Bruning v. City of Neb.
| Decision Date | 10 June 2020 |
| Docket Number | 8:18CV287 |
| Parties | ROBERT BRUNING and SHARON BRUNING, a married couple; Plaintiffs, v. CITY OF OMAHA, NEBRASKA, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on the Motion for Summary Judgment filed by Defendant City of Omaha, ECF No. 41, and the Motion for Partial Summary Judgment filed by Plaintiffs Robert Bruning and Sharon Bruning, ECF No. 44.
The following facts are those that appear from the record to be undisputed.1
In 1979, the Brunings purchased a 4.66-acre parcel of property located in Omaha, Nebraska. The property was zoned for agricultural use when the Brunings purchased it, and it remains zoned for agricultural use. The Brunings used the property to operate a grain farm and a seeding business from 1979 until 2004. During this time period, the Brunings built additional buildings and replaced several others.
In 2004, the Brunings sold their businesses, and the purchaser of the companies continued to use the buildings for seeding and mowing. After the businesses were sold, several additional buildings were built on the property.
The Brunings state that in 2009, City Inspector Timothy Wees "red-tagged" one of the buildings on the property. They then met with Jay Davis, the Superintendent of the Permits and Inspection Division of the Omaha Planning Department, and told him about their use of the property, including that it was leased to third-party businesses. The Brunings state that Davis advised them that their use of the property was permissible and allowed them to continue this use. The City disputes these factual allegations and claims that the Brunings' first interaction with the City regarding their use of the property was in 2015.
After 2012, the Brunings continued to lease building space to other companies. They assert that every time a new building was constructed on the property a representative of the company contacted the City, and every time the representative was told that no permit was necessary.
In 2015, in response to a complaint, the City of Omaha Planning Department began investigating the Brunings' use of the property. After this investigation, the City concluded that the property was being used for activities not permitted in an agricultural district. The City found that the buildings on the property were being leased by several businesses and other users for landscaping and boiler-repair businesses, as well as automobile storage. The Brunings disputed these findings, applied for a variance, and were denied by the City's Zoning Board of Appeals. The Brunings appealed the decision of the Zoning Board of Appeals to the District Court for Douglas County and the NebraskaSupreme Court, which affirmed the decision of the Zoning Board of Appeals. Bruning v. City of Omaha Zoning Bd. of Appeals, 927 N.W.2d 366 (Neb. 2019).
On June 22, 2018, the Brunings brought this case, claiming the City's actions were unconstitutional and should be equitably estopped. Compl., ECF No. 1. The City filed a Motion for Summary Judgment on February 28, 2020, ECF No. 41. That same day, the Brunings filed a Motion for Partial Summary Judgment. ECF No. 44.
"Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c)). "Summary judgment is not disfavored and is designed for every action." Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view "the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor." Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, "Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing "the absence of a genuine issue of material fact."Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477 U.S. at 325). Instead, "the burden on the moving party may be discharged by 'showing' . . . that there is an absence of evidence to support the nonmoving party's case." St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).
In response to the moving party's showing, the nonmoving party's burden is to produce "specific facts sufficient to raise a genuine issue for trial." Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial." Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). "[T]here must be more than the mere existence of some alleged factual dispute" between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).
In other words, in deciding "a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts." Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at 1042). Otherwise, where the Court finds that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," there is no "genuine issue of material fact" for trial and summary judgment is appropriate. Whitney, 826 F.3d at 1076 ).
The City seeks summary judgment dismissing this action. The Brunings seek a judgment stating that the City is equitably estopped from claiming that the property's use is non-conforming, that the City committed an unlawful taking, and that the City violated the Brunings' equal protection rights.2
The Brunings claim the City deprived them of equal protection and discriminated against them as a class of one. The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. "A class-of-one claim is stated when a plaintiff alleges that a defendant intentionally treated her differently from others who are similarly situated and that no rational basis existed for the difference in treatment." Mathers v. Wright, 636 F.3d 396, 399 (8th Cir. 2011) ().
As a threshold inquiry, the Court must determine whether the Brunings are similarly situated to others who allegedly received preferential treatment. ChemSol, LLC v. City of Sibley, 386 F. Supp. 3d 1000, 1025 (N.D. Iowa 2019) (citing Domina v. Van Pelt, 235 F.3d 1091, 1099 (8th Cir. 2000)). The degree of similarity must be such that "no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimategovernment policy . . . ." Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 60 (2d Cir. 2010) (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006)). Whether a plaintiff is similarly situated to other parties is a question of fact. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 799-800 (7th Cir. 2015).
The Brunings list ten properties that they claim are similarly situated. Ex. A, ECF No. 1 at Page ID 16; ECF No. 45-5 at Page ID 532-54. They argue these properties are similarly situated because they are agriculturally zoned but are being used to operate businesses like those operated on the Brunings' property, or they are being leased to third-party businesses that are similar. The Brunings claim they have been treated differently from owners of the comparator properties because they have been told they must vacate their property rather than cease operations. Compare ECF No. 54-1 at Page ID 1435 ("[A]ll buildings and business will be served a NOTICE TO VACATE."); with ECF Nos. 54-3, 54-4, 54-5, 54-6, 54-7, 54-8 (). The Brunings also were given five days to comply with the City's directive rather than thirty. The City does not dispute these alleged differences in treatment.
The City has submitted satellite images of the properties that it claims show differences between the comparator properties and the Brunings' property. Ex. 3, ECF No. 43-2 at Page ID 169-95. The City also argues that none of the other properties is being used for more than one commercial purpose, and none is being used for manufacturing or warehousing. Yet the City has not provided evidence in support of these arguments, nor linked the alleged differences in the properties with any rational basis for the disparate treatment.
The Court will order the parties to appear for an evidentiary hearing on the City's Motion, to address whether there is any genuine issue of...
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