Barbian v. Panagis, 81-2010

• Decision Date: 30 November 1982
• Docket Number: No. 81-2010,81-2010
• Citation: 694 F.2d 476
• Parties: James N. BARBIAN and Joan L. Barbian, Plaintiffs-Appellants, v. Constantine PANAGIS and the City of Milwaukee, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 476

694 F.2d 476

James N. BARBIAN and Joan L. Barbian, Plaintiffs-Appellants, v. Constantine PANAGIS and the City of Milwaukee, Defendants-Appellees.

No. 81-2010.

United States Court of Appeals Seventh Circuit.

Argued Jan. 11, 1982.

Decided Nov. 30, 1982.

Hugh H. Braun, Godfrey & Trump, Milwaukee, Wis., for plaintiffs-appellants.

Thomas O. Gartner, Asst. City Atty., Milwaukee, Wis., for defendants-appellees.

Before CUMMINGS, Chief Judge, and SPRECHER ^* and WOOD, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

The plaintiffs, homeowners in the City of Milwaukee, Wisconsin, brought this action under 42 U.S.C. Sec. 1983 against the City of Milwaukee and Dr. Constantine Panagis, in his official capacity as Commissioner of the Department of Health ("the Department"). Plaintiffs alleged the Department's decision to grant the Lindner Brothers Trucking Company ("Lindner Brothers"), an adjacent business, a permanent variance from the municipal noise ordinance violated their rights under the Fourteenth Amendment. The plaintiffs claimed the decision was arbitrary and capricious, was made without providing them an opportunity to be heard, and deprived them of property without just compensation. The district court granted the defendants' motion for summary judgment and dismissed the action. The plaintiffs appeal that determination.

I.

Because the district court granted the defendants' motion for summary judgment, we accept the plaintiffs' factual allegations as true and resolve any other genuine issues of material fact in their favor. Fed.R.Civ.P. 56(c); Bishop v. Wood, 426 U.S. 341, 347 & n. 11, 96 S.Ct. 2074, 2079 & n. 11, 48 L.Ed.2d 684 (1976); DiIulio v. Board of Fire and Police Commissioners of the City of Northlake, 682 F.2d 666 at 667 (7th Cir.1982).

The plaintiffs, James and Joan Barbian, husband and wife, own and reside in a single family dwelling in the City of Milwaukee. Since 1955, their lot has been zoned exclusively for residential use. However, a tract of land immediately adjacent to the rear of the Barbian lot was zoned for industrial or light manufacturing purposes. The Lindner Brothers Trucking Company constructed a warehouse on that tract. The problem arose because access to the Lindner warehouse could be accomplished only by the use of a 100-foot wide strip also owned by Lindner Brothers, that extended from the warehouse tract along the side of the Barbian lot to the public street passing in front of the Barbian lot.

During construction of the warehouse, Lindner Brothers laid an asphalt driveway over the narrow strip, although it was zoned only for residential use, to allow construction vehicles and its semi-trailer trucks access to the warehouse. As a result, approximately forty semi-trailer trucks used the access road passing within fifteen feet of the Barbian home daily.

In August, 1976, the plaintiffs complained to the City of Milwaukee Building Inspector that the use of the access road by construction vehicles and Lindner Brothers' trucks for non-residential purposes violated the municipal zoning ordinance. Though an official at the Building Inspector's office initially issued an order halting construction of the warehouse, that agency rescinded the order four days later with the explanation that use of the access strip for industrial traffic was a legal non-conforming use. The Barbians then filed an action in state court challenging that administrative determination. However, in July, 1977, before the state court considered the question, the City of Milwaukee Common Council enacted a measure rezoning the access strip from "residential" to "industrial."

The Barbians next filed an action for declaratory judgment in state court, alleging the rezoning decision violated state law and was an unconstitutional exercise of the municipal police power. The state court rejected those arguments. Evidence adduced, however, indicated that the noise generated by the trucks exceeded fifty-five decibels and, consequently, violated the municipal noise ordinance. Armed with that information, the Barbians requested that the Milwaukee Department of Health enforce the noise ordinance.

The Department conducted sound tests which confirmed that the truck noise exceeded the maximum level permitted under the ordinance. After a year during which considerable negotiating between the parties occurred, the Department of Health granted Lindner Brothers a permanent variance from the noise ordinance. The plaintiffs appealed that decision to the City of Milwaukee Administrative Review Board. Concluding that it lacked jurisdiction, the Administrative Review Board declined to consider the issue and dismissed the appeal.

The Barbians then filed this action under Section 1983, alleging that the Common Council's access strip rezoning decision and the Department of Health's grant of a permanent variance from the noise ordinance violated the Due Process Clause of the Fourteenth Amendment. The Barbians specifically alleged that because the trucks passed their house during all hours, day and night, the noise from the traffic disrupted their sleep, interfered with use of their property, and rendered their home uninhabitable. It was further alleged that the size and number of vehicles increased the danger of physical injury to all residents in the neighborhood and had a debilitating emotional and physical effect on the plaintiffs personally.

The district court granted the defendants' motion for summary judgment on both the rezoning and noise issues. The district court concluded that because the plaintiffs had previously litigated in state court the issues pertaining to the rezoning decision, the doctrine of res judicata prevented relitigation of the same issues in federal court. The plaintiffs do not appeal that part of the decision. On the noise variance, the district court concluded that the Department had not deprived the plaintiffs of property without due process of law, did not "take" the plaintiffs' property without providing just compensation, and that the elemental notions of procedural due process had not been disregarded. The plaintiffs contest those conclusions.

II.

The plaintiffs first claim the Department's noise variance decision was arbitrary and capricious and, consequently, deprived them of property without due process of law since its sound tests conclusively demonstrated that the noise level exceeded by at least twenty-five decibels the maximum level permitted in residential neighborhoods. The plaintiffs contend the extreme disparity between that level and the maximum level set in the ordinance, combined with the lengthy delay which occurred before the Department acted upon their complaint, demonstrates the decision was arbitrary and capricious.

An action under Section 1983 does not provide a property owner a collateral forum in which to question the merits of a municipal agency's administration of a local noise ordinance, but is limited to whether or not the Department's decision was arbitrary and capricious and thereby deprived plaintiffs of their property. "[T]he guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the objective sought to be attained." Pruneyard Shopping Center v. Robins, 447 U.S. 74, 84-85, 100 S.Ct. 2035, 2042-2043, 64 L.Ed.2d 741 (1980), quoting Nebbia v. New York, 291 U.S. 502, 523, 54 S.Ct. 505, 78 L.Ed. 940 (1934); see also State ex rel. Schleck v. Zoning Board of Appeals, 254 Wis. 42, 52, 35 N.W.2d 312 (1948); Snyder v. Waukesha County Zoning Board of Adjustment, 74 Wis.2d 468, 476, 247 N.W.2d 98, 103 (1976). Moreover, the administration of the noise ordinance, as an exercise of the local police power, Kovacs v. Cooper, 336 U.S. 77, 83, 69 S.Ct. 448, 451, 93 L.Ed. 513 (1949), is presumed to be reasonable. The burden rests with the party alleging the decision was arbitrary to rebut that presumption. Goldblatt v. Hempstead, 369 U.S. 590, 595-96, 82 S.Ct. 987, 990-991, 8 L.Ed.2d 130 (1962).

The rezoning of the access strip from a residential to an industrial classification occurred in 1977. Amending the zoning classification was a determination that the permanent disruption to the Barbians' neighborhood did not outweigh the benefits to the general community from the establishment of the warehouse. Further, it was a determination that there would be serious injury to Lindner Brothers if the company could not use its warehouse tract for the legitimate purpose for which it was zoned. The truck noise was not considered a sufficient factor to deny altering the zoning classification of the access property to industrial.

When the state court attack on the rezoning failed, the Barbians challenged the disruption of their neighborhood environment under the noise ordinance. Faced with essentially the same issue presented to the Common Council, the Department suspended enforcement of the noise ordinance in order to effectuate the previous Common Council decision allowing access to the landlocked warehouse. A City of Milwaukee Development Organization study conclusively showed that development of an alternative access route was not feasible. Strict enforcement of the noise ordinance would have prevented access and nullified the Common Council zoning change already determined to be valid.

The Department, moreover, was not unresponsive to the Barbians' concerns. The noise variance was not unconditional. The Department imposed several limitations on the Lindner Brothers' use of its access strip requiring affirmative steps to reduce the noise. The district court found that the conditions had been substantially met. ¹ Further, the Department reserved the authority to revoke the variance if Lindner Brothers failed to adhere to the conditions of the variance or if some other access to the warehouse eventually became available. In...