Garvey Farm LP v. City of Elsmere, Ky.
| Docket Number | Civil Action 2:23-015-DCR |
| Decision Date | 26 May 2023 |
| Parties | GARVEY FARM LP, et al., Plaintiffs, v. CITY OF ELSMERE, KENTUCKY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Defendants City of Elsmere (“Elsmere”), Elsmere council members, and city administrator Matt Dowling have filed a motion to dismiss Plaintiffs Garvey Farm LP and Flagship Communities Reit's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [Record No. 9] The defendants assert: (1) council members and the city administrator are immune from suit in their individual capacities; (2) the plaintiffs' Fair Housing Act §3604(b) claim should be dismissed because their property is not a “dwelling”; and (3) the plaintiffs' taking and conspiracy claims fail because there was no “taking,” and the plaintiffs have not shown pretext. [Id.]
The plaintiffs counter by arguing that: (1) immunity is not a shield for bad faith; (2) a “dwelling” includes vacant land; and (3) a “taking” occurred with discriminatory animus, satisfying a showing of pretext. [Record No. 12] The defendants' motion will be granted in part, and denied, in part, for the reasons that follow.
The following facts are taken as true for the purposes of analyzing and resolving the defendants' motion. The plaintiffs own and operate a mobile home park in the City of Elsmere and recently acquired 18.02 acres of adjacent land with the intent of expansion. [Record No. 1] The city attorney sent a letter to the plaintiffs before purchase reminding them that the property was “not zoned to expand the Mobile Home Park.” [Id.] The plaintiffs subsequently purchased the property, which is currently undeveloped and zoned for single-family residences. [Id.] Elsmere then passed Zoning Ordinance § 2.07(K), an “amendment [that] makes it more difficult to expand manufactured mobile home parks.” [Record No. 1]
The plaintiffs submitted a zoning amendment application to the Kenton County Planning Commission (“KCPC”), seeking “to re-zone the Property from [single-family dwellings] to a Mobile Home Park.” [Record No. 1] The KCPC recommended granting the zoning map amendment, finding it to be “generally in agreement with the adopted comprehensive plan,” which is “intended to guide growth and development in Kenton County.” [Id.] The matter was transferred to the City of Elsmere, according to Kentucky's zoning map amendment process.[1]
Elsmere denied the amendment following a public hearing. The “purported reasons” for the denial include: (1) concerns with an increase in crime; (2) “concerns about the number of manufactured homes within the City of Elsmere compared to other municipalities within Kenton County”; and (3) potential code violations. [Record No. 1] City council members entered an alleged “pre-written seven-page Municipal Order denying the requested Map Amendment.” [Id.] Elsmere subsequently “sent a letter to Plaintiffs expressing their intent to inspect the property” and “desire to turn a portion [of the] Property into a park and use another portion for the construction of a ‘public works facility.'” [Id.]
The plaintiffs filed suit in this Court, alleging Elsmere's reasons for denying their zoning amendment application were “fabricated,” and “pretext used to prevent the development of additional affordable homes that would be predominantly occupied by Hispanics, Latinos, single women, families, and others who, because of their personal status are protected by federal, state or local law from discrimination.” [Id.] Their Complaint claims violations of due process, the Fair Housing Act, 42 U.S.C §§ 3604(a), (b) & 3617, the Takings Clause of the United States and Kentucky Constitutions, and a charge of conspiracy to commit an unlawful taking. [Record No. 1]
This Court examines whether the plaintiffs' Complaint alleges “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face'” when considering the defendants' motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Generally, the plausibility standard is met “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). The Court must “(1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)).
The defendants do not challenge the plaintiffs' Fair Housing Act §§3604(a) and 3617 claims, and the plaintiffs have indicated a desire to voluntarily withdraw their due process claims pursuant to Rule 41 of the Federal Rules of Civil Procedure. [Record Nos. 9, 12] The plaintiffs state that they are withdrawing their due process claims without prejudice, but the defendants argue that they should be dismissed with prejudice. [Record Nos. 12, 13] The defendants correctly note in their Reply that Rule 41(a) relates to the dismissal of an action, not individual claims. [ Record No. 13]
“The problem, though, is more technical than substantial.” Management Investors v. United Mine Workers of America, 610 F.2d 384, 394 n.22 (6th Cir. 1979) (quoting 5 James W. Moore et al., Moore's Federal Practice, ¶ 41.06(1) (2d ed. 1948)). “[T]he use of a notice of voluntary dismissal to eliminate some, but not all claims, from a case ‘is more properly viewed as a Rule 15 amendment to the complaint.'” Doss v. Michigan Dep't of Corrections, No. 2010266, 2021 U.S. Dist. LEXIS 48562, at *6 (E. D. Mich. Mar. 16, 2021) (quoting Management Investors, 610 F.2d at 394 n.22). Courts from within this circuit “have cited Management Investors for the proposition that where a plaintiff seeks to dismiss one count of his multicount complaint, the Court should consider it as a motion to amend the complaint to delete the specified claims.” Id. (collecting cases). “[I]t is not unusual for motions styled as Rule 41 motions or motions to dismiss to be construed as Rule 15 motions for leave to amend.” Baker v. City of Detroit, 217 Fed.Appx. 491, 496-97 (6th Cir. 2007). A case cited by the defendants is one such example. See Barriento v. UT-Battelle, LLC, 284 F.Supp.2d 908, 916 (S.D. Ohio 2003).
In Barrientos, the court granted the plaintiffs' “motion and deem[ed] Plaintiffs' Complaint to be amended to omit their second claim for relief,” after explaining that 284 F.Supp.2d at 916.
The Court should freely grant leave to amend pleadings when justice so requires. See Rule 15(a)(2), Fed.R.Civ.P. “In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be ‘freely given.'” Foman v. Davis, 371 U.S. 178, 182 (1962). Here, there is no apparent or declared reason such as undue delay, bad faith, undue prejudice, or repeated failure to cure deficiencies. The case was filed only a few months ago, there is no indication of bad faith, and the plaintiff has not previously requested amendment.
The plaintiffs' attempted voluntary withdrawal-construed as a motion to amend-will be granted for the limited purpose of omitting their due process claims.
The defendants argue that individual Elsmere city council members, and city administrator Matt Dowling have absolute legislative immunity. [Record No. 9][2]“Local legislators sued in their individual capacities may invoke absolute legislative immunity to insulate themselves from liability for .... ‘all actions taken in the sphere of legitimate legislative activity.'” Vaduva v. City of Xenia, 780 Fed.Appx. 331, 335 (6th Cir. 2019) (first citing Smith v. Jefferson Cty. Bd. of Sch. Comm'rs, 641 F.3d 197, 218 (6th Cir. 2011); and then quoting R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 437 (6th Cir. 2005)).
But the plaintiffs argue that even if the denial of a zoning map amendment is a “legislative act,” the individual council members are not immune because the plaintiffs “have alleged that the denial was based on racial animus.” [Record No. 12] In support, they “rely heavily on arguments from Haskell v. Washington Township, 864 F.2d 1266, 1277-78 (6th Cir. 1988), a case which has received severe negative treatment since its decision and has been mostly overruled regarding legislative immunity by the Supreme Court in [Bogan v Scott-Harris, 523 U.S. 44, 54-55 (1998)].” Pratt Land & Dev., LLC v. City of Chattanooga, No. 19-cv-010, 2020 U.S. Dist. LEXIS 159744, at *7 (E. D. Tenn. Sept. 2, 2020). See also Vaduva, 780 Fed.Appx. at 335 n.4 (); Gamrat v. McBroom, 822 Fed.Appx. 331, 334 (6th Cir. 2020) (...
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