Thomas Guth, Hempstead Homes, LLC v. Mayor
| Decision Date | 15 September 2017 |
| Docket Number | CIVIL ACTION NO. 4:17-CV-01100 |
| Parties | THOMAS GUTH, HEMPSTEAD HOMES, LLC, TEXAS VARGAS ELECTRICAL AND KIND PLUMBING Plaintiffs, v. MAYOR AND CITY MANAGER MICHAEL WOLFE FOR THE CITY OF HEMPSTEAD, TEXAS, PERMIT DIRECTOR KOLLYE KILPATRICK AND PERMIT ISSUER GLORIA BOON, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
This matter was referred by United States District Judge Vanessa D. Gilmore, for full pre-trial management, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket Entry #17). In this case, Plaintiffs Thomas Guth, Hempstead Homes, LLC, Texas Vargas Electrical, and Kind Plumbing (collectively, "Plaintiffs") bring claims against Defendants Michael Wolfe, Mayor and City Manager for the City of Hempstead, Kollye Kilpatrick, Permit Director, and Gloria Boone, Permit Issuer (collectively, "Defendants")1 for civil rights violations under 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act ["ADA"] 42 U.S.C.A. § 12101, et seq., as amended. Pending before the court is a motion to dismiss, which was filed by Defendants. (Defendants' Motion to Dismiss for Failure to State a Claim ["Motion to Dismiss"], Docket Entry #14). Plaintiffs have responded. (Plaintiff's Opposition to Defendant's Rule 12(b)(6) Motion to Dismiss ["Response"], Docket Entry#19). After reviewing the pleadings and the applicable law, it is RECOMMENDED that Defendants' motion be GRANTED, and that this case be DISMISSED, with prejudice.
This litigation arises out of the administration of municipal building and inspection permits. Plaintiff Hempstead Homes, LLC ["Hempstead Homes"] is a small home builder. (Plaintiffs' First Amended Complaint ["Amended Complaint"] ¶ 6, Docket Entry #11). In December, 2015, Hempstead Homes acquired a 17-acre tract of land in Hempstead, Texas, to develop as a residential area. (Writ of Mandamus to Compel Public Officials to Perform Ministerial Acts to Issue Building Permits, Perform Inspections on Previously Issued Permits, Provide Addresses for City Lots and Provide Utility/Road Costs for Lots ["Writ of Mandamus"] at 5, Docket Entry #1). Since that time, Hempstead Homes has purchased additional acreage for this venture, and it now owns approximately 100-acres of land in the area. (Amended Complaint ¶ 6; Writ of Mandamus at 5). Plaintiffs Kind Plumbing and Vargas Electrical were hired by Hempstead Homes to perform plumbing and electrical services for the homes in the development. (Amended Complaint ¶7). On December 30, 2016, Plaintiff Thomas Guth ["Guth"] executed a contract to purchase a new house in the Hempstead Homes project. (Amended Complaint ¶ 6, Writ of Mandamus at Exhibit 4).
Under Hempstead municipal regulations, a real estate developer is required to obtain a building permit, before constructing a house, as well as electrical and building inspections of the premises, after the structure is completed. (Hempstead, Tex., Ordinance 00-113 (August 21, 2000), available at http://12.39.172.108/adobe1/permits/manufactured-homes.pdf, last visited September 14, 2017). On February 16, 2017, Hempstead Homes submitted an application for a building permit,so that it could begin construction of Guth's residence.2 (Supplemental Exhibits to Defendants' Motion to Dismiss ["Defendants' Supplement"], at Ex. 1, pg. 2, Docket Entry #20; Defendants' Supplement, at Ex. 2, pg. 2). On February 27, 2017, Hempstead Homes submitted applications for electrical and plumbing permits to cover the house at1202 19th Street, and for an electrical permit for the house at 1222 19th Street. (Id. at Ex. 1, pg. 4, 6, Id. at Ex. 2, pg. 4). The next day, on February 28, 2017, an application was made for a plumbing permit for a home at 1222 19th Street. (Id. at Ex. 2, pg. 6).
On March 10, 2017, building, electrical, and plumbing permits were issued for the homes at 1202 19th Street and 1222 19th Street. (Id. at Ex. 1, pg. 2, 3, 5, Id. at Ex. 2, pg. 1, 3, 5). On April 17, 2017, the City performed an electrical inspection of the properties at 1202 19th Street and 1222 19th street, and determined that the electrical services had been satisfactorily performed. (Id. at Ex. 1, 10, Id. at Ex. 2, 9). On April 30, 2017, after inspection, the City found that the plumbing services at those homes had been adequately completed, as well. (Id. at Ex. 1, 9, Id. at Ex. 2, 8).
Notwithstanding the fact that their applications were approved, Plaintiffs allege that the City refused to process their permit requests. (Amended Complaint ¶¶8, 24; Writ of Mandamus at 7). They claim that a representative from Hempstead Homes met with Kilpatrick, the City's permit director, several times, to inquire about the status of their applications. (Id.). Guth, apparently "grew tired of the delays," and so, in March, 2017, he went to Hempstead to discuss the problem with Kilpatrick directly. (Amended Complaint ¶24; Writ of Mandamus at 7).
During the meeting, Guth noticed that the men's restroom was "a broom closet," and hepromptly informed Kilpatrick that the City's facilities did not meet the architectural standards under the Americans with Disabilities Act. (Amended Complaint ¶25). Following that meeting, Guth wrote a letter to the Civil Rights Division at the Department of Justice, complaining about the inadequate restrooms at the Hempstead City Hall. (Writ of Mandamus at Ex. 4, 20-27).
On April 10, 2017, Plaintiffs filed a petition for a writ of mandamus in this court, raising constitutional claims for violations of the Fourteenth Amendment of the United States Constitution. (Writ of Mandamus at 3-4). Plaintiffs ask the court to order the City to issue the requested permits, to perform the required inspections, to issue addresses for the Hempstead Homes lots, and to provide a "breakdown of costs" for utilities installation and road construction. (Id. at 21). On April 18, 2017, Defendants objected to the writ of mandamus, arguing that federal courts lack subject matter jurisdiction and any authority to issue a writ compelling state or local action. (Defendants' Memorandum of Law in Opposition to Plaintiffs' Request for Mandamus ["Objection to Writ of Mandamus"] at 1). This court denied Plaintiffs' request for mandamus relief on the same day. (Docket Entry #10).
One week later, on April 25, 2017, Plaintiffs filed an amended complaint. In that complaint, Plaintiffs lodged claims under 42 U.S.C. § 1983, for violations of their Fourteenth Amendment right to substantive due process and equal protection, as well as a claim under Title II of the Americans with Disabilities Act ["ADA"] 42 U.S.C.A. § 12101, et. seq., as amended. Plaintiffs now request damages for the diminution in the value of their land in the residential development, infrastructure development costs, as well as impact, professional, and attorneys' fees. (Amended Complaint ¶29, 30). Plaintiffs also ask the court to order Defendants to approve the permit applications that were submitted on February 16, 2017. (Amended Complaint ¶31).
Plaintiffs contend further that the City of Hempstead "delayed issuing" the permits that Hempstead Homes requested, and that it "refuses" to perform electrical and plumbing inspections of the services that were performed pursuant to those permits. (Amended Complaint ¶8). They claim that, by submitting permit applications, they acquired a statutorily "vested right[]" in them. (Amended Complaint ¶21). Plaintiffs insist that the City's failure to promptly approve their applications is a violation of their right to substantive due process. (Amended Complaint ¶15). Plaintiffs contend further that other, similarly situated home builders were given permits without delay. (Amended Complaint ¶17, 19). They maintain that the City has violated their right to equal protection of the laws, by subjecting them to disparate treatment. (See Amended Complaint 20). Plaintiffs also allege that the City has not provided property addresses for Hempstead Homes' lots, and that it has likewise not disclosed the cost of utilities and road construction in that development. (Amended Complaint ¶8). They also complain that the City has violated their "statutorily vested rights" which are secured under Texas Local Government Code §245.002.
On May 17, 2017, Defendants filed this motion to dismiss, for failure to state a claim, under Federal Rule of Civil Procedure 12 (b)(6). At the outset, Defendants point out that Plaintiffs' claims must fail, because all of Hempstead Homes' permit and inspection applications have been approved. (Motion to Dismiss at 9-10). They also contend that any"delay" in the approval of the permit applications was not an "adverse action" as defined under the ADA. (Id. at 10-11). Next, Defendants insist that Plaintiffs' substantive due process claim must fail, because Plaintiffs do not have a protected property interest in the building, plumbing, or electrical permits. (Id. at 11-13). Defendants claim further that, even if they have a protected property interest in the permits, Plaintiffs have not shown that the City's administrative decisions regarding those permits are not rationally related toa legitimate government interest. (Id. at 13). Defendants contend that Plaintiffs' equal protection claim must fail, as well, because they have not shown that they were treated differently from other, similarly situated home builders. (Id. at 14-15). In their final argument, Defendants insist that, even if Plaintiffs are able to state claims under the ADA and the Fourteenth Amendment, they are entitled to qualified immunity from liability on those allegations. (Id. at 15-18). Having considered the pleadings and the applicable law, the court finds that Plaintiffs have failed to state a claim for which relief can be granted, and recommends that this case be dismissed, with prejudice.
In ruling on a 12 (b)(6) motion, the court must accept all "well-pleaded...
To continue reading
Request your trial