1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-10-1994

Acierno v. New Castle Co.

Precedential or Non-Precedential:

Docket 94-7134

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Recommended Citation

"Acierno v. New Castle Co." (1994). 1994 Decisions. Paper 183.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/183
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 94-7134 

 ___________ 

 FRANK E. ACIERNO, 

 Appellee 

 v. 

 NEW CASTLE COUNTY, 

 Appellant 

 ___________ 

 Appeal from the United States District Court 

 for the District of Delaware 

 (D.C. Civil Action No. 93-cv-00579) 

 

 ___________ 

 Argued: June 24, 1994 

 PRESENT: BECKER and HUTCHINSON, Circuit Judges, 

 and PADOVA, District Judge* 

 (Filed November 10, 1994) 

 ____________ 

Collins J. Seitz, Jr., Esquire (Argued) 

N. Richard Powers, Esquire 

Connolly, Bove, Lodge & Hutz 

1220 Market Building 

P.O. Box 2207 

Wilmington, DE 19899 

 Attorneys for Appellant 

_______________ 

* Hon. John R. Padova, United States District Judge for the 
 Eastern District of Pennsylvania, sitting by designation. 
Thomas S. Neuberger, Esquire (Argued) 

Thomas S. Neuberger, P.A. 

Suite 702 

200 West Ninth Street 

Ninth Street Plaza 

Wilmington, DE 19801-1646 

 and 

John J. Yannacone, Esquire (Argued) 

Yannacone, Fay, Baldo & Daly 

Suite 107 

200 East State Street 

Media, PA 19063 

 Attorneys for Appellee 

 ____________ 

 OPINION OF THE COURT 

 ____________ 

HUTCHINSON, Circuit Judge. 

 This appeal presents yet another dispute between real 

estate developer Frank Acierno ("Acierno") and New Castle County, 

Delaware ("the County") over Acierno's commercial development 

plans for land in the County. The underlying action is Acierno's 

request for declaratory and injunctive relief and compensatory 

and punitive damages for the County's alleged violations of the 

Constitution and laws of the United States and 42 U.S.C.A. § 1983 

(West 1994).1 Presently before us is the County's appeal from an 

 

1. 42 U.S.C.A. § 1983 provides, in relevant part: 

 Every person who, under color of [law], 

subjects, or causes to be subjected, any 

. . . person . . . to the deprivation of any 

rights, privileges, or immunities secured by 

the Constitution and laws, shall be liable to 

the party injured . . . . 
order entered by the United States District Court for the 

District of Delaware granting Acierno's motion for a mandatory 

preliminary injunction directing the County to issue Acierno a 

building permit for development of a shopping mall. The 

preliminary injunction also enjoins and restrains the County from 

interfering with Acierno's right to develop the parcel in 

question as a shopping mall. 

 In issuing its preliminary injunction, the district 

court held that Acierno established a substantial likelihood that 

the County's actions interfered with Acierno's Fourteenth 

Amendment property interests and his liberty interest to conduct 

his business as a real estate developer. The district court also 

concluded that Acierno would suffer irreparable harm unless the 

County was compelled to issue the building permit and halt its 

interference with Acierno's development. Finally, the court 

concluded that neither potential hardship to the County nor the 

public interest outweighed the benefits of issuing the 

preliminary injunction. 

 On appeal, the County argues Acierno failed to show he 

will be irreparably harmed unless a preliminary injunction issues 

against the County. We agree. A primary purpose of a 

preliminary injunction is maintenance of the status quo until a 

decision on the merits of a case is rendered. A mandatory 

preliminary injunction compelling issuance of a building permit 

fundamentally alters the status quo. There is no evidence in 

this record to show that a delay in issuance of the building 

permit until this case can be decided on its merits would cause 
irreparable harm to Acierno. We will therefore reverse the 

district court's order entering this mandatory preliminary 

injunction against the County.2

 I. Factual & Procedural History

 A. General Factual Background

 In 1971 Acierno was a long term lessor of a large part 

of some forty acres of land situated in New Castle County, 

Delaware near the intersection of Interstate Highway 95 and State 

Route 273. This forty acre parcel was zoned M-1, Manufacturing, 

and the County's zoning ordinance then in effect permitted 

commercial development in an M-1 manufacturing zone.3 Acierno 

also owned an adjacent smaller parcel of land zoned C-2, 

Commercial, a portion of which is directly adjacent to Route 273. 

These two parcels comprise the property ("the Property"). 

 In 1971, County planning law required developers to 

file an "exploratory sketch plan" before the County would finally 

approve a subdivision plan. On May 11, 1971, Acierno filed an 

"exploratory sketch plan" with the County Department of Planning 

 

2. On appeal, the County also challenges the district court's 

conclusions that Acierno demonstrated a likelihood of success on 

his procedural and substantive due process claims. We do not 

decide these issues because of our conclusion that Acierno failed 

to show irreparable harm. 

3. Zoning theory once took a hierarchial view of use zones. In 

the hierarchy, a manufacturing use usually ranked below a 

commercial use. The theory thus resulted in mixed uses within a 

single use zone. It has been generally displaced because such 

mixed uses have come into disfavor among planners and many of the 

communities they serve. 
("the Planning Department") proposing development of an enclosed 

shopping mall on the Property. On October 8, 1971, in accordance 

with County regulations, Acierno submitted a more detailed 

"preliminary-tentative building plan." It described the enclosed 

mall as located entirely on the larger, forty acre portion of the 

Property zoned M-1. On October 22, 1971, the Planning Department 

disapproved Acierno's preliminary-tentative plan.4

 On November 16, 1971, the New Castle County Council 

("County Council") adopted an amendment to section 23-34 of the 

County Zoning Code prohibiting the commercial uses previously 

allowed in an M-1 Manufacturing zone. Before this amendment was 

adopted, Acierno requested the County's Planning Board ("Planning 

Board")5 to hold an expedited special meeting to reconsider 

Acierno's preliminary-tentative plan. At this meeting on 

November 8, 1971, the Planning Board reversed the Planning 

Department and approved Acierno's preliminary-tentative plan. 

 On January 24, 1972, Acierno filed a final plan 

("Plan") for his shopping center with the Planning Department 

but, on February 24, 1972, the Planning Department voted to 

 

4. The Planning Department found that the proposed plan was 

inconsistent with the County's comprehensive plan, would create 

adverse traffic congestion and had an unsuitable internal design. 

5. Under Delaware law pertaining specifically to New Castle 

County, the Planning Department initially reviews subdivision 

proposals. Del. Code Ann. tit. 9, § 1345 (1989). A developer 

has a right of appeal from an adverse decision of the Planning 

Department to the Planning Board. New Castle County Subdivision 

Regulations § 8.31; see Acierno v. Folsom, 337 A.2d 309, 311 

(1975). The Planning Board consists of seven members appointed 

by the County Executive with the advice and consent of the 

County's attorney. Del. Code Ann. tit. 9, § 1342 (1989). 
reject the final plan (1) because it conflicted with the general 

comprehensive development plan adopted for the County, (2) 

because the shape of the tract in issue made it unsuitable for 

the construction of a shopping center and (3) because of the 

impact of the increased traffic the proposed shopping center 

would bring. Acierno appealed but this time, on April 26, 1972, 

the Planning Board affirmed the Planning Department's rejection. 

See Acierno v. Folsom, 313 A.2d 904, 905 (Del. Ch. 1973), aff'd

311 A.2d 512 (Del. 1973). 

 A series of administrative and judicial appeals 

followed and, during a further hearing before the Planning Board, 

Board members voted as follows: 

 (1) 6 to 0 in favor of Acierno on the 

incompatibility of the Plan with the County's 

comprehensive development plan; 

 (2) 4 to 2 in favor of Acierno on the issue 

of unsuitable internal design of the project; 

and 

 (3) 3 to 3 to sustain Planning's rejection of 

Acierno's Plan because that the proposed 

development would have an adverse effect on 

vehicular traffic in the area. 

Id. at 905-06. A member of the Planning Board who was absent 

from this hearing later advised the Chairman of the Planning 

Board that he would have voted to overrule the Planning 

Department on all three resolutions if he had been present. See

id. at 906. County Council nevertheless affirmed the Planning 

Board's decision on January 9, 1973. Id.
 On March 14, 1975, however, the Delaware Supreme Court 

ordered County Council to approve and file Acierno's Plan. See

Acierno v. Folsom, 337 A.2d 309, 317 (Del. 1975) (reversing 

unreported Delaware Court of Chancery order granting summary 

judgment to County). The supreme court first held that "an 

approval of the Planning Board was binding upon the Planning 

Department . . . and that . . . the County Council was obliged, 

as a ministerial function, to register its approval . . . ." Id.

at 313. It also concluded that the Chairman of the Planning 

Board acted unlawfully in failing to recuse himself during the 

vote because of his apparent bias and prejudice towards Acierno 

and accordingly refused to count the Chairman's vote. Id. at 

316. This changed the vote on the effect of increased traffic, 

the only issue which had gone against Acierno, to 3-2 in his 

favor. Id. at 317. The state's highest court therefore held 

that a majority of the Planning Board members properly voting had 

approved Acierno's proposed development and County Council was 

bound by this decision. Id. In compliance, County Council 

approved Acierno's Plan on October 28, 1975. 

 Almost twelve years later, in September of 1987, 

Acierno submitted a revised subdivision plan ("Revised Plan") to 

the Planning Department.6 In it he proposed to: (1) subdivide 

the Property into three parcels; (2) change building locations 

and sizes to accommodate the present market; and (3) correct 

drafting errors along some boundary courses. 

 

6. In the early 1980's, Acierno purchased the forty acre parcel, 

which he had previously leased. 
 In a memorandum dated January 26, 1988, Charles D. 

McCombs II of the Planning Department directed Acierno's 

engineers to "[p]rovide a note referencing previous court action 

that permitted commercial development in the M-1 zoning 

district[]" on the Revised Plan. Appendix ("App.") at 335. They 

did so and on February 25, 1988, County Planning Director Wayne 

Grafton ("Grafton") approved the Revised Plan for recording 

purposes. On May 15, 1988, Grafton approved development of a 

"Hampton Inn" on the portion of the Property zoned M-1. 

 In November of 1988, Acierno submitted a revised 

subdivision plan amending the Revised Plan ("Revised Plan II"). 

Revised Plan II stated its purpose was to "'revise buildings & 

parking for buildings 1, 2 & 3' and to 'correct drafting errors 

along some boundary courses.'" App. at 336. Otherwise, it was 

consistent with Revised Plan I. On March 7, 1989, Grafton 

approved Revised Plan II.7

 

7. On April 4, 1989, following Grafton's approval of Revised 

Plan II, the Department of Public Works notified Acierno's 

engineers that it had approved facility support plans for a 

McDonald's which Acierno planned to locate on the part of the 

Property zoned for commercial use. On April 20, 1989, the 

Delaware Department of Transportation ("DELDOT") approved a 

permit for a commercial entrance to the Property at Route 273 

presumably in connection with the plans for the McDonald's. 
 B. The County's Conduct Leading to the Present Action

 On April 18, 1991, County Attorney Michael Mitchell 

("Mitchell") sent a memorandum to David J. Biloon ("Biloon"), 

Chief, Development and Licensing Division, Department of Public 

Works, New Castle County. Mitchell's memorandum stated that he 

had reviewed the Delaware Chancery and Supreme Court opinions in 

the initial litigation in the mid-1970's over development of the 

Property, as well as a copy of the original Plan, the Revised 

Plan, and Revised Plan II. Attorney Mitchell's memorandum 

concluded that most of the Property was not zoned for retail use, 

stating: 

 "[N]o building permit should be issued for 

any construction on this site until extensive 

review and consultation between the Division 

of Development and Licensing, Department of 

Planning and Department of Law is initiated 

and concluded concerning any proposed use. 

Given the types of tenants that he has 

approached; i.e., the movie theater chain, it 

is clear that Mr. Acierno intends to initiate 

a use of the property that is not in 

conformity with the New Castle Zoning Code. 

 In order to implement this directive, a 

general hold should be placed on any building 

permits that could be issued for this site. 

If that cannot be accomplished, all plan 

examiners and other officials involved in the 

building permit process should be advised of 

this situation and ordered to report any 

application for a building permit directly to 

you. If Mr. Acierno applies for a Building 

Permit for the 273 Mall, please contact this 

Department so that the review discussed above 

may be initiated." 
Acierno v. New Castle County, No. 93-579-SLR, 1994 U.S. Dist. 

LEXIS 1683, at *34-35 (D. Del. Feb. 11, 1994) (emphasis added and 

emphasis in original deleted). 

 On May 3, 1991, Biloon circulated a memo within the 

County's Division of Development & Licensing which stated: 

 "Please inform your respective staffs to keep 

an eye out for any activity, i.e., building 

permit applications, for . . . the 273 Mall 

. . . . 

 We have been advised by the Law Department 

that there is a zoning problem at the 273 

Mall site. Basically, the site is zoned M-1 

which will not support retail shopping uses. 

At this point in time, I will not try to 

explain the legal reasons as to why there is 

a valid Record Plan or why the Record Plan 

cannot be rescinded by the County; but, never 

the less [sic], we have been instructed by 

the Law Department to withhold building 

permits for any activity. . . ." 

Id. at *35-36 (emphasis deleted). 

 On July 9, 1991, Mitchell sent a memorandum to Bryan C. 

Shuler, Director of Planning. In it, Mitchell recounted the 

history of the legal dispute over development of the Property and 

stated that Acierno's record plans should not be accorded "'any 

effect inasmuch as they purport to permit that which is not 

permitted by the Zoning Code.'" Id. at *45. Mitchell's 

conclusion that Acierno's recorded plans had no effect was based 

on his reading of section 23-6(a) of the New Castle County Code.8 

 

8. Section 23-6(a) and (c) provides: 

 (a) No proposed ordinance to amend the 

zoning map shall be acted upon by county 
Applying section 23-6(a) and (c) to Acierno's case, Mitchell's 

memorandum went on to state: 

 "Since this property would have been accorded 

the three-year stability protection regarding 

a proposed rezoning for the site, it also 

received the protection accorded by Section 

23-6(c) of the Code . . . . 

 The purpose of the three-year 'moratorium' 

provision is to provide stability to the 

process. In this case, Section 23-6(c) 

permits a lot owner three (3) years to 

establish a use that but for a recent Zoning 

amendment would have been permitted in that 

district if the particular parcel was 

(..continued) 

council within three (3) years after the 

latest of any of the following actions: 

* * * 

 (3) Prior approval under the 

subdivision regulations of a preliminary 

plan involving any parcel of land, or 

portion thereof, whose zoning 

classification would be changed by the 

proposed amendment; provided, that the 

applicant and owner of such parcel may 

withdraw such plan and the provisions of 

this paragraph shall then cease to be 

applicable to such parcel or parcels. 

In no event shall the period permitted 

under this paragraph exceed three (3) 

years from the earlier approval under 

the subdivision regulations of a 

preliminary plan involving such parcel, 

or portion thereof. 

 (c) No amendment to the zoning code 

regulations shall be applicable to any parcel 

or parcels of land protected by subparagraphs 

. . . (3) . . . of subsection (a) of this 

section during the period of such protection 

. . . . 

New Castle County, Del., Code § 23-6(a),(c) (1992); see Acierno, 

1994 U.S. Dist. LEXIS 1683, at *46. 
protected by Paragraph (1), (3) or (4) of 

Section 23-6(a). The protection is afforded 

only for the three-year period and the 

property owner must establish the nonconforming use during that time. If the use 

is not established, the Code affords no 

further protection to that particular parcel. 

Thereafter, the property owner must comply 

with the revised provisions of the Zoning 

Code. 

 Nor does the recordation of a plan create any 

rights, vested or otherwise. It is the use 

that is conferred non-conforming status, not 

a plan or a permit of any kind. Therefore, 

since Mr. Acierno did not establish a nonconforming commercial use within the threeyear period provided for in Section 23-6(c), 

he is no longer entitled to establish any 

commercial use except those very limited 

instances where such commercial uses are now 

presently permitted in a M-1 district 

accessory to the permitted 

manufacturing/industrial use." 

Id. at *46-48. 

 Mitchell forwarded a copy of his July 9, 1991 

memorandum to Robert O'Brien, Director, Department of Public 

Works, so that O'Brien could "'take appropriate action to ensure 

that no building permit is issued for any principal commercial 

use [on the 273 Property] . . . .'" Id. at *48. Mitchell then 

asked O'Brien, "[a]ccordingly, would you please take any steps 

necessary to ensure that no permits are issued for this site 

until complete review and consultation is accomplished with this 

Department and the Department of Planning.'" Id.

 While Mitchell was writing these memos, Acierno was 

negotiating with prospective commercial tenants for space within 

his proposed development. Caldor, Inc. ("Caldor") was an 
important prospect. In late 1991 Acierno applied for a permit to 

build a Caldor store. Biloon, by letter dated December 18, 1991, 

told him: 

 "Please be advised that New Castle County 

cannot accept your building permit 

application for the proposed Caldor 

Department Store at this site. Commercial 

ventures of this nature cannot be situated on 

lands which contain a manufacturing zoning 

classification. Additionally, the existing 

Record Plan . . . allows for a 70,000 square 

foot building denoted as Building #4. The 

proposed structure is 112,000 square feet. 

This is also a discrepancy which must be 

rectified prior to the issuance of any 

permits." 

Id. at *48-49. 

 In February, 1992, the Delaware Department of Natural 

Resources and Environmental Control approved Acierno's temporary 

erosion and sediment control plan. In May, 1992, Acierno 

resubmitted his application for a building permit in connection 

with the Property. The accompanying plan provided for a 70,000 

square foot building drawn in accord with County standards. On 

May 27, 1992, Biloon contacted Mitchell and informed him of 

Acierno's latest application: "'We have another application for 

the dept. store. This time the building plans agree with the 

record plan. What is out next move?'" Id. at *52. Mitchell 

responded: "'It is not zoned for a retail department store. He 

does not get a permit.'" Id. Biloon subsequently assigned and 

then voided a building permit number for the proposed development 

project on the Property. By letter dated June 4, 1992, Biloon 
advised Acierno: "New Castle County still cannot accept your 

building permit application for the proposed 70,000 square foot 

Caldor Department Store at [the 273 Property]." Id. at *54-55. 

 C. Procedural History

 On July 1, 1992, Acierno filed a complaint under 42 

U.S.C.A. § 1983 against the County and others in the district 

court. He alleged the County's decision to deny him a building 

permit violated his constitutional rights to due process (both 

substantive and procedural) and equal protection. 

 On December 30, 1992, the district court granted 

Acierno's motion for a mandatory preliminary injunction directing 

the County to issue him a building permit. See Acierno v. 

Mitchell, No. 92-384-SLR, 1992 U.S. Dist. LEXIS 20381, at *52 

(D. Del. Dec. 30, 1992) (order granting preliminary injunction). 

The County then filed an interlocutory appeal. On October 4, 

1993, this Court vacated the district court's opinion and order, 

held the case was not ripe and remanded with instructions to 

dismiss Acierno's section 1983 action without prejudice because 

Acierno had failed to appeal the County's refusal to issue the 

building permit to the New Castle Board of Adjustment (the 

"Board"). Acierno v. Mitchell, 6 F.3d 970, 977-78 (3d Cir. 

1993). 

 Acierno then appealed to the Board, which held an 

evidentiary hearing on December 2, 1993 and on December 16, 1993 

voted to deny Acierno a building permit. The next day, 

December 17, 1993, Acierno filed the present suit in district 
court, repeating the allegations he made in his prior section 

1983 complaint. On the same day, the County filed a state court 

action seeking a declaratory judgment that Acierno had no right 

to develop the Property for commercial purposes. New Castle 

County v. Acierno, No. 13302 (Del. Ch. filed Dec. 17, 1993). The 

state action remains pending. 

 On January 4, 1994, the district court held an 

evidentiary hearing on Acierno's motion for a preliminary 

injunction and, on February 11, 1994, issued its opinion in 

support of the mandatory injunction Acierno requested. On 

February 16, 1994, the order granting Acierno's motion for a 

mandatory preliminary injunction requiring the County to issue a 

building permit and accord Acierno favorable treatment during 

inspections of the building process was entered. See Acierno v. 

New Castle County, No. 93-579-SLR (D. Del. Feb. 16, 1994) (order 

granting preliminary injunction). 

 On February 17, 1994, the County filed its timely 

notice of appeal. It also filed a motion for stay of the 

injunction pending the appeal. On March 18, 1994, the district 

court denied the motion for a stay. On April 6, 1994, this Court 

denied the County's March 23, 1994 motion for a stay pending 

appeal. 
 D. Acierno's Damages

 During the Board of Adjustment hearing convened to 

determine whether Biloon had correctly denied Acierno a building 

permit, a board member asked for specific information about 

Acierno's expenses in the planning and development stages of the 

subdivision and resubdivision process. Acierno's attorney 

refused to permit Acierno to respond, stating that he would 

"absolutely not" provide such information and that evidence of 

Acierno's expenditures could be found at "page 8, paragraph 19 of 

[the district court's December 30, 1992] Opinion."9 App. at 332. 

The Board of Adjustment found: 

 Acierno refused to testify concerning costs, 

and the documentary evidence does not prove 

that expensive and permanent improvements 

were constructed in reliance upon M-1 

sections of the subdivision and resubdivision plans. No credible evidence was 

presented to the Board which proved that 

Acierno made a substantial change in position 

or incurred substantial obligations in 

reliance on the M-1 sections of the 

subdivision or re-subdivision approvals. Any 

expenses, plans or obligations undertaken by 

Acierno were related to the commercially 

zoned portion of the plan. 

 

9. This Paragraph states: 

 In connection with these Record Plans, 

plaintiff submitted surveys, drainage area 

plans, site plans, grading and utility plans, 

sanitary sewer plans, lines and grades plans, 

entrance details, and road plans. All of 

these plans were accepted by the various 

County and State agencies. Plaintiff 

expended thousands of dollars in connection 

with this work.

Acierno, 1992 U.S. Dist. LEXIS 20381, at *10-11 (emphasis added). 
Id. at 344. The Board also found that "any pre-construction 

expenses were attributable to the commercial portion of the site 

(for a McDonalds location) which was not the subject of the 

building permit, submitted by Acierno." Id. at 17.10

 On the issue of Acierno's damages and irreparable harm 

stemming from them, the district court made these additional 

findings of fact: 

 * Acierno has permanently lost the 

opportunity to lease space to Caldor; 

 * If Acierno, who is presently negotiating 

to lease space on the Property to other 

tenants, is unable to obtain building 

permits, those prospective tenants with 

whom he is negotiating will lease at 

other sites; and 

 * The continued denial of the building 

permit will diminish Acierno's ability 

to develop the property because of 

competitive market demands and land use 

limitations. 

See Acierno, 1994 U.S. Dist. LEXIS 1683, at *61-62. 

 

10. The district court did not explain why it refused to defer 

to this finding or failed to conclude it was not supported by the 

evidence before adopting contrary findings. On appeal, the 

County challenges the district court's failure to give preclusive 

effect to the factual findings of the Board. The district court 

acknowledged that University of Tennessee v. Elliott, 478 U.S. 

788, 797-99 (1986), required it to give preclusive effect to the 

Board's factual findings but seems to have concluded the quoted 

finding left the question of harm open. See Acierno, 1994 U.S. 

Dist. LEXIS 1683, at *9. Its reasons for rejecting the second 

finding allocating pre-construction expenses to the McDonalds are 

not clear. Under Kollock v. Sussex Count Bd. of Adjustment, 526 

A.2d 569 (Del. Super. 1987), a court reviewing the factual 

findings of the Board may only ignore such findings upon a 

determination that they are not supported by substantial evidence 

in the record. Id. at 571. 
 II. Jurisdiction & Standard of Review

 The district court had subject matter jurisdiction over 

Acierno's section 1983 claim under 28 U.S.C.A. §§ 1331, 1343(3) 

(West 1993). We have appellate jurisdiction over a district 

court's interlocutory order granting a preliminary injunction 

under 28 U.S.C.A. § 1292(a)(1) (West 1993) providing for appeals 

from "[i]nterlocutory orders of the district courts . . . 

granting, continuing, modifying, refusing or dissolving 

injunctions . . . ." Id.; see also Cohen v. Board of Trustees of 

Univ. of Medicine and Dentistry of New Jersey, 867 F.2d 1455, 

1464 (3d Cir. 1989) (in banc) (injunctive order immediately 

appealable). 

 We review an order granting a preliminary injunction 

for abuse of discretion, see Merchant & Evans, Inc. v. Roosevelt 

Bldg. Prods. Co., 963 F.2d 628, 633 (3d Cir. 1992), but we review 

the district court's underlying factual determinations under a 

clearly erroneous standard and consider the court's 

determinations on questions of law de novo. See In re Assets of 

Myles Martin, 1 F.3d 1351, 1357 (3d Cir. 1993); John F. Harkins 

Co. v. Waldinger Corp., 796 F.2d 657, 658-59 (3d Cir. 1986), 

cert. denied, 479 U.S. 1059 (1987). 

 III. Analysis

 On appeal, the County challenges the district court's 

conclusion that Acierno demonstrated the threat of immediate 

irreparable injury necessary to justify the mandatory preliminary 
injunctive relief granted here and also argues that the district 

court abused its discretion in crafting the terms of the 

injunction and in providing overly broad relief to Acierno. 

 In order to obtain a preliminary injunction, "'the 

moving party must generally show: (1) a reasonable probability 

of eventual success in the litigation, and (2) that it will be 

irreparably injured pendente lite if relief is not granted to 

prevent a change in the status quo.'" Delaware River Port Auth. 

v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 919-20 (3d 

Cir. 1974) (quoting A.L.K. Corp. v. Columbia Pictures Indus., 

Inc., 440 F.2d 761, 763 (3d Cir. 1971)). Moreover, while the 

burden rests upon the moving party to make these two requisite 

showings, the district court "should take into account, when they 

are relevant, (3) the possibility of harm to other interested 

persons from the grant or denial of the injunction, and (4) the 

public interest." Id. at 920 (footnote omitted). 

 In general, to show irreparable harm a plaintiff must 

"demonstrate potential harm which cannot be redressed by a legal 

or an equitable remedy following a trial." Instant Air Freight 

Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). 

Economic loss does not constitute irreparable harm: 

 [I]t seems clear that the temporary loss of 

income, ultimately to be recovered, does not 

usually constitute irreparable injury: 

 "The key word in this consideration 

is irreparable. Mere injuries, 

however substantial, in terms of 

money, time and energy necessarily 

expended in the absence of a stay, 

are not enough. The possibility 

that adequate compensatory or other 
corrective relief will be available 

at a later date, in the ordinary 

course of litigation, weighs 

heavily against a claim of 

irreparable harm." 

Sampson v. Murray, 415 U.S. 61, 90 (1974) (footnotes omitted) 

(quoting Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 

925 (D.C. Cir. 1958)). Thus, in order to warrant a preliminary 

injunction, the injury created by a failure to issue the 

requested injunction must "'be of a peculiar nature, so that 

compensation in money cannot atone for it . . . .'" A. O. Smith 

Corp. v. F.T.C., 530 F.2d 515, 525 (3d Cir. 1976) (quoting Gause 

v. Perkins, 3 Jones Eq. 177, 69 Am. Dec. 728 (1857)). The word 

irreparable connotes "'that which cannot be repaired, retrieved, 

put down again, atoned for. . . .'" Id. (quoting Gause, 3 Jones 

Eq. 177, 69 Am. Dec. 728). A party seeking a mandatory 

preliminary injunction that will alter the status quo bears a 

particularly heavy burden in demonstrating its necessity. 

Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980). 

 In concluding that Acierno demonstrated irreparable 

harm, the district court stated: 

 It is evident from the record that 

plaintiff alleges economic losses in 

connection with his claims that defendant 

deprived him of his constitutional rights to 

due process and equal protection under the 

law. Plaintiff claims other harm as well, 

however, including damage to his reputation 

as a business person and lost capacity to 

develop as a result of lost time and tenants 

due to the instant controversy, County 

limitations on development, and competing 

development. 
Acierno, 1994 U.S. Dist. LEXIS 1683, at *93-94. The district 

court relied heavily on Opticians Association of America v. 

Independent Opticians of America, 920 F.2d 187 (3d Cir. 1990), in 

support of its conclusion that Acierno would suffer irreparable 

harm if he were not immediately granted a building permit, 

pointing to our statement that "[g]rounds for finding irreparable 

injury include loss of control of reputation, loss of trade, and 

loss of good will." Id. at 195 (citing 2 J. McCarthy, Trademarks 

and Unfair Competition § 32:44 (2d ed. 1984)). We think our 

decision in Opticians Association of America is distinguishable, 

however, because the result in that case was heavily influenced 

by the special problem of confusion that exist in cases involving 

trademark infringement and unfair competition. Acierno's problem 

is not analogous.11

 The district court's reliance on Fitzgerald v. Mountain 

Laurel Racing, Inc., 607 F.2d 589 (3d Cir. 1979), cert. denied, 

446 U.S. 956 (1980), is also misplaced. There, we concluded 

 

11. In Opticians Association of America, this Court reversed an 

order denying a motion for a preliminary injunction and instead 

instructed the district court to enter an order granting the 

preliminary injunction because the court incorrectly applied 

trademark law. Opticians Ass'n of America, 920 F.2d at 192. 

Relying on McCarthy's treatise, Trademarks and Unfair 

Competition, we concluded that the district court had not fully 

considered the severe detriment to the association's reputation 

because of the likelihood of confusing the association's services 

with those of the other group using the association's trademarks. 

Id. at 195-96 (citing 2 J. McCarthy, Trademarks and Unfair 

Competition § 32:44 (2d ed. 1984)). Thus, we held that 

"[p]otential damage to reputation constitutes irreparable injury 

for the purpose of granting a preliminary injunction in a 

trademark case." Id. at 196 (emphasis added). 
there was irreparable injury to the business and reputation of a 

licensed harness racing trainer as a result of his eviction from 

a racetrack. Id. at 601. The case does not stand for the 

proposition that any showing of potential harm to a plaintiff's 

reputation is sufficient to warrant a mandatory preliminary 

injunction that fundamentally changes the status quo. Cf. Morton 

v. Beyer, 822 F.2d 364 (3d Cir. 1987) (reversing order granting 

preliminary injunction compelling reinstatement of a corrections 

officer with back pay following his suspension by New Jersey 

Department of Corrections). In Morton, we decided that showing 

some potential harm to reputation is usually insufficient to 

support a conclusion that irreparable harm exists. We 

distinguished Fitzgerald, stating "the licensee in Fitzgerald was 

potentially barred, not merely impaired, from obtaining 

employment. No such extreme deprivation is present here." Id.

at 372 n.13 (citation omitted). 

 This record does not show that Acierno's reputation has 

been significantly damaged by the County's denial of a building 

permit. Acierno's application seeks permission for a use that is 

incompatible with the current zoning ordinance. Acierno could 

have avoided his problem if he had acted within three years after 

his Plan was filed. It is difficult for us to see how the 

County's denial of a building permit that Acierno waited almost 

twelve years to apply for is the cause of any damage Acierno's 

reputation as a real estate developer may suffer. It is also 

difficult for us to believe that this particular development is 

uniquely important to Acierno in light of the testimony he gave 
at his deposition about all the other real estate projects in 

which he is interested. See App. at 184-97. 

 Rather, we think the inquiry into irreparable harm in 

Acierno's case must focus on whether money damages can make him 

whole if his wish to develop the property as a commercial mall is 

wrongfully delayed. Acierno testified on deposition that 

"[potential tenants] are lined up at the door to lease space at 

the site . . . ." Id. at 559. He acknowledged that no potential 

tenant had threatened to locate elsewhere if the district court 

denied the preliminary injunction. Id. at 557-58. His testimony 

indicates that no other site in the area presently poses any 

direct threat to his development: 

 [O]ther sites in the area, are either not 

zoned or if they are they don't have the 

traffic capacity to be able to use them for a 

store as large [as required by one potential 

tenant]. . . . [My site] is probably the 

only site . . . that can be developed 

nowadays in [the metropolitan] area because 

of the traffic problems that exist there. 

Id. at 553. The district court's finding that intervening 

commercial development might reduce the feasibility of Acierno's 

development is clearly erroneous.12

 

12. The only evidence which may indicate otherwise is said to 

appear at page 22 of the transcript of Acierno's deposition, 

where he testified: "Every major tenant we've talked to 

. . . has said that they will go elsewhere . . . if the 

[building] permit does not issue." Brief for Appellee at 41. We 

assume this reference is accurate, though it is not included in 

the appendix, but we believe it is nevertheless insufficient to 

demonstrate a right to a mandatory preliminary injunction. 
 Finally, we consider Acierno's contention that he will 

lose a key anchor tenant with whom he is presently negotiating if 

he does not get a building permit forthwith. He argues that the 

loss of this anchor tenant will have a domino effect on his 

ability to attract other tenants. He says that there is no way 

to measure his financial loss if the deal falls through because 

he is only engaged in negotiations with the proposed anchor 

tenant and has reached no final agreement with it on financial 

terms. Like Janus gazing forward and backward each New Year, 

this argument points in two directions. The negotiating stage 

Acierno is now engaged in could be thought of as making any harm 

he will suffer if the building permit is delayed too remote and 

speculative to justify a mandatory injunction. As we stated in 

Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351 

(3d Cir. 1980): 

 [M]ore than a risk of irreparable harm must 

be demonstrated. The requisite for 

injunctive relief has been characterized as a 

"clear showing of immediate irreparable 

injury," or a "presently existing actual 

threat; [an injunction] may not be used 

simply to eliminate a possibility of a remote 

future injury . . . ." 

Id. at 358 (citations omitted) (quoting Ammond v. McGahn, 532 

F.2d 325, 329 (3d Cir. 1976) and Holiday Inns of America, Inc. 

v. B & B Corp., 409 F.2d 614, 618 (3d Cir. 1969)); see also

Campbell Soup Co. v. Conagra, Inc., 977 F.2d 86, 91-92 (3d Cir. 

1992) (establishing some remote risk of irreparable harm not 

enough). 
 Even if we view Acierno's anchor tenant's problem in 

the direction he asks, his problem is not solved on this record's 

showing of irreparable harm. An inability to precisely measure 

financial harm does not make that harm irreparable or 

immeasurable. If Acierno has a right to proceed with commercial 

development on the land he has allowed to remain undeveloped more 

than twelve years after the Delaware Supreme Court directed the 

County to approve and file his Plan, we think any actionable harm 

he may suffer, if it is ultimately determined that the County 

violated his constitutional rights, can be remedied by an award 

of money damages. This record shows no more than a potential for 

purely economic injury to Acierno. If Acierno succeeds on the 

merits of his claim, we believe that economic loss, if it occurs, 

can be measured in monetary terms and satisfied by a damage award 

after trial on the merits.13

 

13. On remand, however, we think the district court would be 

wise to reconsider whether it should abstain from further action 

in this case, particularly in connection with the injunctive 

relief it is asked to issue, in light of the pending state court 

action in which the County seeks a declaratory judgment affirming 

the County's refusal to issue a building permit to Acierno. A 

party arguing in favor of abstention under the principles of 

Younger v. Harris, 401 U.S. 37 (1971), must show: 

 (1) there are ongoing state proceedings 

involving the would-be federal plaintiffs 

that are judicial in nature, (2) the state 

proceedings implicate important state 

interests, and (3) the state proceedings 

afford an adequate opportunity to raise the 

federal claims . . . . 

Marks v. Stinson, 19 F.3d 873, 882 (3d Cir. 1994) (citing 

Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 

U.S. 423, 432 (1982)). The existence of these facts, however, 

does not compel abstention. Id.; see also Gwynedd Properties, 
 IV. Conclusion

 For these reasons, the district court's order granting 

Acierno a preliminary injunction compelling the County to issue a 

building permit and discontinue any interference with Acierno's 

development of the Property will be reversed and the case 

remanded for further proceedings consistent with this opinion. 

(..continued) 

Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1201 (3d Cir. 

1992) ("[W]here federal proceedings parallel but do not interfere 

with the state proceedings, the principles of comity underlying 

Younger abstention are not implicated."). Indeed, 

 [a] federal plaintiff may pursue parallel 

actions in the state and federal courts so 

long as the plaintiff does not seek relief in 

the federal court that would interfere with 

the state judicial process. Moreover, since 

parallel proceedings always involve a 

likelihood that a final merits judgment in 

one will effectively terminate the other, it 

necessarily follows that the mere fact that a 

judgment in the federal suit might have 

collateral effects in the state proceeding is 

not interference for Younger purposes. 

Marks, 19 F.3d at 885 (footnote omitted) (citing Gwynedd 

Properties, Inc., 970 F.2d at 1200-03).