Penner v. City Of Topeka
| Decision Date | 18 February 2011 |
| Docket Number | Case No. 09-4108-RDR |
| Parties | JERRY L. PENNER, Plaintiff, v. CITY OF TOPEKA, Defendant. |
| Court | U.S. District Court — District of Kansas |
Plaintiff has brought the above-captioned case alleging a violation of 42 U.S.C. § 1983 by defendant's denial of a provisional use request for a salvage yard license. This case is now before the court upon defendant's summary judgment motion.
Summary judgment is proper if it is demonstrated that the movant is entitled to judgment as a matter of law on the basis of facts to which there is no genuine dispute. The court must determine "whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will... preclude summary judgment." Id. at 248. There are no genuine issues for trial if the record taken as a whole would notpersuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court may not act as the jury and determine witness credibility when it examines the record upon a summary judgment motion. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir. 1986) cert. denied, 480 U.S. 947 (1987). The evidence and all reasonable inferences therefrom are construed in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.) cert. denied, 537 U.S. 816 (2002).
Plaintiff has applied multiple times to the Topeka City Council for permission to operate a salvage yard at 417 S.E. 13th St. in Topeka, Kansas. In January 2003, he obtained a salvage yard license from defendant which was revoked in March 2003. He then applied for a provisional use permit to conduct vehicle salvage on the property. This was denied in March 2003 and a request for reconsideration was denied in May 2003. Plaintiff then filed another application for a salvage yard license. This was denied in September 2003 by the city council. The Shawnee County District Court overturned the denial, but the Kansas Court of Appeals, on August 19, 2005, overturned the state district court and upheld the city council's decision to deny the license.
Applications for a permit to operate a salvage yard are madethrough the city fire department. The city fire chief makes an inspection of the location, verifies whether the land is zoned appropriately, and reports whether the proposed salvage yard will result in a public health or safety hazard.
On January 5, 2006, plaintiff filed another application to operate a salvage yard at the same location. This was denied by the city council on March 21, 2006. The state district court upheld the denial on November 17, 2006. The court made the following comments:
From a review of the record, it is apparent that the Topeka City Council relied heavily upon the report prepared by the Planning Department. The Planning Department's report set forth several concerns, including "increased truck traffic through the neighborhood" which "could have a negative impact on the [Williams] magnet school, as well as the viability of the Brown v. Board of Education site." The Planning Department found in its report that "[w]ith so many children and visitors coming to the area, safety is also a concern." In addition, the Planning Department report noted that the "property does not comply with the City's Subdivision Regulations." Based on these concerns, the Planning Department report recommended: "Disapproval-due to illegal subdivision and impact upon the neighborhood."
In the decision of the Kansas Court of Appeals in the previous Penner case, it was found that the historical sites and magnet school located in the Monroe Neighborhood "were sufficiently nearby the proposed [savage yard site] such that their compatibility... was an appropriate consideration for the Council." (Appellate Case No. 93, 111 at p. 13). Moreover, the Kansas Court of Appeals found that "the Council appropriately considered concerns regarding increased truck traffic to the neighborhood" and that such concerns, especially in school areas, are reasonably related to safety concerns, and came within the Council's broad obligation to consider 'applicable safety provisions.'" (Id. at p. 14.) Thus, although the "NewApplication" filed on January 5, 2006, requires independent consideration, the Court finds the decision of the Kansas Court of Appeals in the previous Penner case to be persuasive regarding the types of matters which the Topeka City Council could appropriately consider.
The record in this case reveals that after completing its review of the "New Application, " the Planning Department continued to have safety concerns as well as concerns regarding the compatibility of the salvage yard with nearby properties. Moreover, the record reveals substantial evidence in the record to support the City Council's decision. In addition to the information submitted by the City of Topeka's professional staff, the "New Application" stated on its face that the salvage yard would store "salvage vehicles and used parts" and that Thus, the Court finds that it was reasonable for the Topeka City Council to have found that such an operation raised legitimate safety concerns in one of the most unique neighborhoods in the State of Kansas.
On February 22, 2008, plaintiff filed another application. This was denied by the city council on July 1, 2008.
The property in question is zoned for heavy industrial use. This is compatible for use as a salvage yard. Plaintiff obtained the approval of the fire department to operate a salvage yard on the property. But, the Kansas Court of Appeals has held that the city code, T.C.C. § 4 8-21.02(b)(2)(s), requires the further approval of the city's governing body for provisional use to operate a salvage yard business that does wrecking or dismantling of vehicles. Penner v. City of Topeka, 117 P.3d 907, 2005 WL 2001742 at *3-4 (Kan.App. 8/19/05).
The city planning department recommended disapproval ofplaintiff's 2008 application based upon compatibility with the surrounding neighborhood, which has been called the "Monroe neighborhood." Deposition of David Thurbon at p. 62, Doc. No. 35, Ex. 4. The planning department does not approve provisional use applications and it has no authority to revoke a license. It only makes recommendations to the city council. The director of the planning department testified that plaintiff's application for a salvage yard would have only moderate impacts on the surrounding existing and potential uses.
There are no current formal land use plans or revitalization strategies for the Monroe neighborhood. A proposed plan in 2003 was never approved. A planned recreation trail adjacent to plaintiff's property has not been completed. A materials recycling facility was established adjacent to plaintiff's property in 2007. Other salvage yards dismantle automobiles in the neighborhood of plaintiff's property. A concentration of salvage yards in one area will tend to discourage any other type of development investment in the area. A concentration of salvage yards will attract more salvage yards and increase the impact on the community.
Concentration is a qualitative assessment which considers the size of existing salvage yards, the potential reuse of other salvage yards and whether there are other appropriate uses for the site. Concentration is discouraged unless it is sufficiently isolated from residential neighbors and other sensitive land uses.
Plaintiff argues that he was denied his constitutional rights to procedural and substantive due process and the equal protection of the laws by defendant's denial of the provisional use permit. We note, prior to discussing these claims, that the Tenth Circuit has said repeatedly that federal courts should be reluctant to interfere with the construction of local law in land use regulation disputes. Nichols v. Board of County Commissioners, 506 F.3d 962, 971 (10th Cir. 2007); Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1212 (10th Cir. 2000); Norton v. Village of Corrales, 103 F.3d 928, 933 (10th Cir. 1996); Gunkel v. City of Emporia, 835 F.2d 1302, 1305 (10th Cir. 1987).
Defendant makes three arguments for summary judgment. First, defendant contends that plaintiff should be barred from proceeding with his claims on the basis of res judicata. Second, defendant contends that this court should not proceed with this case on the basis of the Rooker-Feldman doctrine. Finally, defendant contends that summary judgment is warranted because plaintiff cannot prove the claims alleged in his petition. Defendant contends that plaintiff cannot demonstrate that the City's decisions were unreasonable.
Plaintiff contends that his 2008 application for permission to operate a salvage yard was a new application which was given separate consideration and, therefore, the res judicata doctrine does not apply. Similarly, plaintiff argues that the Rooker-Feldman doctrine does not apply because there has been no underlying state court decision regarding plaintiff's 2008 application. Finally, as to the substance of plaintiff's claims, plaintiff argues that the reasons for denying plaintiff's application "fly in the face of the city's action with regard to other salvage type operations and facilities adjacent to plaintiff's property." Doc. No. 35 at...
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