Mikels Motors, Inc. v. TOWNSHIP OF STROUD, County of Monroe, Commonwealth of PA On Appeal From the United…

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-4281
______________
MIKELS MOTORS, INC., Appellant
v.
TOWNSHIP OF STROUD, County of
Monroe, Commonwealth of PA
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 00-cv-00615)
District Judge: Honorable James M. Munley
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
September 18, 2002
Before: BECKER, Chief Judge, SCIRICA and McKEE,
Circuit Judges.
(Filed: October 2, 2002)
_______________________
OPINION
_______________________
BECKER, Chief Judge.
This is an appeal by plaintiff Mikels Motors, Inc. (“Mikels”) from the order of the
District Court entered on a jury verdict in favor of the defendant, the Township of Stroud
(“Township”). Mikels brought the action under 42 U.S.C. § 1983 alleging that its
substantive due process rights were violated when the Township denied the zoning

-- 1 of 7 --

2
application of Mikels and The Downs - Off Track Wagering, Inc. (“OTB”), which leased the
land from Mikels conditioned upon approval of the zoning application, for an off-track
betting establishment. Under the zoning ordinance, a property use determined to be a
“place of assembly” was required to have more parking spaces than a use determined to be a
“restaurant.” The Township denied Mikels’ zoning application because the plans for the
OTB did not provide for adequate parking since the OTB was determined to be a “place of
assembly” and not a “restaurant.”
Mikels’ primary contention on appeal is that the District Court erred: (1) when it
refused to allow Mikels to introduce evidence that it gave notice to the Zoning Hearing
Board of Southco, Inc. v. Concord Township, 713 A.2d 607,611 (Pa. 1998), a decision
construing a turf club (where off-track betting took place) to be a “restaurant” entitled to a
zoning permit under the zoning laws of Concord Township, which are similar to Stroud’s;
and (2) when it failed to instruct the jury about the decision.
In addition, Mikels contends that the District Court erred when it prevented Mikels
from introducing state of mind evidence that tended to show that Stroud had improper
motives for denying the zoning application; i.e. evidence that Stroud used “hired gun”
lawyers and that there were “political pressures” on the Township officials to prevent the
OTB from setting up shop in Stroud. Finally, Mikels argues that the District Court
improperly disallowed rebuttal testimony about “chicanery” in the amendment to the zoning
ordinance after Stroud denied the zoning application. Finding all these objections to be
totally without merit, we affirm. The facts and procedural history are well known to the

-- 2 of 7 --

1Southco is not even mentioned on the pages in the appendix listed by Mikels in the brief.
3
parties and need not be repeated here. Rather, we confine ourselves to a statement of our
ratio decidendi.
I.
Mikels submits that when the Township ignored Southco, which Mikels views as
being “on all fours” with the facts at bar, it demonstrated that its actions were “not
rationally related to a legitimate government interest” and that the Township was therefore
motivated by “bias, bad faith or improper motive.” See Blanche Road Corp. v. Bensalem
Township, 57 F.3d 253, 263 (3d Cir. 1995) (citing Parkway Garage v. Philadelphia, 5
F.3d 685, 692 (3d Cir. 1993) citing Midnight Sessions, Ltd. v. Philadelphia, 945 F.2d
667, 683 (3d Cir. 1991)). However, even assuming that Mikels made an adequate proffer
of evidence of the Zoning Hearing Board’s notice of the Southco case,1 the case is
inapposite. In Southco, the Pennsylvania Supreme Court found that a “turf club” fell under
the definition of “restaurant” in a C-3 Commercial Services District in Concord Township
where the turf club building space was composed of 75% restaurant and 25% off-track
gambling. 713 A.2d 611. The Court reasoned that the fact that the turf club derived most
of its income from gambling was not determinative of the principal use of the property
under the zoning law. Id. at 610.
This case is very different from Southco based on the determination by Donna Alker
(“Alker”), an engineer for the Township, that the OTB was a “place of assembly” and not a

-- 3 of 7 --

4
“restaurant.” Alker testified that the original zoning application for the OTB did not divide
the uses between restaurant, gambling, etc . . ., as the turf club did in Southco. In addition,
the original zoning application stated that the OTB would have two theaters, a use which is
specifically listed as a “place of assembly” under the zoning ordinance. Although the OTB
changed the designation of “theater” on the zoning application, Alker concluded that much
of the OTB would actually be used as a theater, with long benches and numerous
televisions. Moreover, Alker visited other OTBs (OTB owns other sites that would be
similar to the proposed OTB in Stroud) to determine whether the OTB would be a
“restaurant” or a “place of assembly.” She determined that the primary use of the OTB was
as a “place of assembly” since there were television monitors everywhere and one large
theater with long skinny tables and big screen televisions. Alker concluded that the OTB
she visited was “indeed a place where people go to place bets . . . and not go to use their
restaurant.” Nothing in the record here suggested anything approaching the 75% of the
premises that was used as a restaurant in Southco.
The District Court was therefore correct to exclude as irrelevant the proposed
evidence that the Township had notice of the Southco decision as proof that it acted
irrationally and deprived Mikels of its substantive due process rights. For the same reason,
the District Court did not err when it refused to give a jury instruction stating that Southco
categorically held that “[o]ff track wagering is an accessory use,” when Southco actually
held that off track wagering was an accessory use where the turf club was primarily used as
a restaurant.

-- 4 of 7 --

2During the cross examination of Marvin W. Walton, a zoning official in Stroud, Mikels
asked, “Do you recall the sentiments, if you do, suggested by then representative Joseph
Battisto?” The District Court sustained the Township’s objection to this line of
questioning. It is thus unclear that Mikels even attempted to inquire about political
pressure. From the record, it appears that Mikels was asking a zoning official about the
“sentiments” of another individual. It is certainly not obvious from this interaction that the
District Court was precluding Mikels from asking about “political pressure” being placed
upon the Township to deny the zoning application to OTB.
5
II.
The remaining arguments merit little if any discussion. The “hired gun” argument is
frivolous. The rebuttal evidence argument fails, inter alia, because Mikels cannot prove
that the Township had animus towards OTB when it denied the zoning application appeal; the
proposed amendment had not been adopted when the Township denied Mikels’ zoning
application. It is unclear from the record that Mikels ever attempted to present evidence
about the “political pressures” on the Township officials. Mikels states that “upon
objection, the trial court refused Appellant the right to make this inquiry [about political
pressure].” However, once again Mikels only provides a citation in the Statement of Case.2
At all events, Mikels has made no proffer as to the nature of the supposed political
pressure. There is always some political pressure involved in any local zoning case.
Mikels has made no submission that any political pressure of the magnitude necessary to
meet the very heavy burden of a substantive due process violation by the actions of the
Township.
The order of the District Court will be affirmed.

-- 5 of 7 --

6
_________________________
BY THE COURT:
/s/ Edward R. Becker
Chief Judge

-- 6 of 7 --

7

-- 7 of 7 --