Shelton v. City of College Station

• Decision Date: 06 January 1986
• Docket Number: No. 83-2765,83-2765
• Citation: 780 F.2d 475
• Parties: Fred B. SHELTON III, and John Paul Jones, Plaintiffs-Appellants Cross- Appellees, v. CITY OF COLLEGE STATION, et al., Defendants-Appellees Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 475

780 F.2d 475

54 USLW 2358

Fred B. SHELTON III, and John Paul Jones Plaintiffs-Appellants Cross- Appellees, v. CITY OF COLLEGE STATION, et al., Defendants-Appellees Cross-Appellants.

No. 83-2765.

United States Court of Appeals Fifth Circuit.

Jan. 6, 1986.

Nelkin & Nelkin, Stuart Nelkin, Rose Ann Reeser, Margaret A. Harris, Mende M. Snodgress, Houston, Tex., for plaintiffs-appellants cross-appellees.

Woodard, Hall & Primm, William B. Butler, Houston, Tex., Cathy Locke, Asst. City Atty., College Station, Tex., for defendants-appellees cross-appellants.

Appeals from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, and GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL and JONES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We have long insisted that review of municipal zoning is within the domain of the states, the business of their own legislatures, agencies, and judiciaries, and should seldom be the concern of federal courts. A person disappointed with a zoning decision ordinarily can interest the federal courts only in a substantial claim that the state has deprived him of a property right without due process of law. In the absence of invidious discrimination, suspect classifying criteria, or infringement of fundamental interests, our review of these quasi-legislative decisions is confined to whether the decisions were "arbitrary and capricious." This requirement of substantive due process under the fourteenth amendment, as distinguished from its quite different meaning under certain state laws and under the federal Administrative Procedure Act, is met if there was any conceivable rational basis for the zoning decision. Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 52 L.Ed.2d 171 (1979). Persuaded that there was no genuine issue of material fact and that there was a rational basis for the zoning decision in the case at bar, we affirm the district court's grant of summary judgment for the city.

I

In 1979, Fred B. Shelton, III and John Paul Jones leased a building at 403 University Drive in College Station, Texas. The building is located in the Northgate area, an older commercial district directly adjacent to the campus of Texas A & M University, which is conceded to have the worst parking and traffic problems in the city.

Years before, the city had passed a zoning ordinance requiring specified minimum numbers of off-street parking spaces for different types of businesses. Few, if any, of the existing Northgate businesses would have been able to meet the parking requirements, and the ordinance permitted the continued operation of nonconforming preexisting businesses. The ordinance provided that the parking requirements would have to be met if a business built a new building or increased its capacity, or if it changed its business to require more parking than the existing nonconforming use.

Shelton and Jones's building had previously housed a photography studio. When Shelton and Jones applied for a building permit to remodel the structure for use as a pool hall and tavern, city officials informed them that they would have to either provide the number of off-street spaces required for that use or obtain a variance from the Zoning Board of Adjustment. The two applied for a variance in August 1979. After debate over the amount of drive-in traffic the business would attract and over whether the pool hall's peak hours were the same as those of other area businesses, the Zoning Board on August 14, 1979 rejected the request by a 1-3 vote.

In an effort to satisfy the board's expressed concerns about parking, Shelton and Jones leased space in a lot some 800 feet from their building. This did not satisfy the ordinance's requirement that parking space be owned and within 200 feet of the proposed use, and Shelton and Jones twice more requested variances. The variances were denied on September 10, 1979 and October 20, 1979 respectively. Although the Zoning Board voted 3-2 in favor of each request, the ordinance required four affirmative votes before a variance could be granted. Finally, Shelton and Jones sought a variance for use of the property as a video arcade rather than as a pool hall. The board again debated whether the arcade would attract primarily drive-in or walk-in traffic, and on January 15, 1980 rejected this fourth request by another vote of only 3-2 in favor.

Although Texas law gave Shelton and Jones a right to substantive review by a state court of the denials by the Zoning Board of the requested variance, see Tex.Rev.Civ.Stat.Ann. art. 1011g (Vernon Supp.1985); Swain v. Board of Adjustment, 433 S.W.2d 727 (Tex.Civ.App.--Dallas 1968, writ dism'd w.o.j.), they never sought relief in the state courts. Rather, after approximately twenty months, they sued the zoning officials and the city in federal district court seeking money damages. They complained that a little more than a year after denying their last request, the board granted variances to assertedly similarly situated businesses and thus "denied [their] substantive due process rights." Shelton and Jones also alleged a denial of procedural due process in the failure of board member Murl Bailey to recuse himself from voting because his church, concerned that church parking would be reduced, opposed parking variances in the Northgate neighborhood.

Defendants moved for summary judgment based on their own affidavits, the minutes of the board meetings involving Shelton and Jones's requests, and the depositions of Jones and Shelton. Shelton and Jones, in opposition, submitted the minutes of board meetings where other businesses received variances. They also attached defendants' depositions, and pointed to planning director Al Mayo's statement that most existing Northgate businesses, including some that began operating after the zoning ordinance took effect, were not meeting the parking requirements, and that the city was not enforcing the parking rules against those other businesses. The defendants responded by citing the facts, relied on by the board in granting variances, that had made the other variance recipients less likely to generate additional parking problems than Shelton and Jones's proposed uses; they argued that any nonenforcement of the ordinance by city building officials was irrelevant to the board's decisions to grant or deny variances legalizing noncompliance.

After briefing and oral argument, the district court granted summary judgment for the defendants on both the substantive and the procedural due process claims. The court relied on Couf v. DeBlaker, 652 F.2d 585 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1278, 71 L.Ed.2d 462 (1982), and South Gwinnett Venture v. Pruitt, 491 F.2d 5 (5th Cir.) (en banc), cert. denied, 419 U.S. 837, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974), in holding that its review was confined to whether the zoning decisions were arbitrary and capricious. Although finding that there might be some "inferences," "allegations," and a "scintilla of evidence" in the record, the court concluded that "there [was] no evidence that the refusal to grant the variance in this case was arbitrary and capricious." On the procedural due process count, the court quoted Couf 's holding that local zoning decisions were legislative in nature and governed only by limitations on legislative procedure, and that even actual bias on one decisionmaker's part would not violate procedural due process in such situations.

A panel of our court affirmed the summary judgment as to the procedural due process claim, but reversed the grant of summary judgment as to the claim of substantive due process, finding that "a genuine dispute of material fact is demonstrated as to whether the seemingly arbitrary denials of the parking variance were reasonably based on fact." 754 F.2d 1251, 1256 (5th Cir.1985). Shelton and Jones urge that they also claimed that the board's later grants of variances on assertedly similar facts was a denial of equal protection. We do not hereafter separately focus upon this claimed denial of equal protection. We conclude that there was a rational basis for the legislative decisions. The classifications were therefore valid, and we need not address other asserted deficiencies.

II

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Deprivation by the state of a protected interest in life, liberty, or property is prerequisite to a claim for denial of due process. The property interest asserted in this case was a right under state law to seek a variance from an otherwise valid restriction of use.

It is not at all clear that the state has deprived Shelton and Jones of such a property right. The University Drive real estate was subject to an ordinance that required a certain amount of parking for its use. Shelton and Jones did not attack the ordinance or its restriction upon their use of the property. The state gave a "right" to seek a variance, which included review of the Zoning Board's decision by a state district court. It can be argued that because Shelton and Jones bypassed this state-furnished remedy, the state did not deprive them of any property, at least to the extent that the ignored remedy was a part of the protected property interest.

Shelton and Jones reply that this argument rests on an overly narrow view of their property. They argue that, viewed in more general terms, use of their property has been restricted and that arbitrarily refusing the requested variances deprived them not only of the state-conferred right to seek a variance, but also of the underlying use of property. Because we conclude that the Zoning Board indisputably had available a rational basis for its zoning decision, we do not today undertake the task of defining the property right in question or deciding the related question of whether the state has deprived Shelton and Jones of any property.

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In reviewing a claim that a state has denied substantive...