Marks v. City Council of City of Chesapeake, Va.

• Decision Date: 31 May 1988
• Docket Number: Civ. A. No. 83-286-N.
• Citation: 723 F. Supp. 1155
• Parties: Steven John MARKS, Plaintiff, v. CITY COUNCIL OF the CITY OF CHESAPEAKE, VIRGINIA, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

723 F. Supp. 1155

Steven John MARKS, Plaintiff, v. CITY COUNCIL OF the CITY OF CHESAPEAKE, VIRGINIA, et al., Defendants.

Civ. A. No. 83-286-N.

United States District Court, E.D. Virginia, Norfolk Division.

May 31, 1988.

Andrew M. Sacks, Sacks & Sacks, Norfolk, Va., for plaintiff.

Henry C. Morgan, Jr., James B. Lonergan, Pender & Coward, Virginia Beach, Va., Ronald S. Hallman, City Atty., Chesapeake, Va., for defendants.

OPINION AND ORDER

DOUMAR, District Judge.

Plaintiff, Steven John Marks, filed this action pursuant to 42 U.S.C. § 1983 after the defendant, the City of Chesapeake, Virginia, denied his request for a conditional use permit to operate a fortune telling and palmistry business (a business permitted with a license specified under the Chesapeake City Code) on property he was attempting to purchase. The issue raised is whether the Chesapeake City Council (city council) applied the local land use ordinance in an arbitrary and capricious manner, bearing no reasonable relationship to health, safety and general welfare of the community. The Court, sitting without a jury, heard evidence on December 6 and 14, 1983.

By order of July 25, 1984, this Court conceded that it must abstain from the decision of any federal issues raised in this matter until the plaintiff pursued his remedies in state court. The Fourth Circuit had recently issued a clear mandate that a state forum should hear all questions of land use law before a federal court could hear the claims, even if they regarded primarily federal issues. Caleb Stowe Assoc., Ltd. v. County of Albemarle, Virginia, 724 F.2d 1079 (4th Cir.1984). Thus, this Court had no choice but to abstain, notwithstanding both parties' preference to proceed in federal court. The Court was careful to note, however, that plaintiff could preserve his right to present his federal issues to this Court in the event of adverse determinations of state and local law questions. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 419-22, 84 S.Ct. 461, 466-68, 11 L.Ed.2d 440 (1964). The Court declined to dismiss the action in toto pursuant to Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), since the Fourth Circuit had stated that the proper type of abstention in this case is that articulated in Railroad Comm. of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See Caleb Stowe Assoc., Ltd. v. County of Albemarle, Virginia, 724 F.2d 1079 (4th Cir.1984); Fralin & Waldron, Inc. v. City of Martinsville, 493 F.2d 481 (4th Cir. 1974). The state court's decision of December 5, 1986 was adverse to Marks and the parties agree that Marks had preserved his right to return to this Court, to be heard on his federal issues. Promovision International Films, Ltd. v. Trapani, 744 F.2d 1063 (4th Cir.1984).

The Court, in its order, recognized that Marks would suffer due to the delay and expense which this forced abstention would cause him. The unfortunate result was the worst of circumstances: Marks lost his interest in the property before his case could return to this Court for adjudication. This Court finds now as it had believed in 1985 that Marks' constitutional rights had been violated by the city council's actions. The disgrace of the course of adjudication in the case at hand, sidetracked by the abstention requirement, is that Marks is not able at this time to enjoy the benefits of this Court's decision as he would have been able to enjoy had this Court been able to decide the case when it was ripe and ready to be heard. This case is a glaring example that justice delayed is unjust. For the reasons stated below, the Court finds that the defendants exceeded their constitutional authority and hereby HOLDS for the plaintiff.

The controlling facts are not in dispute. On April 29, 1982, Marks entered into a sales agreement with the owner of certain property located at 1060 North George Washington Highway in Chesapeake, Virginia. The property, a small residential house, extends approximately 110 feet along a four lane, well-traveled highway and extends back approximately 200 feet. Although the land was zoned for residential use, Marks entered into the sales contract with the intention of using the house as a fortune telling or palmistry business in addition to using the home for a family residence. To accommodate Marks' prospective use, the sales contract contained a clause permitting him as buyer to "apply for a zoning change" necessary to operate a business on the property.

The testimony introduced established that all properties directly surrounding plaintiff's parcel were zoned for commercial use, and that the general surrounding area along George Washington Highway was slated for extensive commercial development by the local government. A bank was located to the right, an abandoned gas station fronted the left edge of the property; across the street was a small convenience store, a field, several apartments and one single family residence.

On May 6, 1982, Marks requested that the property's zoning classification be changed from residential to the business classification B-2 which permitted general business uses, including retail and service establishments. The Chesapeake City Planning Commission (planning commission) unanimously approved the plaintiff's request at a public hearing on June 9, 1982. Marks indicated to the planning commission that the prospective use for the property was for his wife to give "second opinions to people on life, a problem, or whatever." Shortly thereafter, Marks appeared before the city council as the next step in procuring his zoning change. At the city council's July 20, 1982 meeting, he indicated again that he intended to use the property for palmistry. No one opposed his request, and the city council approved his zoning change by unanimous vote. The city council advised him, though, that he must obtain a use permit before he could use the property for palmistry.

Accordingly, Marks applied for a conditional use permit to practice palmistry. On September 8, 1982, the planning commission considered Marks' application for the permit. Mr. Jim Lewis, an attorney, testified in Marks' behalf, observing that Marks had already obtained appropriate zoning. Furthermore, Mr. and Mrs. Marks were professional palmists and licensed by the State of Virginia to practice palmistry, a business allowed by the City of Chesapeake licensing ordinances. Lewis indicated that the Marks anticipated about three clients per day, and that the property included ample parking space. He urged that the use was consistent with public policy goals of the Chesapeake zoning ordinance.

Neither the public nor planning commissioners opposed the conditional use permit request. Indeed, the planning director, Milton A. Perry, stated that approving the permit "would not create a conflict or impact on the neighborhood." He indicated that palmistry was a legitimate business in Chesapeake, included among B-2 zoning classifications. Accordingly, the planning commission voted 6-3 to approve the conditional use permit.

During the October 19, 1982 public hearing, the city council considered Marks' application for the conditional use permit. Community opposition did appear at this hearing. Eight people spoke to oppose the permit, eighteen others appeared in opposition, but did not speak and a petition indicating opposition by 170 people was presented.

Seven of the eight speakers in opposition based their objections exclusively on religious grounds. One stated that "God's word strongly condemns such practices spoken as an abomination to the Lord, both in the Old Testament and also in the New Testament. So being a Christian, and therefore being concerned about the moral fiber of our city, and basing my convictions on the Word of God, I register our opposition to this permit being granted." Another person stated that palmistry is "witchcraft, it is black magic according to the Word of God and I would not like to see, not only this come into the community and the great City of Chesapeake, but I fear that should this door be opened, we would be setting a precedent for other occult practices." Another speaker quoted the Bible and told the city council that he opposed the permit "because God is opposed to it."

Only the neighbor across the street objected on grounds other than religion. He stated that the area "is our home and it is our neighborhood. We really can't see any good coming out of this type of business. In reading about what they propose to do ... we wonder why bother. We just don't think it is a desirable business for a neighborhood."

Marks and his attorney met this opposition and urged that the plaintiffs had met all the zoning ordinance requirements. Moreover, the planning commission had found that granting the permit would pose no adverse impact on the community, and that the city council should avoid basing its decision on religious grounds.

Milton A. Perry, Chesapeake's Director of Planning and Inspections, testified at trial regarding the use permit application. Because of his knowledge of the area as well as Chesapeake zoning requirements, and his thorough investigation into the plaintiff's application, his testimony is given great weight and credibility. He is responsible for investigating all zoning and conditional use permit applications. He personally conducted an on-site investigation to study the compatibility the use would have with the neighborhood, as well as the impact on the neighborhood. Perry concluded that the use would have no effect on nearby schools, existing traffic patterns or the neighborhood in general. Perry observed that the property was in an area quickly becoming commercial, an evolution consistent with Chesapeake's comprehensive land use plan. The city council never inquired into the basis supporting the planning commission's approval of the permit.

William C. Barlow, an experienced real estate...