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. e du/thir dc ir c uit_2001/193Filed August 27, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1075

EILEEN COWELL; RICHARD COWELL; SYLVESTER PANY; EASTGATE LAND & DEVELOPMENT CORP.,

Appellants

v.

PALMER TOWNSHIP; DONALD S. HIMMELREICH; VIRGINIA S. RICKERT; THEODORE BOREK; ROBERT LAMMI; JEFFREY YOUNG; ROBERT ELLIOT; ROBERT WASSER; H. ROBERT DAWS; HEMSTREET, HIMMELREICH & NITCHKEY; JOHN DOES

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 99-cv-03216) District Judge: Hon. Thomas N. O'Neill, Jr.

Argued: May 21, 2001

Before: BECKER, Chief Judge, SLOVITER, and AMBRO, Circuit Judges

(Filed August 27, 2001)

Maurice R. Mitts (Argued)

Heather Gelfand Ptasznik Philadelphia, PA 19103

Attorneys for AppellantsMaureen P. Fitzgerald (Argued)

McKissock & Hoffman, P.C. Philadelphia, PA 19103

Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Eileen Cowell, Richard Cowell, Sylvester Pany, and Eastgate Land & Development Corp. (collectively"pla intiffs") brought takings and due process claims pursuant to 42 U.S.C. S 1983, as well as various state law claims, against Palmer Township, various township officials, and th e Township's law firm (collectively "defendants"). Th e basis for these claims was the defendants' alleged interferen ce in the plaintiffs' land development plans, specifically th e imposition of two municipal liens on the plaintiffs ' properties in 1992 and 1993. The District Court dis missed the federal law claims under Fed. R. Civ. P. 12(b)( 6), declined to allow plaintiffs leave to amend their c omplaint,

and further dismissed the state law claims without prejudice. We now review the plaintiffs' appeal.

I.

FACTS AND PROCEDURAL HISTORY

Eileen Cowell, Richard Cowell, and Sylvester Pany w ere owners of Eastgate Land & Development Corp. ("Eastg ate"), a Pennsylvania real estate development company that owned a 23-acre parcel of land in Palmer Township, Pennsylvania known as the Palmer Business Park. In 1987, the plaintiffs began a three phase project to impro ve the land for development. This project was subject to t he local land use codes of Palmer Township. Defendants Rober t Lammi, Jeffrey Young, Robert Elliot, Robert Wasser, and H. Robert Daws were on the Township's Board of Supervi sors at all relevant times. Defendant Virginia S. Ricker t was also

on the board and served as the Treasurer of Palmer

2Township. Defendant Theodore Borek was the Township 's

Director of Planning. Defendant Donald Himmelreich was the Solicitor for Palmer Township, and his law firm
, Hemstreet, Himmelreich & Nitchkey, served as counse l to the Township.

Appellants planned to sell lots to McDonalds and Kentucky Fried Chicken for the development of resta urants, as well as to build a shopping mall to be called Ea stgate Mall. Before contracts could be signed to finalize these plans, the Township allegedly changed the zoning

classification of these lots from commercial use to "planned office buildings," thereby preventing the developme nt of these commercial enterprises. Eastgate sued to prev ent these zoning changes from taking effect. Plaintiffs allege, and defendants do not deny, that the parties reache d a settlement in which Eastgate agreed to cease its pl ans to build the Eastgate Mall and the Township agreed to approve all projects that had already been proposed for Phases I, II, and II(a) at Palmer Business Park as well as assume responsibility for certain municipal improve ments. But when Eastgate proceeded with the development of Phase II, the Township allegedly imposed a building moratorium in July 1987 which prohibited any and al l commercial development of the property and caused s evere financial hardship for Eastgate.

It is the allegations of the events occurring after 1990 that are most relevant to this appeal. Beginning in 1990, the plaintiffs worked to improve Lots 12 through 17 of

Palmer Business Park in order to sell them as build able lots. On October 22, 1992, the Township imposed a $25,000 lien on Lots 14 and 15, naming Richard Cowe ll and Nicholas J. Pugliese as owners of those lots. T he lien was filed "on the basis of anticipated non-payment of the installation of certain municipal improvements." Ap p. at

206.

The Township explains that the lien was imposed pursuant to an agreement that Cowell and Pugliese w ould be responsible for paying for paving work on a subd ivision called Milford Street, with the Township serving as the guarantor. The Township contends that when neither Cowell nor Pugliese paid the paving contractor on t ime, the

3Township paid the bill and then imposed the lien. T he

plaintiffs respond that Richard Cowell had sold his interest in Milford Street to Pugliese in 1991 and should no t have been responsible for any municipal improvements. Mo re important, they argue that the lien was unlawful un der the Municipal Lien Code, 53 Pa. Cons. Stat. Ann. SS 710 1 et seq., because no improvements were made on Lots 14 and 15 for which a lien could be legally placed. They f urther argue that the Township imposed the lien to retalia te against them for successfully challenging the Towns hip's zoning changes in 1987 and to cause financial harm to the plaintiffs.

On March 9, 1993, the Township imposed a second municipal lien in the amount of $250,000 on the subdivisions of Palmer Business Park owned by Eastg ate. This lien was filed "for present and future unfunde d escrow

review accounts and unfunded escrow accounts for municipal improvements." App. at 209. On March 24, 1993, Himmelreich sent a letter to Eastgate on beha lf of the Township explaining that the lien was intended to s erve as a security for (1) the anticipated failure by Eastg ate to complete municipal improvements and (2) the unlawfu l depletion of funds held in an escrow account for th e Township's benefit, accomplished by Richard and Eil een Cowell forging signatures of various township offic ials in

order to obtain the release of various funds held i n escrow.

The Cowells had indeed pled guilty to forgery and t heft by receipt of stolen property. However, the plaintiffs contend

that the reference to the Cowells' criminal conduct was a smokescreen and that the $250,000 lien was imposed for the municipal improvements only. They further alleg e that the Township refused to remove this lien even after it was informed that the plaintiffs had sufficient funds t o pay for the municipal improvements.

In April 1994, Eastgate filed a Chapter 11 bankrupt cy petition. As part of their Plan of Reorganization, Eastgate agreed to pay $30,000 to the Township in exchange f or a discharge of the $250,000 lien. Eileen Cowell also filed for personal bankruptcy. During Eileen Cowell's bankrup tcy proceeding, the bankruptcy judge lifted and expunge d the $25,000 lien on July 13, 1998, and thereafter noted in the

4amended order that "a municipal improvement lien ca nnot

be filed against a property not so improved." App. at 222-223.1 Specifically, the bankruptcy judge found that Lot 1 4 was not affected or benefitted by the improvements done on Milford Street, which was one mile away and in a se parate development.

On June 25, 1999, Eileen Cowell, Richard Cowell, Sylvester Pany, and Eastgate filed the present suit against Palmer Township, various township officials, and th e Township's law firm. The complaint alleges that the imposition of the two municipal liens violated the Takings

Clause of the Fifth Amendment and the Due Process C lause of the Fourteenth Amendment, as well as various sta te

laws.

The defendants moved to dismiss all of the claims f or failure to state a claim upon which relief could be granted pursuant to Fed R. Civ. P. 12(b)(6). The defendants asserted, inter alia, that the actions alleged did not amount to a taking and that the takings claim was not yet ripe. The defendants further asserted that the due process cl aim was barred by the statute of limitations. In response, the plaintiffs argued that they stated a valid takings claim and that the statute of limitations should not apply be cause the Township had continued to interfere with their deve lopment plans after the imposition of the second lien in Ma rch 1993. The plaintiffs therefore asked the court to deny th e motion to dismiss or, alternatively, to allow them to amen d their complaint to include additional allegations.

In a memorandum and order dated December 16, 1999, the District Court dismissed the takings and due pr ocess claims, declined to allow the plaintiffs to amend t heir complaint, and dismissed the state law claims witho ut prejudice after declining to exercise jurisdiction over them.

The plaintiffs filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. S 1291.

___________________________________________________ ______________

1. Richard Cowell had apparently conveyed his inter est in Lot 14 to Eileen Cowell in January 1992 as part of a divorce settlement.

5II.

DISCUSSION

A motion to dismiss pursuant to Fed. R. Civ. P. 12( b)(6) may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing th em in the light most favorable to plaintiff, the plaintif f is not entitled to relief. See Maio v. Aetna, Inc., 221 F. 3d 472, 481-82 (3d Cir. 2000). We have plenary review of a district court's dismissal of a complaint pursuant to Fed. R . Civ. P. 12(b)(6). See id. We review a district court's refu sal to allow a party to amend its complaint for abuse of discret ion. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).

A. Takings Claim

The plaintiffs allege that the Township and various township officials violated the Takings Clause by i mposing two municipal liens that impaired the value of the plaintiffs' properties and deprived them of their right to full control of their properties. The District Court ruled that the takings claim was not yet ripe because the plaintiffs had n ot yet availed themselves of the state procedures for seek ing just compensation. In the alternative, the court held th at the defendants' alleged actions did not rise to the lev el of a taking.

The Fifth Amendment proscribes the taking of privat e property for public use without just compensation. See U.S. Const. amend. V. It is well-recognized that this pr ohibition applies to state and local governments under the Fourteenth Amendment. See Chicago, Burlington & Qui ncy R.R. Co. v. City of Chicago, 166 U.S. 226, 239 (189 7). The Supreme Court has recognized that just compensation need not be paid in advance of the taking -- "all that i s required is that a reasonable, certain and adequate provisio n for obtaining compensation exist at the time of the tak ing." Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985) (quotatio n omitted). Therefore, if a state has provided an ade quate procedure for seeking just compensation and a lando wner has used those procedures to obtain just compensati on,

6there is no violation of the Takings Clause. See id . It follows

that "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [Takings] Clause until it has used the procedure and been denied just compensation." Id. a t 195.

Pennsylvania's Eminent Domain Code provides inverse condemnation procedures through which a landowner m ay seek just compensation for the taking of property. See 26 Pa. Cons. Stat. Ann. SS 1-408, 1-502(e), 1-609.2 In deed, many landowners have invoked these procedures to se ek just compensation for takings. See, e.g., In re Pro p. Situate Along Pine Rd. in Earl Township, 743 A.2d 990 (Pa. Commw. 1999); Gross v. City of Pittsburgh, 741 A.2d 234 (Pa. Commw. 1999); Lehigh-Northampton Airport Auth. v. WBF Assocs., 728 A.2d 981 (Pa. Commw. 1999).

In the case at hand, the plaintiffs do not contend that they attempted to use these procedures but were den ied just compensation. Instead, they argue they were no t required to file an inverse condemnation petition b ecause the Township did not have legal authority under the Eminent Domain Code or any other power to impose th e liens. In addition, they claim that they "exhausted state remedies" by raising the merits of the two liens in bankruptcy court.

We reject the plaintiffs' arguments. The plaintiffs ' ability to file an inverse condemnation petition in state c ourt in order to obtain just compensation was not related t o the Township's right to impose the liens. In addition, adjudication in federal bankruptcy court is not an appropriate alternative to the state inverse condem nation procedures. As the Township notes, the bankruptcy c ourts never determined whether there had been a taking of the plaintiffs' property. Because the plaintiffs have n ot availed themselves of the appropriate procedures under

___________________________________________________ ______________

2. Under Pennsylvania law, a landowner may file a p etition requesting the appointment of viewers to declare a taking and ascertain just compensation. See 26 Pa. Cons. Stat. Ann.S 1-502(e) . If the landowner is successful, then s/he may also be awarded reason able appraisal, attorney, engineering, and other costs incurred. Se e 26 Pa. Cons. Stat.

Ann. S 1-609.

7Pennsylvania law to obtain just compensation, we ag ree

with the District Court that their takings claim is not ripe.

Even if the plaintiffs' takings claim were ripe, th e defendants' actions do not amount to a taking. The plaintiffs argue the two liens amounted to a regula tory taking because the liens forced them to reduce the sale price for their properties and caused them financia l distress. However, a regulatory taking occurs only when the government's action deprives a landowner of all economically viable uses of his or her property. Se e Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1 019 (1992).

A municipal lien does not deprive the landowner of all economically viable uses of the property. Rather, a lien is merely "a charge upon property by which a lien cred itor has the right to execute on that property in order to s atisfy a debt or other obligation." Unity Sav. Ass'n v. Am. Urban Sci. Found., 337 Pa. Super. 470, 474, 487 A.2d 356, 358 (1984). Under Pennsylvania law, the filing of a lie n does not affect the debtor's use of that property until fore closure. See Winpenny v. Krotow, 574 F.2d 176, 177 (3d Cir. 1978) (citing 53 Pa. Stat. Ann. S 7181). Though the liens in the case at hand may have prevented the plaintiffs from entering into certain transactions, they did not fo reclose all economically viable uses of the land. Therefore, we agree with the District Court that the imposition of the liens did not constitute a taking.3

B. Due Process Claim

The plaintiffs also allege that the imposition of t he two liens, one for $25,000 and the other for $250,000, violated their due process rights under the Fourteenth Amend ment.
The District Court held that these claims were barr ed by the two-year statute of limitations for claims brou ght under

___________________________________________________ ______________

3. We are compelled to note that we regard the impo sition of the liens as of questionable propriety; at argument, counsel for the defendants attempted to explain why the Township resorted to t he liens, but offered no legal authority to justify them. The liens impos ed for anticipated nonpayment for municipal improvements may have violate d the Municipal Lien Code, 53 Pa. Cons. Stat. Ann. SS 7101 et seq.

842 U.S.C. S 1983. The court specifically ruled that the

continuing violations doctrine did not apply becaus e the

defendants' last affirmative act occurred in 1993 w ith the imposition of the second lien.

As the plaintiffs concede, the applicable statute o f limitations for their S 1983 claims is two years. S ee Sameric Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). They argue, however, that the conti nuing violations doctrine should have been applied to tol l the limitations period because the defendants engaged i n a "continuing campaign of affirmative acts" that inte rfered with their substantive due process rights. Br. of A ppellants

at 23-24.4

The continuing violations doctrine is an "equitable exception to the timely filing requirement." West v

. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1 995). Thus, "when a defendant's conduct is part of a cont inuing practice, an action is timely so long as the last a ct evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant

relief for the earlier related acts that would othe rwise be time barred." Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991).

In order to benefit from the doctrine, a plaintiff must
establish that the defendant's conduct is "more tha n the occurrence of isolated or sporadic acts." West, 45 F.3d at 755 (quotation omitted). Regarding this inquiry, we have recognized that courts should consider at least thr ee factors: (1) subject matter -- whether the violatio ns constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequen cy -- whether the acts are recurring or more in the natur e of isolated incidents; and (3) degree of permanence-- whether the act had a degree of permanence which should tri gger the plaintiff 's awareness of and duty to assert hi s/her

___________________________________________________ ______________

4. The District Court noted that the plaintiffs app eared to assert both procedural and substantive due process violations. Plaintiffs do not argue on appeal that their procedural due process r ights were violated, so we will limit ourselves to the substantive due p rocess claim.

9rights and whether the consequences of the act woul d

continue even in the absence of a continuing intent to discriminate. See id. at 755 n.9 (citing Berry v. B oard of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir. 1983)). The consideration of "degree of permanence" is the most important of the factors. S ee Berry, 715 F.2d at 981.

The continuing violations doctrine has been most frequently applied in employment discrimination cla ims. See, e.g., West, 45 F.3d 744; Bronze Shields, Inc., v. New Jersey Dept. of Civil Serv., 667 F.2d 1074, 1081 (3 d Cir. 1981); Jewett v. Int'l Tel. and Tel. Corp., 653 F.2 d 89, 91 (3d Cir. 1981). However, this has not precluded the application of the doctrine to other contexts. See Brenner, 927 F.2d 1283 (applying the doctrine to a claim bro ught under the National Labor Relations Act); Centifanti v. Nix, 865 F.2d 1422, 1432-33 (3d Cir. 1989) (applying the doctrine to a procedural due process claim brought under S 1983).

At issue in this case is whether this equitable doc trine should be applied to toll the statute of limitation s for the plaintiffs' substantive due process claim.5 The pla intiffs

___________________________________________________ ______________

5. After oral argument, we requested letter briefs from the parties to address, inter alia, the issue of the applicability of the continuing violations doctrine to substantive due process clai ms generally. The submissions of both parties were comprehensive and we express our appreciation. Plaintiffs argued that our decision i n Sameric Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 599 -600 (3d Cir. 1998), accepted that the continuing violations doctrine co uld be applied to substantive due process claims but merely held that the evidentiary record did not support its application to the facts of the case. The Township disputed this interpretation of Sameric a nd argued that the doctrine should not be extended to apply to substan tive due process

claims.

After consideration of the jurisprudence on the con tinuing violations doctrine, we do not find it necessary to adopt a pe r se rule of its applicability to substantive due process claims. Mo st importantly, the doctrine is an equitable one and requires a factual analysis that will be different for each case. Therefore, we will limit o urselves to whether the continuing violations doctrine should apply to the plaintiffs' substantive due process claim in the case at hand.

10appear to offer two theories for application of the

continuing violations doctrine here. First, they ar gue that the two municipal liens were continuing violations of their substantive due process rights until they were eith er lifted or expunged. Specifically, the $25,000 lien remaine d in effect until July 13, 1998, when it was expunged by a bankruptcy judge. The $250,000 lien was in place un til July 1, 1997 at the earliest, when Eastgate negotia ted its bankruptcy reorganization plan which included a $30 ,000 payment to the Township for settlement of that lien

. Therefore, according to the plaintiffs, their subst antive due process claim was timely raised because their compl aint was filed on June 25, 1999.

We disagree with the plaintiffs' interpretation of a continuing violation and therefore reject this theo ry. The focus of the continuing violations doctrine is on a ffirmative acts of the defendants. See Delaware State College v. Ricks, 449 U.S. 250, 258 (1980); Sameric, 142 F.3d at 599; 287 Corporate Center Assoc. v. Township of Bridgewater , 101 F.3d 320, 324 (3d Cir. 1996). The mere existence of the liens does not amount to a continuing violation. Ne ither was the Township's refusal to remove the lien an af firmative act of a continuing violation.

The cases cited by the plaintiffs do not require a different result. In United States v. Dickinson, 331 U.S. 745 (1947), a landowner brought a claim against the federal government seeking compensation for flooding of lan ds that had been authorized by the government. The governme nt argued that the claim was time-barred but the Supre me Court disagreed. The Court held that the flooding w as a continuous event and therefore the limitations peri od began to run when the flooding had stabilized, rather tha n when the flooding first began. See id. at 749. Dickinson was a unique situation in which the physical taking of pr operty was not complete until the flooding had stabilized. We have previously declined to extend its holding to toll t he running of a limitations period for a substantive due proce ss claim, see 287 Corporate Center Assoc., 101 F.3d at 324, a nd we similarly decline to extend its holding here.

The plaintiffs also cite to the decision in Gordon v. City of Warren, 579 F.2d 386 (6th Cir. 1978). In that case, a

11developer had been prevented from completing constr uction

of an apartment complex by a city ordinance that wa s later held to be unconstitutional. The Court of Appeals h eld that the developer's subsequent takings claim was not ti mebarred because the alleged wrong was the "continuin g course of action which made it impossible for the p laintiffs to enjoy the full use of their property." Id. at 3 91.

The Sixth Circuit has since declined to follow Gord on, see Kuhnle Bros. v. County of Geauga, 103 F.3d 516, 521 n.4 (6th Cir. 1997), as have other courts of appeals, s ee, e.g., Ocean Acres Ltd. v. Dare County Bd. of Health, 707 F.2d 103, 106 (4th Cir. 1983). In Ocean Acres, the Fourt h Circuit reaffirmed that "[a] continuing violation i s occasioned by continual unlawful acts, not continua l ill effects from an original violation." Id. (quotation omitted). This conforms with our understanding of the continu ing violations doctrine, see Sameric, 142 F.3d at 599, and we see no reason to depart from it. Therefore, we reje ct the plaintiffs' first theory for application of the con tinuing

violations doctrine.

The plaintiffs' second theory is that the Township engaged in a campaign of harassment against them th at extended beyond the imposition of the two municipal liens. In particular, they identified the following five a cts that fell within the two-year limitations period in their Memorandum of Law in Opposition to the Motion to

Dismiss submitted to the District Court:

(1) On July 1, 1997, as part of Eastgate Corporatio n's Plan of Reorganization in bankruptcy, the parties negotiated a $30,000 payment from Eastgate to the Towns hip in return for a discharge of the $250,000 munic ipal lien imposed on the Palmer Business Park property

. Although this $30,000 payment was made, the Township later requested an additional payme nt of $23,000 before the lien was discharged. This additional request allegedly violated 11 U.S.C. S 1141.

(2) In August 1997, the Township required lot purch aser Lone Star Steakhouse to build a driveway to the Tic- Toc Diner as a condition to issuing a buildi ng permit. As a result, Eastgate was compelled to reduc e the price

12of the lots it was selling to Lone Star Stea khouse by

$25,000.

(3) In May 1998, the Township required Eastgate to fund the installation of a stop light in or near Lot 11. Consequently, Eastgate was compelled to redu ce the sale price of Lot 11 by $75,000.

(4) In January 1999, the Township required purchase rs of Lot 11 to pay $5,000 to the Township for the installation of stoplights as a condition of issuing building permits.

(5) On February 13, 1999, the Township sent Eastgat e a bill for engineer fees related to a Septembe r 1994 inspection of the Palmer Business Park prope rty. Eastgate claimed it was not responsible for this bill, which was sent over five years after the ins pection took place.

App. at 155-156. In addition, the plaintiffs argued before us that the Township has continued to harass them by f iling a petition to the Court of Common Pleas of Northamp ton County on December 15, 2000 requesting further improvements. The plaintiffs contend that they shou ld be allowed to amend their complaint to include these a nd other allegations.

Although these acts fall within the two-year limita tions period, we must consider whether they are "isolated
, intermittent acts" or part of a "persistent, on-goi ng pattern." West, 45 F.3d at 755. In doing so, we will consider the three factors identified in Berry v. Board of Super visors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir. 1983). First, with regard to the "subject matter" of the v iolations, we note that these acts, except for the first one, appear to be unrelated to the imposition of the liens. The pl aintiffs attempt to link these acts by characterizing them a s a general interference with property rights. However, our substantive due process jurisprudence has always fo cused on the particular acts of the defendant, and not a general interference with property rights. See, e.g., Woodw ind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 125 (3d Cir. 2000) (considering the alleged delay of permit appr oval for subdivision plans); Blanche Road Co. v. Bensalem

13Township, 57 F.3d 253, 268 (3d Cir. 1995) (consider ing the

intentional blocking or delay of the issuance of pe rmits for reasons unrelated to the merits of the permit appli cation). Indeed, the plaintiffs argued at oral argument that each of these acts was an independent violation of their su bstantive due process rights and therefore individually actio nable. If so, then the appropriate course of action was to br ing a new S 1983 claim with respect to these alleged hara ssments instead of trying to tack them on to their existing claim.

In this respect, this case is not unlike the situat ion that was before us in Sameric, 142 F.3d 582. In that cas e, a theater owner alleged substantive due process viola tions against the City of Philadelphia and various city o fficials for improperly designating the theater as an historic b uilding and improperly denying a permit to demolish the the ater. Although the denial of the demolition permit occurr ed outside the applicable two-year statute of limitati ons, the owner argued that the statute should be tolled beca use the denial of the permit was related to the historical designation and the owner had continued to dispute the historical designation in state court. We rejected this argument, noting that the denial of the permit gave rise to an independent cause of action and should have been pursued as such. Thus, we held that the continuing violations doctrine could not be applied to revive the claim involving the permit denial. See id. at 598-600. Be cause the

case at hand is similar to the situation in Sameric , the first Berry factor weighs against finding a continuing vi olation.

With regard to the "frequency" of the acts, we note that courts have never set a specific standard for deter mining how close together the acts must occur to amount to a continuing violation. The plaintiffs assert on appe al that defendants engaged in a campaign of harassment that began as early as 1987, became exacerbated with the imposition of the liens in October 1992 and March 1 993, and continued throughout the mid and late 1990s. Ma ny of the alleged harassing acts deal with routine dealin gs between a land developer and a board of supervisors that would not amount to violations of substantive due p rocess. In any event, this would be a different due process claim than that pled in the complaint, which was confined to the

14imposition of the liens. The type of acts that woul d satisfy

the "frequency" factor of the Berry inquiry must at least be acts of substantially similar nature to those which were the basis of the original claim.

Turning to the third Berry factor -- whether the ac ts had a "degree of permanence" which should trigger the plaintiff 's awareness of and duty to assert his/he r rights -- we must consider the policy rationale behind the st atute of limitations. That is, the continuing violations doc trine should not provide a means for relieving plaintiffs from their duty to exercise reasonable diligence in purs uing their claims. See Nat'l Adver. Co. v. City of Raleigh , 9 47 F.2d 1158, 1168 (4th Cir. 1991); Ocean Acres, 707 F.2d a t 107. In the case at hand, the plaintiffs were aware of t he wrongfulness of the liens when the liens were impos ed in 1992 and 1993. Therefore, the plaintiffs should hav e brought a claim to strike the liens in state court or filed a S 1983 claim within the applicable limitations peri ods. To allow the plaintiffs to proceed with their substant ive due process claim now would be unfair to the Township a nd contrary to the policy rationale of the statute of limitations. See United States v. Richardson, 889 F.2d 37, 40 (3 d Cir. 1989) ("Limitations periods are intended to put def endants on notice of adverse claims and to prevent plaintif fs from sleeping on their rights."). Therefore, this factor strongly weighs against applying the continuing violations d octrine.

Balancing the equities of the case, we conclude tha t the continuing violations doctrine does not relieve pla intiffs

from the statute of limitations for the substantive due process claim. Therefore, we agree with the Distric t Court that the substantive due process claim was untimely

.

C. Leave to Amend the Complaint

We also conclude that the court did not abuse its discretion in denying plaintiffs leave to amend the ir complaint. Although Fed. R. Civ. P. 15(a) states th at leave to amend "shall be freely given when justice so req uires," we have held that leave to amend need not be grante d when amending the complaint would clearly be futile. See Maio,

221 F.3d at 500-01 n.19. It is evident that allowin g the plaintiffs in the case at hand to amend their compl aint

15would not have saved their takings claim. As for th e

substantive due process claim, we have held that th e additional factual allegations offered in their Mem orandum of Law in Opposition to the Motion to Dismiss did n ot constitute a continuing violation. Therefore, that claim

would not be able to overcome the statute of limita tions, and any amendment of the complaint would have been futile.6

III.

CONCLUSION

For the reasons set forth above, we will affirm the District Court's order dismissing plaintiffs' action.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

___________________________________________________ ______________

6. The plaintiffs also contend in their brief that the District Court

erred in characterizing their complaint as already amende d. While the court may have erred in this regard, we do not see this e rror as warranting a

reversal.

16