76 F.Supp.2d 1173 (D.Kan. 1999), C. A. 98-1133, Rau v. City of Garden Plain

Docket Nº:C. A. 98-1133
Citation:76 F.Supp.2d 1173
Party Name:Rau v. City of Garden Plain
Case Date:November 19, 1999
Court:United States District Courts, 10th Circuit, District of Kansas

Page 1173

76 F.Supp.2d 1173 (D.Kan. 1999)

David RAU and Beth Rau, Plaintiffs,


CITY OF GARDEN PLAIN and David Cordell, individually and as Mayor of the City of Garden Plain, Defendant.

Civil Action No. 98-1133-MLB.

United States District Court, D. Kansas.

Nov. 19, 1999

Page 1174

Robert C. Brown, Brown, Dengler, Good & Rider, L.C., Wichita, KS, for plaintiffs.

Alan L. Rupe, Kelly J. Johnson, Georgina R. Adami, Husch & Eppenberger, Wichita, KS, for defendants.


BELOT, District Judge.

This case comes before the court on defendants' motion for summary judgment (Doc. 52). Among other things, defendants argue that plaintiffs' section 1983 and constitutional claims are not ripe for consideration (Doc. 53 at 10). Whether or not the claims are ripe for review bears on this court's subject matter jurisdiction under Article III of the United States Constitution. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1498-99 (10th Cir.1995). A ripeness challenge should therefore be brought as a motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(1) .

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See Bateman v. City of West Bountiful, 89 F.3d 704, 706 (10th Cir.1996) (citing Gonzales, 64 F.3d at 1499). Federal Rule of Civil Procedure Rule 12(h)(3) states that "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." After reviewing the applicable law, the court dismisses plaintiffs' section 1983 and constitutional claims for lack of ripeness under Rule 12(h)(3). Further, the court remands plaintiffs' remaining state law claim to the District Court of Sedgwick County under 28 U.S.C. § 1367(c)(3).


On March 18, 1998, plaintiffs filed a complaint in Sedgwick County District Court claiming that the city's adoption of Ordinance No. 499, which changed plaintiff's property from a zoning classification of light commercial ("LC") to residential ("R-1"), was unreasonable (Sedgwick County Complaint at 14-15). 1 In the complaint, plaintiffs also asserted a section 1983 claim arguing that the defendants' actions violated their rights under the Fifth and Fourteenth Amendments (Sedgwick County Complaint at 1). 2 On April 20, 1998, defendants filed a notice of removal under 28 U.S.C. § 1441 based on this court having federal question jurisdiction pursuant to 28 U.S.C. § 1331 (Doc. 1). Defendants then moved for summary judgment on plaintiffs' section 1983 claims (Doc. 52), arguing, among other things, that the Fifth and Fourteenth Amendment claims are not ripe for the court's consideration (Doc. 53 at 10).

Fifth Amendment Takings Claim

In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the United States Supreme Court set forth two requirements which must be met in order for a Fifth Amendment takings claim to be ripe. First, "the government entity charged with implementing the regulations [must have] reached a final decision regarding the application of the regulations to the property at issue." See id. at 186, 105 S.Ct. at 3116. Second, plaintiffs must have sought "compensation though the procedures provided by the State for doing so." 473 U.S. at 194, 105 S.Ct. at 3120. A plaintiff's "failure to seek review of the City's action under the procedures authorized by state law renders his takings claim unripe." Bateman v. City of West Bountiful, 89 F.3d 704, 706 (10th Cir.1996). Because plaintiffs did not seek review of the City of Garden Plain's ordinance in Kansas state court before bringing their Fifth Amendment claim, plaintiffs' takings claim is unripe. Before asserting a Fifth Amendment takings claim, plaintiffs must challenge the ordinance in Kansas state court by either a Kan.Stat.Ann. § 12-759(f) review or an inverse condemnation action.

Kan.Stat.Ann. § 12-759

Kan.Stat.Ann. §§ 12-741 to 12-768 sets forth the procedures and authorization for planning, zoning and subdivision regulations in cities and counties. Kan.Stat.Ann. § 12-759(f) provides that any person dissatisfied with a zoning board of appeals decision "may bring an action in the district court of the county to determine the

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reasonableness of any such order or determination." Under...

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