Fayette Commissioner’s attorney says lawsuit from business owner should be dismissed
The attorney for a Fayette County commissioner sued in federal court by a county business owner said there is nothing to support the claims made in the lawsuit.
Attorney Jennifer L. McPeak, representing Commissioner Angela Zimmerlink, contended her client did not violate the constitutional rights of Joseph Cellurale Jr., the owner of Joey’s Auto Repair and Body Shop and On-Par Turf LLC in Dunbar Township. Terry and Diane Kriss, who own adjoining property, were also named as defendants in the suit, but are represented separately.
The suit alleges Cellurale was mistreated by the county because of ongoing issued between him and the Krisses, and that Zimmerlink allegedly instructed county employees to cite Cellurale’s businesses for false zoning violations.
When the suit was filed, Zimmerlink denied the allegations, stating the claims were outright lies.
McPeak’s brief, she first states that the claim against Zimmerlink is redundant because such suits against individuals acting in their official capacities and claims against their municipal entity are not permitted.
She added that Cellurale’s constitutional rights have not been violated because the claims do not rise to the level of a constitutional violation, and the claim of a due-process rights violation should also be dismissed because Cellurale’s property doesn’t fall under protection by substantive due process.
McPeak argued that a land use decision causing a decline in property value does not deprive someone of property in a way that violates constitutionally guaranteed protections.
“While the conduct of officials may be ‘unfair’ or ‘improper’ from a property owner’s perspective, the court noted that such conduct does not necessarily constitute a substantive due process violation,” wrote McPeak, adding the lawsuit is full of “conclusory allegations of supposed vague instructions” by Zimmerlink to unidentified county employees to cite Cellurale.
McPeak argued the claim of a violation of equal protection must also be dismissed because the lawsuit doesn’t contain a valid reference to the treatment of similarly-situated landowners, and the lawsuit fails to state a claim of conspiracy as it presents no facts beyond socialization between Zimmerlink and the Krisses without identifying any specific plans or conversations to conspire against Cellurale.