Clark v. City of Williamsburg
| Decision Date | 09 May 2019 |
| Docket Number | CASE NO. 2:17-CV-02002-HLT |
| Citation | 388 F.Supp.3d 1346 |
| Parties | Eric S. CLARK, Plaintiff, v. The CITY OF WILLIAMSBURG, KANSAS, Defendant. |
| Court | U.S. District Court — District of Kansas |
Eric S. Clark, Williamsburg, KS, pro se.
Andrew D. Holder, J. Steven Pigg, Seth Aaron Lowry, Fisher, Patterson, Sayler & Smith, LLP, Topeka, KS, for Defendant.
Plaintiff Eric Clark brings this action under 42 U.S.C. § 1983 alleging Defendant City of Williamsburg, Kansas ("City") violated his constitutional rights under the First and Fourth Amendments.1 He also brings an inverse condemnation action under Kansas state law. Doc. 55 at 14. This case stems from a violation notice the City sent Clark regarding signs at the edge of Clark's property. Both parties have filed summary-judgment motions as to all claims. Doc. 78; Doc. 91.
As to Clark's First Amendment claim, the Court finds that Article 8, § 4.A.(6) is an unconstitutional content-based restriction and, therefore, grants Clark summary judgment on that count. That provision is severable from the remainder of the City's sign ordinance, which the Court does not evaluate because Clark lacks standing to make that challenge. The Court grants summary judgment to the City on Clark's Fourth Amendment claim (because there was no search of Clark's property), and on Clark's inverse-condemnation claim (because Clark has not established any taking).
On February 23, 2015, the City's code enforcement officer, Tony De La Torre, sent Clark a "NOTICE OF VIOLATION" of the City's sign ordinance. Doc. 79 at 4; Doc. 92-22 at 2. The violation notice stated that Clark was in violation of the City's sign ordinance because he had "three large barrels, several signs, and other affixed objects" on the City's "right of way." Doc. 92 at 18. According to the violation notice, the items Clark needed to remove were located within the City's eighty-foot easement. Id. The violation notice requested Clark's voluntary cooperation, but it also informed him a citation could be issued and the items removed if he did not comply. Doc. 92 at 5-6; Doc. 100 at 4; Doc. 92-22 at 2. The violation notice directed Clark to immediately contact the City by phone if he had any questions or believed he received the notice in error; otherwise, "actions will continue toward resolution." Doc. 92-22 at 2. Clark did not call. Doc. 100 at 27.
On March 16, 2015, De La Torre went to Clark's property to discuss the matter. Doc. 79 at 10-11; Doc. 92 at 12. Clark's house sits back from the road and has a gravel driveway on one side that extends from the road to the back of the house, where it widens into a gravel apron or parking area. Doc. 92 at 14. On the day De La Torre went to Clark's property, there were no "No Trespass" signs posted. Id. Clark seldom uses the front door of his house and has trained his family members to go to the back door when they visit. Id. at 15. The front door, which has no doorbell, is accessed by a front porch with steps up the front. Id. at 15-16. There is no sidewalk or worn path to the front porch, and certain items on the porch partially blocked the entrance, or at least would have required a visitor to squeeze by them to get to the door. Id. A tarp was hung up along the north side of the porch. Id. at 15. Vegetation covered at least some of the entrance to the front porch. Id. At his deposition, Clark was asked, "Would you agree that it doesn't look like an invitation to the front door with those things sitting in front of it?" Clark answered, "I would hope so, but I can't really say that nobody would be deterred from going up there." Id. ; Doc. 100 at 18.
On March 16, 2015, De La Torre parked near the road. He walked up the driveway and saw that there was no path to the front door and that the door itself was blocked by items on the porch. He then heard someone in the back and started walking that way on the driveway. Doc. 92 at 16-17; Doc. 100 at 19-20. De La Torre then encountered Clark, who got angry and told De La Torre to leave several times in the span of less than a minute. Doc. 92 at 17. Clark then went back into the house and De La Torre left. Doc. 92 at 16; Doc. 100 at 19. De La Torre believes he only proceeded half-way to three-quarters up the driveway and did not leave the driveway or gravel apron/parking area near the back of the house. Doc. 92 at 17; Doc. 100 at 20-21. De La Torre estimates he was on Clark's property for 3-4 minutes; Clark claims it was 5-6 minutes. Doc. 92 at 16; Doc. 100 at 19.
Though Clark did not call the City or discuss the violation notice with De La Torre when he went to Clark's property, Clark did send the City some letters in response. Doc. 100 at 22; Doc. 92 at 18-19. Clark disputed that he was in violation of any sign ordinance provision and asserted that the sign ordinance was unconstitutional. Doc. 100 at 22; Doc. 92 at 18-19. In one of those letters, which was labeled a litigation notice, Clark stated that he was fearful of putting up any new objects until the enforcement threat was removed. Doc. 79 at 5; Doc. 92 at 18-19.
The City has never affirmatively retracted the violation notice. Doc. 79 at 4; Doc. 92 at 10. But after receiving the litigation notice, the mayor spoke with the City's attorney, who advised the City to not continue investigating Clark's alleged violations of the sign ordinance "further." Doc. 92 at 19; Doc. 100 at 22. The mayor discussed the issue with the city council, and the city council agreed to that course. Doc. 92 at 19; Doc. 100 at 22. De La Torre's notes state that the City decided not to take any action on the violation notice "at this time." Doc. 100 at 22; Doc. 79-2 at 23. Four months later, the City suspended its code enforcement officer position due to budget constraints and has had no code enforcement officer since that time. Doc. 79 at 6; Doc. 92 at 19. Clark was aware that the City suspended the position. Doc. 92 at 17. The City also did not reappoint a judge for the City's municipal court and no judge has held a municipal judicial proceeding in the City since May 2016. Doc. 92 at 19; Doc. 100 at 23. The City has indicated that it will not enforce the sign ordinance against Clark or any one else "during the pendency of this case." Doc. 92 at 19.
Both parties have filed separate motions for summary judgment. Summary judgment is appropriate if the record establishes that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of establishing the absence of a genuine issue of fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant to demonstrate that genuine issues remain for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To carry this burden, the nonmovant "may not rely merely on ... its own pleadings." Nahno-Lopez v. Houser , 625 F.3d 1279, 1283 (10th Cir. 2010) (internal quotations and citations omitted). "Rather, it must come forward with facts supported by competent evidence." Id. The inquiry turns on "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby , 477 U.S. at 251-52, 106 S.Ct. 2505. In applying this standard, courts must view the evidence and all reasonable inferences from it in the light most favorable to the nonmovant. Matsushita , 475 U.S. at 587, 106 S.Ct. 1348.
Clark has asserted three claims in this case. Count I and Count II arise under the Constitution and are brought pursuant to 42 U.S.C. § 1983. They allege, respectively, violations of the First and Fourth Amendments. The third count—for inverse condemnation—is brought under Kansas state law. Doc. 55 at 14-15. Each is discussed in turn.2
A complicating factor in analyzing Clark's First Amendment claim is that the parties disagree on the scope of this case. Clark asserts a broad challenge to several provisions of the City's sign ordinance, rather than focusing on the February 23, 2015 violation notice. Doc. 79 at 44-79. By contrast, the City disputes that Clark has standing to challenge any provisions of the City's sign ordinance. Doc. 92 at 27-32. But to the extent Clark does have standing, the City limits its analysis to whether the City is entitled to prohibit signs on public property.3 According to the City, the "February 23, 2015 Notice of Violation addressed only Article 8, § 5 of the City sign regulations." Doc. 92 at 33.
The Court agrees with the City that Clark lacks standing to challenge most provisions in the sign ordinance, as discussed below. But the Court disagrees with the City about what provision is at issue. The violation notice does not cite any specific provision in the sign ordinance by number, let alone Article 8, § 5. But it did allege that, "[u]nder the City of Williamsburg's Ordinance, political signs shall not be placed on or otherwise affixed to any public building or sign, right of way, sidewalks, utility pole, street lamp post, tree, or other vegetative matter, Public Park, or other public property." Doc. 99-22 at 2. That recites nearly verbatim Article 8, § 4.A.(6). Article 8, § 5 is not quoted, paraphrased, or mentioned. Accordingly, to the extent a specific provision is at issue, it is Article 8, § 4.A.(6)—not Article 8, § 5.4
Clark's reply clarifies that his standing for a First Amendment challenge is based both on the threatened enforcement action, "as well as the ordinance's prohibitions which stand as prior restraints." Doc. 100 at 37-38. Accordingly, the Court must evaluate Clark's...
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