Herrington v. City of Pearl, Miss.

• Citation: 908 F. Supp. 418
• Decision Date: 31 March 1995
• Docket Number: Civ. A. No. 3:90-CV-289WS.
• Parties: Clyde P. HERRINGTON v. CITY OF PEARL, MISSISSIPPI.
• Court: U.S. District Court — Southern District of Mississippi

908 F. Supp. 418

Clyde P. HERRINGTON v. CITY OF PEARL, MISSISSIPPI.

Civ. A. No. 3:90-CV-289WS.

United States District Court, S.D. Mississippi, Jackson Division.

March 31, 1995.

COPYRIGHT MATERIAL OMITTED

Lemuel G. Adams, III, Frank D. Edens, Sr., Adams & Edens, Brandon, MS, for Clyde P. Herrington.

Gary E. Friedman, David M. Thomas, II, Phelps Dunbar, Jackson, MS, for City of Pearl, MS.

Frank D. Edens, Sr., Adams & Edens, Brandon, MS, for Tina Herrington.

MEMORANDUM OPINION AND ORDER

WINGATE, District Judge.

Before the court is the motion of the defendant City of Pearl, Mississippi (hereinafter "the City"), for summary judgment pursuant to Rule 56(b)¹ of the Federal Rules of Civil Procedure. The plaintiff, Clyde P. Herrington (hereinafter "Herrington"), brought this civil action asserting a violation of his constitutional rights which Herrington contends is actionable under Title 42 U.S.C. § 1983.² Jurisdiction is based on federal question and original jurisdiction, 28 U.S.C. §§ 1331³ and 1443.⁴

Herrington complains of a 1989 moratorium enacted by the City which prohibited new mobile home sales establishments from being located within the Pearl city limits. When originally filed on June 5, 1990, Herrington's complaint sought injunctive relief which would permit him to place mobile home sales establishments on each of two parcels of property he owned which are located within the Pearl city limits, two parcels known as the "Skyway Hills" property and the "Bates" property. Additionally, Herrington sought $250,000.00 in compensatory damages and $1,000,000.00 in punitive damages.

In March of 1991, the City granted Herrington a license to place a new mobile home establishment on each parcel of property in question. Notwithstanding this action by the City, Herrington still claims that he is entitled to compensatory and punitive damages from the City for losses suffered during the period of the moratorium imposed by the City in 1989, in addition to any damages arising from the alleged violation of Herrington's constitutional rights resulting from the imposition of the 1989 moratorium.

PERTINENT FACTS

Herrington's complaint says that on March 7, 1989, the City of Pearl enacted an unlawful two-year moratorium on locating new mobile home sales establishments within its boundaries and that this moratorium deprived Herrington of the lawful use of his property while serving no public purpose. The City responds that on April 27, 1987, the City passed a moratorium prohibiting new mobile home sales establishments from locating within the city limits of Pearl, Mississippi. The City says that it passed this moratorium in an effort to overcome what it perceived to be its negative image arising from its unwanted reputation as the "Home-of-the-Double-Wides" and the "Mobile Home Sales Capitol." Concerned with increasing numbers of mobile home sales establishments within its boundaries, the City says it enacted the moratorium as a temporary measure in hope of encouraging other forms of commerce and enhancing property value.

According to the City, Herrington's mobile home sales establishments located on each of the two parcels in question were "grandfathered" by the 1987 moratorium. However, says the City, both of these mobile home sales establishments either went out of business or relocated outside the Pearl city limits after the 1987 moratorium was enacted. On March 7, 1989, the City says it extended its 1987 moratorium for two more years. According to the City, the 1989 extension contained a feature not included in the 1987 moratorium — it permitted pre-existing mobile home sales establishments already within the Pearl city limits at the time of the 1989 moratorium extension to relocate within the city limits. However, notes the City, the moratorium retained its ban on the location of new mobile home sales establishments within the Pearl city limits.

The dispute with Herrington, says the City, arose during or shortly after October of 1989 when Herrington attempted to obtain permits to locate two new mobile home establishments on the two parcels in question while the 1989 moratorium was in effect. The City says it denied Herrington's request because he was not relocating a pre-existing mobile home sales business already within the Pearl city limits when the 1989 moratorium was enacted. Instead, says the City, Herrington was planning to locate two new establishments on the two parcels of property in question, and this was prohibited by the 1989 moratorium. Herrington says he requested the licenses to begin new mobile home sales sites on property where mobile home sales companies had previously operated. According to Herrington, the Pearl Planning Board approved his request; however, the Mayor and Board of Aldermen overruled the Planning Board and denied Herrington's request because of the moratorium. Herrington objected to the action taken by the Mayor and Board of Aldermen, arguing that the moratorium was invalid. Nevertheless, says Herrington, he was told by the Mayor and Board of Aldermen that he would have to file a lawsuit in order to prove his claim that the 1989 moratorium was invalid.

Herrington filed this complaint on June 5, 1990, pursuant to 42 U.S.C. § 1983, claiming that he was being deprived of constitutional rights guaranteed under the Fifth⁵ and Fourteenth⁶ Amendments of the United States Constitution and Section 14⁷ of the Mississippi Constitution, and that said deprivation was being perpetrated under color of state law. Herrington's complaint claims that the City refused to lift its moratorium at the plaintiff's request; that the City violated its own moratorium; that the City officials knowingly enforced an invalidly enacted ordinance at plaintiff's expense;⁸ that the moratorium was arbitrary, capricious, unlawfully enacted and imposed without following state law; that the moratorium constituted a "taking" of Herrington's property that invaded Herrington's expectations for the investment use of the property; and that the moratorium served no public purpose.

The City has moved for summary judgment asserting that the plaintiff's claims were not ripe for consideration by this court as a § 1983 action; that Herrington has asserted no viable Fifth Amendment claim; that there has been no "taking" of Herrington's property which is cognizable under the United States Constitution; that there has been no denial of due process or equal protection; that the plaintiff's pendent state law claims should be dismissed; and that there is no basis for an award of punitive damages in this case.

This court has reviewed the parties' briefs and exhibits in support of their respective positions, has heard the arguments of counsel, finds the City's motion to be well taken, and directs that the City's motion for summary judgment should be granted for the following reasons.

THE MOTION FOR SUMMARY JUDGMENT

a. The Matter of Ripeness

The City raises the question of whether this matter is ripe for adjudication under 42 U.S.C. § 1983 based on Herrington's claims of "taking" or deprivation of property in violation of his constitutional rights under either the Fifth or Fourteenth Amendments when there is no showing that Herrington has been denied just compensation and no showing that a final determination on this matter has been reached. The City contends that Herrington did not seek compensation in state court for any alleged "taking" of his property by the filing of an inverse condemnation suit in state court pursuant to Section 17⁹ of the Constitution of the State of Mississippi, nor did he appeal the decision of the Mayor and Board of Aldermen pursuant to Miss.Code Ann. § 11-51-75 which provides:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall ... hear and determine the same ... as an appellate court, and shall affirm or reverse the judgment.

Thus, says the City, federal court is an improper forum for this dispute.

The City additionally contends that Herrington's lawsuit in this court does not challenge any physical appropriation of Herrington's property but, instead, challenges the City's regulation of land use within its boundaries, a matter uniquely within the domain of the states, their agencies, and judiciaries, which should seldom be the concern of a federal court. Shelton v. City of College Station, 780 F.2d 475 (5th Cir.), cert. denied, 477 U.S. 905, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986), and cert. denied, College Station v. Shelton, 479 U.S. 822, 107 S.Ct. 89, 93 L.Ed.2d 41 (1986); Stern v. Tarrant County Hospital District, 778 F.2d 1052 (5th Cir.), cert. denied, 476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1985). So, says the City, if there has been any unjust "taking" of Herrington's property, he should have pursued state remedies. Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); Smith v. City of Brenham, Texas, 865 F.2d 662 (5th Cir.), cert. denied, 493 U.S. 813, 110 S.Ct. 60, 107 L.Ed.2d 27 (1989). These remedies were either (1) to appeal pursuant to Miss.Code Ann. § 11-51-75 above cited, or (2) to file a lawsuit for inverse condemnation in state court. Gilich v. Mississippi State Highway Commission, 574 So.2d 8 (Miss.1990); City of Gulfport v. Anderson, 554 So.2d 873 (Miss. 1989).

Herrington responds that the state court remedy of inverse condemnation may be inadequate; that exhaustion...