Stratford v. State-House, Inc.

Decision Date06 August 1982
Docket NumberCiv. A. No. 80-28.
Citation542 F. Supp. 1008
CourtU.S. District Court — Eastern District of Kentucky
PartiesStanley A. STRATFORD and Elizabeth C. Blackburn, Plaintiffs, v. STATE-HOUSE, INC., Joseph A. Newberg, City of Frankfort, Frankfort-Franklin County Planning Commission, Kentucky Alcoholic Beverage Control Board, and Kentucky Department of Alcoholic Beverage Control, Defendants.



Stanley A. Stratford, pro se.

William A. Young, Frankfort, Ky., for State-House, Inc. and Jos. Newberg.

Allen Prewitt, Jr., Frankfort, Ky., for City of Frankfort and Frankfort-Franklin Co. Planning Comm.

Dandridge F. Walton, Frankfort, Ky., for Alcoholic Beverage Control Bd. and Dept. of Alcoholic Beverage Control.


BERTELSMAN, District Judge.

I. Introduction

This case presents once again the thorny problem of the scope of federal court review over local zoning ordinances and their administration by zoning agencies operating under state statutes and local ordinances.

This matter is before the court on the motion of the defendants to dismiss the complaint, which the court has permitted to be supplemented by extraneous materials, including stipulations reached at oral argument. F.R.Civ.P. 12(b).

II. Facts

Since 1978, plaintiffs Stanley A. Stratford and Elizabeth C. Blackburn have been the owners of real estate located on Ridgeview Drive in Frankfort, Kentucky. Mr. Stratford resides on the property on which residential townhouses are constructed. Across Ridgeview Drive is a 21-acre tract of land that has been zoned B-6, Planned Shopping Center, since 1974, prior to the time Mr. Stratford acquired his real estate.

This controversy arises out of the approval by the Frankfort-Franklin County Planning Commission of the construction of a tavern across the street from plaintiffs' property, and the issuance of a building permit pursuant to that approval on June 25, 1979.

Plaintiffs seasonably objected at the public hearings held before the Planning Commission to the approval of the plan and the issuance of the building permit for the tavern. Plaintiffs concede that a tavern is a permitted use in a B-6 zone. Their objections were that there had been no general site plan for the 21-acre tract approved as required by the zoning ordinance, but only a plan for development of that portion of the tract on which the tavern was located, and that access to the part of the tract to be used for the tavern was not on a "collector street" but via two residential streets, contrary to the ordinance.

Plaintiffs timely filed an appeal, pursuant to Kentucky law,1 in the Franklin Circuit Court, the state court of general jurisdiction. On February 27, 1980, the Franklin Circuit Court entered a judgment finding that plaintiffs' objections were well taken and that the issuance of the building permit was void because not in compliance with the zoning ordinance. It ordered the owners of the tavern to cease all use of the land for tavern purposes until a new route of access had been established and "a development plan for the entire Shopping Center Tract had been approved as meeting the requirements of the Zoning Regulations, Subdivision Regulations and Comprehensive Plan adopted by the City of Frankfort."

The operator of the tavern appealed from this ruling on March 20, 1980. The Planning Commission also appealed. Meanwhile, the City issued a certificate of occupancy for the tavern and the owners continued to operate it despite the order of the Franklin Circuit Court. On May 14, 1980, the Franklin Circuit Court held the owner of the tavern in contempt. The Kentucky Supreme Court set aside the contempt order and stayed the judgment of the Franklin Circuit Court on June 16, 1980. On August 21, 1980, this 42 U.S.C. § 1983 action was filed in this court.2

On April 24, 1981, the Kentucky Court of Appeals reversed the judgment of the Franklin Circuit Court stating that there were issues of material fact which rendered summary judgment improper. The Court of Appeals remanded the matter to the Circuit Court with directions for it to determine whether or not the zoning ordinance could be interpreted to permit the 21-acre tract to be planned and developed piecemeal and whether the approval of a partial site plan was an abuse of discretion on the part of the Planning Commission.

On July 8, 1981, the Franklin Circuit Court found that piecemeal development was permissible under the zoning ordinance, but that piecemeal site planning was not, and that before there could be proper development of the 21-acre site, the zoning ordinance required that an overall site plan be filed, rather than permitting the filing of partial plans as the development of each portion of the site took place. The court further found that the action of the Planning Commission had been arbitrary and unreasonable in issuing the permit.

Instead of reinstating the injunction, however, the court remanded the matter to the Frankfort-Franklin County Planning Commission "with directions to notify all interested or affected parties of a time and place for hearing at which said Commission shall undertake to hold an evidentiary hearing and make determination of all issues respecting a proper and lawful development of the Ridgeview Estates neighborhood shopping center, in accordance with all appropriate and applicable provisions of the Zoning Ordinances of the City of Frankfort."

The matter is still pending before the Planning Commission. In this federal action, plaintiffs contend that these proceedings have deprived them of their rights under the Constitution of the United States in that the tavern has been permitted to operate although its existence is contrary to the local zoning ordinance. Plaintiffs' contentions will be discussed in greater detail in subsequent portions of this opinion.

III. Matters Not In Issue

Plaintiffs make no attack on the validity or constitutionality of the zoning ordinance per se, but only challenge the particular applications described above. Also, plaintiffs make no complaint of any deprivation of procedural due process. They acknowledge that they have received notice of all hearings and that all hearings have been conducted in the manner prescribed by statute. They make no complaint of the procedures used in the state court proceedings, but only of the end result.

Plaintiffs originally alleged a conspiracy under 42 U.S.C. § 1985, but now admit that this cause of action is without merit because there is no suggestion that they are being discriminated against as members of a class.3 For the same reason, the court finds no equal protection issue in this case.4

One defendant raises the defense of res judicata, but it is not clear to this court whether the state court judgment is a final judgment or whether it contemplates redocketing in the state circuit court after further action by the Planning Commission. Therefore, the court does not reach this defense.

IV. Taking Without Just Compensation

Plaintiffs do contend that, inasmuch as the value of their real estate has been depreciated by the operation of the tavern due to the noise and traffic involved, their property has been taken without just compensation in contravention of the Fourteenth Amendment to the Constitution of the United States.5

This argument need not detain us. Even where the zoning ordinance directly affects the use of one's own property, it may not be attacked on this ground unless the zoning ordinance deprives the owner of "economically viable use of his property."6

Neither deprivation of the most beneficial use of the land nor a severe decrease in its value measures up to an unlawful taking.7 This has been the law since the Supreme Court of the United States first passed on the validity of zoning ordinances in Village of Euclid v. Ambler Realty Co.8

Inasmuch as the operation of the tavern of which plaintiffs complain does not substantially deprive them of the right to use their property for townhouses, even though it may involve some incidental annoyance, aggravation and diminution of the value of their property, it may be seen that this "taking" argument is without merit.

V. Substantive Due Process and State Legislative Action

Plaintiff's primary contention is based on the doctrine of substantive due process. The crux of their argument is that the local agencies are "not following the law" by permitting the tavern to exist in violation of the text of the zoning ordinance, and thus depriving plaintiffs of a valuable property right — the right to private enjoyment of their homes — without due process of law in the substantive rather than the procedural sense. They emphasize that the state court characterized the issuance of the permit as arbitrary and capricious but did nothing about it.

In evaluating this argument, it will be useful to consider the application of the doctrine of substantive due process to federal judicial review of state legislative and administrative action in general and zoning in particular.

Despite the wide and somewhat loose usage of the term "substantive due process" by litigants, it may be given a succinct and precise definition.

"The doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed has come to be known as substantive due process."9

At one time substantive due process was widely employed to invalidate state economic regulations. In the New Deal era, the doctrine fell into disrepute, but has recently enjoyed a limited resurgence in cases involving fundamental personal rights.10 Most substantive due process cases involve a claim that some state statute or local ordinance interferes with a fundamental federal constitutional right.11 Where no fundamental right is involved, however, all that substantive due process requires is that the statute or ordinance be rationally...

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