Church of Jesus Christ v. Jefferson County, Ala.

• Decision Date: 23 September 1989
• Docket Number: Civ. A. No. 89-AR-0711-S.
• Citation: 721 F. Supp. 1212
• Parties: The CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, et al., Plaintiffs, v. JEFFERSON COUNTY, ALABAMA, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

721 F. Supp. 1212

The CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, et al., Plaintiffs, v. JEFFERSON COUNTY, ALABAMA, et al., Defendants.

Civ. A. No. 89-AR-0711-S.

United States District Court, N.D. Alabama, S.D.

September 23, 1989.

Douglas P. Corretti, Mary D. Hawkins, James R. Scalco, Corretti & Newsom, Birmingham, Ala., for plaintiffs.

Jeffrey Monroe Sewell, Birmingham, Ala., for defendant Jefferson County, Ala.

Charles S. Wagner, Asst. County Atty., Birmingham, Ala., for all other defendants.

MEMORANDUM OPINION

ACKER, District Judge.

This court has for consideration a motion to dismiss or, in the alternative, a motion for summary judgment filed by defendants, Jefferson County, Alabama; David Orange; Reuben Davis; Jim Gunter; John Katopodis; and Chris McNair. The individual defendants are members of the Jefferson County, Alabama, Commission, the governing body of Jefferson County, and are sued in their representative capacities. The court will consider this motion as one invoking Rule 56, F.R.Civ.P.

Pertinent Undisputed Facts

Plaintiffs Finley Eversole and Frieda Eversole own real property located in an unincorporated area of Jefferson County, Alabama. Plaintiff, The Church of Jesus Christ of Latter-Day Saints (herein "Church"), entered into a contract with the Eversoles to purchase their said property contingent on obtaining a zoning classification which will permit the construction of a worship facility. Plaintiffs Barry W. Seidel and Douglas Bennett are members of the Church. The Church wishes to construct and maintain a sanctuary and allied structures. The Eversoles' property is zoned E-1 (Estate Residential). Jefferson County's zoning ordinance does not allow churches to be constructed or maintained in an E-1 zone. Consequently, the Church and the Eversoles sought to have the property rezoned to a classification which would permit a place of worship.

Defendants concede that Jefferson County's zoning scheme permits churches only in an Institutional-1 (I-1) zoning district. In other words, to construct a church a property owner must either own property now located within an I-1 zone or have its classification changed to I-1. Defendants do not contradict plaintiffs' allegation that Jefferson County now contains no unoccupied property zoned I-1. Therefore, any proposed new church location in Jefferson County would necessitate a zoning change. (Complaint at 3). In compliance with the procedure provided by state law and the zoning ordinance, plaintiffs applied to the Jefferson County Planning and Zoning Commission to rezone this property. After a hearing, the Planning Commission unanimously recommended to the Commission that plaintiffs' application for rezoning be approved. The Commission then held its own public hearing on April 4, 1989, in accordance with required procedure. Rejecting the recommendation of the Planning Commission, the Commission denied plaintiffs' application for rezoning on a 3-2 vote.

After the Commission's action, plaintiffs filed their complaint in this court, invoking 42 U.S.C. § 1983. They allege the violation of a panoply of constitutional rights under color of state law. Plaintiffs claim that both the zoning ordinance itself and the action by the Commission violate the following rights which are guaranteed by the United States Constitution: (1) equal protection of the law; (2) substantive due process; (3) free exercise of religion; and (4) just compensation and procedural due process upon a taking for public use. They append a state law claim invoking Alabama's constitutional prohibition against any action interfering with the free exercise of religion.

Conclusions of Law

Jurisdiction

This court has jurisdiction of the federal questions under 28 U.S.C. §§ 1331 and 1343, and jurisdiction over the state claim as a matter of pendent jurisdiction.

Was There a Denial of Substantive "Due Process"?

Plaintiffs sue the Commission because these five men comprise the governing body of Jefferson County, and it was their 3-2 vote on April 4, 1989, which denied plaintiffs' application to rezone from E-1 to I-1. Plaintiffs expressly identify this vote as the only act by the individual defendants of which plaintiffs complain. (Complaint at 7-8). Plaintiffs characterize the vote of the majority as having been influenced by improper and illegitimate considerations. (Complaint at 7). The gravamen of the complaint is that the proposed zoning change was rejected by politicians out of political considerations. (Complaint at 7). Plaintiffs conspicuously do not claim corruption or venality.

When this action was filed, Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570 (11th Cir.1989), had not been decided by the Eleventh Circuit. Greenbriar was decided on September 1, 1989, after these defendants' motion for summary judgment was under submission. This court deliberately withheld deciding defendants' Rule 56 motion until Greenbriar was decided.

Strain as it may, this court can find no avenue for the Eversoles and the Church around Greenbriar, which clearly stands for the proposition that elected officials who vote on zoning requests can act for purely political reasons, because partisan, political decision-making, even by unknowledgeable, close-minded politicians fearful of harm more than political, is automatically deemed rational and, therefore, cannot be arbitrary and capricious unless it is the product of corruption, namely, the result of an outright bribe, as contrasted to some "legitimate" promise to deliver votes or some "legitimate" threat to withhold votes or to harass the politician "legitimately." In other words, after Greenbriar, a zoning decision is in all respects likened to a Congressional enactment which anyone knows can become binding law as the direct result of an intensive lobbying effort, or as the direct result of the political clout of a particular voting block, or as the direct result of exceedingly friendly relations engendered by heavy campaign contributions, or because an irate constituent spits on a Congressman's child, all without any prior public hearing, which in another context might be thought to comport with the concept of "due process." Although there are many decided cases which do describe "zoning" as a legislative matter, it has also been widely recognized by courts that "zoning" has a quasi-judicial aspect or component, because in all instances the "legislative" process by which "zoning" is accomplished provides a procedure to be followed, including a public "due process" hearing after adequate notice to those who may be affected. In this sense the zoning function is markedly different from the usual activities of the second branch of government. However, in view of Greenbriar, in the zoning context there is seemingly no limit to the quantity or the quality of pre-judgment by the deciders, or to the level of hostility by the deciders toward the proponents or opponents; or to the level of actual fear of reprisal by the deciders; or to the level of ignorance of the deciders, whether displayed or hidden during the decisional process. The only limitation seems to be that there be no forty pieces of silver. Whether the kinds of intimidation that affect decision-making today in Colombia are legitimate in the three states comprising the Eleventh Circuit is, perhaps, still a matter for debate. Under the Greenbriar regime, the proponents and opponents to a zoning request will soon resemble the organized mob at Alabaster, and police protection for the deciders may become the order-of-the-day. Anything goes!

The Greenbriar rationale clearly takes away any and all causes of action which the Eversoles and the Church might have had pre-Greenbriar for an alleged denial of substantive due process. Compare Marks v. City of Chesapeake, 883 F.2d 308 (4th Cir.1989).

The adverse vote by the City Council of Alabaster in Greenbriar constituted a decision which the jury, after hearing all of the evidence and observing the demeanor of the witnesses, found to be "arbitrary and capricious." In all probability the jury reached this conclusion because the City Council voted (1) after ex parte meetings between the opponents, the Mayor and certain council members; (2) in an atmosphere of severe tension and intimidation as reflected in an awesome video tape shown to the jury (whether the tape was viewed by the Eleventh Circuit is not stated in its opinion); (3) without the City's complying with its own procedural rules and the rules mandated by the Code of Alabama (the Planning Commission, required by law to express an opinion, neither recommended for nor against the zoning change after its chairman, the Mayor, contrary to Roberts Rules, voted against it, creating a false tie); (4) with the Council members being totally ignorant of the intent, purpose and meaning of the very zoning classification which the developer there sought to have placed on its property; (5) after a written internal warning to the Council from the most knowledgeable City councilman that to deny this particular zoning request well might constitute an arbitrary and capricious act; and (6) without the City's having sought or obtained any expert advice on the effects, bad or good, of the proposed zoning change until after the suit was filed. The zoning applicant in Greenbriar presented to the jury what can only be described as close to a perfect case of irrational decision-making by the "legislative" body, that is, unless "rationality" has taken on a new meaning in the political context.

The Eversoles and the Church have not offered the kinds of proof offered by the developer in Greenbriar. Thus, under the combined lessons of Greenbriar and of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), defendants are clearly entitled to summary judgment as to that aspect of this action charging a denial of substantive due process. The court understands that there is now pending a...