Marshall v. BD. OF CTY. COM'RS FOR JOHNSON CTY.

• Decision Date: 22 January 1996
• Docket Number: No. 93-CV-1024-J.,93-CV-1024-J.
• Citation: 912 F. Supp. 1456
• Parties: Gary MARSHALL, Plaintiff, v. The BOARD OF COUNTY COMMISSIONERS FOR JOHNSON COUNTY, WYOMING, to-wit: R. Tracy Rhodes, Neal Schuman, and Richard Tass in their official capacity, and R. Tracy Rhodes, individually and in his capacity as Chairman and member of the Board of County Commissioners for Johnson County, Wyoming, Neal Schuman, individually and in his capacity as a member of the Board of Directors for Johnson County, Wyoming, Jimmie C. Key, individually and as former Chairman of the Board of County Commissioners for Johnson County, and Kerry C. Money, individually and in his capacity as a member and Chairman of the Johnson County Planning Commission, Defendants.
• Court: U.S. District Court — District of Wyoming

912 F. Supp. 1456

Gary MARSHALL, Plaintiff, v. The BOARD OF COUNTY COMMISSIONERS FOR JOHNSON COUNTY, WYOMING, to-wit: R. Tracy Rhodes, Neal Schuman, and Richard Tass in their official capacity and R. Tracy Rhodes, individually and in his capacity as Chairman and member of the Board of County Commissioners for Johnson County, Wyoming, Neal Schuman, individually and in his capacity as a member of the Board of Directors for Johnson County, Wyoming, Jimmie C. Key, individually and as former Chairman of the Board of County Commissioners for Johnson County, and Kerry C. Money, individually and in his capacity as a member and Chairman of the Johnson County Planning Commission, Defendants.

No. 93-CV-1024-J.

United States District Court, D. Wyoming.

January 22, 1996.

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COPYRIGHT MATERIAL OMITTED

Stuart S. Healy, Sheridan, WY, for Gary R. Marshall.

David Palmerlee, Sean P. Durrant, Omohundro & Palmerlee, Buffalo, WY, for R. Tracy Rhodes, Neal Schuman, Jimmie C. Key.

Rex O. Arney, Cynthia L. Harnett, Murane & Bostwick, Casper, WY, for Kerry C. Money.

Tom C. Toner, Yonkee & Toner, Sheridan, WY, John R. Perry, Goddard, Perry & Vogel, Buffalo, WY, for Johnson County Board of County Commissioners.

ORDER ON DISPOSITIVE MOTIONS

ALAN B. JOHNSON, Chief Judge.

The following motions came on for hearing November 30, 1993: defendants' motions to dismiss for lack of jurisdiction, defendants' motion for summary judgment and defendants' motion to stay discovery. Appearing at the hearing for plaintiff was Stuart S. Healy of Sheridan, Wyoming; appearing for the individual defendants except Kerry C. Money was David Palmerlee of Buffalo, Wyoming; appearing for Kerry C. Money, individually, was Rex O. Arney of Casper, Wyoming; and appearing for the Johnson County Board of County Commissioners was Tom C. Toner of Sheridan, Wyoming. The Court, having considered the motions, the responses thereto, all materials filed in support of and in opposition to the motions, the arguments of counsel, and being fully advised in the premises, FINDS and ORDERS as follows:

Background and Complaint

This is a Section 1983 42 U.S.C. § 1983 case. In the complaint, plaintiff asserts violations of constitutional rights, including a violation of the "just compensation" taking clause, violations of procedural and due process and a denial of equal protection under the fourteenth amendment, and a denial of his civil rights by state officials acting under color of state law, all contrary to Section 1983.

Plaintiff owns approximately 111 acres of unimproved land in Johnson County west of Buffalo, Wyoming. On January 5, 1992, he submitted to the Johnson County Planning Commission an application for a permit to develop a residential subdivision on this land for middle to moderate income families. The land was to be developed in 25 separate lots ranging in size from 2.175 to 19.39 acres. Plaintiff claims that his subdivision proposal met the requirements for preliminary approval set forth in Wyoming Statute § 18-5-306. The plaintiffs proposed subdivision was to be developed without an incorporated public sewage disposal system, without a domestic water system, and without public maintenance of streets and roads within the system, as authorized by Wyo.Stat. § 18-5-306.

The proposal came before the planning commission for approval in February of 1992. Plaintiff claims that a number of wealthy and influential owners of large tracts between the proposed subdivision and the Big Horn Mountains opposed his proposed subdivision. Plaintiff alleges that these other property owners brought pressure upon the planning commission and the county commissioners to prohibit development of his proposed subdivision by imposing artificial requirements upon the plaintiff to increase the size of individual lots to not less than five acres and by requiring plaintiff to install at his expense sewer, water and road systems.

Plaintiff asserts that it is not practical to increase the size of individual lots or to meet the improvement requirements described above, because of the configuration of the land and because the five acre requirement would reduce the number of potential home-sites from 23 to as few as 7. Plaintiff argues that the Board of County Commissioners knew or had reason to know that the five acre minimum lot size and improvement requirements would undermine the economic feasibility of the proposed subdivision project and would prevent development, destroying plaintiffs investment-backed expectations in their entirety.

Plaintiff further asserts there is no comprehensive land use plan or subdivision regulation for unincorporated portions of Johnson County requiring the five acre lot size, that there are no regulations providing for the improvement requirements, and that the county failed to identify any public health, safety or welfare concern that would have justified any of those requirements for plaintiff's subdivision. Plaintiff claims that other subdivisions have been approved without the five acre minimum lot size and improvement requirements that the county sought to impose upon him.

Plaintiff filed a claim for damages with the county commissioners based upon inverse condemnation, which was rejected. The county, by letter from defendant Rhodes, notified plaintiff that his claim was rejected and that his property would not be condemned or acquired through eminent domain proceedings. Plaintiff then asked for a detailed explanation and also requested that a variance in the lot size requirement be granted. He did not receive a reply, and because of that, now concludes that those requests have been denied by the county. Plaintiff thus asserts he has exhausted all available state administrative remedies. He claims damages in excess of $232,100.00. Plaintiff also has asserted various claims against individual commissioners (defendants Rhodes, Schuman, Key and Money) arguing that they were biased and prejudiced against plaintiff's proposed subdivision or that they had conflicting interests which compelled them to oppose the subdivision proposed by plaintiff.

The defendants have filed a number of motions, including a motion to stay discovery, as well as a motion for summary judgment on behalf of the Board of County Commissioners and the individual defendants (Rhodes, Schuman, Key and Money) asserting absolute and qualified immunity.

Motions considered at the hearing included Plaintiff's Motion to Compel Discovery, which was denied orally from the bench at the hearing, and Defendants' Motion to Stay Discovery, which was granted orally by the Court from the bench at the hearing.

Defendants cite and rely upon cases including the Tenth Circuit Workman v. Jordan case, holding that qualified immunity is a defense to liability and an entitlement to immunity from suit and other demands of litigation. Workman v. Jordan, 958 F.2d 332, 335 (10th Cir.1992). Since the oral arguments in this case, the Tenth Circuit has rendered a subsequent opinion entitled Workman v. Jordan, 32 F.3d 475 (10th Cir. 1994), in which the appellate court reviewed the district court's denial of the qualified immunity motions to dismiss. The general principles governing resolution of qualified immunity issues are set forth in that opinion at 32 F.3d at 478-479.

Defendants argue that discovery cannot be allowed until the Court resolves the threshold question of whether the law was clearly established at the time the allegedly unlawful action occurred. They also argue the Court must first determine whether the actions allegedly taken by the defendants are actions that a reasonable person could have believed were lawful at the time.

Arguments on the motions for summary judgment of the Board of County Commissioners and defendants Rhodes, Schuman, Key and Money were also considered at the hearing. The defendants rely heavily on this Court's opinion in Miller v. Campbell County et al., 722 F.Supp. 687 (D.Wyo.1989), in which it is stated:

As officials performing discretionary functions, the defendants are entitled to assert qualified immunity from this lawsuit. Harlow citation omitted. Defendants are entitled to immunity from liability for civil damages under Section 1983 "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. The court's holding in Harlow focuses on the defendant's objective good faith, which "involves a presumptive knowledge in respect for `basic, unquestioned constitutional rights.'" ... The plaintiff has the burden of establishing that the constitutional rights allegedly violated were clearly established....

722 F.Supp. at 696-97 (most citations omitted).

The defendants discuss the statutory framework for regulation of subdivision developments, as provided in Wyo.Stat. § 18-5-301 et seq., the enabling legislation allowing county commissioners to regulate subdivision development in a county, and setting out applicable criteria and powers. They note, as does plaintiff, that Johnson County has adopted and published the "Johnson County Subdivision Regulations," which are in the record now before the Court.

The defendants discuss in their brief the substantive deficiencies in the plaintiff's preliminary plat of the Diamond Cross Ranch Subdivision, and assert plaintiff was repeatedly advised of those deficiencies, both in writing and at public meetings. Their brief enumerates the reasons for disapproving plaintiff's proposed subdivision, and notes where the decision is supported in the applicable subdivision regulations.

Defendants rely upon a First Circuit case, arising in the context of land use litigation under Section 1983, Raskiewicz v. Town of New Boston, 754 F.2d 38 (1st Cir.1985). In that case, the federal court stated that litigants may not "ordinarily obtain federal court review of local zoning and planning disputes by means of 42 U.S.C. § 1983." 754 F.2d at...