E & T Realty v. Strickland
| Decision Date | 26 October 1987 |
| Docket Number | No. 86-7501,86-7501 |
| Citation | 830 F.2d 1107 |
| Parties | E & T REALTY, etc., and Charles D. Beard, Jr., an individual, Plaintiff-Appellee, v. Edwin A. STRICKLAND, Richard L. Straub, Jack W. Swann, O.C. Moon, and Robert Erwin, individually and in their capacities as Members of the Jefferson County Sewer Moratorium Committee, and Charles H. Doss, Ray Moore, and David Orange, individually and in their capacities as Members of the Jefferson County Commission, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
De Martenson, Huie, Fernambucq & Stewart, Rebecca L. Shows, Birmingham, Ala., for defendants-appellants.
Joe R. Whatley, Jr., Falkenberry, Whatley & Heidt, Birmingham, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before KRAVITCH and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
This case involves allegedly discriminatory administration of facially neutral legislation. Defendants are county personnel who administer a sewer moratorium resolution. Plaintiffs are property owners. According to plaintiffs, defendants treated them unequally by denying their application for an increased sewer allocation while allowing other persons to increase their sewage.
The district court found an equal protection violation. Because the district court failed to make certain findings and applied an incorrect legal standard, we vacate and remand.
In early 1976, Jefferson County, Alabama suffered from a severe shortage of sewerage facilities. On February 17, 1976, the Jefferson County Commission imposed by resolution a moratorium on further connections with the Patton Creek and Cahaba River sewer systems. The resolution created three exceptions to the sewer connection moratorium: (1) connections indicated on preliminary subdivision plans which had been approved prior to February 10, 1976; (2) connections for unimproved lots within existing subdivisions; and (3) connections for improved lots which had alternate sewage disposal systems. In a subsequent resolution on September 17, 1977, the Commission repealed these three exceptions.
On July 5, 1978, the Commission further amended the resolution to provide that:
Only such connections, reconnections, expansions, and changed uses of properties connected to [the Cahaba and Patton sewage] systems (before or after the moratorium) are or will be authorized as will not impact the sewer systems greater than the impact from such properties in the most recent former use of such properties.
The Jefferson County Commission created the Jefferson County Sewer Moratorium Committee to administer the moratorium resolution. Defendants/appellants Edwin Strickland, Richard Straub, Jack Swann, O.C. Moon, and Robert Erwin are members of the Moratorium Committee. Defendants/appellants Charles Doss, Ray Moore, and David Orange are members of the Commission.
Plaintiffs/appellees are E & T Realty, an Alabama general partnership, and Charles Beard, its managing partner. In 1980, E & T Realty purchased a three-story building called the MacMillan Building, located at 1945 Hoover Court, City of Hoover, Jefferson County, Alabama. From 1980 to 1983, the building was mostly vacant.
In the early part of the summer of 1983, Lloyd Noland Hospital offered to lease about 3000 square feet of space in the MacMillan Building for use as an outpatient clinic and to pay E & T Realty $2,200 per month for three years, commencing in July 1983. Lloyd Noland also offered to make improvements to the building in the approximate amount of $100,000.00.
E & T Realty requested permission from the Sewer Moratorium Committee to relocate existing plumbing fixtures in the MacMillan Building to provide for the water needs of its potential tenant, Lloyd Noland. In a written application filed with the Committee on August 10, 1983, E & T asked that the MacMillan Building, after relocation of the plumbing fixtures, be allowed to use 5,300 gallons per day (g.p.d.). Later, in a letter dated August 29, 1983, it requested an "unrestricted permit" to relocate the plumbing fixtures. Ultimately, at a hearing on September 16, 1983, E & T Realty requested a sewer allocation of at least 800 to 1000 g.p.d.
The Moratorium Committee took the position that the plumbing fixtures could be relocated only if, after relocation of such fixtures, the water use of the MacMillan Building would not exceed its "most recent former use." To determine "most recent former use," the Moratorium Committee used its standard method of examining water department records. These records indicated that the average daily use during the previous three years, 1980-1983, was 395 g.p.d. and during the previous sixteen years, 1967-1983, was 448 g.p.d.
The Moratorium Committee indicated that it would authorize a sewer allocation of about 448 g.p.d. But it refused to approve E & T Realty's application because E & T was asking for at least twice that amount.
Without approval of its application, E & T Realty was unable to supply Lloyd Noland's water needs. Therefore, the hospital decided in September 1983 to look elsewhere. Ultimately, Lloyd Noland leased space for its clinic from a different landlord, Mitchell Joseph, in a new building several blocks away from the MacMillan Building. The Moratorium Committee had approved Joseph's sewer connection application in 1979, subject to a 5130 g.p.d. limitation.
On October 27, 1983, plaintiffs filed a lawsuit pursuant to 42 U.S.C. sec. 1983, claiming that defendants' denial of their sewerage application violated their constitutional rights to equal protection, due process, and just compensation for property taken by the government. In this complaint, plaintiffs alleged that defendants had "selectiv[ely] enforc[ed]" the sewer moratorium resolution. Plaintiffs alleged that "[w]ithout justification, defendants have allowed the additional sewage from Joseph's building." In addition, the complaint alleged that defendants had, without justification, allowed nearby restaurant owners to increase the sewage flow from their buildings.
A bench trial was conducted beginning March 18, 1985. Plaintiffs conceded at trial that they were not challenging the sewer moratorium, itself; rather, they were challenging defendants' administration of the moratorium resolution. Plaintiffs' taking and due process claims were dismissed during the trial.
On December 31, 1985, the district court entered a memorandum opinion holding that defendants violated plaintiffs' right to equal protection. The district court found:
There has been no showing of any difference between Mitchell Joseph in 1979 and E & T Realty in 1983. The defendants have not shown any rational basis for the granting of the 5,130 gpd allocation to Mitchell Joseph and the denial of the 1,000 gpd allocation to E & T Realty.... The Court concludes that the difference in the defendants' treatment of E & T Realty and Mitchell Joseph is irrational, arbitrary, and capricious.
Implicitly, the court adopted the following legal standard: a plaintiff establishes an equal protection violation by showing an arbitrary and irrational difference between the results of two particular applications of a facially neutral statute.
On the same day, the district court entered an injunction, ordering defendants to grant plaintiffs a sewer allocation of at least 1000 g.p.d. and to authorize relocation of the existing plumbing fixtures in the MacMillan Building. Also, the court awarded attorney fees to plaintiffs. On June 25, 1985, the district court awarded plaintiffs damages in the amount of $161,920.00. Defendants timely appealed. 1
Defendants argue that Joseph and E & T Realty were not similarly situated. Under the terms of the moratorium resolution, defendants contend, Joseph was entitled to approval of his application but E & T Realty was not.
This argument, if correct, would eliminate plaintiffs' equal protection claim to the extent it is based on the difference in treatment between Joseph and E & T Realty. Different treatment of dissimilarly situated persons does not violate the equal protection clause.
Our review of this issue is hampered by a lack of district court findings; the district court never explicitly determined whether E & T Realty or Joseph was entitled to approval of its application. From the record, it is clear that E & T was unentitled to approval of its application. Whether Joseph was entitled to approval of his, however, cannot be determined from the record on appeal.
Under the terms of the moratorium resolution, E & T Realty was not entitled to a sewer allocation in excess of the MacMillan Building's "most recent former use." The Moratorium Committee determined most recent former use by examining water department records, a reasonable method previously approved by the Alabama Supreme Court. Peterson v. Jefferson County, 372 So.2d 839 (Ala.1979). These water records showed that the average water use was 395 g.p.d. during 1980 to 1983 and 448 g.p.d. during 1967 to 1983. During a period of maximum utilization of the building, 1967-1975, an average of 607 g.p.d. was used.
In this case, there is no need to determine whether the 395 g.p.d., 448 g.p.d., or 607 g.p.d. figure best represents the most recent former use. Certainly, such use was not greater than 607 g.p.d. E & T Realty requested at least 800 to 1000 g.p.d., a figure substantially in excess of the "most recent former use." Thus, defendants properly denied E & T's application.
From the record on appeal, it is impossible to determine whether Joseph was entitled to approval of his application in 1979. Apparently, Joseph's property originally fit within the subdivision plan exception to the moratorium. In a letter dated September 7, 1977, defendants authorized Joseph's application for a sewer connection,...
To continue reading
Request your trial
-
McGuire v. Marshall
...individual's right to be free from intentional discrimination at the hands of government officials." Id. (citing E&T Realty v. Strickland , 830 F.2d 1107, 1112 (11th Cir. 1987) ). In Campbell , the Eleventh Circuit explained that "[t]o prevail on this traditional type of equal protection cl......
-
Lange v. Houston County, Georgia, CIVIL ACTION NO. 5:19-cv-392 (MTT)
...has a disparate impact, and (iii) that the defendants are unequally administering a facially neutral statute. E & T Realty v. Strickland , 830 F.2d 1107, 1112 n.5 (11th Cir. 1987) (citation omitted). For the latter two claims, the plaintiff must show the defendant acted with a discriminator......
-
Oakes v. Collier Cnty.
...at 1202 ). "Different treatment of dissimilarly situated persons does not violate the equal protection clause." E&T Realty v. Strickland , 830 F.2d 1107, 1109 (11th Cir. 1987). The Stores as-applied challenge fails because they do not point to any similarly situated individual who is treate......
-
Arrington v. Dickerson
...protection unless there is shown to be present in it an element of intentional or purposeful discrimination." E & T Realty v. Strickland, 830 F.2d 1107, 1112-13 (11th Cir.1987), cert. denied, 485 U.S. 961, 108 S.Ct. 1225, 99 L.Ed.2d 425 (1988) (quoting Snowden v. Hughes, 321 U.S. 1, 8, 64 S......
-
Addressing the problem: the judicial branches
...2821, 100 L. Ed. 2d 922 (1988); see Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976); E&T Realty v. Strickland, 830 F.2d 1107 (11th Cir.1987), cert. denied , 485 U.S. 961, 108 S. Ct. 1225, 99 L. Ed. 2d 425 (1988). A plaintiff need not establish that “the challenged......
-
Addressing the Problem: The Judicial Branches
...100 L. Ed. 2d 922 (1988); see Washington v. Davis , 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976); E &T Realty v. Strickland , 830 F.2d 1107 (11th Cir. 1987), cert. denied , 485 U.S. 961, 108 S. Ct. 1225, 99 L. Ed. 2d 425 (1988). A plaintif need not establish that “the challenged ac......
-
Addressing the Problem: The Judicial Branches
...2821, 100 L. Ed. 2d 922 (1988); see Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976); E&T Realty v. Strickland, 830 F.2d 1107 (11th Cir. 1987), cert. denied, 485 U.S. 961, 108 S. Ct. 1225, 99 L. Ed. 2d 425 (1988). A plaintif need not establish that “the challenged ......
-
Addressing The Problem: The Judicial Branches
...2821, 100 L. Ed. 2d 922 (1988); see Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976); E&T Realty v. Strickland, 830 F.2d 1107 (11th Cir.1987), cert. denied , 485 U.S. 961, 108 S. Ct. 1225, 99 L. Ed. 2d 425 (1988). A plaintiff need not establish that “the challenged......