Campbell v. Rainbow City, Ala., 04-11409.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Forrester
• Citation: 434 F.3d 1306
• Parties: Joseph R. CAMPBELL, Marilyn Campbell, Plaintiffs-Appellees, v. RAINBOW CITY, ALABAMA, Defendant-Appellant.
• Docket Number: No. 04-11409.,04-11409.
• Decision Date: 06 January 2006

434 F.3d 1306 Joseph R. CAMPBELL, Marilyn Campbell, Plaintiffs-Appellees,
v.
RAINBOW CITY, ALABAMA, Defendant-Appellant. No. 04-11409. United States Court of Appeals, Eleventh Circuit. January 6, 2006.

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Howard Edgar Howard, Ford, Howard & Cornett, P.C., Jack Lee Roberts, Jr., Turnbach, Warren, Roberts & Lloyd, P.C., Gadsden, AL, for Defendant-Appellant.

Sam Heldman, Gardner, Middlebrooks, Gibbons & Kittrell, Washington, DC, Gayle H. Gear, William M. Dawson, Birmingham, AL, for Plaintiffs-Appellees.

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

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Before CARNES and PRYOR, Circuit Judges, and FORRESTER^*, District Judge.

FORRESTER, District Judge:

Plaintiffs, Joseph and Marilyn Campbell, brought this action pursuant to 42 U.S.C. § 1983 in the United States District Court for the Northern District of Alabama against Defendant Rainbow City (hereinafter "Defendant" or "the City"), its mayor and its Board of Adjustment, seeking damages allegedly resulting from the City Council and Planning Commission's denial of tentative approval for Plaintiffs' proposed building project.¹ Plaintiffs contend that the City violated their rights under the First Amendment and the Fourteenth Amendment's Equal Protection Clause when it denied them such tentative approval. Plaintiffs claim that all other developers that came before the Planning Commission had received approval and aver that Plaintiffs were treated differently by the City because of Mr. Campbell's candidacy in a prior mayoral election, in which he ran against the incumbent mayor, a member of the Planning Commission that refused to give tentative approval. The case went to trial, and the jury returned a verdict for Plaintiffs.

Defendant Rainbow City has appealed, asserting as error the district court's denial of Defendant's Rule 50 motion for judgment as a matter of law.² We agree for two reasons. Plaintiffs failed as a matter of law to show that the City's final policymaker acted with an unconstitutional motive, and thus no reasonable jury could find that the City violated the Plaintiffs' First Amendment rights. Moreover, Plaintiffs have not offered any evidence to support an equal protection claim of similarly-situated individuals who were treated differently. Thus, the district court should have granted the City's Rule 50 motion. For these reasons, the order of the district court is reversed, and it is directed to enter judgment for Defendant.

I. Background

In 1996, Mr. Campbell ran for the office of Mayor of Rainbow City and was defeated by the incumbent, Mayor Sue Glidewell. During his bid for office, Mr. Campbell was critical of Glidewell and her policies.

All building projects in Rainbow City must gain approval of the City Council and the Planning Commission. As part of her office, Mayor Glidewell is a voting member of both the City Council and the Planning Commission and appoints six of the other nine members to the Planning Commission. Prior to final approval of a project, the Planning Commission can grant tentative approval if the applicant meets certain requirements. Tentative approval permits the developer to start preparing the site for construction by allowing cleaning and clearing of the land and some minor grading.³

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The Rainbow City Zoning Ordinance has a set of specific regulations governing developments within Rainbow City. One such regulation affecting multifamily housing developments relates to density. Prior to 1999, the Ordinance allowed a density of ten units per acre. The Ordinance was amended in 1999 to allow a density of sixteen units per acre.

On May 5, 1997, the Campbells bought approximately ten acres of land within Rainbow City.⁴ The property was zoned for multifamily housing. Plaintiffs wanted to build a large apartment complex on the tract of land. Originally, the Campbells intended to build 180 units on the property. In order to develop the property in this manner, Plaintiffs would need to obtain a variance because the pre-1999 Ordinance would permit only 100 units on a ten-acre tract of land. In January 1998, Mr. Campbell met with Mayor Glidewell to discuss the construction of an apartment complex on the property. Later, on February 20, when Mr. Campbell came before the City's Planning Commission, he sought to develop 162 apartments on the land. He brought a vicinity map, which highlighted the property, to the meeting. The Planning Commission decided to table the matter for discussion.

On March 23 and 24, 1998, Mr. Campbell attended a City Council meeting and a Planning Commission meeting to determine if he would be permitted to build 162 apartments on the land. Both the Council and the Planning Commission tabled the matter for further discussion.

On April 28, 1998, Mr. Campbell again went before the Planning Commission. This time he stated that he was seeking to build one building with 16 units on part of the property. Mr. Campbell believed that if he impressed the Planning Commission with this development, it would allow him to build the other apartments. The Planning Commission, wary of Mr. Campbell's request, tabled any action until it could consult with the City's attorney.

In May 1998, Mr. Campbell hired an attorney to help him with his requests. On May 11, 1998, Mr. Campbell attended a City Council meeting and left paperwork with the Council. In a letter addressed to the Mayor on the same date, Plaintiffs stated their reasons for seeking a variance from the limitation of ten units per acre.

On June 8, 1998, the Campbells sent another letter to the Mayor and the City Council. The Campbells indicated in the letter that the City lawyer had informed them that they had not complied with the requirements of tentative approval and the letter was an attempt to demonstrate compliance.⁵ The Campbells stated that they were seeking tentative approval for twenty-two apartments per acre on their ten-acre tract. Attached to the letter was a sketch drawn in pencil showing the locations of the proposed buildings.

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The next correspondence between the parties appears to have taken place more than one year later. After an inquiry from the Campbells' attorney, on October 8, 1999, the City's attorney stated that the Campbells had never satisfied the fifth requirement for tentative approval.

Under the structure set up by the City, parties dissatisfied with the Planning Commission's response may appeal to the Board of Adjustment. On November 5, 1999, the Campbells filed an application with the Board of Adjustment in which they sought a number of variances. Plaintiffs sought a variance with regard to apartment density, so as to allow them to build twenty-one units per acre as opposed to sixteen, the maximum that the Ordinance would have allowed at that time. They also sought a variance from the setback requirement for buildings, which required a setback of fifteen feet from parking areas. They sought a variance from the requirement for the mandatory spacing between buildings. Finally, Plaintiffs asked for a variance from the mandatory front and back yard space requirements. The Board of Adjustment, which met in May 2000, turned down all of Plaintiffs' requests for variances. Eventually, Plaintiffs sold half of the property. Another party developed that portion of the property under the name Meadow Oaks.

Plaintiffs offer the following developments as comparators: the Etowah Steelworkers Credit Union, the Wallace Medical Center, Regency Point, St. Christopher Apartments, the Hidden Creek Apartments, Meadow Oaks, Terry Echols' apartments on Brown Avenue, and Terry Echols' apartments on Sixth Street.

The Etowah Steelworkers Credit Union and the Wallace Medical Center are commercial developments. Regency Point was built in 2000 as a Planned Unit Development for a mixed-use retirement community. There is no evidence in the record to show that Regency Point sought or obtained tentative approval from the Planning Commission to develop the property. The area was rezoned without the developer furnishing the City with a zoning request or a concept plan. According to Plaintiffs' expert, Mr. Stinson, Regency Point does not have the mix of commercial and residential housing required by the Ordinances relating to a Planned Unit Development.

The St. Christopher apartment complex was built partially on land zoned for R-1 property, a designation which does not allow the building of apartments. Mr. Stinson could find no record of plans having been submitted to the City's building department.

The Hidden Creek Apartment complex is a small, sixteen-unit development situated on a half-acre near Plaintiffs' tract of land. There is no evidence in the record to show that the developers of the Hidden Creek Apartments sought or received tentative approval for the development prior to receiving final approval. According to Mr. Stinson, the Hidden Creek Apartments do not comply with the City Ordinances governing density, parking, and recreational areas.

The Meadow Oaks development, a fifty-six-unit multifamily apartment complex, built on land originally owned by Plaintiffs, was granted tentative approval by the Planning Commission after its developers submitted a site plan. The development as built does not have the proper buffer zone between the development and an adjacent single family residence.

Finally, Plaintiffs claim their project to be similarly situated to the two sets of apartments built by Terry Echols: an eight-unit complex on Brown Avenue and a ten-unit complex on Sixth Street, both of which do not comport with the City Ordinance in numerous ways. Both Echols'

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developments sought and received tentative approval from the Planning Commission. Each time Mr. Echols came before the Commission, he brought site plans outlining the proposed locations of the buildings. On a few occasions he was accompanied by both his...