Shelton v. City of College Station

• Decision Date: 11 March 1985
• Docket Number: No. 83-2765,83-2765
• Citation: 754 F.2d 1251
• Parties: Fred B. SHELTON, III, et al., Plaintiff-Appellants Cross-Appellees, v. CITY OF COLLEGE STATION, et al., Defendants-Appellees Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1251

754 F.2d 1251

Fred B. SHELTON, III, et al., Plaintiff-Appellants Cross-Appellees, v. CITY OF COLLEGE STATION, et al., Defendants-Appellees Cross-Appellants.

No. 83-2765.

United States Court of Appeals Fifth Circuit.

March 11, 1985.

Nelkin & Nelkin, Stuart Nelkin, Rose Ann Reeser, Houston, Tex., for plaintiff-appellants cross-appellees.

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

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

Before RUBIN, TATE, and HILL, Circuit Judges.

TATE, Circuit Judge:

The plaintiffs Shelton and Jones appeal from the dismissal of their suit for damages against defendants who allegedly caused them to suffer monetary losses as a result of the defendants' unconstitutional actions under color of state law. 42 U.S.C. Sec. 1983. Made defendants were: the City of College Station, Texas; the members of the city-created Zoning Board of Adjustment for that municipality; and the city planning director. The alleged unconstitutional actions consisted of the arbitrary and discriminatory denial of a zoning variance for the plaintiffs' business property, despite the routine grant of similar requests as to neighboring and other business property in the area.

On the basis of depositions, affidavits, and other exhibits, the district court granted the defendants' motion for summary judgment. The district court did so on the basis that the refusal to grant the variance was not shown to be arbitrary and capricious or to be absent good faith. We reverse and remand. Summary judgment was improvidently granted because the factual showing raises genuine issues of disputed fact as to whether the denial of the variances was arbitrary and discriminatory, and as to whether the individual defendants were in good faith so as to be entitled to a qualified immunity for their actions.

I.

The plaintiffs had a property interest in a building across the street from the university in College Station. ¹ Desiring to conduct a business on the premises, they unsuccessfully applied four times to the City's Zoning Adjustment Board ("the Board") for a variance from the city zoning's off-street parking requirements. The reasons for the denials were based upon traffic congestion and parking problems in the area. However, the city director of planning admitted that almost every business in the university area at the time was not meeting the parking requirements, and that at least four parking variances had recently been granted by the Board for businesses in that area, despite the opposition of the city's planning department. Deposition of Mayo, 12-14, 49-63. The city planning director admitted that these grants of parking variances were inconsistent with the denial of the plaintiffs' application for variance. Id., p. 49. The record also contains minutes of the Board showing the grant of various parking variances to other businesses in the immediate area of the plaintiffs' property. Further, a subsequent occupier of the plaintiffs' property had been granted a variance of the parking requirements by the Board. R. II, 190-191. ²

In granting summary judgment, the district court relied upon Couf v. DeBlaker, 652 F.2d 585 (5th Cir.) cert. denied, 455 U.S. 921, 102 S.Ct. 1278, 71 L.Ed.2d 462 (1981), as providing a standard that in a Sec. 1983 action for damages a federal court may consider only " 'whether the action of the zoning commission is arbitrary and capricious, having no substantial relation to the general welfare.' " 652 F.2d at 588. The district court then held that, under that standard, although "there may be some inferences", in the record, and "there may be a scintilla of evidence" in the record, nevertheless, "the fact remains that there is no evidence that the refusal to grant the variance in this case was arbitrary and capricious."

In granting summary judgment, the district court thus inadvertently referred to the standard for granting a directed verdict or judgment notwithstanding the verdict, after full development of the evidence. Boeing Company v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc). However, a different standard applies before, on a truncated summary-judgment factual record, a district court may by summary judgment deny a party a trial on the merits with full evidence before the trier of fact. As we recently summarized in Hood v. Tenneco Texas Life Insurance Co., 739 F.2d 1012, 1014 (5th Cir.1984):

[T]he summary judgment standard ... is a strict one, allowing the entry of summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c), see, e.g., Transource International v. Trinity Industries, Inc., 725 F.2d 274, 279 (5th Cir.1984). Moreover in considering a motion for summary judgment, a court must draw all reasonable inferences in favor of the nonmoving party. In re Municipal Bond Reporting Antitrust Litigation, 672 F.2d 436, 440 (5th Cir.1982). However, once the moving party makes an initial showing that no genuine issue of material fact exists, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In reviewing a summary judgment on appeal, we apply the same standard as that used by the district court. Transource, 725 F.2d at 279.

By this standard, as our previous factual summary demonstrates, the factual showing in the record raises a genuine disputed issue of material fact, i.e., whether the Board acted arbitrarily and discriminatorily in denying the plaintiffs' application for a parking variance, but granting or permitting it as to almost all other businesses in the area, including to the successor to the plaintiffs' interest in the identical property for which they themselves had unsuccessfully sought a parking variance.

The summary judgment was therefore improvidently granted and must be reversed, unless the defendants can prevail on other contentions advanced before us and not reached by the district court. We will discuss these contentions in the following numbered parts of this opinion: II. No recovery is allowable as a matter of law for the denial of a variance from a zoning regulation; III. In any event, the defendant city is immune from liability for the actions of its Zoning Board of Adjustment; and IV. Further, the individual members of the Board and the city planning director, made defendants, are immune from liability for these acts as members of the Board.

II.

The record demonstrates that a city zoning ordinance required businesses to furnish offstreet parking spaces of certain numbers, by criteria established in the ordinance. By an application to the Zoning Adjustment Board, a business operator was permitted to secure a modification or waiver of the offstreet-parking requirement. The effect of a denial of the variance application was to make illegal the operation of that business in those premises, unless the owner provided the requisite offstreet parking. However, as previously noted--the record most favorably supports the inference that, except in the case of the plaintiffs, the parking variances sought for businesses in that neighborhood were almost routinely granted, and that the offstreet parking requirements were not in fact enforced against businesses in that area.

The defendant city contends that, nevertheless, no action for damages sustained by the denial of a zoning variation, admittedly under color of state law, is cognizable under 42 U.S.C. Sec. 1983. The city's contentions in this regard are two-fold: (a) given the limited scope of judicial review of zoning actions, the plaintiffs as a matter of law do not have a cause of action for the allegedly arbitrary and discriminatory denial of their request for a zoning variance; and (b) in any event, the denial of a zoning variation is not a deprivation of "property" within the protection of the Fourteenth Amendment, so as to entitle a person aggrieved thereby to sue under 42 U.S.C. Sec. 1983 for damages resulting of a violation of the plaintiffs' federal constitutional rights.

As to (a):

In South Gwinnett Venture v. Pruitt, 491 F.2d 5 (5th Cir.) (en banc), cert. denied, 419 U.S. 837, 93 S.Ct. 66, 42 L.Ed.2d 64 (1974), the en banc court established governing circuit principle. In their rejecting the claim of aggrieved owners that a rezoning regulation had offended the plaintiffs' Fourteenth Amendment rights, we stated that "[t]he only question which federal district courts may consider is whether the action of the zoning commission is arbitrary and capricious, having no substantial relation to the general welfare." 491 F.2d at 7; see also, Couf v. DeBlaker, supra, 652 F.2d at 588. We also held that this principle applied, whether the zoning action was the adoption of a comprehensive zoning plan or (as there) the reclassification of a piece of property under an existing plan.

The en banc court in South Gwinnett then held that the zoning commissioners had established adequate reasons for their denial of reclassification to the plaintiffs. This holding, however, was in the context of an evidentiary hearing at which full opportunity to develop the factual basis of the claim was afforded. 491 F.2d at 6; see district court opinion, 342 F.Supp. 703, 705 (N.D.Ga.1972). Before so holding, however, South Gwinnett stated, preliminarily thereto, that "upon a factual showing of arbitrariness there must be [shown] some basis in fact or law to justify the zoning action as consistent with reasonableness." South Gwinnett, 491 supra at 7.

For purposes of summary judgment, this prong of the South Gwinnett test was not here met. In the present case, as we have previously noted, a...