Local Interference with Developer’s Attempts To Secure Wastewater Treatment Services Does Not Rise to Level of Federal Civil Rights Violation

In Fortune Development L.P. v. Bern Twp. et al., the Eastern District of Pennsylvania dismissed a federal civil rights action under 42 U.S.C. § 1983, brought by developer Fortune against various municipal entities and officials.

In 2005, Fortune obtained a deemed approval of its preliminary plan to develop an age restricted community known as "Waters Edge" in Bern Township, Pennsylvania. Nevertheless, Fortune's development of Waters Edge was stalled by the actions of certain municipal entities and officials in obstructing Fortune's efforts to obtain wastewater treatment services for the project.

Because Bern Township has no public wastewater treatment facility, Fortune initially contacted Bern Township to request some of its reserved capacity at neighboring Leesport Borough Authority (LBA). The Township denied the request, stating there was insufficient capacity. Fortune then applied to the Township to develop an on-site treatment facility. The Township denied that application on the basis that the property lacked access to the Schuylkill River.

Fortune thereafter hired a wastewater treatment expert who concluded that the LBA plant had additional capacity to serve the Waters Edge project. The LBA initially agreed to undertake a capacity analysis and apply for re-rating from the DEP if additional capacity was found. Fortune's principal appeared at a LBA meeting with a check for $23,000. However, the LBA instructed Fortune that it needed to go through the Bern Township Municipal Authority (BTMA), per the request of Bern Township. Fortune's principal then attended a BTMA meeting and advised BTMA of the additional capacity at LBA. The BTMA responded that another developer wanted the same capacity. Fortune and the other developer agreed to split LBA's costs while reserving their individual rights to the capacity. Although LBA's engineer confirmed the additional capacity existed, BTMA did not allocate the capacity to either developer, stating it needed an additional $20,000 from each for equipment and engineering work.

As another alternative, Fortune sought wastewater services from Reading Area Water Authority (RAWA). Fortune entered an agreement whereby RAWA agreed to use its eminent domain power to take an easement over land owned by the Greenway Association to enable Waters Edge to connect to RAWA for water and sewer services. After RAWA filed the Declaration of Taking, Bern Township and Greenway entered an agreement of sale purporting to...