Gearin v. City of Maplewood
| Decision Date | 28 January 2011 |
| Docket Number | Case No. 08–CV–5019 PJS/AJB. |
| Citation | 780 F.Supp.2d 843 |
| Parties | Terry GEARIN, as Conservator of Patricia M. Gearin; Wipers Recycling, LLC; and Gearin, LLC, Plaintiffs,v.CITY OF MAPLEWOOD and David Fisher, in his individual and official capacity, Defendants. |
| Court | U.S. District Court — District of Minnesota |
OPINION TEXT STARTS HERE
Jill Clark, Jill Clark, PA, for Plaintiffs.Robin M. Wolpert, John M. Baker, Jenny Gassman–Pines, Greene Espel, P.L.L.P., for Defendants, City of Maplewood and David Fisher.
Plaintiffs Patricia Gearin and her two businesses—Wipers Recycling, LLC (“Wipers”) and Gearin, LLC 1—bring this action under 42 U.S.C. § 1983 against defendants the City of Maplewood (“the City”) and David Fisher, the City's building official. Plaintiffs allege that the City and Fisher have retaliated against them for exercising their First Amendment rights and have attempted to prevent them from exercising their rights to petition the government and to gain access to the courts. Plaintiffs further allege that defendants violated their rights to equal protection and procedural and substantive due process.
This matter is before the Court on defendants' motion for summary judgment. For the reasons stated below, defendants' motion is granted in part and denied in part.
Gearin resides in the City. In 2001, the Ramsey–Washington Watershed District dumped tons of toxic mud and sludge near her home. Clark Decl., July 15, 2010 [Docket No. 178] (hereinafter “Second Clark Decl.”) Ex. 11 ¶ 3; Am. Compl. ¶ 7.2 In her amended complaint, Gearin alleges that the City issued an after-the-fact permit for the dumping and was involved in the cleanup. Am. Compl. ¶ 7. Gearin complained to City officials (including City council members) about the dumping, about the City's issuance of the after-the-fact permit, and about the City's actions during the cleanup. Second Clark Decl. Ex. 11 ¶ 4; Second Clark Decl. Ex. 13 at 7; see also Hjelle Dep. 230. Gearin contends that, in response, the City threatened to remove her from her home unless she paid to fix damage to her septic system caused by the dumping. Second Clark Decl. Ex. 11 ¶ 6. Gearin also contends that, after she complained about the dumping, Fisher and the City began identifying repairs that they said needed to be done to bring her home into compliance with the building code. Second Clark Decl. Ex. 11 ¶ 7.
Gearin is the owner of Wipers and Gearin, LLC. Wipers is in the business of recycling used footwear and clothing. Second Clark Decl. Ex. 25. Reusable items are sold; the remaining items are ground into granules that are used for absorbing toxins and toxic spills. Gearin Decl. ¶ 6, Nov. 24, 2008 [Docket No. 20] (hereinafter “First Gearin Decl.”); Gervais Aff., Dec. 15, 2008 [Docket No. 26] Ex. B; Second Clark Decl. Ex. 25.
Wipers operated in the city of St. Paul Park for a number of years. First Gearin Decl. ¶ 3. In July 2007, Gearin purchased a commercial building (“the Building”) in the City with the intent of relocating and expanding Wipers. First Gearin Decl. ¶ 6. The Building was previously occupied by Northern Hydraulics (now known as Northern Tool + Equipment), which sold tools and other home-improvement products.3 Back in 1991, the City had issued a “Certificate of Occupancy” (“COO”) to Northern Hydraulics for a B–2 occupancy classification. Clark Decl., Dec. 1, 2008 [Docket No. 21] (hereinafter “First Clark Decl.”) Ex. B. At the time that the COO was issued,
“a ‘B–2’ occupancy classification applied, in relevant part, to the following businesses:
‘Drinking and dining establishments having an occupant load of less than 50, wholesale and retail stores, office buildings, printing plants, municipal police and fire stations, factories and workshops using materials not highly flammable or combustible, storage and sales rooms for combustible goods, [and] paint stores without bulk handling ...’ ”
Second Wolpert Aff. [Docket No. 165] Ex. K at 4 ().
Before purchasing the Building, Gearin spoke with several City officials, who informed Gearin that the Building was zoned M 1 for “light manufacturing” and that the building code allows any use permitted in the M1 zone as well as the BC (“business commercial”) zone. First Gearin Decl. ¶ 5; see also First Clark Decl. Ex. L.
To be lawful, then, Gearin's use of the Building had to be within both the B–2 occupancy classification (which applied to the Building) and the M1 zoning classification (which applied to the geographical area in which the Building was located). And, as is true of any owner of any building, Gearin had to comply with the building and fire codes.
On July 26, 2007, Gearin was at her newly purchased Building along with Rebecca Cave, a friend of Gearin's who served on the City council. First Gearin Decl. ¶ 8. Fisher, the City's building official, happened to drive by and noticed that the Building was being occupied by a new owner. Second Clark Decl. Ex. 16; Fisher Aff. ¶ 2, Dec. 15, 2008 [Docket No. 25] (hereinafter “First Fisher Aff.”). Fisher sent a building inspector to investigate. Second Clark Decl. Ex. 16. The building inspector spoke to Gearin and Cave. Among other things, Gearin told the inspector that she hated the City. Second Clark Decl. Ex. 16.
The next day, Fisher and Butch Gervais (the fire marshal) inspected the Building. Second Clark Decl. Ex. 16; First Fisher Aff. ¶ 2. During the inspection, Gearin told Fisher that she planned to install an industrial grinder in the Building. Fisher I Dep. 116–18; 4 First Fisher Aff. ¶ 3. Gearin's attorney contends in her brief—although neither Gearin nor anyone else asserts in any affidavit—that Gearin did not tell Fisher about the grinder and argues that Fisher has used the grinder as an after-the-fact justification for his actions. (This is one of several occasions on which the parties' attorneys have made factual assertions in their briefs that turn out to be unsupported or contradicted by the factual record.) Fisher clearly testified that Gearin told him about the grinder in July 2007, Fisher I Dep. 116–18, and Gearin offers no testimony or other evidence to the contrary. Indeed, in a state-court complaint filed in 2009, Gearin herself alleged that city officials knew that Gearin had purchased a grinder and came to watch it operate in “fall 2007.” 5 Second Wolpert Aff. Ex. G at 7.
After inspecting the Building and speaking with Gearin, Fisher determined that, although Gearin did not need a new COO to run the retail portion of her business, she did need a new COO to run the grinder. First Fisher Aff. ¶ 3; Fisher I Dep. 102. Gearin's attorney disputes that Fisher cared about the grinder and contends that Fisher originally thought that he could require a new COO merely because the Building had a new tenant after a period of vacancy. But, again, Gearin's attorney is making a factual assertion that is contradicted by the record. Fisher testified that the City does not have the authority to demand a new COO with each new tenant, Fisher I Dep. 37, 112–14, and he further testified that he based his decision to require a new COO on the fact that there was a change in use from retail to factory, Fisher I Dep. 83; see also Fisher I Dep. 117 (). Fisher did justify his initial inspection on the basis that the Building had a new tenant. Fisher I Dep. 110. But explaining the reason for an inspection is not the same as explaining the reason for requiring a new COO.
Gearin makes much of the fact that Fisher's contemporaneous documents do not mention the grinder. That is literally true, but misleading. The documents clearly reflect Fisher's opinion that the Building's proposed use was a change from retail to factory, see, e.g., First Fisher Aff. Ex. A (review dated August 6, 2007), and it is clear, in context, that the only possible basis for Fisher's conclusion is the installation of the grinder. Nothing in the record or in the parties' briefs even hints at another explanation for Fisher's opinion that Gearin was going to change the use of the building from retail to factory.
Fisher advised Gearin to apply for a new COO. First Gearin Decl. ¶ 10. Gearin did not agree that she needed a new COO, but she submitted an application on July 30. First Clark Decl. Ex. K. On August 1, the City issued an occupancy permit for Wipers. Second Clark Decl. Ex. 1b at 7 [Docket No. 182 at 7]. The permit provided, in relevant part, as follows:
Occupancy for Wipers Recycling LLC
Fire extinguishers must be provided. Accessible counter is required. Maintain exits. Kiosks shall be constructed of noncombustible materials and must be separated from each other by 20 feet.
Temporary permit only. When lease is renewed temporary occupancy permit must also be renewed. Fire marshal and building official approval required prior to occupancy.
Second Clark Decl. Ex. 1b at 7 (emphasis added).
A few days later, Fisher (the building official) and Gervais (the fire marshal) again inspected the Building. First Fisher Aff. ¶ 4(a). After the inspection, Fisher and Gervais each sent Gearin a document. Gervais sent Gearin a punch list of items that needed to be completed “in order to continue operating the business.” Gervais Aff. Ex. A. Fisher sent Gearin a “certificate of occupancy review” that contained a much longer punch list that needed to be completed to obtain a new COO. First Fisher Aff. Ex. A.
Fisher and Gervais attempted a follow-up inspection on September 27, but Gearin was not ready. First Fisher Aff. ¶ 4(b). Fisher and Gervais granted Gearin a 30–day extension, but then, for reasons that are not clear from the record, Fisher and Gervais went ahead and inspected the...
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