Smith v. City of Picayune

• Decision Date: 28 July 1986
• Docket Number: No. 84-4505,84-4505
• Citation: 795 F.2d 482
• Parties: Erwin J. SMITH, Plaintiff-Appellant, v. CITY OF PICAYUNE, Carle Cooper and Charles M. Hubbs, Defendants-Appellees, and USA, Farmers Home Administration, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 482

795 F.2d 482

Erwin J. SMITH, Plaintiff-Appellant, v. CITY OF PICAYUNE, Carle Cooper and Charles M. Hubbs Defendants-Appellees and USA, Farmers Home Administration, Intervenor-Appellee.

No. 84-4505.

United States Court of Appeals, Fifth Circuit.

July 28, 1986.

Edward H. Stevens, III, Picayune, Miss., for Smith.

Ray M. Stewart, J. Edmand Pace, Picayune, Miss., Robert H. Pederson, Jackson, Miss., for City of Picayune.

Sam P. Cooper, Jr., Picayune, Miss., for Hubbs.

Jack Parsons, Eddy Parsons, Parsons & Matthes, Wiggins, Miss., for Cooper.

Peter H. Barrett, Asst. U.S. Atty., Biloxi, Miss., for USA-Farmers Home Admin.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, RUBIN, and HIGGINBOTHAM, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A landowner invokes a declaration that the City of Picayune, Mississippi, violated state law and his federal constitutional rights to due process and equal protection when the City, by agreement with the adjacent landowner, zoned property adjacent to his for multi-family residential use. We find that the City did not follow state law when it zoned the property, but reject the landowner's constitutional claims on the basis of this court's en banc decision in Stern v. Tarrant County Hospital District. ¹

I.

Prior to 1980, Carle Cooper, one of the intervenor-defendants below, and Erwin Smith, the plaintiff, each owned adjoining tracts of land outside the city limits of Picayune, Mississippi. Smith had developed approximately eighty acres as a residential subdivision known as "Millbrook Estates," which contained single and multi-family dwellings. At the time of trial, Cooper had developed approximately 110 acres of his property as a residential subdivision which was named "The Woods."

In February 1980, the City of Picayune authorized the annexation of certain property, including the Smith and Cooper tracts, and subsequently, in accordance with Mississippi law, filed an action in the Chancery Court to annex the property. During May and June 1980, Cooper met with the City Council and the City's Planning Commission to discuss or object to certain aspects concerning the annexation of his property. No agreement was forthcoming, so, in July 1980, the Chancery action with respect to Cooper's property was dismissed on Cooper's motion. The City, however, annexed the Smith property later in 1980.

Cooper continued to meet with the City Council and the Planning Commission regarding annexation and zoning of his property. In September 1980, the Planning Commission voted to accept Cooper's request that his property be annexed and that it be zoned R-1, R-2, R-3 and C-3, rather than A-1, as are most newly annexed tracts. Finally, in May 1982, the City Council enacted ordinance 527 which provided for the annexation of the Cooper property and its zoning in accordance with his request. In March 1983, the Chancery Court ratified the annexation of the Cooper property. Smith, however, was not satisfied with the zoning of the Cooper property. Therefore, he filed this action against the City of Picayune in Chancery Court seeking injunctive relief on the grounds that the zoning of Cooper's property violated state law and his constitutional rights of due process and equal protection. By the time the state suit was filed, the Cooper tract had been sold to Charles Hubbs, who had borrowed money from the Farmers Home Administration (FmHA) to finance construction of apartments on the land.

The Chancery Court initially issued the preliminary injunction sought by Smith. The order mandated that the property be zoned A-1, that the City restrain from issuing, and rescind, any building permits for the land that would not be in compliance with the A-1 zoning category, and that it halt any construction being performed. It set this order aside in February 1984 on the motion of intervenor-defendants Hubbs and Cooper, and Hubbs resumed construction of the apartments on the Cooper-Hubbs property. The case was then removed to federal court on Hubb's motion. Thereafter the FmHA intervened. After trial before a federal magistrate, judgment was rendered for the defendants.

II.

The City of Picayune filed a timely motion to remand the case on the ground that removal was not proper. This motion was apparently not pursued, no hearing was held on it, and no party to this litigation later challenged or is now challenging the propriety of the removal or the jurisdiction of the federal district court.

A federal district court may, on its own motion, consider the correctness of the grounds for removal. If it finds that the case was removed improvidently and without jurisdiction, it should remand the case to the state court. ² When this case was removed to federal district court, that court lacked removal jurisdiction. Hubbs, who had intervened as a defendant, based his motion on the purported, but nonexistent, diversity of citizenship between Hubbs and Smith, the alleged anticipation that the FmHA would intervene as a defendant in the case, and Hubbs' intention to file a counterclaim against Smith and the City under 42 U.S.C. Sec. 1983. The other defendants did not join the petition for removal.

Generally, the right of removal is determined by the pleadings as they stand when the petition for removal is filed, ³ and all defendants must join in the petition for removal. ⁴ If, however, at the time of trial or judgment the controversy is one over which the federal court would have had original jurisdiction, a removing defendant is estopped from protesting that there was no right to remove as an initial matter. ⁵ Since, at the time of judgment in this case, the district court did have subject matter jurisdiction of the case based on Smith's constitutional claims ⁶ and the presence of the FmHA as an intervenor-defendant, ⁷ we will not now dismiss the suit on the basis of the improperiety of removal at the time it occurred.

III.

Smith asserted both a state law claim and federal constitutional claims. The magistrate who tried the case found that the City had followed state law in zoning the Cooper-Hubbs property and also found in favor of the defendants on Smith's constitutional claims. The magistrate did not address, and the parties apparently did not object to, the court's exercise of pendent jurisdiction over the state law issue. Although this issue was not raised by the parties on appeal, we choose to discuss it briefly because, at first glance, the discretionary exercise of pendent jurisdiction over Smith's state law claim appears questionable.

In United Mine Workers v. Gibbs, ⁸ the Supreme Court discussed the nature of the constitutional power to decide pendent state law claims and the proper discretionary exercise of that power. The trial court is to look to "considerations of judicial economy, convenience and fairness to litigants." ⁹ The district court should avoid "[n]eedless decisions of state law," should dismiss the state claim if the federal claim, "though not insubstantial in a jurisdictional sense," is dismissed before trial, or if "the state issues substantially predominate." ¹⁰

State issues certainly predominated in this litigation. We find, however, that the district court did not abuse its discretion in deciding the state law claim, in part because of the presence of the FmHA as an intervening defendant. Had the state law issue been dismissed, and the claim later reasserted in state court, the FmHA could have removed the case under 28 U.S.C. Sec. 1442(a)(1) to federal district court. ¹¹ Under these circumstances, we cannot say that the district court abused its discretion by entertaining Smith's state law claim.

Having noted the procedural and jurisdictional posture of this case, we now turn to the merits of Smith's claims.

IV.

A Mississippi statute provides that no zoning classification may be "determined, established, [or] enforced" until after a public hearing on the matter has been held, affording "parties in interest, and citizens, ... an opportunity to be heard." Notice of the hearing must be published at least 15 days before the hearing. ¹² This statute has been strictly enforced. ¹³

Section 102 of the City's own zoning ordinance provides:

In the event of annexation of a new area to the City, such areas added to the City shall be considered to be in the A-1 District until otherwise rezoned in accordance with the regulations contained herein governing rezoning actions, or unless otherwise approved by the City Council by petition of the owner.... When a zoning district classification is requested other than A-1, all of the procedures shall be followed as required in Article XII (Amendment and Change) of this Ordinance. (Emphasis added).

Section 1203 of Article XII, referred to in Sec. 102 quoted above, requires the City's Planning Commission to "hold a public hearing ... before submitting its report [on the proposed zoning issue] to the City Council." The applicant is required to post notice on the property of the nature and details of the hearing and to publish notice of the hearing at least fifteen days in advance.

The special zoning requested by Cooper permitted his land to be used for purposes other than single-family residences, including apartments. The City Council finally acceded to his request and, despite the opposition of Smith and others, the Council enacted an ordinance in accordance with their agreement pursuant to Sec. 21-1-27 of the Mississippi Code Annotated, which sets out the state law regarding municipal annexation of property. ¹⁴ Pursuant to Sec. 21-1-29 of the state code, ¹⁵ the City then filed a petition for annexation in Chancery Court and the court directed that public notice be given of a hearing to receive objections to the annexation. ¹⁶ A show-cause notice on the annexation was published, but it did not refer to or describe the proposed zoning of the property. Apparently, a map of the parcel to be...