Front Royal & Warren Cty. Ind. Park v. Front Royal

• Decision Date: 16 March 1989
• Docket Number: Civ. A. No. 87-0019-H,87-0020-H.
• Citation: 708 F. Supp. 1477
• Parties: FRONT ROYAL AND WARREN COUNTY INDUSTRIAL PARK CORPORATION, Plaintiff, v. TOWN OF FRONT ROYAL, VA., et al., Defendants. Fred W. McLAUGHLIN, et ux., Plaintiffs, v. TOWN OF FRONT ROYAL, VA., et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

708 F. Supp. 1477

FRONT ROYAL AND WARREN COUNTY INDUSTRIAL PARK CORPORATION, Plaintiff, v. TOWN OF FRONT ROYAL, VA., et al., Defendants.

Fred W. McLAUGHLIN, et ux., Plaintiffs, v. TOWN OF FRONT ROYAL, VA., et al., Defendants.

Civ. A. Nos. 87-0019-H, 87-0020-H.

United States District Court, W.D. Virginia, Harrisonburg Division.

March 16, 1989.

COPYRIGHT MATERIAL OMITTED

Myron C. Smith, Robert C. Fitzgerald, Fairfax, Va., for plaintiff Front Royal and Warren County Indus. Park Corp.

David N. Crump, Jr., Adamson, Crump & Sharp, P.C., Front Royal, Va., and Glenn M. Hodge, Douglas L. Guynn, WAW, Harrisonburg, Va., for defendants.

MEMORANDUM OPINION

MICHAEL, District Judge.

This matter is presently before the court on cross motions for summary judgment. For the reasons elaborated below, defendants' motion for summary judgment is denied and plaintiffs' motion for summary judgment is granted.

I.

The plaintiffs in this matter are the Front Royal and Warren County Industrial Park Commission and two Front Royal, Virginia land owners. Plaintiffs own parcels of land in an area annexed by the Town of Front Royal under separate Annexation Court orders of 1976 and 1978. The orders of annexation directed the Town of Front Royal to extend sewer service to the parcels of land covered by the annexation orders as expeditiously as was practicable and, in any event, within five years of the entry of the orders. Since the Town of Front Royal has not yet extended sewer service to the annexed parcels owned by plaintiffs, plaintiffs seek to vindicate their rights under the fifth and fourteenth amendments and 42 U.S.C. § 1983 through this consolidated action.

Plaintiffs allege that the refusal by defendants to extend sewer service to their parcels has deprived plaintiffs of all economically viable uses of their property. In addition, plaintiffs also contend that their right to equal protection of the law has been violated because, while defendants provided sewer service to land owners whose parcels in the annexed area were situated similarly to plaintiffs' parcels, defendants have refused to extend the sewer lines to instant plaintiffs' parcels. Defendants have offered several affirmative defenses, among them the defenses of absolute legislative immunity and executive qualified immunity. By an earlier order of this court dated February 22, 1988, this court granted plaintiffs' motion to strike the affirmative defense of legislative immunity and, conversely, denied defendants' motion to dismiss on the grounds of legislative immunity.

Defendants entered an interlocutory appeal before the Fourth Circuit Court of Appeals in regard to the dismissal of their claim of absolute legislative immunity. After noting that the denial of a claim of absolute immunity is appropriate for interlocutory appeal, the Fourth Circuit concluded that "We agree with the district court that defendants' decisions had to do with zoning enforcement rather than with rule making." Front Royal and Warren County Industrial Park Corp., et al. v. Town of Front Royal, Virginia, et al., 865 F.2d 77, 79 (4th Cir.1989). Therefore, the Fourth Circuit found that "The district court was correct to conclude that the defendants' decisions were not legislative" and, thus, defendants were not entitled to a defense of absolute immunity. Id. at 78-79.

II.

Defendants also offer the affirmative defense of qualified executive immunity. Earlier, this court had denied plaintiffs' motions to strike the qualified immunity defense (and, concomitantly, denied defendants' motion to dismiss on the basis of the qualified immunity defense) because "The court finds that the present record provides an inadequate basis for making such a determination." Front Royal and Warren County Industrial Park Corp., et al. v. Town of Front Royal, Virginia, et al., CA Nos. 87-0019-H and 87-0020-H, slip op. at 4, 1988 WL 156285 (W.D.Va. Feb. 22, 1988). After recourse to materials not available within the confines of a motion to dismiss and after consideration of the briefing materials submitted, the court finds that defendants' claim of qualified immunity is an issue which is ripe for disposition on summary judgment. Accordingly, the court finds that defendants are not entitled to the defense of qualified immunity and therefore now denies that portion of their motion for summary judgment.

Qualified immunity is, in essence, the right not to have to stand trial if, among other conditions, the acts at issue were performed by defendants within the context of their official, executive capacity. As the Fourth Circuit Court of Appeals has held,

Qualified immunity thus protects government officials not only from liability, but from trial, in recognition of the fact that subjecting officials unnecessarily to trial leads to `distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.'

Turner v. Dammon, 848 F.2d 440, 444 (4th Cir.1988) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982)) (emphasis in original). Qualified immunity is largely a matter of getting the incentives right in order to provide the proper context within which government officials can conscientiously discharge their duties without fear of harassment through litigation and, at the same time, they can be held liable for the violation of a clearly established constitutionally-protected right. If an official had no recourse to qualified immunity, the Damoclean sword of potential litigation would always push the official in favor of inaction, for "the person aggrieved by official actions may be quite willing to sue but the losses to society as a whole that come from official inaction may be more diffuse and thus less likely to result in a lawsuit." Turner, 848 F.2d at 444. The scope of this protection has been set out by the Supreme Court in Harlow. In that decision, the Court held that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. at 818, 102 S.Ct. at 2738. Recently, the Fourth Circuit has summarized the test for qualified immunity in this way, "Public officials ... are clothed with qualified immunity in the performance of discretionary functions when the action does not violate clearly established statutory or constitutional rights of which the official knows or reasonably should be aware." Bright v. McClure, 865 F.2d 623, 625-626 (4th Cir.1989).

As Harlow has indicated and as a number of subsequent decisions have reaffirmed, the standard for an official seeking to shield himself under the qualified immunity defense is an objective and not a subjective standard. 457 U.S. at 818, 102 S.Ct. at 2738; see also Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed. 2d 523 (1987). The issue is not whether the official in question actually knew that he was violating a right of the plaintiff, but whether a reasonable person in that official's place would have known that such a right was being violated. Turner, 848 F.2d at 443; Young v. Lynch, 846 F.2d 960, 963 (4th Cir.1988). The question is one of "whether an official acting under the circumstances at issue reasonably could have believed that his action did not violate the constitutional rights asserted." Sevigny v. Dicksey, 846 F.2d 953, 956 (4th Cir.1988). As Justice Powell, in writing for the Fourth Circuit, has noted, the question of the applicability of qualified immunity has no reference at all to the actual good faith of the official, but rather simply to the objective test as outlined in Harlow and its progeny. Lane v. Griffin, 834 F.2d 403, 408 (4th Cir.1987). Thus, the issue is not what the instant defendants believed but merely what reasonable people in the defendants' position would have believed about whether the acts in question violated plaintiffs' rights.

However, it is not necessary for this court to inquire deeply into the objective standard and ask what a reasonable person in instant defendants' position would have known, for another component of the qualified immunity defense is lacking in the defendants' position. The qualified immunity defense applies to government officials who are performing "discretionary functions." Anderson, 483 U.S. at ___, 107 S.Ct. at 3038. In order to make use of qualified immunity protection, defendants would have to show that their provision of sewer lines to the annexed area — or their refusal to provide such lines — was a discretionary function appropriate to an executive, and not a mere ministerial act. Using both the common language understanding of discretionary acts as well as the standards normally applied by courts, this court finds that the provision of sewer lines, under the specific aegis of two very explicit annexation orders, was not a discretionary function emblematic of the executive and suitable for qualified immunity, but was indisputably a ministerial function.¹

Defendants argue that the provision of sewer lines for the annexed area is a discretionary function and attempt to rely on comments from the bench made in the context of the reconvening of the Annexation Court in 1984 as evidence that the Annexation Court intended to leave with defendants a degree of discretion, not merely in the timing but also in the actual provision of sewer lines to parcels of land in the annexed area. Defendants' Reply Memorandum In Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment, at 12-13. Defendants argue that because Judge Moon of the Annexation Court opined that it would not be reasonable for plaintiffs to force defendants to blast through rock at the cost of several million dollars per lot in order to provide sewer lines, defendan...