William E. “Billy” Burleson Jr. and Jeanette M. Burleson have
filed suit in U.S. District Court against Port Allegany Borough,
the borough council, five present members of the borough council, a
former member of the council and a former member of the Port
Allegany Planning Commission.
Filed Aug. 14 in the Western District of Pennsylvania federal
court, based in Erie, the action is the latest step in Burlesons’
efforts to recover losses they allege they suffered as a result of
the way borough government handled their request, in the summer of
2004, for a conditional use grant allowing construction of a retail
complex on the 500 block of North Main Street.
The suit was filed in federal court because a constitutional
issue is involved. The Burlesons allege they were deprived of
certain civil rights by the defendants.
The couple seeks damages for losses and expenses they incurred
because of the long delay in creating their “Benton Place” project.
During the delay, Burlesons state, they lost rental income and
potential tenants, and incurred many additional expenses.
Just how much money is being sought is not stated in the
suit.
Burlesons’ attorney, Neal R. Devlin of Knox McLaughlin Gornall
& Sennett in Erie, says the amounts will be “fleshed out”
during discovery.
He referred to the process carried out between the parties
before trial, in which each side requests certain information from
the other.
In addition to the municipality and its governing body, the
defendants are Madelyn Farber, Judy Taylor, Lewis Duell, Kate
Kysor, Everett Robbins, Roland Simons and Michael Farber, each in
two capacities: his or her “individual and official capacity.”
Devlin explained it this way, in an e-mail to a reporter:
“Official capacity suits are much like suing the governing body,
individual capacity suits are against that individual. In this
context, we have sued them for violations of the Burlesons’
constitutional right to substantive due process. In layperson’s
terms, the Burlesons’ right to own and develop their property
within the bounds of the law. As you can see from our Complaint …
that right was substantially hindered by the actions of the
(council and planning commission) members named in the suit.”
“Lyn” Farber, Taylor, Duell, Kysor, Robbins and Simons were
members of the borough council during the period in which Burlesons
were denied the requested conditional use permit. (All but Simons
are current council members).
Michael Farber is included as a defendant because of his
involvement in the conditional use matter as a member of the
planning commission. Taylor figures in the complaint in both her
role as a council member and her role as a planning commission
member.
Council member Dave Fair was not named as a defendant. He did
not vote or otherwise act in opposition to the Burlesons’ request
for a conditional use.
The complaint filed by the Burlesons traces the history of the
couple’s quest for the needed permit, beginning in early July 2004
and ending in late 2005, when borough council voted to grant the
conditional use permit.
The complaint states that at the initial public hearing the
Burlesons “established their compliance with all requirements for
the requested conditional use.”
Michael Farber and Taylor are faulted in the complaint as having
“sought the denial of the plaintiffs’ application and informed the
Borough Council of their opinions” without relevant reasons.
The planning commission failed in its duty to review the
application as required by law and provide its findings to borough
council, according to the complaint.
The complaint devotes several paragraphs to what Burlesons
allege was a conflict of interest on the part of the Farbers, based
on “two independent sets of facts.”
Those have to do with a real estate transaction between the two
couples that did not come off, and the idea that the announced
anchor tenant of the Benton Place retail complex was Dollar
General, which would have conflicted with the variety store nature
of the Farbers’ pharmacy and store, according to the complaint.
The document claims that Lyn Farber was asked, by Burlesons’
attorney, to recuse herself from participation in the public
hearing and further action on the matter, but she did not.
As for other borough council member defendants, the complaint
states that “several members of Borough Council were antagonistic
to plaintiffs and their proposed development for reasons wholly
unrelated to any matter relevant under the applicable zoning
ordinances.”
Defendants “ignored the law applicable to plaintiffs’ request,”
and “displayed a palpable and unsupported animosity toward
plaintiffs’ request,” according to the pleadings.
The complaint mentions a number of delays in the process, which
it says were unnecessary and suggests were part of a deliberate
effort to hamper the project.
A document prepared by Hartle and titled Findings of Fact and
Conclusions of Law, bearing an Aug. 31, 2004 date, was given to the
Burlesons as the official response to their conditional use
request.
The complaint alleges that “the substance of these findings was
not discussed by Borough Council at any public meeting on or before
Aug. 30, 2004.”
It goes on to say that the Findings of Fact “are entirely
baseless and fail to support such denial.”
Even after President Judge John Cleland had ordered the borough
reconsider the Burlesons’ request, additional delays occurred, the
complaint says, “…despite the fact that the Borough’s solicitor
rendered an opinion that the plaintiffs had met their burden in
July of 2004, when they originally presented their application and
plan.”
The actions of the defendants showed “deliberate indifference to
plaintiffs’ constitutional rights under the Fifth and Fourteenth
Amendments to the U.S. Constitution and deprived plaintiffs of
those rights,” the complaint charges.
Patrick M. Carey of Marshall, Dennehey, Warner, Coleman &
Goggin in Erie is representing the defendants.
“Our response is due Oct. 24,” he said, indicating he and his
staff are working on it. He explained that cases filed in Erie are
heard by jurors drawn from throughout Crawford Elk, Erie, Venango,
Forest, McKean and Warren counties.
