖ that the City planned to enact the ordinance. Id. 

¶¶ 165-70. Counts III, IV, and VIII seek a variety of 

 

4 Citations to the Complaint in the record on appeal are to the 

Third Amended Complaint, which was filed after the District 

Court allowed Waterfront an opportunity to amend in March 

of 2011. See infra at Part II.C. However, the Third Amended 

Complaint is identical in all material respects to the 

provisions of the Amended Complaint described in Part II-A 

of this opinion. See Am. Compl., CMR D.N. Corp. & Marina 

Towers Ltd. v. City of Philadelphia, No. 2:07-cv-01045 (E.D. 

Pa. July 7, 2008), ECF No. 81.
9

remedies including injunctive relief and damages, based on 

state law claims of promissory estoppel, detrimental reliance, 

and unjust enrichment. Id. ¶¶ 172-85, 187-95, 212-21. Count 

V seeks a declaration that the ―application of the [March 2006 

Ordinance] to [Waterfront‘s] Site . . . deprives [Waterfront] of 

its constitutional right to substantive due process.‖ Id. ¶ 201. 

Count VI seeks a declaration that ―any application‖ of the 

March 2006 Ordinance ―to [Waterfront‘s] Site‖ violates

Waterfront‘s ―constitutional right to equal protection‖ 

because the City had ―arbitrarily treated [Waterfront‘s] Site 

differently from other similarly situated C-4 sites . . . .‖ Id.

¶¶ 203, 206. Count VII seeks monetary damages for the 

alleged violations of due process and equal protection. Id. ¶¶ 

208-210.

5

 

On March 31, 2008, the District Court dismissed the 

Planning Commission, the City Council, and Abernathy from 

the case. The District Court also dismissed Counts II and V. 

It reasoned that those counts constituted ―as-applied‖ 

challenges to the height restriction because they attacked only 

the application of the ordinance to the Site. Waterfront 

Renaissance Assocs. v. City of Philadelphia, Civil Action No. 

07-1045, 2008 WL 862705, at *6-8 n.15 (E.D. Pa. Mar. 31, 

2008) (―Waterfront I‖). Therefore, the Court concluded, 

 

5 Counts IX through XIV alleged various tort and contract 

claims against the civic associations, and certain of their 

individual members, that Waterfront sued. Most of these 

claims were dismissed at the pleadings stage, and the District 

Court later granted summary judgment on all remaining 

claims against those defendants. See CMR D.N. Corp. v. City 

of Philadelphia, 803 F. Supp. 2d 328 (E.D. Pa. 2011). 

Waterfront does not appeal the dismissal of these claims.
10

because Williamson County Regional Planning Commission 

v. Hamilton Bank, 473 U.S. 172, 192 (1985), as well as 

Taylor Investment Ltd. v. Upper Darby Township, 983 F.2d 

1285, 1293-95 (3d Cir. 1993), require property owners

asserting as-applied challenges to zoning ordinances to apply 

for a building permit or seek a variance before they may bring 

a claim, and because Waterfront had not met this requirement, 

those counts were unripe. See id. At the same time, the 

District Court rejected as ―unacceptable‖ the City‘s 

arguments that the equal protection claim, Count VI, 

constituted an as-applied challenge, and therefore refused to 

dismiss that claim. Id. at * 8. Accordingly, after Waterfront 

I, the only constitutional claims that remained against the City 

were Counts I, VI, and VII.

Following a period of extensive discovery, Waterfront 

filed a second amended complaint on May 4, 2009, adding

Count XV against the City. See Second Am. Compl., CMR 

D.N. Corp. & Marina Towers Ltd. v. City of Phila., No. 2:07-

cv-01045 (E.D. Pa. May 4, 2009), ECF No. 121. Count XV 

alleges that ―the 65‘ height restriction was included in the 

March 2006 Ordinance solely for the improper, unlawful, and 

unconstitutional purpose of empowering unelected civic 

associations to control re-development‖ in the area it covered, 

and thus violated due process. See R. 129 (Compl. ¶ 254). 

Count XV also alleges that ―[t]he height restriction . . . is 

unconstitutional because it effectively delegates land use and 

planning powers to non-governmental neighborhood 

associations. . . .‖ Id. ¶ 287. On these theories, Count XV 

seeks a declaratory judgment and a permanent injunction 

against the application of the March 2006 Ordinance as 

against all possible developers. The District Court later

denied the City‘s motion to dismiss this new count, rejecting, 
11

inter alia, the City‘s argument that Count XV asserted an 

unripe as-applied challenge. Waterfront Renaissance Assocs. 

v. City of Phila., 701 F. Supp. 2d 633, 642 (E.D. Pa. 2010) 

(―Waterfront II‖). Neither Waterfront nor the City have 

appealed any of the District Court‘s rulings in Waterfront I or

Waterfront II.

B. The Central Delaware Riverfront Ordinance 

and the Rescission of the Height Restriction

Alter the Course of the Litigation

Subsequently, and while the litigation was pending, the 

City enacted two additional ordinances that altered the course 

of the lawsuit. First, in 2009 the City Council enacted a new 

zoning ordinance entitled the ―Central Delaware Riverfront 

Overlay District‖ (the ―CRO‖). See FORMER PHILA. CODE

§ 14-1638 (2009); R. 416-21. The CRO covered some of the 

same plots to which the Old City Overlay had been extended 

by the March 2006 Ordinance, including Waterfront‘s Site. 

See id. § 14-1638(3); R. 687-88. The stated purpose of the 

CRO was to ―protect the existing characteristics of the built 

and natural environment that are essential to achieving the 

working guidelines of the Civic Vision . . . while a Master 

Plan for the area is developed.‖ Id. § 14-1638(1)(h). The 

Civic Vision was a comprehensive plan for the development 

of the Central Riverfront District, commissioned in 2006 by 

Mayor John Street, and adopted in 2009 by the Planning 

Commission as a statement of desirable zoning goals for the 

district. See id. § 14-1638(1)(a), (h). To achieve its purpose 

of protecting the characteristics of the built area in the Central 

Riverfront District while a ―Master Plan‖ was developed, the 

CRO provides that an applicant for a zoning permit must first

submit for approval a plan of development to the Planning 
12

Commission. The CRO instructs the Planning Commission to

approve the plan within seventy-five days by determining 

whether the proposed construction would be ―appropriate in 

scale, density, character and use for the surrounding 

community.‖ Id. § 14-1638(12)(a). The CRO contains an 

extensive list of prohibited building uses for the lots within 

the new overlay, as well as an extensive list of building 

requirements for new constructions. See, e.g., id. §§ 14-

1638(4), (5), (7) (requiring certain uses in ground floors of 

some buildings, and recreational trails and setbacks for other 

constructions). Finally, the CRO required the Planning 

Commission to issue regulations ―providing objective 

standards‖ for the review of plans of development. Id. § 14-

1638(12)(a). The Planning Commission issued such 

regulations on April 20, 2010 (the ―CRO Regulations‖). See

R. 912-16. Neither the CRO nor the CRO Regulations define 

the phrase ―appropriate in scale, density, character and use for 

the surrounding community.‖

Soon after the Regulations were issued, Waterfront 

moved under Rule 15 of the Federal Rules of Civil Procedure 

for leave to amend its complaint to add a Count XVI, 

asserting that the CRO and the CRO Regulations ―[o]n their 

face . . . violate the constitutional principles of separation of 

powers, due process, and equal protection of the laws.‖ R. 

139 (Compl. ¶ 291). Waterfront alleges that the CRO and the 

CRO Regulations improperly delegate zoning power to the 

Planning Commission, violate equal protection because the 

phrase ―appropriate in scale, density, character and use for the 

surrounding community‖ is ―vague and indefinite,‖ and 

violate substantive due process because they are ―unrelated to 

any legitimate planning purpose.‖ Id. ¶¶ 332-35.
13

Second, in early 2010 the City Council repealed the 

application of any height restrictions to most plots within the

CRO, including the Site. See R. 197-98 (Bill No. 100014, 

adding a new subsection (12) to the CRO). Based on this 

development, the City argued that Waterfront‘s challenge to 

the 65‘ height restriction was moot. On August 26, 2010, 

after the District Court had permitted the parties to file 

several rounds of briefs on the question of mootness, 

Waterfront moved for leave to further amend its Complaint 

under Rule 15 to ―clarify‖ that it was asserting a challenge to 

the width restriction of the March 2006 Ordinance, as well as 

the height restriction. 

C. The District Court’s Rulings 

On March 11, 2011, ruling on the motion, the District 

Court allowed Waterfront to add Count XVI but denied its 

request to include a challenge to the width restriction. CMR 

D.N. Corp. v. City of Phila., Civil Action No. 07-1045, 2011 

WL 857294, at *1, 6 (E.D. Pa. Mar. 11, 2011) (―Waterfront 

III‖). On the same day, the District Court dismissed 

Waterfront‘s constitutional challenges to the March 2006 

Ordinance, reasoning that the rescission of the height 

restriction had mooted Waterfront‘s request for injunctive 

relief and that the claim for damages was ―moot because 

[Waterfront] . . . did not apply for a zoning permit or variance 

from the height restriction. . . .‖ CMR D.N. Corp. v. City of 

Phila., Civil Action No. 07-1045, 2011 WL 857296, at *7

(E.D. Pa. Mar. 11, 2011) (―Waterfront IV‖).

The City later moved for summary judgment on all 

remaining claims, including the constitutional challenge to 

the CRO and the CRO Regulations and the state law claims of 
14

promissory estoppel, detrimental reliance, and unjust 

enrichment. On November 4, 2011, the District Court

granted the City‘s motion. See CMR D.N. Corp. v. City of 

Phila., 829 F. Supp. 2d 290 (E.D. Pa. 2011) (―Waterfront V‖).

III. Analysis

Waterfront timely appealed the District Court‘s rulings 

in Waterfront III, Waterfront IV, and Waterfront V, but did 

not appeal the dismissal of the unjust enrichment claim. 

Waterfront contends that the District Court (1) erred in 

dismissing as moot its contentions that the height restriction 

in the March 2006 Ordinance was facially unconstitutional; 

(2) abused its discretion in denying Waterfront leave to 

amend its Complaint to include the width restriction in its 

challenge to the March 2006 Ordinance; (3) erred in 

concluding that the CRO and the CRO Regulations are 

constitutional; and (4) erred in granting summary judgment to 

the City on the state law claims of promissory estoppel and 

detrimental reliance. We address each argument in turn.

A. Mootness of the Challenge to the March 2006 

Ordinance

As previously noted, the City rescinded the application 

of the Old City Overlay‘s 65‘ height restriction to most of the 

lots covered by the CRO, including Waterfront‘s Site. The

District Court subsequently held that the rescission mooted 

Waterfront‘s facial claims, including its request for an 

injunction and for compensatory and nominal damages. See 

Waterfront IV, 2011 WL 857296, at *1, 3-5.

Waterfront no longer contends that its request for 

injunctive relief against the height restriction presents a live 
15

controversy. Accordingly, the sole question on appeal is

whether the rescission similarly mooted Waterfront‘s request

for compensatory and nominal damages. Waterfront also 

seeks declaratory relief. We review de novo a district court‘s 

determination that claims are moot. See Ruocchio v. United 

Transp. Union, Local 60, 181 F.3d 376, 382 (3d Cir. 1999).

1. Compensatory Damages

The District Court held that Waterfront‘s ―claims for 

damages in connection with its facial constitutional 

challenges are moot‖ because the height restriction was 

rescinded and because Waterfront ―never applied for a zoning 

permit or variance, and the height restriction never was 

enforced as to its project.‖ Waterfront IV, 2011 WL 857296, 

at *5. The District Court ruled that, as an alternative, the 

claim for damages was speculative, due to the failure to seek 

a permit, and therefore could not proceed. Id. at *6.

As to the District Court‘s holding that the claim for 

damages was moot, we have stated that ―[d]amages should be 

denied on the merits, not on grounds of mootness.‖ Nat’l 

Iranian Oil Co. v. Mapco Int’l, Inc., 983 F.2d 485 (3d Cir. 

1992) (internal citation omitted). Claims for damages are 

retrospective in nature–they compensate for past harm. By 

definition, then, such claims ―cannot be moot,‖ Lippoldt v. 

Cole, 468 F.3d 1204, 1204 (10th Cir. 2006), and ―[a] case is 

saved from mootness if a viable claim for damages exists.‖ 

Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 196 (3d Cir. 

2001) (citing Nat’l Iranian, 983 F.2d at 489) (emphasis 

added). Accordingly, we disagree with the District Court‘s 

conclusion that Waterfront‘s claim for damages was moot, 
16

but nevertheless agree with the District Court that the claim 

for damages cannot proceed, for the reasons that follow.

6

Pursuant to Khodara, the relevant question is whether 

Waterfront has a viable claim for damages that would save its 

case from mootness—i.e., whether damages are a proper 

remedy for Waterfront‘s claims. It is black letter law that the

remedy available to a plaintiff should reflect the right that 

such plaintiff seeks to vindicate. 1 DOBBS LAW OF REMEDIES

§ 1.7, at 27. In this case, as we describe below, there is some 

disagreement as to the type of claim Waterfront asserts. We 

therefore carefully consider different interpretations of the

claims for which Waterfront seeks damages, and consider

whether damages are indeed a proper remedy under each 

alternative.

Waterfront seeks damages in connection with Counts I 

and VI of the Complaint, which allege, respectively, that the 

height restriction violates due process because it is ―arbitrary 

and capricious‖ and that it violates equal protection. The first 

possible interpretation of these counts—the one suggested by 

Waterfront—is that they assert a facial challenge against the 

height restriction. Indeed, the District Court accepted such 

characterization over the City‘s objections. See Waterfront I, 

2008 WL 862705, at *7-8. However, Waterfront‘s arguments

throughout this litigation have belied its contention that those 

counts constitute a facial challenge. A party asserting a facial 

challenge ―seeks to vindicate not only his own rights, but 

those of others who may also be adversely impacted by the 

 

6 We may affirm the District Court‘s ruling on alternative 

legal grounds established by the record. Erie Telecomm., Inc. 

v. City of Erie, 853 F.2d 1084, 1089 (3d Cir. 1988). 
17

statute in question.‖ City of Chi. v. Morales, 527 U.S. 41, 55

n.22 (1999). In a facial challenge, the plaintiff does not seek 

to establish that the law cannot be applied to him; rather, he 

or she must show that ―no set of circumstances exists under 

which the [challenged] Act would be valid.‖ United States v. 

Mitchell, 652 F.3d 387, 405 (3d Cir. 2011) (en banc) (quoting 

United States v. Salerno, 481 U.S. 739, 745 (1987)). 

Waterfront‘s claims do not in any way meet these 

criteria or otherwise resemble a facial challenge. First, as a 

general matter, Waterfront‘s entire theory of the case is that 

the inclusion of its own Site was a mistake, not that the 

enactment of the ordinance as a whole was a mistake or that 

the height restriction could not be constitutionally applied to 

any property. Second, neither Count I nor VI alleges that the 

height restriction cannot be constitutionally applied under any 

circumstances. Instead, those counts refer to the application 

of the height restriction to Waterfront alone. See, e.g., R. 

113, 120 (Compl. at 28 (requesting declaration that 

Waterfront‘s ―Site is not subject‖ to the March 2006 

Ordinance); ¶ 206 (contending that ―any application‖ of the 

March 2006 Ordinance to ―[Waterfront‘s] Site‖ is 

unconstitutional)). Third, Waterfront‘s arguments on appeal 

repeat this trend, focusing on the fact that ―the March 2006 

Ordinance prevents [Waterfront] from proceeding lawfully,‖ 

Appellant‘s Br. at 19, and not once explaining why the 

ordinance cannot be constitutionally applied under any 

circumstance. This pattern persisted at oral argument, where 

Waterfront characterized this case as seeking to vindicate its 

own rights, not the rights of others. See, e.g., Oral Argument

at 3:07-3:11 (―our argument focuses on the application of the 

Old City Overlay to our Site‖); 9:15-9:17 (―we challenged the 

application of the Old City Overlay to our project‖); 16:38-
18

16:55 (―our theory in the complaint always was that we 

wanted the extension of the ordinance stricken as it applied to 

our Site . . . we said this overlay extension shouldn‘t apply to 

our Site.‖), available at 

http://www.ca3.uscourts.gov/oralargument/audio/11-

4362CMRD.N.Corpv.CityofPhila.wma.

7

Our reluctance to recognize Waterfront‘s claims as 

facial challenges is supported by the Supreme Court‘s 

repeated admonitions that facial challenges are disfavored and 

should be considered sparingly. See, e.g., Wash. State 

Grange v. Wash. State Republican Party, 552 U.S. 442, 450 

(2008). This is so because facial challenges seek the broad 

remedy of a complete invalidation of a law and because a 

ruling on the constitutionality of all possible applications of a 

statute necessarily ―rest[s] on speculation‖ and invites the 

―premature interpretation of statutes.‖ Id. (internal citations 

omitted). 

But even taking Waterfront‘s word that it asserts a 

facial challenge seeking to bar enforcement of the height 

restriction against all possible developers, we agree with the 

City that damages are not available to Waterfront under that 

 

7

The allegations in Counts I and VI of the complaint stand in 

sharp contrast to Count XV of the complaint, where 

Waterfront asserted that the height restriction was 

unconstitutional on its face because it sought to delegate 

zoning power to civic associations. See id. ¶ 289. Waterfront 

did not seek damages in connection with Count XV and, in 

any event, damages would not have been a proper remedy for 

that facial attack, for the reasons stated in the following 

paragraphs.
19

theory of the case. See Appellees‘ Br. at 26, n.4. When a 

litigant challenges the legality of a zoning law on the theories 

that the law violates equal protection or is arbitrary and 

capricious, for ―a facial challenge, the remedy is the striking 

down of the regulation. In the case of an as applied 

challenge, the remedy is an injunction preventing the 

unconstitutional application of the regulation to the plaintiff‘s 

property and/or damages . . . .‖ Eide v. Sarasota Cnty., 908 

F.2d 716, 722 (11th Cir. 1990) (citation omitted). This is so 

because, in a facial challenge, ―the claimed constitutional 

violation inheres in the terms of the statute, not its application 

. . . [t]he remedy is necessarily directed at the statute itself 

and must be injunctive and declaratory.‖ Ezell v. City of Chi., 

651 F.3d 684, 698 (7th Cir. 2011) (citation omitted) (holding 

that damages are not available for a facial challenge to a gun 

control law). Thus, ―a victory by the plaintiff in [facial 

challenges] normally results in an injunction or a declaratory 

judgment, which serves the broad societal purpose of striking 

an unconstitutional statute from the books,‖ whereas an asapplied plaintiff ―merely requests monetary damages.‖ 

Weissmann v. Fruchtman, 700 F. Supp. 746, 748, 753 

(S.D.N.Y. 1988). Waterfront has cited to no case awarding

compensatory damages to a plaintiff asserting only a facial 

attack against a zoning law under equal protection or the

―arbitrary and capricious‖ theory. Cf. Daskalea v. Wash.

Humane Soc’y, 710 F. Supp. 2d 32, 42 (D.D.C. 2010) (noting 

that the plaintiffs had not ―cited a single case in which 

monetary damages were awarded in connection with a facial 

due process challenge‖ and holding that such remedy was not 

legally available). Thus, even if Waterfront‘s claims truly are 

facial attacks, damages are not a proper remedy.
20

The District Court seemed to suggest at times that a 

claim for damages in the context of a facial challenge to a 

zoning law under these theories is, at best, unprecedented. 

See, e.g., Waterfront IV, 2011 WL 857296, at *4. But the 

Court, and apparently Waterfront, also reasoned that our 

decision in Lighthouse Institute for Evangelism v. City of 

Long Branch, 510 F.3d 253 (3d Cir. 2007) stands for the 

proposition that, as a general matter, damages are a proper 

remedy for facial challenges. See Appellant‘s Br. at 27-28. 

In Lighthouse a regulation was challenged on its face as a 

violation of the First Amendment and the Religious Land Use 

and Institutionalized Persons Act. We held that repeal of that 

regulation mooted the claim for declaratory relief but 

nonetheless permitted the plaintiff‘s claims for damages to go 

forward. See id. at 260-61 (citing Donovan v. Punxsutawney 

Area School Bd., 336 F.3d 211, 218 (3d Cir. 2003)). 

Critically, however, Lighthouse and Donovan involved 

challenges under the First Amendment. ―The courts have 

repeatedly shown solicitude for First Amendment claims . . .

with regard to facial challenges to a statute.‖ Peachlum v. 

City of York, 333 F.3d 429, 435-36 (3d Cir. 2003). We show 

this solicitude, and permit damages for facial challenges in 

the First Amendment context, because First Amendment 

rights are ―central to guaranteeing our capacity for democratic 

self-government.‖ Risdal v. Halford, 209 F.3d 1071, 1072

(8th Cir. 2000). These concerns are not present in the context 

of challenges to zoning laws, where we have been careful to 

defer to local governments. See Pace Res., Inc. v. 

Shrewsbury Twp., 808 F.2d 1023, 1035 (3d Cir. 1987). Thus, 

Lighthouse does not establish the availability of damages for 

a facial due process challenge to a zoning ordinance.8 

 

8 Moreover, in Lighthouse the plaintiff had actually applied 
21

Our statement in County Concrete Corporation v. 

Township of Roxbury, 442 F.3d 159, 168 (3d Cir. 2006), that 

―the remedies for a successful substantive due process or 

equal protection claim as to the face of a zoning ordinance are 

the invalidation of the regulation and actual damages,‖ also 

does not establish the availability of damages in this context. 

The theory of liability advanced in County Concrete was that 

the county had enacted a law ―specifically directed‖ or 

―aimed at‖ the plaintiff‘s land. Id. at 167, 170. We continue 

to adhere to County Concrete’s conclusion that it ―would be 

an exercise in futility to require appellants to seek a variance 

from an ordinance specifically directed at their properties.‖ 

Id. at 167. But that is not the type of facial challenge that 

Waterfront asserts in this case. Rather than alleging that 

Waterfront was specifically and unlawfully targeted by the 

March 2006 Ordinance, Waterfront claims that it was 

mistakenly included in the reach of the law. Waterfront‘s 

theory of the case is thus clearly distinguishable from, and in 

fact is the opposite of, the type of claim asserted in County 

Concrete.

 

for and was denied a permit under the later-repealed 

ordinance. See Lighthouse, 510 F.3d at 259. The 

compensation permitted in that case was therefore connected 

to a specific application of the ordinance to the plaintiff. It is 

thus not clear that Lighthouse actually permitted a damages 

claim to go forward in connection with a facial challenge, as 

opposed to an as-applied challenge. See Tanner Adver. Grp. 

v. Fayette Cnty., 451 F.3d 777, 786 (11th Cir. 2006) (holding 

that plaintiff could not request damages for a facial challenge 

to a zoning ordinance under the First Amendment because the 

provision ―ha[d] not yet harmed‖ the plaintiff).
22

A second alternative to understanding Waterfront‘s 

claims is, as mentioned above, that Counts I and VI truly 

assert as-applied challenges. So understood, however, those 

counts should have been dismissed for the same reason the 

District Court dismissed Waterfront‘s other constitutional 

claims—because they were unripe under the rules of 

Williamson County Regional Planning Commission v. 

Hamilton Bank and Taylor Investment v. Upper Darby 

Township. See supra at 8. In Williamson County, the 

Supreme Court held that claims that a zoning law constituted 

a taking under the Fifth Amendment and went too far by 

depriving plaintiff of all viable use of his or her property, 

were not ripe until the zoning authority had made a ―final 

decision‖ to deny the plaintiff a permit under the law. 473 

U.S. 172, 186-94 (1985). Ripeness could not occur until the 

plaintiff challenging the ordinance sought and was denied a 

variance or a permit under the ordinance. Id. Thereafter, we 

held that Williamson County’s ―finality rule‖ applied to 

challenges to ordinances based both on procedural due 

process or equal protection grounds, and on a theory that a 

regulation violated due process because it was arbitrary and 

capricious. See Midnight Sessions, Ltd. v. City of Phila., 945 

F.2d 667, 686 (3d Cir. 1991) (applying finality rule to 

―arbitrary and capricious‖ theory); Taylor Inv., Ltd. v. Upper 

Darby Twp., 983 F.2d 1285, 1292-94 (3d Cir. 1993) 

(applying finality rule to procedural due process and equal 

protection challenge). Because it is undisputed that 

Waterfront never applied for a building permit under the 

March 2006 Ordinance, if the claims for which it seeks 

damages are actually as-applied claims, which we believe 

they are, then such claims are not ripe and cannot proceed.
23

As a third and final alternative, Waterfront suggests 

that it asserts a hybrid as-applied/facial challenge to the 

height restriction. The argument is that the height restriction

was unconstitutional on its face as applied to Waterfront and

that Waterfront was harmed by the mere enactment of the 

ordinance. Waterfront IV, 2011 WL 857296, at *4. As the 

District Court noted, however, the proper remedy for such a 

claim is an injunction, unless and until the offending law is 

actually applied to the plaintiff. See id. (citing Daskalea, 710 

F. Supp. 2d at 43). Indeed, as in Ezell, where the plaintiffs 

sought damages for the mere existence of an ordinance that 

would have required them to travel out of town to obtain a 

gun permit, Waterfront‘s hybrid theory here would be that 

―the City Council violated [the Constitution] by enacting the 

[Ordinance] in the first place. If [it] prevail[s], the only

appropriate remedy is a declaration that the [Ordinance] is 

invalid and an injunction forbidding its enforcement.‖ Ezell, 

651 F.3d at 699 n.10 (emphasis in original). Waterfront cites 

to no case awarding anything other than injunctive relief to a 

plaintiff who asserts that it was harmed by the mere 

enactment of a zoning law, where the plaintiff has not applied 

for a permit. See also Rumber v. District of Columbia, 595 

F.3d 1298, 1300 n.1 (D.C. Cir. 2010) (claim for 

compensatory damages did not save from mootness an action 

to enjoin eminent domain against a property because ―no 

property ha[d] been taken from [the] plaintiffs‖); Angino v. 

Wan Wagner, No. 1:CV-05-1748, 2009 WL 2859041, at *14-

15 (M.D. Pa. Sept. 3, 2009) (Vanaskie, J.) (holding that 

damages were not available to a plaintiff who challenged an 

ordinance under a due process theory because the plaintiff 

had not sought a permit and therefore any claim for damages 

was ―purely speculative‖).
24

Limiting the available remedy to an injunction for such 

a claim complements our relaxation of Williamson County’s

requirement that a zoning authority make a ―final decision‖ 

before a developer may bring suit. We have held that this

rule does not apply to facial challenges because it is not 

necessary to advance the rule‘s underlying purpose—to allow 

the court to determine the extent to which a particular 

plaintiff has been harmed by a zoning law. See Williamson 

Cnty., 473 U.S. at 191, 199-200; see also Taylor, 983 F.2d at 

1291 (finality rule recognizes that the property owner suffers 

no constitutional injury until the zoning authority ―defines the 

harm to the owner‖). Because the claim in a facial challenge 

is that a law cannot be applied to anyone, there is no need to, 

and no ability to determine the full extent to which any

particular plaintiff has been harmed. A district court is 

therefore unable to properly ascertain compensatory damages 

under those circumstances. Thus, far from being futile, as 

Waterfront suggests, requiring a developer to seek a permit 

even when the law clearly prohibits the construction he or she

desires, permits the court to rule on an actual, ripe 

controversy. If, as Waterfront repeatedly contends, the Site 

was included in the ordinance by mistake, the application 

process may well have yielded an exception for Waterfront. 

The rule also permits the court to ascertain the actual extent 

of the harm to the claimant. On the other hand, little would 

be left of the Williamson County finality rule if we relaxed it 

so that a plaintiff could obtain damages and avoid the 

obligation to seek a permit altogether by artfully pleading its 

case as a ―hybrid facial/as-applied‖ claim as opposed to what 

we believe Waterfront‘s claim really is—an as-applied claim. 

In keeping with our obligation to not entertain 

speculative claims, and in the interest of highlighting the 
25

importance of the finality rule, we hold that compensatory 

damages are not available to a plaintiff challenging a zoning 

ordinance under the theory that the mere enactment of an 

ordinance harmed such plaintiff, unless the plaintiff applies 

for and is denied a permit under the offending statute.

9

 

Our decision does not leave developers in Waterfront‘s 

predicament without a remedy. Waterfront could have had a

non-moot claim for money damages had it complied with the

long-established requirement that it seek a permit or a 

variance before asserting a legal challenge to the ordinance on 

its own behalf. For unexplained reasons, it chose not to do 

so. Waterfront instead chose to request that the federal courts 

declare a certain portion of the zoning ordinance 

unconstitutional under all circumstances. The proper remedy 

had Waterfront been successful would have been to enjoin the 

application of the offending portions of the ordinance, not to 

award money damages. 

2. Nominal Damages

The District Court also concluded that nominal 

damages were unavailable because they would be speculative. 

 

9

The Eleventh Circuit has held that a claim that the mere 

enactment of a statute harms a plaintiff is properly understood 

as an as-applied claim to which the finality rule applies. See

Executive 100, Inc. v. Martin Cnty., 922 F.2d 1536, 1541 

(11th Cir. 1991). Our holding is simply another way of 

saying what the Eleventh Circuit said in Executive 100—to be 

entitled to damages, a plaintiff alleging that it has been 

harmed by the enactment of an ordinance must comply with 

the Williamson County finality rule.
26

See Waterfront IV, 2011 WL 857296, at *6 (citation omitted). 

Waterfront contends that it is entitled to nominal damages 

―for a deprivation of the constitutional right to due process.‖ 

Appellant‘s Br. at 31 (citing Farrar v. Hobby, 506 U.S. 103, 

112 (1992)). This argument rests on a misunderstanding of 

nominal damages.

Nominal damages have traditionally ―vindicated 

deprivations of certain  ̳absolute‘ rights that are not shown to 

have caused actual injury. . . .‖ Carey v. Piphus, 435 U.S. 

247, 266 (1978). The Supreme Court in Carey concluded that 

procedural due process was an ―absolute‖ right the denial of 

which entitled a plaintiff to nominal damages even without 

proof of actual injury. Id. In Carey, however, the plaintiffs

did not bring a facial challenge to a statute. Instead, the 

plaintiffs challenged an actual deprivation of an entitlement

pursuant to allegedly faulty adjudicative procedures. See id.

at 251 (plaintiffs‘ claims were based on actual ―suspension 

[from school] without any adjudicative hearing of any type‖

(citation omitted)). In other words, the application of 

unconstitutional procedures constitutes an injury in and of 

itself, for which nominal damages are appropriate regardless 

of whether the plaintiff was able to prove an actual injury

resulting from the deprivation. The holding of Carey has 

been applied in cases involving the violation of First 

Amendment rights, including situations where a plaintiff‘s 

request for injunctive relief has been mooted because she was 

no longer subject to the offending law. See, e.g., Corder v. 

Lewis Palmer Sch. Dist., 566 F.3d 1219, 1224-25 (10th Cir. 

2009) (student plaintiff was entitled to nominal damages 

because her diploma had been withheld in violation of her

free speech rights). 
27

But, like in Carey, the plaintiffs in those cases were 

subjected to actual violations of constitutional rights. Here, it

is undisputed that Waterfront never sought and was not

denied a building permit under the March 2006 Ordinance. In 

sharp contrast to the plaintiffs in Carey or Corder, who 

suffered a specific deprivation pursuant to the 

unconstitutional statute or procedures, Waterfront was never 

subjected to unconstitutional procedures, wrongfully denied a 

permit under an ordinance that was potentially 

unconstitutional, or otherwise subjected to a constitutional 

deprivation. The only arguable harm that Waterfront has

been subjected to is the mere existence of a law that it alleges 

is unconstitutional. We find no authority, and Waterfront has 

provided none, for the proposition that a plaintiff is entitled to 

nominal damages simply based on the existence of a zoning 

law that has never been applied to it. That a legislature may 

enact a zoning law that if applied to someone would violate 

due process does not entitle any individual who finds it 

offensive, including those never subjected to the ordinance, to 

nominal damages.

10

3. Declaratory Relief

The District Court also dismissed as moot Waterfront‘s 

claim for declaratory relief. Waterfront contends that a 

declaratory judgment is necessary to ―resolve [its] claim for 

money damages.‖ Appellant‘s Br. at 32. The purpose of a 

 

10 As with respect to actual damages, whether nominal 

damages would be available if a plaintiff was unlawfully and 

selectively targeted by the enactment of a law is not an issue 

in this case. See Daskalea, 710 F. Supp. 2d at 44 (suggesting 

nominal damages may be available under such a theory). 
28

declaratory judgment is to ―declare the rights of litigants.‖ 

Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). The 

remedy is thus by definition prospective in nature. 

Waterfront‘s contention that a declaratory judgment is 

necessary to award damages is therefore incorrect. As in 

Khodara, here ―a declaration of unconstitutionality or 

injunction directed against the objectionable features‖ of the 

March 2006 Ordinance ―would serve no purpose today. 

Where a law is amended so as to remove its challenged 

features, the claim . . . becomes moot as to those features.‖ 

Khodara, 237 F.3d at 194 (internal citations omitted) 

(alteration in original). Moreover, in light of our conclusion

that neither injunctive nor monetary relief are available, 

Waterfront‘s request is moot even if a declaratory judgment is 

a necessary precursor to awarding damages.

B. The Motion to Amend the Complaint

While the mootness question was pending, Waterfront 

pursued an alternative strategy to stave off dismissal. 

Specifically, Waterfront moved under Rule 15 of the Federal 

Rules of Civil Procedure for leave to ―clarify‖ that its 

complaint also attacked the facial constitutionality of the 

March 2006 Ordinance‘s extension of the 70‘ width 

restriction to the area including the Site. Waterfront‘s motion 

to amend was filed after the District Court had accepted 

several rounds of briefs from both parties regarding the 

mootness question, as well as after Waterfront‘s motion to

amend its Complaint to assert claims against the CRO. The 

District Court denied the motion, reasoning that Waterfront 

had ―engaged in undue delay‖ in asserting a challenge to a 

restriction that had been in existence since the lawsuit was 

filed, and that the proposed change would prejudice the City 
29

because it constitutes ―a change to [Waterfront‘s] theory of 

liability.‖ Waterfront III, 2011 WL 857294, at *6 (citations 

omitted). Waterfront vigorously attacks the District Court‘s 

denial of its motion for leave to amend. We have considered 

each of Waterfront‘s contentions, and reject them for the 

reasons that follow.

A district court‘s decision to deny a motion for leave 

to amend a complaint under Rule 15(a)(2) is reviewed for 

abuse of discretion. See, e.g., Estate of Oliva v. New Jersey, 

604 F.3d 788, 803 (3d Cir. 2010). The motion should be 

granted ―when justice so requires.‖ Fed. R. Civ. P. 15(a)(2). 

We are mindful that the pleading philosophy of the Rules 

counsels in favor of liberally permitting amendments to a 

complaint. Adams v. Gould Inc., 739 F.2d 858, 864 (3d Cir. 

1984). The motion is nevertheless committed to the ―sound 

discretion of the district court.‖ Cureton v. Nat’l Collegiate 

Athletic Ass’n, 252 F.3d 267, 272 (3d Cir. 2001). 

Waterfront makes much of our statement that 

―prejudice to the nonmoving party is the touchstone for the 

denial of the amendment.‖ Dole v. Arco Chem. Co., 921 F.2d 

484, 488 (3d Cir. 1990) (citation omitted). Waterfront argues 

that the proposed amendment would not prejudice the City in 

that Waterfront would seek no further discovery with respect 

to the new claim and that the District Court abused its 

discretion because it made no finding that the amendment 

would cause the City discovery-related prejudice. 

Waterfront‘s arguments ignore that discovery-related 

prejudice is not the only prejudice that may justify denial of a 

motion for further leave to amend a pleading. We have also 

explained that a significant, unjustified, or ―undue‖ delay in 
30

seeking the amendment may itself constitute prejudice 

sufficient to justify denial of a motion for leave to amend. 

See, e.g., Cureton, 252 F.3d at 273 (―the question of undue 

delay requires that we focus on the movant‘s reasons for not 

amending sooner.‖). Following this principle, we have 

refused to overturn denials of motions for leave to amend

where the moving party offered no cogent reason for the

delay in seeking the amendment. See, e.g., Oliva, 604 F.3d at 

803 (no justification for a five-year delay); Bjorgung v. 

Whitehall Resort, 550 F.3d 23, 26 (3d Cir. 2008) (no 

explanation for three-year delay); Cureton, 252 F.3d at 273-

74 (no reasons given for two-and-a-half year delay).

Here, Waterfront has proffered no good reason for 

failing to mention the width restriction in any of its court

filings until late 2010, over three years after it filed its 

original complaint in 2007. Instead of explaining the delay, 

Waterfront attempts to shift the timeframe of analysis. It

argues that it only delayed by five months between when the 

City raised the mootness issue in April of 2010 and when 

Waterfront filed its motion in August of 2010. Waterfront

contends that this shift is proper because ―[i]t was not until 

the City sought to dismiss [Waterfront‘s] claims as moot that 

[it] understood the City had overlooked the fact that the 

March 2006 Ordinance imposed a width limit as well as a 

height limit.‖ Appellant‘s Br. at 25; see also Appellant‘s 

Reply Br. at 3. We reject this argument. For one, it is a

plaintiff‘s burden to set forth the grounds on which it rests a

claim for relief. See Fed. R. Civ. Proc. 8(a). Moreover, if 

there was any oversight as to what portions of the Old City 

Overlay aggrieved Waterfront, it was of its own doing. 

Waterfront has conceded, as it must, that it ―did not 

specifically reference the width limit in its complaint.‖ R. 
31

482. By contrast, the 65‘ height restriction, or height 

restrictions generally, are explicitly mentioned over two 

dozen times. See, e.g., R. 114-15, 118, 122, 129-38 (Compl.

¶¶ 172, 174, 180c, 190, 218, 254-55, 267-68, 284-85, 287).

But, even if the timing of the filing of the motion 

should be measured from the time when the City first raised 

the mootness argument, Waterfront delayed filing the motion

until after it had filed several briefs on the mootness point,

totaling hundreds of pages, as well as a motion to amend the 

complaint to add the CRO to the case. None of those filings, 

which occupied the District Court‘s time over the course of 

several months, mentioned the width restriction. We consider 

this sequence of events to be an ―unwarranted burden on the 

court‖ that also counsels against granting Waterfront‘s 

request for an additional amendment. Cureton, 252 F.3d at 

273 (citation omitted).

Moreover, the District Court correctly determined that 

the City would be prejudiced because the proposed 

amendment would bring a new theory into the case several 

years after the beginning of the litigation. Waterfront 

contends that the addition of the width restriction does not 

constitute a new theory of liability because the complaint 

―sought relief against the March 2006 Ordinance as a whole.‖ 

Appellant‘s Br. at 21. It is true that Waterfront‘s complaint 

mentioned the March 2006 Ordinance more generally on 

occasion, but, as mentioned, the complaint is replete with 

specific mentions of the height restriction and not any 

mention of the width issue. 

Finally, Waterfront contends that the addition of the 

width restriction would not constitute a new theory because 
32

the width restriction is a ―de facto  ̳height‘ restriction that 

prevents [Waterfront‘s] high-rise project.‖ Appellant‘s Reply

Br. at 1, 7. This argument begs the question of why, if it was 

so obvious that the width restriction was a problem, 

Waterfront never mentioned it explicitly at least once in its 

several complaints.

11

While we are cognizant of the liberal amendment 

policy of the Rules, it is also true that they give district courts 

discretion to deny a motion in order to forestall strategies that 

are ―contrary to both the general spirit of the federal rules and 

the liberal amendment policy of Rule 15(a).‖ 6 CHARLES 

ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE &

RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE

§ 1488, at 814 (1984) (Supp. 2012). We find no reason for 

Waterfront‘s failure to mention the width restriction until

2010, other than because the motion was simply an attempt to 

avoid dismissal due to mootness. Like in Cureton, the

District Court here ―had considerable familiarity with the 

development of the factual and legal issues‖ and ―carefully 

analyzed plaintiffs‘ proffered reasons for delay, the prejudice 

to [the defendant], and the substance of the amended 

complaint.‖ Cureton, 252 F.3d at 274. We therefore

conclude that the District Court conscientiously applied the 

 

11 Waterfront‘s argument that the width restriction was 

supposedly mentioned at depositions does not change this 

conclusion. The proper focus of the inquiry is whether 

Waterfront raised the argument in its pleadings or other 

filings in court, not whether an attorney at an open-ended 

deposition asked one question. 
33

principles embodied by the Rules, and did not abuse its 

discretion in denying Waterfront‘s motion to further amend.12

C. The Constitutional Challenge to the CRO 

and CRO Regulations

The District Court did permit Waterfront to amend its 

complaint to allege that the CRO and CRO Regulations were 

unconstitutionally vague and violated due process because 

they unlawfully delegated zoning power to the Planning 

Commission. On November 4, 2011, however, the court

granted the City‘s motion for summary judgment on both 

theories, which Waterfront now challenges on appeal. We 

address each contention separately below, reviewing de novo 

rulings regarding the constitutionality of a statute. See, e.g., 

United States v. Weatherly, 525 F.3d 265, 273 (3d Cir. 2008).

1. The CRO is not Unconstitutionally 

Vague

Waterfront‘s principal theory is that the CRO and the 

CRO Regulations violate due process on their face because 

they leave undefined the phrase ―development appropriate in 

scale, density, character and use for the surrounding 

community.‖ FORMER PHILA. CODE § 14-1638(12) (2009). 

Waterfront contends that because that phrase is vague, it 

cannot comply with the CRO‘s requirement to submit a plan 

 

12 Following oral argument, the parties informed us that the 

width restriction has also been rescinded. See PHILADELPHIA,

PA. ZONING CODE §§ 14-502, 14-507 (2012). Thus 

Waterfront‘s attempt to amend the complaint is now futile as 

well. 
34

of development that meets those characteristics. See

Appellant‘s Br. 34-39.13

The Supreme Court has explained that laws must not 

fail to ―give [a] person of ordinary intelligence a reasonable 

opportunity to know what is prohibited. . . .‖ Vill. of Hoffman 

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497

(1982) (citing Grayned v. City of Rockford, 408 U.S. 104, 

108-09 (1972)). To succeed on a facial vagueness challenge, 

the plaintiff must ―demonstrate that the law is impermissibly 

vague in all of its applications.‖ Id. at 498. Importantly,

―economic regulation is subject to a less strict vagueness test‖ 

than criminal laws because businesses ―may have the ability 

to clarify the meaning of the regulation by its own inquiry.‖ 

Id. at 498-99. In determining whether a statute is 

unconstitutionally vague, we look to the law as a whole to 

determine whether a person of ordinary intelligence may be 

able to ascertain the meaning of the challenged terms. See 

Grayned, 408 U.S. at 110. That an ordinance may contain 

some ambiguities does not render it impermissibly vague. 

Vill. of Hoffman Estates, 455 U.S. at 502 (upholding 

ordinance that did ―contain ambiguities‖). Thus, to find an 

 

13 It is unclear whether the vagueness argument asserts a due 

process or an equal protection challenge. Compare 

Appellant‘s Br. at 34-39 (using due process language) with id.

at 40-42 (citing Taylor v. Moore, 154 A. 799 (Pa. 1931) for 

the proposition that the alleged vagueness offends equal 

protection principles); cf. Waterfront V, 829 F. Supp. 2d at 

303-04 (couching vagueness argument as equal protection 

claim). Because we conclude that the CRO and the CRO 

Regulations are not unconstitutionally vague, Waterfront‘s 

argument fails under either theory.
35

economic civil statute void for vagueness, it must be so vague 

as to be ―no rule or standard at all.‖ Boutilier v. Immigration 

& Naturalization Serv., 387 U.S. 118, 123 (1967). 

Guided by these principles, it is clear from the entirety 

of the CRO and the CRO Regulations that they do not provide

―no standard at all.‖ First, the words on which Waterfront 

focuses, ―surrounding community,‖ have clear, ascertainable 

meanings. It is undisputed that the geographical reach of the 

CRO is clearly defined and unambiguous. See FORMER 

PHILA. CODE § 14-1638(3) (2009). Thus, there is no 

confusion as to the geographical scope of the statute, which 

logically informs the use of the word ―community‖ in the law. 

Moreover, the word ―surrounding‖ in this context has an 

easily ascertainable meaning: ―being the environment or 

adjacent areas,‖ RANDOM HOUSE WEBSTER‘S DICTIONARY at 

1916 (2d Ed. 1999). Thus, a developer need only look at 

other structures in the immediate vicinity of a proposed 

project to determine whether it is similar to existing 

constructions in ―scale, density, character or use,‖ words 

which Waterfront does not and cannot contend are 

ambiguous. FORMER PHILA. CODE § 14-1638(12) (2009). If 

a developer of reasonable intelligence faces a close call after 

analyzing the constructions in the district, it can apply for a 

permit to eliminate any remaining ambiguity. This is 

sufficient to comply with constitutional requirements. See 

Vill. of Hoffman Estates, 455 U.S. at 498-99.

We find further support for our conclusion in decisions 

of our sister Circuits regarding similarly-worded zoning 

ordinances. In Mayes v. City of Dallas, 747 F.2d 323 (5th

Cir. 1984), the court held that an ordinance which required 

certain aspects of new buildings to ―harmonize‖ with the 
36

―overall character‖ of a district, or with certain ―surrounding 

structures,‖ did not unlawfully fail to set forth ―objective, 

articulated standards sufficient to prevent the arbitrary 

exercise of government power.‖ Mayes, 747 F.3d at 324-25. 

Similarly, the Fourth Circuit has held that an ordinance 

requiring projects to be ―compatible‖ with and to ―preserve 

the rural character of the . . . agricultural community,‖ is not 

unconstitutionally vague, noting that the term ―compatible‖ 

had only one logical meaning. Henry v. Jefferson Cnty. 

Planning Comm’n, 215 F.3d 1318 (4th Cir. June 9, 2000) 

(table opinion). In doing so, the court also noted that specific 

provisions of the ordinance, as well as its stated legislative 

purposes, provided builders with ―sufficient notice and 

warning as to what requirements [they] must meet in order to 

obtain‖ a building permit. Id.

Indeed, as in Henry, many provisions of this statute go 

a long way toward eliminating ambiguity (if any exists at all)

in the words ―surrounding community.‖ The CRO has a 

stated legislative purpose, which is to permit construction in 

the district pursuant to the guidelines set forth in the Civic 

Vision while a more comprehensive plan for the improvement

of the district is developed. Id. § 14-1638(1)(h). And, as 

catalogued above, both the CRO and the CRO Regulations 

contain a long list of prohibited and permitted uses for lots 

within the area they cover, and specify detailed requirements 

for new constructions. See, e.g., id. §§ 14-1638(4)-(9). These 

provisions thus narrow the universe of structures a potential 

builder could consider in determining whether a project 

would pass muster under the CRO. Finally, the CRO 

Regulations list seven specific factors that the Planning 

Commission must consider in evaluating a proposed plan of 

development, directing the Planning Commission‘s review of
37

proposed plans submitted under the CRO and thereby further 

alleviating any remaining ambiguities. See Maher v. City of 

New Orleans, 516 F.2d 1051, 1062 (5th Cir. 1975) (―To 

satisfy due process, guidelines to aid a commission charged 

with implementing a public zoning purpose need not be so 

rigidly drawn as to prejudge the outcome in each case, 

precluding reasonable administrative discretion‖). 

2. The CRO does not Unlawfully Delegate 

Authority to the Planning Commission

Waterfront also contends that the CRO and the CRO 

Regulations violate substantive due process because they 

irrationally permit the Planning Commission to ―control the 

issuing of zoning permits on the basis of the Civic Vision and 

the Master Plan instead of the existing zoning,‖ and because 

such delegation of power is unlawful under the Philadelphia 

Home Rule Charter. Appellant‘s Br. at 43.

Waterfront‘s irrationality argument ignores our 

repeated admonitions that we:

largely defer to legislative judgment on such 

matters as zoning regulation because of the 

recognition that the process of democratic 

political decisionmaking often entails the 

accommodation of competing interests, and thus 

necessarily produces laws that burden some 

groups and not others. This court will not 

substitute its judgment about land use policy 

and thereby undermine the legitimacy of 

democratic decisionmaking unless the local 
38

legislative judgment is without a plausible 

rational basis. 

Pace Res., Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1035 (3d 

Cir. 1987) (internal quotation marks and citation omitted). 

Waterfront posits that it was irrational to delegate zoning 

power to implement the Civic Vision, a document that 

Waterfront contends was designed to outline zoning goals and 

not to carry the force of law. Even accepting Waterfront‘s 

dubious characterizations of the effect of the CRO, we fail to 

see anything irrational in deciding to enact into law a zoning 

document approved by the Planning Commission, the very

agency entrusted to advise the City on zoning matters, simply 

because the document was originally conceived as providing 

aspirational, non-binding goals. Nor can Waterfront seriously 

contend that the City Council may not rationally conclude 

that such an entity should have a say in the approval of 

specific projects, given that the entity is specifically required 

by the City Charter to advise the City Council on zoning

matters. See 351 PA. CODE §§ 4.4-601, 4.4-604.

Waterfront‘s argument that the CRO is an unlawful

delegation of power to the Planning Commission also fails. A

violation of state laws governing the allocation of power 

between local entities does not, without more, establish a

federal substantive due process violation. See, e.g., Baker v. 

Coxe, 230 F.3d 470, 474 (1st Cir. 2000).14 

 

14 Moreover, although it is true that the Philadelphia Charter 

gives the Licensing Department the express power to issue 

building permits, it also permits the City Council to add new 

powers and duties to agencies if not otherwise inconsistent 

with the Charter. See 351 PA. CODE § 2.2-305. Thus, any 
39

We conclude that the CRO and the CRO Regulations 

are not unconstitutionally vague, and that any delegation of

zoning authority to the Planning Commission by the CRO 

does not violate the due process clause. Summary judgment 

on Waterfront‘s claims against the CRO and the CRO 

Regulations was proper.

D. The Promissory Estoppel and Detrimental 

Reliance Claims

Finally, Waterfront asserts state law claims of

promissory estoppel and detrimental reliance. The District 

Court granted summary judgment to the City against these 

claims, Waterfront V, 829 F. Supp. 2d at 304-05, a ruling we 

review de novo, applying the same legal standard applied by 

the District Court. Am. Eagle Outfitters v. Lyle & Scott Ltd., 

584 F.3d 575, 580-81 (3d Cir. 2009). Summary judgment is 

only appropriate if, after reviewing the record in the light 

most favorable to the nonmoving party, it is apparent that 

there is no genuine dispute as to any fact material to the legal 

claims at issue in the case. Id. at 581. Whether a disputed 

fact is material depends on the elements of the cause of action 

on which the claim for relief is based. For Waterfront to 

prevail under these state law theories, it must establish that 

(1) the City made a promise it ―reasonably expect[ed] to 

induce action or forbearance by [Waterfront], (2) the promise 

does induce action or forbearance by [Waterfront], (3) and 

injustice can only be avoided by enforcing the promise.‖ 

 

delegation of zoning or permit-issuing power to the Planning 

Commission, if the CRO can even be fairly characterized as 

such, is permitted by Philadelphia‘s laws.
40

Carlson v. Arnot-Ogden Mem’l Hosp., 918 F.2d 411, 416 (3d 

Cir.1990) (citation omitted).15 

The District Court concluded that Waterfront failed to 

satisfy the first element because there was insufficient 

evidence that the City had made a ―valid and enforceable 

promise‖ to Waterfront. See Waterfront V, 829 F. Supp. 2d at 

304-05. Waterfront posits that this was error because under 

Pennsylvania law a specific promise is not required, but 

rather ―[r]epresentations made to the plaintiff‖ are sufficient. 

Appellant‘s Br. at 49. But it is a basic tenet of contract law 

that ―mere expression[s] of intention, hope, desire, or opinion, 

which shows no real commitment, cannot be expected to 

induce reliance.‖ 3 CORBIN ON CONTRACTS § 8.9, at 29-30

(Rev. Ed. 1996); see also C&K Petroleum Prods., Inc. v. 

Equibank, 839 F.2d 188, 192 (3d Cir. 1989) (refusing to 

permit an action for detrimental reliance based on a ―broad 

and vague implied promise‖). 

Here, the totality of the relevant facts reveals at most 

that the City and certain of its entities supported Waterfront‘s 

pursuit of the World Trade Center project at various times. 

For example, the City supported the Project by 

recommending Waterfront to receive a World Trade Center 

license, by participating in the feasibility study committee,

and by brokering or supporting negotiations between 

Waterfront and civic associations. See supra at 3-5. The 

record also shows that City officials made statements in 

 

15 Promissory estoppel and detrimental reliance claims are 

treated interchangeably by Pennsylvania courts. See, e.g., 

Rinehimer v. Luzerne Cnty. Cmty. Coll., 539 A.2d 1298, 1306 

(Pa. Super. Ct. 1988).
41

support of Waterfront‘s partnership with the Port Authority

(but it is undisputed that the City was not a party to this 

agreement), and it is also true that the City included 

Waterfront‘s Site in a request to receive from the 

Commonwealth tax-preferred status for certain 

neighborhoods in the City. Finally, the record shows that 

certain City agencies were aware of the importance to 

Waterfront of maintaining restriction-free zoning status. See, 

e.g., R. 724 (presentation by Waterfront to the Licensing 

Department in February of 2002 explaining that continuous 

C-4 zoning was important for the Project). None of these 

facts, however, can fairly be interpreted as the type of 

representation by the City that would be sufficient to bind it 

under the doctrine of promissory estoppel, and Waterfront has 

not otherwise pointed to any commitment of any type by City 

officials, let alone statements that the City was committed to 

adhering to its present intentions indefinitely.

Moreover, the cases cited by Waterfront in support of 

its position are distinguishable. See Bootel v. Verizon 

Directories Corp., No. Civ. A. 03-1997, 2004 WL 1535798, 

*9-10 (E.D. Pa. June 25, 2004) (involving an affirmative 

representation to a plaintiff that she could rely on a written 

policy as if it were a binding contract); Pennsy Supply, Inc. v. 

Am. Ash Recycling Corp., 895 A.2d 595, 605-06 (Pa. Super. 

2006) (involving affirmative representations about the quality 

of a product on which a third party relied to pursue a project). 

Neither case stands for the proposition that a court will 

transform representations about present intentions into 

binding promises of future action.

We recognize, as the District Court did, that the 

―promise‖ sufficient to support an estoppel claim can take 
42

different forms under Pennsylvania law. See Waterfront V, 

829 F. Supp. 2d at 304 (collecting cases). However, we think 

that an important principle of contract law is controlling here: 

whether a plaintiff‘s actions constitute ―a sufficient promise 

to invoke the doctrine . . . is a question ultimately of the 

objective reasonableness of any reliance.‖ CORBIN ON 

CONTRACTS § 8.12, at 176 (analyzing Pennsylvania law). 

Waterfront is a sophisticated, experienced developer. If it

interpreted any of the encouragement by the City as a promise 

of perpetual support for the Project, any subsequent reliance 

based on such interpretation was unreasonable and, therefore, 

not actionable.

IV. Conclusion

Waterfront‘s constitutional challenge to the height 

restriction imposed by the March 2006 Ordinance was 

properly dismissed. Waterfront asserted a facial challenge 

against the 65 feet height restriction imposed by that 

ordinance. When the City rescinded that restriction, 

Waterfront obtained exactly the type of relief it sought and,

therefore, it no longer had a claim for prospective relief. The 

remedies of compensatory or nominal damages are not 

available when a facial attack on a zoning ordinance rests on 

either a theory that the law violated equal protection or was 

arbitrary and capricious, or that the plaintiff was harmed by 

the mere enactment of the restriction.

Nor did the District Court abuse its discretion in 

refusing to allow Waterfront a further amendment to its 

complaint. The gravamen of Waterfront‘s claim is that the 

height restriction was unconstitutional, and it had years to 

explicitly mention that it also challenged the width restriction. 
43

It did not do so until the eleventh hour, without offering any 

cogent explanation for this delay. Under these circumstances, 

it was well within the District Court‘s discretion to refuse to 

permit further amendments.

Finally, the District Court correctly concluded that the 

Central Delaware Riverfront Overlay was not 

unconstitutionally vague and did not violate substantive due 

process, and that Waterfront had offered no evidence on 

which to base a claim for promissory estoppel or detrimental 

reliance.

For the foregoing reasons, we will affirm the District 

Court‘s judgment.