2004 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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

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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

 

No. 02-4434

 

GUILERMINA RUIZ; RODOLFO

VILLAGOMEZ; ANTONIO LOPEZ;

ANTONIO ORTIZ; RAFAEL LUNA;

ANGELICA SANCHEZ;

JOSE J. PADRON; and J.

GUADALUPE LOPEZ

 v.

NEW GARDEN TOWNSHIP; ROBERT

N. TAYLOR, III; WILLARD H.

SMEDLEY;

PATRICK J. KENNEY; NORMAN S.

NUNN; FRANK J. ZAGORSKIE;

THE ZONING HEARING BOARD OF

NEW GARDEN TOWNSHIP;

DAVID CARLIN; ANGELO ZUNINO;

JAMES DILUZIO,

 Appellants

DANTE DIUBLADO; LUCY M.

DIUBLADO, (Intervenors in D.C.)

 

 

On Appeal from the United States

District Court

for the Eastern District of Pennsylvania

(Civil Action No. 01-CV-5081)

District Judge: Hon. Anita B. Brody

 

Argued: December 15, 2003

 

Before: ROTH, McKEE, and ROSENN,

Circuit Judges.

(Opinion Filed: July 26, 2004)

 

ARTHUR W. LEFCO, ESQ. (Argued)

JAMES W. GICKING, ESQ.

Marshall, Dennehey, Warner, Coleman

& Goggin

1845 Walnut Street, 17th Floor

Philadelphia, PA 19103-4717

Attorneys for Appellants

ROBERT F. SALVIN, ESQ. (Argued)

Community Impact Legal Services, Inc.

419 Avenue of the States

Crozer Building, Suite 201

Chester, PA 19013

Attorney for Appellees

 

OPINION OF THE COURT

 

McKEE, Circuit Judge.

We are asked to review an order of

the district court enjoining New Garden

Township and its employees (“the
2

Township”) from enforcing a zoning

enforcement notice that would have

resulted in the eviction of plaintiff

tenants.1 The plaintiffs requested the

injunction pursuant to 42 U.S.C. § 1983

arguing that the Township had violated

their Fourteenth Amendment right to

procedural due process in failing to notify

them of a zoning hearing into whether

their landlord was violating certain zoning

ordinances by allowing mobile homes on

property not zoned for residential use. We

agree that plaintiffs have not established a

procedural due process violation, and we

will therefore reverse.

I. FACTS AND PROCEDURAL

HISTORY

Since the 1990s, plaintiffs

Guillermina Ruiz, Rodolfo Villagomez,

Antonio Lopez, Antonio Ortiz, Rafael

Luna, Angelica Sanchez, Jose J. Padron

and J. Guadalupe Lopez have been tenants

in mobile homes located at 320 Ellicott

Road in New Garden Township,

Pennsylvania. Since 1989, that property

has been designated as a C-I-2 Limited

Commercial Industrial District.2

The plaintiffs paid rent in the

amount of $500 to $600 per month

pursuant to oral leases with Dante and

Lucy DiUbaldo.3 It is uncontested that

DiUbaldo agreed that at least one of the

tenants could remain on the property for

up to three years and that DiUbaldo would

decide how long the tenant would have to

vacate the property if he decided to leave.

On June 22, 2000, the Township

issued an enforcement notice citing

DiUbaldo for violations of the township’s

zoning ordinance. The violation resulted

from the presence of the plaintiffs’ mobile

homes on the property located at 320

Ellicott Road. The zoning notice was

issued because the light industrial zoning

designation of that property did not allow

the property to be used as a trailer park.4

 

1

 The defendants also ask us to

reverse the district court’s decision to

deny its motion to dismiss pursuant to

Fed. R. Civ. P. 12(b)(6) and order that

the action be dismissed with prejudice. 

The record before us regarding the

disposition of the motion to dismiss is

unclear. The district court mentions it in

its opinion in support of issuing the

permanent injunction but does not

explicitly state that it denied the motion

or explain why it denied the motion. Nor

does the motion appear on the district

court docket included in the record on

appeal. As a result, we feel that the

district court would be better equipped to

revisit its decision and the state of this

claim on remand.

 

2

 The property contains “mushroom

houses.”

 

3

 We will refer only to Mr. DiUbaldo

in the rest of the opinion because he

managed the property.

 

4

 The property became part of the C-I2 Limited Commercial Industrial District

when it was re-zoned in 1989, but had

been zoned as residential beforehand. 
3

The notice required DiUbaldo to begin

removing the mobile homes within 10 days

and to complete the process within 45

days. The notice also informed him that

he could appeal the enforcement action to

the New Garden Township Zoning

Hearing Board (“ZHB”).

DiUbaldo did appeal, and hearings

were held on November 15 and December

13, 2000, before the ZHB. None of the

tenants participated in that appeal although

notice of the hearings was apparently

posted on the Ellicott Road property. The

ZHB denied DiUbaldo’s appeal on January

22, 2001, but it altered the terms of the

aforementioned enforcement order.

DiUbaldo was ordered to give the tenants

notice to quit the property by March 1,

2001 and he was ordered to remove the

mobile homes by July 2001.5

As instructed, DiUbaldo served the

notices to quit on the tenants around

March 1, 2001. Plaintiff Lopez testified

that this was when he first learned that the

Township was enforcing the zoning

ordinance and the effect it would have on

him. Plaintiff Luna testified that he did

not learn of the situation until after the

hearing. Despite the notice to quit, the

tenants failed to vacate the property by

July 2001, and DiUbaldo thereafter

initiated eviction proceedings against

them. As a result of those proceedings, a

local magistrate eventually ordered the

plaintiffs’ eviction.

The tenants then filed this action in

the U.S. District Court for the Eastern

District of Pennsylvania seeking to enjoin

the ZHB’s order requiring DiUbaldo to

serve them with notices to quit. They

argued that, given their property interest,

they were entitled to notice of the

proceedings before the ZHB. They

claimed that the Township’s failure to

notify them of those hearings violated their

right to procedural due process under the

Fourteenth Amendment.6 As we noted at

the outset, the district court agreed and

granted a permanent injunction. This

appeal followed. 

II. JURISDICTION AND

STANDARD OF REVIEW

 

5

 Although DiUbaldo served the

notices to quit on the plaintiffs pursuant

to the enforcement notice that issued

after he lost his appeal before the ZHB,

he also filed a conditional use application

with the New Garden Board of

Supervisors. At the hearings before the

Board of Supervisors, he argued that the

mobile homes were a permissible

expansion of a pre-existing

nonconforming use because one of the

mobile homes was placed on the property

before 1989 when the property was rezoned. It is undisputed that the tenants

were properly given notice of these

hearings, and that some of them attended

the hearings. The Board of Supervisors

denied his application.

 

6

 They also argued that some of the

procedural safeguards that due process

required were codified in the hearing

notification guidelines at 53 Pa. Stat.

Ann. § 10616.1 (2003). 
4

The district court’s final order

granting a permanent injunction is

appealable under 28 U.S.C. § 1291.

Ameristeel Corp. v. Int’l Bhd. of

Teamsters, 267 F.3d 264, 267 (3d Cir.

2001). We have jurisdiction over the

section 1983 claim under 28 U.S.C. §

1331, and we have supplemental

jurisdiction over concomitant state law

issues under 28 U.S.C. § 1367. “We

review a district court’s decision to grant

or deny a permanent injunction under an

abuse of discretion standard. However,

because an abuse of discretion exists

where the district court’s decision rests

upon a clearly erroneous finding of fact, an

errant conclusion of law, or an improper

application of law to fact, we apply

plenary review to the District Court’s legal

conclusions.” Ameristeel, 267 F.3d at 267

(internal quotation marks and citations

omitted).

III. DISCUSSION

In order to satisfy the requirements

for a permanent injunction, plaintiffs must

establish that they will ultimately succeed

on their claim. Shields v. Zuccarini, 254

F.3d 476, 482 (3d Cir. 2001). In order to

prevail on their section 1983 claim,

plaintiffs must establish that persons acting

under color of law deprived them of a

protected property interest without due

process of law. Midnight Sessions et al. v.

City of Philadelphia, 945 F.2d 667, 680

(3d Cir. 1991). 

State law defines property interests

for purposes of procedural due process

claims. See Bd. of Regents v. Roth, 408

U.S. 564, 577 (1972). The parties agree

that, under Pennsylvania law, leaseholders

have the same right to possession of real

estate as an owner during the term of the

lease. The district court found that the

plaintiffs had a protected property interest

in the form of oral month-to-month leases

because the conduct between the parties

established that the plaintiffs each had a

month-to-month lease. However, we hold

that, even if plaintiffs did establish a

protected interest based upon their

leasehold estates, they were nevertheless

not denied procedural due process because

the procedure utilized by the ZHB was not

constitutionally infirm.

“In Pennsylvania, if the landlord

and tenant have failed to specify a definite

period of time for the lease to continue, the

court may imply the type of tenancy

indicated by the conduct of the parties.”

RONALD M. FRIEDMAN, PA. LANDLORDTENANT LAW AND PRACTICE § 1.10 (3d

ed. 2004). The tenants were required to

pay about $500 to $600 monthly, and such

monthly rental payments generally support

the existence of a month-to-month

tenancy. See RESTATEMENT (SECOND) OF

PROPERTY § 1.5 (2003) (“Where the

parties enter into a lease of no stated

duration and periodic rent is reserved or

paid, a periodic tenancy is presumed. The

period thus presumed is equal to the

interval for which rent is reserved or paid

to a maximum periodic tenancy of year to

year.”). 

However, “[t]he presumption that a

periodic tenancy is intended may be

rebutted by language or circumstances
5

showing a contrary intent.” Id. The record

here contains unchallenged evidence that

the plaintiffs could terminate their leases at

any time, and that DiUbaldo would then

decide how long tenants had to vacate their

premises following such termination.

Thus, the landlord or tenant could end the

tenancy abruptly at any time even though

the rent was calculated and paid monthly.

Since the tenancies were “for an uncertain

or indeterminate term which is terminable

at the volition of either landlord or tenant,”

plaintiffs arguably had interests analogous

to tenancies at will rather than month-tomonth tenancies. P.L.E. 2d LANDLORD

AND TENANT § 74.7 Although the tenants

paid rent on a monthly basis, there is no

evidence that the plaintiffs and DiUbaldo

explicitly agreed to month-to-month

leases, and the district court does not

explain how it concluded that these were

month-to-month leases as opposed to

tenancies at will.

However, since the Township now

agrees that tenants had month-to-month

leases, we will proceed as if they did. See

Brief at 23 (“as month-to-month tenants,

plaintiffs had no legitimate expectation to

continued possession of property . . .”).8

Moreover, under Pennsylvania law, any

tenancy creates a property interest. Berrios

v. City of Lancaster, 798 F. Supp. 1153,

1157 (E.D. Pa. 1992) (stating that

Pennsylvania law regards any lease as a

property interest); see also Ward v.

Downtown Dev. Auth., 786 F.2d 1526,

 

7

See Heck v. Borda, 6 A. 392, 393

(Pa. 1886). There, the Pennsylvania

Supreme Court reversed a trial court’s

holding that a lease established a tenancy

at will, finding instead that the lease

established a year-to-year tenancy. The

Heck Court found that the parties

intended to create a tenancy from yearto-year because the written lease stated

that the tenancy would last as long as a

yearly royalty was paid. Id. Because the

lessor had express authority to terminate

the lease in certain events, the court

believed this authority tended “to exclude

the inference” that both parties had the

power to terminate it at will, which is a

necessary element of a tenancy at will.

Id. The court also held that a provision

requiring the landlord to spend a certain

amount to put the property in working

order further established that the parties

did not intend to create a tenancy at will.

Id. Although the leases here also include

a periodic payment of rent, they

expressly provide that either party can

terminate them at any time. Unlike the

lease in Heck, they do not limit the right

to abruptly terminate to only one party,

nor do these oral leases have any terms

suggesting that a future relationship is

expected. The lease in Heck required the

landlord’s investment in the leased

property.

 

8

 The plaintiffs also argue that their

leases were year-to-year, but this

argument is waived because the plaintiffs

raised it for the first time on appeal. See

Gass v. V.I. Telephone Corp., 311 F.3d

237, 246 (3d Cir. 2002).
6

1529 (11th Cir.) (discussing how Florida

law makes any tenancy a compensable

property interest for purposes of Fifth

Amendment public takings). 

However, the plaintiffs’ property

interest here is tenuous at best because any

such interest appears to have been created

in violation of a zoning ordinance. Cf.

Puleo v. Zoning Hearing Board of

Schuykill Township, 722 A.2d 789 (Pa.

Commw. 1999) (holding that property

owners could not retain a structure on their

property because they built the structure in

violation of a zoning ordinance and

another municipal ordinance).9

However, given the facts here, we

need not decide whether plaintiffs had a

cognizable property interest because even

if they did, it is clear that they had no

reasonable expectation of future

occupancy beyond the period which the

landlord might agree to in the event of

termination.10 As noted, that period was

undefined and left completely to the

discretion of the landlord. However,

Pennsylvania law requires that tenants be

given at least 30 days’ notice of

termination. 68 Pa. C.S.A. § 250.501(c)

(2001). Accordingly, it appears that the

tenants could reasonably expect no more

than present enjoyment of their leased

premises and 30 days additional occupancy

upon notice that their landlord decided to

terminate any of their leases. See Ward,

786 F.2d at 1529 (stating in dicta that

legally sufficient notice to vacate would

terminate a tenant’s interest as of the end

of the notice period).11

 

9

 Judge Rosenn’s analysis begins with

the conclusion that “[i]t is undisputed

that neither the landowner nor the

plaintiff-renters have complied with any

of [the applicable zoning] codes.”

Concurring Op. at 3. It then proceeds

governed by the principle that “the

unlawful occupation of the rental

property by the plaintiff-renters has

vested no property right in them.” Id. at 5

(citing Puleo). However, the plaintiffrenters are complaining that they had no

opportunity to appear at the zoning

hearing that found their property to be in

violation and therefore could not defend

against that allegation. Inasmuch as it

appears that the trailers in question are

the only homes the plaintiffs have, their

interest in defending against the

violations was at least as strong as that of

DiUbaldo, the absentee owner. 

Accordingly, an analysis that begins and

ends with charging the plaintiffs with the

outcome of the zoning hearing does not

adequately respond to the legal challenge

implicit in plaintiffs’ appeal.

 

10 Cf. U.S. v. Petty Motor Co., 327

U.S. 372 (1946). Petty held that a tenant

can not have an expectation to remain on

property following condemnation for

public use given an express term in the

lease to relinquish all rights upon such

condemnation. Id. at 376.

 

11 The tenants in Ward had a protected

property interest beyond that period of

notice and, based on that, a right to

procedural due process because the state
7

The ZHB ordered DiUbaldo to

notify the tenants of its ruling by March 1,

2001, and to remove the mobile homes

from the property by July 1, 2001. Thus,

from the time the tenants first heard of the

necessity of leaving the premises, they had

four months to depart. Their claimed

property interest, however, entitled them to

only 30 additional days of tenancy after the

notification by the landlord of termination

of the lease. Thus, the actions of the ZHB

could not have deprived the tenants of any

property interest to remain on the

premises. In fact, the ZHB ruling gave the

tenants more notice of termination than

they would otherwise have been entitled

to. Accordingly, there could not have been

an unconstitutional taking of a protected

property interest.12

C. Notice

Because the plaintiffs were not

deprived of a protected property interest in

their leases, the Constitution did not

mandate that they receive notice of the

hearing before the ZHB, and the district

court’s conclusion to the contrary can not

stand.

The plaintiffs also argue that the

Pennsylvania Municipalities Planning

Code (“MPC”) gives them a right to

notice. However, we are not persuaded.

The MPC requires localities to send an

enforcement notice to “the owner of record

of the parcel on which the violation has

occurred, to any person who has filed a

written request to receive enforcement

notices regarding that parcel, and to any

other person requested in writing by the

owner of record.” 53 Pa. Stat. Ann. §

10616.1 (2001). A lessee is treated as an

owner under section 10616.1 only “if he is

authorized under the lease to exercise the

rights of the landowner” or otherwise has

a proprietary interest in the land. 53 Pa.

Stat. Ann. § 10107 (2001). The plaintiffs

meet none of these conditions precedent to

agency that acquired the property and

displaced the tenants did not meet the

“conditions set forth in the legislative

grant of its authority,” including holding

hearings on the hardship that the tenants

would endure if they were displaced. Id.

at 1532.

 

12 At oral argument, the plaintiffs

cited Schuykill Township v. Overstreet,

454 A. 2d 695 (Pa. Commw. Ct. 1983),

as support for its contention that

plaintiffs’ leases entitled them to be

present at the ZHB hearing. But

Overstreet held only that tenants had to

be joined in an action to enforce an

already-issued order terminating their

rights to possess the rental property. Id.

at 695-96. It says nothing about whether

the tenants had a right to be present for

the determination of their right to

continued possession of a rental property

that was violating zoning ordinances. Cf.

City of New Orleans v. Buffa, 69 S.2d

140, 140-41 (La. App. 1953) (bringing

an action against landlord and tenant to

enjoin the tenant’s use of the premises in

violation of city zoning ordinances; this

case was also cited by the plaintiffs at

oral argument).
8

getting notice under section 10616.1.

There is nothing in the record even

suggesting that they were authorized to

exercise the DiUbaldos’ rights as property

owners, that they had anything remotely

resembling a proprietary interest in the

property, or that the DiUbaldos requested

that they receive notice of zoning

violations. Therefore, the district court

properly held that the MPC did not

mandate that plaintiffs be given notice of

zoning violation enforcement. However,

the court went further and concluded that

the MPC was unconstitutional as applied

because it did not mandate notice to the

plaintiffs. We have already explained why

plaintiffs are not constitutionally entitled

to notice. Accordingly, we must reverse

the district court’s ruling that the MPC is

unconstitutional as applied to them.13

IV. CONCLUSION

For all of the above reasons, we

will reverse the district court’s order

granting a permanent injunction.

ROSENN, Circuit Judge, Concurring.

I concur in the judgment reversing

the District Court’s decision. I write

separately, however, because I cannot

agree with the majority’s analysis based on

an assumption that the plaintiffs have a

protected property interest. I also believe

due process analysis is unnecessary to the

disposition of this case.

I.

Where, as here, there is a claim of

an alleged deprivation of property without

due process, a two-part inquiry is required.

Kovats v. Rutgers, 749 F.2d 1041,

1047 (3d Cir. 1984), cert. denied sub nom.

Varma v. Bloustein, 489 U.S. 1014 (1989)

(citing Logan v. Zimmerman Brush Co.,

455 U.S. 422, 428 (1981)).

The first question is whether

the plaintiff[s] [were]

deprived of a protected

property interest. Property

interests, while protected by

t h e [U nit ed State s]

Constitution, are not created

by the Constitution. “Rather

they are created and their

dimensions are defined by

exis ting r ules o r

understandings that stem

from an independent source

such as state law.” Board of

Regents v. Roth, 408 U.S.

564, 577, 92 S. Ct. 2701,

2709, 33 L.Ed.2d 548

 

13 In doing so, we do not suggest that

we are insensitive to the situation of the

plaintiffs. It appears from everything on

this record that these tenants are migrant

farmers with few if any alternatives to

the plight in which they found

themselves. 
9

(1972); see also Leis v.

Flynt, 439 U.S. 438, 441, 99

S. Ct. 698, 700, 58 L.Ed.2d

717 (1979). The definition

of property, therefore, may

turn in some cases on a

question of state law. If a

property interest is found to

exist, t h e secon d

question—what process is

due—is a matter of federal

law. Memphis Light, Gas &

Water Division v. Craft, 436

U.S. 1, 98 S. Ct. 1554, 56

L.Ed.2d 30 (1978); see

Logan, 455 U.S. at 432, 102

S. Ct. at 1155.

Kovats, 749 F.2d at 1047. However, “[i]f

there is no property interest, there can be

no valid due process claim.” Id.

Where, as here, it is undisputed that

a residential rental use of the property at

issue was set up by the landowner in

violation of state, county, and municipal

laws, such use was null and void ab initio

under Pennsylvania law. The landowner

had acquired no vested property interest in

his unlawful rental use of the property.

The plaintiff-tenants, whose interest was

derivative and at most coextensive with

the landowner’s interest, had acquired no

vested property interest either in the same

rental use of the property. Where there is

no property right, there can be no viable

due process claim as a matter of law.

Where the plaintiffs’ due process

claim fails as a matter of law under the

first part of the two-part inquiry set forth

in Logan, 455 U.S. at 428, which is a

matter of state law, the second part of what

process is due, or not due, which is a

matter of federal law, is irrelevant. Where

the plaintiffs’ claim can be adjudicated as

a matter of state law, we should not engage

in any unnecessary constitutional due

process analysis. Neese v. Southern

Railway Co., 350 U.S. 77, 78 (1955).

The record in this case establishes

that the landowner unlawfully installed the

eleven mobile homes/trailers, without

having obtained the required permits from

the state, county, and municipal authorities

and in violation of state and local (zoning)

laws. These laws and ordinances were

enacted to promote the health, welfare, and

safety of not only the tenants, but also the

general public in the community. For

instance, the sewage permits are intended

to protect the public against diseases. The

issue, overlooked by the District Court and

the parties in dispute, is whether a private

rental arrangement between the landowner

and the plaintiffs executed and operated in

violation of state and local laws can ever

give rise to constitutionally protected

property interests.14 We consider the issue

sua sponte because of the “traditional

practice of . . . refusing to decide

constitutional questions when the record

discloses other grounds of decision,

whether or not they have been properly

raised . . . by the parties.” Neese, 350 U.S.

14 The Township’s briefs, particularly

its reply brief, have touched on the issue,

but failed to develop its argument. 
10

at 78.

It is not disputed that the Zoning

Hearing Board found, following a hearing

attended by the landowner, that he had

violated local zoning laws and the state

statutes regarding health, safety, and real

estate regulation in installing the mobile

homes/trailers and that the landowner did

not appeal the decision. The Board’s

findings of violations are conclusive now.

The Township asserts that it had placed

valid zoning restrictions at least a decade

before any of the eleven mobile

home/trailers were placed on the land at

Elliot Road, New Garden Township,

Pennsylvania, which precluded the present

residential use by the plaintiffs. Even if

assuming that the owner had obtained a

variance for residential use of his land,

which is not the case here, residential use

of his land would still have required the

landowner to prepare a land development

plan, obtain a conditional use permit,

sewage and other permits required by the

Township ordinances for any residential

development before the owner could lease

his property and the plaintiffs could

occupy the property.

The Township solicitor testified in

the District Court, and it is undisputed, that

before the mobile homes were placed on

the property, the owner had not obtained

the required “sewage permit from the

County Health Department for that mobile

home park.” He also testified that

installation of a sewage system would

interconnect with the township sewer

plant, as required. He further stated that

the Township required a use and

occupancy permit before the owner could

install the mobile home/trailers on his

property and rent them to the plaintiffs.

The Township solicitor testified also that

the owner was required to comply with the

state and county health and safety codes

governing uses of electrical and

construction anchoring. It is undisputed

that neither the landowner nor the

plaintiff-tenants have complied with any of

those codes. Nor have they applied for

and obtained any health and safety permits

necessary for the residential use of the

property.

Rental operation in Pennsylvania is

governed and regulated by state, county,

and municipal laws. See Kelly v. Borough

of Sayreville, N.J., 107 F.3d 1073,

1077 (3d Cir. 1997) (“State law creates the

property rights protected by the Fourteenth

Amendment.”). Because the mobile

homes/trailers were installed and operated

in violation of those laws, their use as

rental property by either the landowner or

the plaintiff-tenants is also unlawful. Thus,

their rental agreement is likewise unlawful

and invalid. See generally Puleo v. Zoning

Hearing Bd. of Schuylkill Township, 722

A.2d 789, 791 n.4 (Pa. Commw. Ct. 1999)

(quoting Black’s Law Dictionary 1536

(6th ed. 1990) (an “unlawful” act is

“acting contrary to, or in defiance of the

law”; “unlawful” agreements are

“ineffective in law, for they involve acts

which, though not positively forbidden, are

disapproved by law and are therefore not

recognized as ground of legal rights

because they are against public policy”));

6 Williston on Contracts 24 (4th ed. 1995)
11

([O]ne who has participated in a violation

of the law will not be allowed to assert in

court any right based upon or directly

connected with the illegal transaction.”)

(citing federal and state case law));

Highpoint Townhouses, Inc. v. Rapp, 423

A.2d 932, 935 (D.C. 1980) (“[A] contract

made in violation of a licensing statute that

is designed to protect the public will

usua lly be considered void and

unenforceable.”)(internal quotation marks

omitted) (quoting Truitt v. Miller, 407

A.2d 1073, 1079 (D.C. 1979)).

In Puleo, a new owner of a piece of

real estate property, located in a “limited

industrial zone,” had a dispute with a

company as to the ownership of two

billboards that it had installed. It was

undisputed that the billboards constituted

lawful nonconforming use. The company

ended the dispute by cutting down the

billboards with a chainsaw; there was no

question that its act was knowing and

intentional. Several months later, “without

first securing a building permit,” the new

owner “reconstructed the billboards.”

Puleo, 722 A.2d at 790. The town denied

the owner’s application after the fact for a

building permit. The town’s zoning board

also denied the owner’s request to

continue the nonconforming use of the

billboards because they were not

“involuntarily” damaged and no building

permit was secured within one year of

their destruction within the meaning of the

local ordinance. A Pennsylvania trial

court affirmed the board’s decision. 

O n further ap peal, th e

Commonwealth Court, a special state

appellate court, noted that the owner did

not challenge the validity of the zoning

ordinance, but instead argued that its

physical reconstruction of the billboards

within a year of their destruction should be

deemed to be in compliance with the

ordinance and in continuation of the

previous lawful nonconforming use. Id. at

791. The appellate court rejected the

argument, concluding that the case was

analogous to “an instance where a

landowner applie[d] for and secure[d] a

building permit through misrepresentation

or fraud.” Id. (citing D’Emilio v. Bd. of

Supervisors, 628 A.2d 1230 (Pa. Commw.

Ct. 1993)). “It follows, therefore, that if a

person who applies for and secures a

building permit through fraudulent means

acquires no rights in the structure, then a

person who completely ignores the

requirement of securing a building permit

altogether also cannot acquire any vested

right in the structure.” Puleo, 722 A.2d at

791 (emphasis added). The court

concluded that the owner’s “failure to

obtain a building permit, therefore, made

the effect of its reconstruction a nullity.”

Id. at 792 (emphasis added). 

The violation in this case is much

more flagrant than in Puleo. The owner in

Puleo was at least trying to replace the two

destroyed billboards that had been

previously lawfully installed. In this case,

the eleven trailer/mobile homes were

installed not to replace any previous lawful

use; they were installed without

permission, and without the knowledge of

the Township, in knowing violation of
12

state, county, and local laws.15 Under the

holding of Puleo, a landowner who

completely ignores the requirements of

state and local laws cannot have acquired

any vested right in the rental use of his

property. Similarly, the unlawful

occupation of the rental property by the

plaintiff-tenants has vested no property

right in them. To rule otherwise, as did the

District Court, would be to fashion a

property right that is not recognized

under—and contrary to—state law. 

The tenants here do not, and cannot,

have greater right than that of the owner

with regard to the rental property. See,

e.g., Adams Outdoor Advertising v. City

of East Lansing, 614 N.W.2d 634, 639

(Mich. 2000) (“It is fundamental property

law that a lessor can transfer no greater

rights than he possesses”; lessees’ interest

rights are limited to those possessed by the

lessor.); State v. Vaughan, 319 S.W.2d

349, 354 (Tex. Civ. App. 1959)

(“[T]enants who occupy the property have

no greater right than the owners.”); Smith

v. Woolery, 137 N.E.2d 632 (Ohio Ct.

App. 1955); Wilmington Housing Auth. v.

Nos. 500, 502, and 504 King St., and Nos.

503, 505, and 507 French St., Commercial

Trust Co., 273 A.2d 280, 281 (Del. Super.

Ct. 1970).16

 

15 The landowner has not claimed

mistake or ignorance.

 

16The cases cited by the tenants with

respect to their standing to apply for a

zoning variance, to bring a condemnation

action, or to challenge their eviction

because of health and living conditions

are inapposite. Because the alleged

leasehold interest in this case is legally

non-existing, this case is materially

different from those cases where lessees

with lawfully constituted leasehold

interests challenge condemnation or

zoning ordinances that affect their

property interests. See, e.g., Richman v.

Philadelphia Zoning Bd. of Adjustment,

137 A.2d 280, 283 (Pa. 1958) (a longterm commercial lessee had standing to

apply for a use variance); Nicholson v.

Zoning Bd. of Adjustment, 140 A.2d

604, 606 (Pa. 1958) (same); Mobil Oil

Corp. v. Zoning Hearing Bd. of

Tredyffrin Township, 515 A.2d 78, 79

(Pa. Commw. Ct. 1986).

For the same reasons, all the case

law regarding whether tenants have

standing to bring a condemnation action,

alleging unlawful taking effected under a

zoning ordinance or rezoning, is also

inapposite. See, e.g., Millcreek

Township v. N.E.A. Cross Co., 620 A.2d

558, 561 (Pa. Commw. Ct. 1993)

(commercial lessees with rights to

explore natural gas and develop wells

had standing to petition for de facto

taking).

Finally, this case is materially

different from such cases as involving

condemnation of property occupied by

tenants because of serious and dangerous

living conditions. See, e.g., Grayden v.

Rhodes, 345 F.3d 1225 (11th Cir. 2003)

(involving condemnation and eviction of

tenants in an apartment complex for their
13

Where, as here, the owner has no

vested property right, it would be

anomalous to conclude that the tenants

have any vested property right. Because

property rights, including leasehold

interests, are created by state law and the

rental arrangement between the owner and

the tenants is unlawful, the plaintiffs

obtained no vested right in the rental

property. Their rental agreement with the

owner gave them no valid leasehold

interest recognized and protected by state

law. Under such circumstances, there can

be no valid due process claim as a matter

of law because there can be no deprivation

of a nonexistent right.17 Kovats, 749 F.2d

at 1047. The District Court’s conclusion

of due process violations predicated on a

nonexistent right is, therefore, reversible

error.

II.

In footnote 9 of the majority

opinion, the majority characterizes my

analysis above as one that “begins and

ends with charging the plaintiffs with the

outcome of the zoning hearing. . . .” The

majority opines that unless the plaintiffs

had an “opportunity to appear at the

zoning hearing that found their property

to be in violation and therefore could . . .

defend against that allegation,” my

analysis “does not adequately respond to

the legal challenge implicit in plaintiffs’

appeal.” 

Although the majority’s criticism

has some surface appeal, it misses the

real issue here. Conceivably the

plaintiffs may not have become aware of

their landlord’s zoning violations until

after the Township’s zoning enforcement

hearing, but when and how the plaintiffs

became aware of the violations does not,

and cannot, affect the reality of the

landlord’s zoning violations. My

analysis is grounded on the view that

where the landowner’s rental use of his

protection because of serious and

dangerous living conditions). It was not

disputed that the tenants in Grayden had

legal right to live in the apartment

complex. The tenants in all the cases

cited above had lawful tenancy rights

established and recognized under state

laws.

 

17 Following the Township Zoning

Hearing Board’s finding of violation

against the landowner and denial of his

variance request, the owner filed an

application for conditional use of the

property as a trailer/mobile home park. 

Some of the renters, as well as the owner,

have appealed the zoning board’s

subsequent denial of the conditional use

application to the state trial court. That

appeal has been stayed pending the

resolution of this appeal. Because both

the owner and the plaintiffs have no

property right vested and recognized

under the state law for their unlawful use

of the property, their joint conditional

use application is now an opportunity for

them to establish their lawful use for the

first time.
14

property was invalid and void ab initio

for violations of state and municipal

laws, as established by the zoning

enforcement hearing attended by the

landowner, his tenants did not acquire

any right in the same rental use as a

matter of law. To suggest otherwise

would be to accord tenants greater rights

than those possessed by the landowner in

contravention of well established

landlord-tenant laws.

To the extent that the majority’s

criticism embraces the plaintiffs’

argument that the Township’s zoning

enforcement decision cannot be valid and

binding on the tenants unless they

participated in the enforcement hearing,

the majority, as well as the tenants, has

shown no legal authority to support that

argument. The majority’s own position

has implicitly rejected that argument in

light of its holding that the plaintiffs,

with their de minimis interest, are not

entitled to actual notice of the zoning

enforcement hearing because their

tenancy interest can be terminated at

thirty-days’ notice and the Township has

given them several months to vacate the

property. 

Admittedly, my analysis does not

answer the question of how or when the

tenants knew or should have known that

their occupancy of the property was

invalid because of the landowner’s

zoning violations prior to the Township’s

negative determination. That issue,

however, is not present in the tenants’

action here. The tenants’ argument, that

they should have been given adequate

notice of a land use violation would be

valid if the Township brought an action

against them for the land use violations,

instead of the landowner. Where, as

here, it is not disputed that the landowner

had converted his property to a

residential rental use in violation of state,

county, and municipal laws, when and

how the tenants should have become

aware of their landowner’s unlawful use

of his land is irrelevant to the issue of

whether they have any valid property

right.18 Their interest in the residential

rental use of the property is at most coextensive with the landowner’s interest. 

Pennsylvania law holds only the

landowner, not his tenants, responsible

for any zoning violations that occur on

his property.19 Even if the tenants may

 

18People who rent property usually run

the risk that the ostensible owner of it

may not have good title to the property,

that it may be subject to foreclosure

because of a mortgage default or other

lien delinquency, or that a lease may be

void because it violates local zoning or

state laws. Interested parties can avoid

legal complications by obtaining

information pertaining to the title and

lien status of the property from the

dockets of the county court house;

information concerning the applicable

zoning laws is generally available at the

clerk’s office for the local municipality.

 

19Under the Pennsylvania

Municipalities Planning Code (MPC) §

10616.1, the plaintiffs are not entitled to

notice of a zoning enforcement hearing
15

not have become aware of their

landowner’s zoning violations until after

the zoning enforcement hearing, the

established landowner’s violations,

resulting in nullification of his rental use

of his property, precludes the tenants’

due process claim as a matter of law. 

There cannot be a due process violation

claim when the claimant has no valid

property interest.

For these reasons, I do not believe

that assuming that the tenants have a

valid property interest does not resolve

their constitutional claim. Under wellestablished case law, where, as here, the

court is confronted with a due process

claim, the court must determine first

whether there is a valid property interest

possessed by the plaintiffs. Kovats, 749

F.2d at 1047 (citing Logan, 455 U.S. at

428). I see no reason for the court to

shirk its responsibility of making this

initial determination by making an

assumption contrary to state law.

Furthermore, the majority’s

resolution of the tenants’ due process

claim, by reasoning that there is no

deprivation of their property interest

because, at most, they have a month-tomonth leasehold interest, which requires

only a thirty-day advance notice for

termination under state law, and they

have been given more than thirty days to

vacate the property does not adequately

respond to their due process claim. To

the extent that such analysis is contingent

on the tenants having a mere month-tomonth leasehold interest and an adequate

post-deprivation remedy, would the

analysis be sustainable if the plaintiffs

were year-to-year tenants, as some have

claimed? The state statute, quoted in

footnote 6 of this concurring opinion,

mandates no separate notice of zoning

violation hearing to any type of tenants

(unless they have filed a written request

with the municipality, or the landowner

has requested in writing to the

municipality that his tenants receive such

notice), regardless of the length or type

of tenants’ leasehold interests. 

III.

Mindful of the Supreme Court’s

instruction that traditionally the courts

should refuse to “decide constitutional

questions when the record discloses other

grounds of decision, whether or not they

have been properly raised . . . by the

parties,” Neese, 350 U.S. at 78, we

should not engage in a constitutional due

against the landowner. The statute

provides in relevant part:

(b) The enforcement notice shall be sent to

[1] the owner of record of the parcel on

which the violation has occurred, to [2]

any person who has filed a written request

to receive enforcement notices regarding

that parcel, and to [3] any other person

requested in writing by the owner of

record.

53 Pa. Stat. Ann. § 10616.1 (emphases

added). The plaintiffs have not attacked

the facial constitutionality of the statute.
16

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.