Bannum, Inc. v. City of St. Charles, Mo.

• Decision Date: 05 August 1993
• Docket Number: No. 92-3686,92-3686
• Citation: 2 F.3d 267
• Parties: BANNUM, INC., Appellant, v. The CITY OF ST. CHARLES, MO., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 267

2 F.3d 267

BANNUM, INC., Appellant, v. The CITY OF ST. CHARLES, MO., Appellee.

No. 92-3686.

United States Court of Appeals Eighth Circuit.

Submitted May 11, 1993.

Decided Aug. 5, 1993.

Scott T. Wendelsdorf, Louisville, KY, argued (P. Terence Crebs, St. Louis, MO, on brief), for appellant.

Robert J. Krehbiel, St. Louis, MO, argued for appellee.

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

Bannum, Inc., appeals from the district court's ¹ grant of summary judgment in its 42 U.S.C. Sec. 1983 action in favor of the defendant, the City of St. Charles (the City). On appeal, Bannum claims the City violated Bannum's equal protection rights under its former zoning scheme by prohibiting community treatment centers (CTCs) and under its amended zoning scheme by allowing CTCs only as conditional uses. We affirm.

I. BACKGROUND

Bannum is a company in the business of operating CTCs ² throughout the United States pursuant to contracts with the Federal Bureau of Prisons (BOP). CTCs are half-way houses for convicted criminals in the last stage of their sentences before release. CTC participants work in the community during the day and reside in a supervised residential facility at night. In the past, Bannum has located some CTCs in motels, using the motel rooms both to house CTC participants and for offices to provide the participants with counseling and other support services.

In 1987, Bannum received a request from the BOP to submit a proposal for a CTC in the St. Louis area. After contacting hotels and motels in the area, Bannum chose the Town House Inn in the City as a potential CTC site. Bannum contacted the City police department to inform them it intended to open a CTC in the area, and contacted the City development department regarding zoning. One of the City's employees sent Bannum a letter stating that as she understood the proposed use, it would be permitted as a matter of right in the City's C2 district. ³ Bannum received nothing else from the City regarding whether the CTC was a permitted land use in the City. On November 7, 1988, Bannum was awarded the CTC contract for the St. Louis area.

The City has a permissive zoning scheme; any use not expressly permitted by the zoning ordinances is prohibited. See Rev.Ords. of the City of St. Charles, Mo., ch. 30, art. I, Sec. 30-14; Wintercreek Apartments v. City of St. Peters, 682 F.Supp. 989, 996 (E.D.Mo.1988). Among the uses permitted as a matter of right in the C2 General Business District was the use as "[h]otels, motels or motor lodges." ⁴ Rev.Ords. of the City of St. Charles, Mo., ch. 30, art. II, Sec. 30-34. The ordinance also listed conditional uses for the C2 district. See id. Conditional uses are permitted if approved by the board of adjustment. CTCs or half-way houses were not expressly permitted in the City's zoning ordinances for any district as either a permitted use or a conditional use.

Bannum's proposed use of the Town House Inn was made public in late November 1988, and some opposition to it was raised. In December, the City's mayor wrote the BOP regarding its award of the contract to Bannum. The BOP wrote back on February 6, 1989, stating that because the City was not willing to provide documentation allowing Bannum to operate the CTC as specified in the contract, it was authorizing Bannum to relocate the CTC to another area.

On February 23, 1989, the City amended the zoning ordinances by adding half-way houses to the list of conditional uses in the C2 district. The City also enacted another ordinance which added to the ordinances' definitions of "half-way house" ⁵ and "transient," ⁶ and substituted a new definition of "motel (motor court, tourist court or motor lodge)." ⁷ Bannum's proposed CTC falls within the new definition of half-way house, and thus is allowed under the amended ordinances as a conditional use in the C2 district. Bannum did not apply for a conditional permit to operate its CTC.

The BOP's contract with Bannum was conditioned on the proposed CTC being in compliance with local zoning law. Because the City would not provide the BOP with documentation that the CTC was a permitted use under the zoning ordinances, the BOP notified Bannum that its contract to operate the CTC was terminated for convenience of the government.

Bannum brought a claim against the City under 42 U.S.C. Sec. 1983, claiming, inter alia, the City violated its rights under the Equal Protection Clause. The district court granted the City's motion for summary judgment on all grounds. Bannum appeals the grant of summary judgment only on the claim that its equal protection rights were violated.

II. DISCUSSION

A. Standard of Review

We review the district court's grant of summary judgment de novo, United States ex rel. Glass v. Medtronic, Inc., 957 F.2d 605, 607 (8th Cir.1992), and we apply the same standards used by the district court, Thelma D. by Delores A. v. Board of Educ., 934 F.2d 929, 932 (8th Cir.1991). We affirm only when the record shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Osborn v. E.F. Hutton & Co., 853 F.2d 616, 618 (8th Cir.1988).

B. Former Zoning Ordinance

Bannum argues that the former zoning ordinance, on its face and as applied, violated the Equal Protection Clause by prohibiting CTCs while other similar and identical uses of property were permitted as a matter of right. Bannum also claims the district court erred by basing its summary judgment decision solely on the finding that CTCs are not motels or hotels as defined by the former zoning ordinances.

The district court's decision was consistent with the primary argument Bannum presented below--that its proposed use of the Town House Inn was consistent with the definition of "motel" in the city zoning code, and thus was a permitted use. However, Bannum has reversed its position on appeal. It now concedes that its proposed use as a CTC was not permitted by the former zoning ordinances, and argues that this prohibition violates the Equal Protection Clause. We have discretion to address this new theory on appeal because it involves a pure question of law, see Souder v. Owens-Corning Fiberglas Corp., 939 F.2d 647, 650 n. 3 (8th Cir.1991), and we hold Bannum's new theory fails as well.

Both parties concede that the City's zoning ordinances do not involve suspect classifications or impinge on fundamental rights. Therefore, we examine the ordinances under the rational basis test, and must uphold them if they are rationally related to a legitimate governmental purpose. Hodel v. Indiana, 452 U.S. 314, 331, 101 S.Ct. 2376, 2386-87, 69 L.Ed.2d 40 (1981). "[S]uch legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality." Id. at 331-32, 101 S.Ct. at 2387.

Showing the zoning ordinances were arbitrary and irrational is a "heavy burden," id. at 332, 101 S.Ct. at 2387, and Bannum has not met this burden. The permissive zoning scheme which did not list CTCs as a permitted use is not in itself arbitrary or irrational. The City could not conceive of and address every possible land use; listing permitted uses and addressing new proposed uses one step at a time is appropriate. See McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969) ("[A] legislature traditionally has been allowed to take reform 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.' ") (citation omitted). We also cannot say the City's failure to include CTCs in the original ordinances was arbitrary or irrational; many possible land uses are not listed in the ordinances. Furthermore, when the proposed use for a CTC was brought to the City's attention by Bannum, the City did address this use. It then amended the zoning ordinances to allow half-way houses, which would include CTCs, as a conditional use.

We cannot say that the City's failure to address the use of land by CTCs or half-houses in the original ordinances was arbitrary or irrational. Therefore, Bannum's claim that failure to provide for CTCs in the original ordinances violated its equal protection rights fails.

C. Amended Zoning Ordinance

Bannum also contends the amended zoning ordinances violate the Equal Protection Clause both facially and as applied because Bannum is required to apply for a conditional use permit to operate a CTC. Bannum contends that other "similar and identical uses of property" are permitted as a matter of right and may operate without a conditional use permit. These uses which Bannum claims are similar and identical include hotels, convalescent homes, hospitals, apartment buildings, and multiple family housing. Because these uses do not need to apply for a conditional use permit, Bannum claims, imposing this requirement on half-way houses, which house prisoners, ex-prisoners, and juvenile offenders, ⁸ is arbitrary and irrational, violating Bannum's equal protection rights.

Again, because no suspect class or fundamental right is involved, we review Bannum's claim under the rational basis test, see Hodel, 452 U.S. at 331, 101 S.Ct. at 2386-87, and uphold the ordinance if it "bears a rational relation to a legitimate government objective," Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 461-62, 108 S.Ct. 2481, 2489-90, 101 L.Ed.2d 399 (1988). The amended ordinance also carries a presumption of rationality which Bannum can overcome only "by a clear showing of arbitrariness and irrationality." Hodel, 452 U.S. at 331-32, 101 S.Ct. at 2387. "[W]e will not overturn such [an ordinance] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [City's] actions were irrational." Vance v....