Bowlby v. City of Aberdeen

Decision Date14 May 2012
Docket NumberNo. 11–60279.,11–60279.
Citation681 F.3d 215
PartiesDebra BOWLBY, Plaintiff–Appellant, v. CITY OF ABERDEEN, MISSISSIPPI; City of Aberdeen, Mississippi Planning and Zoning Board, Defendants–Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

OPINION TEXT STARTS HERE

Jim D. Waide, III, Waide & Associates, P.A., Richard Shane McLaughlin, McLaughlin Law Firm, Inc., Tupelo, MS, for PlaintiffAppellant.

Berkley Neal Huskison, Mitchell McNutt & Sams, Columbus, MS, for DefendantAppellee.

J. David Breemer, Pac. Legal Found., Sacramento, CA, for Pac. Legal Found., Amicus Curiae.

Appeal from the United States District Court for the Northern District of Mississippi.

Before KING, BENAVIDES and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

PlaintiffAppellant Debra Bowlby appeals from the district court's grant of DefendantsAppellees' Rule 12(b)(6) motion to dismiss. Bowlby sued DefendantsAppellees the City of Aberdeen, Mississippi (City) and the Aberdeen Planning and Zoning Board (“Board”) for violations of the Fifth Amendment Takings Clause and for denying her procedural due process and equal protection under the Fourteenth Amendment. The district court dismissed all of her claims. Bowlby appeals only the dismissal of her procedural due process and equal protection claims. Because we find that the district court was justified in dismissing Bowlby's equal protection claim, but that it erred in dismissing her due process claim, we affirm in part, and reverse and remand in part.

I. Background

On July 13, 2009, Bowlby appeared before the Aberdeen Planning and Zoning Board seeking permission to operate a Sno Cone hut at the corner of Highway 45 and Meridian Street in the city of Aberdeen. Bowlby had already purchased a small hut from which to operate her business, and she had agreed to lease the lot at the intersection from its owner. One member of the Board voiced concerns, as this lot was zoned “C–2,” for larger businesses, and the intersection at Highway 45 and Meridian Street is the busiest in Aberdeen. However, the other Board members did not share these concerns and the Board granted Bowlby the requested permits and told her to proceed with her business plan. Accordingly, around July 29, 2009, Bowlby opened her business.

On September 14, 2009, the Board again discussed the location of Bowlby's business, and decided to revoke the permits it had given her to operate the Sno Cone hut at that location. Bowlby was not invited to the meeting, nor informed that the Board was reviewing the issue. The following day, the city building inspector told Bowlby that she had to immediately close her business, because the Board had determined that it did not conform to the laws and regulations of the City. The inspector also gave Bowlby a letter from the Board notifying her of its decision and the reasons therefor. Those reasons included: (1) that Bowlby had misled the Board as to the location of her business; (2) that the location poses a safety concern because the busy intersection was not safe for children; (3) that the land is zoned C–2 and intended for larger businesses; (4) that the portable toilet next to Bowlby's business was an eyesore and a health hazard; and (5) that the overall look of the business was offensive and not appropriate for the eastern entrance to the City.

Section 115.14 of the Aberdeen Zoning Ordinance requires that all appeals of Board decisions be made to the mayor and Board of Aldermen, and then to the courts. However, Bowlby did not follow that course, and she instead brought suit against the City and the Board in the United States District Court for the Northern District of Mississippi. She claimed that her business was taken without just compensation, in violation of the Fifth Amendment Takings Clause; that her business was closed without notice or hearing, in violation of the Fourteenth Amendment Due Process Clause; and that her business was closed on a racially discriminatory basis, in violation of the Fourteenth Amendment Equal Protection Clause. The DefendantsAppellees filed a motion to dismiss under Rule 12(b)(6), as well as under Rules 21(b)(1)-(3). The district court granted the motion based on Rule 12(b)(6), relying on the Supreme Court's decision 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 court held that, under Williamson, Bowlby's takings claim was not ripe because she did not first seek just compensation in a state court for the taking of her business. See id. at 194, 105 S.Ct. 3108. In addition, the court found that Bowlby's equal protection claim would not exist but for the taking, such that it, too, was unripe. The court also held that the Board had not violated Bowlby's due process rights because there had not yet been a final deprivation by the state, since she had not appealed the decision to revoke permission to operate her business.

II. Standard of Review

We review a district court's grant of a motion to dismiss de novo, “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir.2010) (quotation marks and citation omitted). However, those facts, “taken as true, [must] state a claim that is plausible on its face.” Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir.2011) (citation omitted). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A complaint is insufficient if it offers only “labels and conclusions,” or “a formulaic recitation of the elements of a cause of action.” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

III. Analysis

On appeal, Bowlby argues that she had a property interest in being allowed to operate her business, and that the Board's revocation of her business permits without prior notice or hearing violated her Fourteenth Amendment right to procedural due process. She also claims that the closing of her business was racially discriminatory, in violation of her equal protection rights. Her appeal is supported by an amicus curiae brief submitted by the Pacific Legal Foundation (“Foundation”), a charitable organization dedicated to preserving the individual right to make reasonable use of private property. The Foundation argues that the district judge incorrectly applied a ripeness requirement to Bowlby's procedural due process claim, because that claim was actionable as soon as a predeprivation hearing was denied. Furthermore, the Foundation argues that Bowlby was not required to exhaust administrative remedies in order to bring a claim under 42 U.S.C. § 1983, and that her due process claim is ripe without an appeal to a higher administrative authority. In defense of both Bowlby's due process and equal protection claims, the Foundation states that they are their own, separate causes of action, and not barred by the fact that her takings claim was unripe.

The DefendantsAppellees respond that Bowlby's due process claim fails because she has no protected property interest in operating the Sno Cone hut at a preferred location in Aberdeen. In addition, even if Bowlby had a protected property interest, she did not appeal the Board's decision. Thus, there was no decision from the final decision-making authority, such that the deprivation of Bowlby's property was not final. As for Bowlby's equal protection claim, the DefendantsAppellees argue that it flows directly from her takings claim, and would not exist except for the alleged taking. Since Bowlby's takings claim was unripe, her equal protection claim is barred for the same reason.

We will address Bowlby's due process and equal protection claims in turn.

A. Procedural Due Process

To begin, we disagree with the DefendantsAppellees that Bowlby did not have a property interest in her business permits. “Privileges, licenses, certificates, and franchises ... qualify as property interests for purposes of procedural due process.” Wells Fargo Armored Serv. Corp. v. Ga. Pub. Serv. Comm'n, 547 F.2d 938, 941 (5th Cir.1977). This is because, once issued, a license or permit “may become essential in the pursuit of a livelihood.” Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Here, the Board issued permits to Bowlby, allowing her to operate a business “in the pursuit of a livelihood.” Id. As such, we find that she had a property interest in the permits. Furthermore, the Board permitted Bowlby to operate her business at the corner of Highway 45 and Meridian Street, where she had leased property for that purpose. Therefore, unlike DefendantsAppellees' contention, she is not seeking to protect a property interest merely “in her preferred location,” but in the specific location that the Board approved. We agree with the DefendantsAppellees that “the [Z]oning [B]oard has broad discretion to determine the appropriate locations for certain types of businesses within the City of Aberdeen,” but once the Board issued permits for Bowlby to operate her business at a designated intersection, she had a property interest in those permits, and by extension in operating at the location it identified.

Because permits and licenses relate to the maintenance of a person's livelihood, [s]uspension of issued licenses ... involves state action that adjudicates important interests of the licensees.” Bell, 402 U.S. at 539, 91 S.Ct. 1586;see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (We have frequently recognized the severity of depriving a person of the means of livelihood.”). Therefore, once issued, a license or permit cannot be taken away by the State without due process. Bell, 402 U.S. at 539, 91...

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