Studen v. Beebe

• Decision Date: 11 December 1978
• Docket Number: No. 77-3173,77-3173
• Citation: 588 F.2d 560
• Parties: Charles E. STUDEN et al., Plaintiffs-Appellants, v. Robert S. BEEBE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 560

588 F.2d 560

Charles E. STUDEN et al., Plaintiffs-Appellants, v. Robert S. BEEBE et al., Defendants-Appellees.

No. 77-3173.

United States Court of Appeals Sixth Circuit.

Argued Oct. 13, 1978.

Decided Dec. 11, 1978.

Dale H. Markowitz, Thrasher, Dinsmore & Dolan, Lawrence J. Dolan, Chardon, Ohio, for plaintiffs-appellants.

Guerin L. Avery, Cleveland, Ohio, for defendants-appellees.

Before PHILLIPS, Chief Judge, and CELEBREZZE and KEITH, Circuit Judges.

PHILLIPS, Chief Judge.

This appeal involves yet another effort to make a federal case out of litigation which belongs in the State courts. Ohio Inns v. Nye, 542 F.2d 673, 676 (6th Cir. 1976), Cert. denied, 430 U.S. 946, 97 S.Ct. 1583, 51 L.Ed.2d 794 (1977).

Appellants Charles F. Studen, his wife Berta Studen, and their wholly owned corporation, Donray Products Company, filed this action alleging denial of their civil rights in violation of 42 U.S.C. §§ 1983 and 1985. The complaint alleges that appellees, present or former officials of Mayfield Village, Ohio, conspired to deprive plaintiffs-appellants of equal protection of the laws and denied them due process and equal protection. Appellants assert their constitutional rights were violated by: (1) the enactment of Mayfield Ordinance No. 72-2, which rezoned substantial acreage within the Village, including the property of appellants, from three tiered zoning to single family residential use; and (2) the failure of the Village to grant a 1973 building permit requested by Donray Products for expansion of existing production and distribution facilities on the property in question.

The district court dismissed the complaint, Sua sponte, holding there was no federal jurisdiction. On appeal this court vacated the judgment of dismissal and remanded the action in the following order:

On receipt and consideration of the briefs and records in the above-styled case; and

Noting that plaintiffs' complaint alleges in part:

32. (c) By reason of this 1973 Zoning amendment, the defendants have rezoned an open area, existing between the industrial use and Interstate Highway 271, at a place where no public sewer or water is available, and at a place where the ground water supply has been seriously questioned, and at a place where the texture of the soil is such that any disposal systems would be considered unlikely, thus rendering plaintiffs' property, not only useless for its present use but useless for the purpose of the intended ordinance.

(d) The Zoning ordinance as applies to the subject property has the effect of, and has in fact, constituted a taking of the plaintiffs' property, rights and privileges without due process of law and has in fact denied plaintiff equal protection of the law.

And further believing that these allegations (as well as others alleging a conspiracy to deprive plaintiffs of equal protection of the laws) do serve to assert a claim of federal constitutional deprivation which we are required to accept at face value, since this case was dismissed Sua sponte without answer or hearing; and

Further being unable to perceive any basis for abstention, either under the Pullman doctrine (Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972)), or the Alabama Power doctrine (Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Alabama Public Service Commission v. Southern Ry., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951));

The judgment of the District Court is vacated and the case is remanded to the District Court for further proceedings.

After a trial on the merits, Senior District Judge Ben C. Green entered detailed findings of fact and conclusions of law and again dismissed the action on the ground that plaintiffs had failed to demonstrate any deprivation of federally protected civil rights.

We affirm.

I

In 1935, Mayfield Village promulgated a comprehensive zoning plan by Ordinance No. 159. The 7.8 acre parcel of land which is the subject of this appeal, and contiguous land totaling some 350 acres, were zoned initially for single family residential use only.

The zoning plan was amended in 1962 by Mayfield Village Ordinance Nos. 763 and 764, which created a three tiered zoning plan providing for residential, office-laboratory (hereinafter commercial) and production-distribution (hereinafter industrial) districts.

In 1967, appellants purchased 7.8 acres of land which was subject to the three tier zoning. The first 350 feet depth of this property was zoned for residential use and the balance for commercial use, except for a small triangular portion located in the northeast corner which was zoned for industrial use. Appellants acquired the land with the intention of converting an existing structure located thereon into a manufacturing plant.

The district court found that Village officials, in the course of reviewing appellants' application for a building permit, examined a surveyor's drawing of the property which had been prepared by the previous owner. That document erroneously depicted the existing building as being bisected by the zoning demarcation line separating commercial and industrial districts.

Pursuant to appellants' application, a building permit was issued, but under a mistake of fact. Contrary to the surveyor's drawing, the building was located entirely within the commercial district. Under the provisions of the 1962 zoning ordinances, the building could not be used for industrial purposes. It is unclear where the fault lay for this surveying error. Village officials say they relied on the survey furnished by appellants. Appellants assert that both their survey and a Village survey were referred to in ascertaining the location of the building.

The facts concerning the correct location of appellants' building were not discovered by Village officials until 1973 and were not disclosed to appellants until 1976. In the meantime, appellants had remodeled the building and, in 1970, commenced fabrication of plastic foam products on the premises.

In 1971, the Village zoning plan again was amended by Ordinance No. 72-2. Approximately 200 acres, including the 7.8 acres owned by appellants, were rezoned to their 1935 residential status. Appellants contend the 1971 ordinance was politically motivated and enacted as a result of anti-industrial animus on the part of Village officials.

Commencing in March 1973, appellants made a series of contacts with the Village Planning and Zoning Commission in an effort to obtain a permit to expand the Donray plant. The minutes of the Commission meeting, held May 14, 1973, indicate that appellants' representatives were informed of certain deficiencies in their proposed expansion plans and were specifically told by the Village Solicitor that a zoning variance would be necessary before the proposed addition could be permitted. Appellants advised Village officials that approval of an expansion plan had already been granted by the Village in 1967, when the initial remodeling permit was issued.

Appellants were invited to attend the July 9, 1973, meeting of the Planning and Zoning Commission and to bring with them any documentation which would support this representation. After hearing evidence, the Commission took the matter under advisement and thereafter referred the questions to the Village Solicitor for determination. Subsequently, there appears to have been a breakdown in communication between the parties. The district court found as follows:

It does not appear that the Village Solicitor had any further communications with plaintiffs or their counsel on the subject of Donray Products' right to expand.

On August 31, 1973 plaintiffs' attorney sent a letter to defendant Bordonaro, Secretary of the Planning and Zoning Commission, which requested the village to either grant plaintiffs a permit for a nonconforming use or deny the request and state the reasons for the denial. That letter further stated that should no response be received by September 15, 1973 plaintiffs would "assume that no permit will be granted," and would "take whatever action we deem appropriate." The village took no action in response to the letter of August 31, 1973 and on November 1, 1973 plaintiffs filed the instant lawsuit.

II

We consider first appellants' claim under § 1985. In Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971), the Supreme Court defined the elements of a claim under § 1985(3) as follows:

To come within the legislation a complaint must allege that the defendants did (1) "conspire . . ." (2) "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." It must then assert that one or more of the conspirators (3) did, or caused to be done, "any act in furtherance of the object of (the) conspiracy," whereby another was (4a) "injured in his person or property" or (4b) "deprived of having and exercising any right or privilege of a citizen of the United States."

In the same opinion, the Supreme Court said:

The language requiring intent to deprive of Equal protection, or Equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all. (Footnotes omitted.) 403 U.S. at 102, 91 S.Ct. at 1798.

To like effect, See Ohio Inns, supra, 542 F.2d at 678-79; Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973); Hopkins v. Wasson, 329 F.2d 67 (6th Cir.), Cert. denied, 379 U.S. 854, 85 S.Ct. 102, 13 L.Ed.2d 57 (1964).

We agree with the holding of the district court that there was a...