HOME, SWEET HOME?
REALTORS GROUP SUE BOROUGH IN FLAP OVER OCCUPANCY PERMITS
PHILADELPHIA >> A Glenolden property owner is suing the borough for due process violations in allegedly failing to adhere to state law regarding property and filing criminal charges against him.
The complaint filed in the U.S. District Court for the Eastern District of Pennsylvania by Mohammed Z. Rahman and the Suburban Realtors Alliance names council President Kenneth Pfaff, Vice President James Boothby, Borough Manager Brian Razzi and Chief Code Enforcement Officer Anthony Tartaglia.
“Not only did Glenolden Borough ignore state law and impose unconstitutional conditions on the transfer of his property, the borough also extracted from Mr. Rahman more than $1,200 in fines and has forced him to defend himself against criminal charges,” said Jamie Ridge, president and CEO of the SRA. “Glenolden denied him a use and occupancy permit to which he was entitled, then levied criminal sanctions against him for his failure to have the permit. It’s ridiculous, arbitrary and wrong.”
“The borough is complying with the law and the lawsuit is factually inaccurate,” said borough Solicitor Michael Puppio, who was initially a named defendant but has since been dismissed from the case. Puppio could not comment further because the litigation is pending.
Robert DiDomenicis, the attorney representing the defendants, likewise could not comment Wednesday, but noted there is a pending motion to dismiss.
The suit centers on the state’s Municipal Code and Ordinance Compliance Act, enacted in January 2017, which sought to address uniformity of municipal codes and arbitrary code enforcement, the suit says.
The act prohibits escrow requirements as a condition of obtaining occupancy certificates and provides that municipalities will issue temporary occupancy certificates if there are no “substantial violations,” or a temporary access certificate if a property has one or more substantial violations, according to the suit.
Rahman, of Lansdale, entered into a sales agreement in February for a property he owned on the 400 block of West South Avenue, according to the suit. In connection with that sale, he requested that the borough perform an inspection of the property.
The borough found two violations concerning sidewalks and ductwork in the basement, according to the suit, neither of which were “substantial.” Rahman says the borough nonetheless refused to issue any type of occupancy certificate.
The suit claims Glenolden instead advised Rahman on the morning of settlement that he would be allowed to proceed with the sale only if he completed repairs on the property within 30 days and provided a $5,000 escrow for repairs to the borough.
Rahman sold the property March 29, provided the $5,000 escrow and completed the repairs within 30 days, the complaint says. Glenolden issued an occupancy certificate and sometime later returned the $5,000, according to the suit.
But Rahman says the borough then issued five criminal citations to him for allegedly failing to have an occupancy permit when the property was sold, each of which imposes a $240.75 fine. Rahman has pleaded “not guilty” and the matter is pending before Magisterial District Judge Michael A. Burns.
The complaint says Rahman owns at least one other property in the borough, and that he and other property owners could see additional art violations if officials there are allowed to go “unchecked.”
The suit claims there is no mechanism to appeal the ordinances and that the alleged act violations are part of an adopted policy, practice and custom of the borough.
Rahman and the SRA are seeking a declaration that the borough’s ordinances are unconstitutional and unenforceable, as well as injunctions against further implementation of borough codes that are out of step with the act. The complaint also seeks dismissal of the criminal charges, attorney’s fees and any other award the court sees fit.
The motion to dismiss notes the SRA does not identify Rahman as a member or client and should be dismissed for lack of standing. The motion also argues there are no procedural or substantive due process violations alleged in the complaint, as Rahman would have the opportunity to appeal an unfavorable verdict in the criminal matter and the allegations raised in the complaint assert only state law claims that do not rise to the rigorous standard necessary for a federal constitutional claim.
The motion additionally argues Tartaglia is entitled to qualified immunity for simply enforcing the code as written and asks the court to direct the plaintiffs to provide more particularized facts about all of the defendants’ alleged actions so that they may assert an immunity defense as well.
A hearing on Rahman’s motion for a preliminary injunction is scheduled for Oct. 23 before U.S. District Judge John M. Younge.