TRUMBULL DIV., OWENS-CORNING v. City of Minneapolis

Citation445 F. Supp. 911
Decision Date14 February 1978
Docket NumberNo. 4-73-Civ. 342.,4-73-Civ. 342.
PartiesTRUMBULL DIVISION, OWENS-CORNING FIBERGLASS CORPORATION, a Delaware Corporation, Plaintiff, v. CITY OF MINNEAPOLIS, Defendant.
CourtU.S. District Court — District of Minnesota

Frank A. Dvorak, Mackall, Crounse & Moore, Minneapolis, Minn., for plaintiff.

Edward R. Kenneally, Asst. City Atty., Minneapolis, Minn., for defendant.

MEMORANDUM, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT

LARSON, Senior District Judge.

FINDINGS OF FACT

1. Plaintiff Trumbull Division, Owens-Corning Fiberglass Corporation is a Delaware corporation, with its principal place of business in Chicago, Illinois. Plaintiff has operated an asphalt manufacturing plant in Minneapolis, Minnesota, for over 25 years.

2. Defendant City of Minneapolis is a municipality of the State of Minnesota.

3. Plaintiff's plant is adjacent to the Fry Roofing Company. Both companies were sold to Owens-Corning Fiberglass Corporation in April 1977, but prior to that time were separately owned, had no common directors and operated as separate and independent businesses. Plaintiff furnishes asphalt to most of the roofing manufacturing companies in this area and in a surrounding four State area. When the Fry Roofing Company was in operation, plaintiff also furnished asphalt to Fry.

4. In 1969 the City of Minneapolis passed an ordinance requiring a license to manufacture asphalt. Minneapolis Code Chapter 385, recodified as Minneapolis Code Chapter 269.1 The City Council is vested with the authority to issue, renew and revoke such licenses.

5. The licensing year runs from December 1 of one year to November 30 of the succeeding year.

6. The City Council has a standing subcommittee that deals with licensing matters, variously called the Committee on Licenses, the Committee on Licenses and Consumer Services, and hereafter referred to as the Committee.

7. In the short license year 1969, the year 1969-70, and the year 1970-71, plaintiff applied for and was granted a license to manufacture asphalt.

8. Plaintiff applied for a license for the year 1971-72. No written objections to the license were filed by any of the officials named in the ordinance as having authority to investigate and object to such licenses. The Supervisor of the Air Pollution Department had filed a written approval.

9. Although the ordinance does not require aldermanic approval of license applications, the application form for asphalt manufacturing contains a signature space for aldermanic approval and the applications are routinely referred to the ward alderman. Plaintiff's application for 1971-72 was not approved by the alderman of the ward in which plaintiff's plant is located.

10. On December 29, 1971, the Committee had before it the license applications of both Fry Roofing and Trumbull. Neighborhood complaints of pollution and odor from the plants were discussed. The Committee was advised that the Trumbull application had all the necessary official approvals. The license was laid over and referred to the Minnesota Pollution Control Agency.

11. The Trumbull application was laid over at various other times during the year and no final action was ever taken on it.

12. Plaintiff applied for a license for the year 1972-73. No written objections to the license were filed by any of the officials named in the ordinance as having authority to investigate and object to such licenses. The Supervisor of the Air Pollution Department had filed a written approval. The application was not approved by the ward alderman.

13. In a meeting of the Committee on June 6, 1973, the Fry and Trumbull applications were again considered at the same time. The Committee voted to lay over a denial of both applications and to issue callins to the applicants. A call-in is a form sent to a license applicant only when its application is in jeopardy to inform him that the Committee will consider the application at a subsequent meeting. Applicants receive no notice of other committee actions such as lay-overs, referrals or postponements.

14. On June 27, 1973, the Committee voted to recommend disapproval of Trumbull's license application to the City Council.

15. On June 29, 1973, the City Council voted to deny Trumbull a license.

16. On July 3, 1973, the manager of the Trumbull plant was arrested for operating the plant without a license.

17. In light of the arrest, Trumbull instituted action in this Court. A preliminary injunction was granted on July 20, 1973, enjoining the City from issuing further tags, complaints, or warrants against Trumbull for operating without a license. Trumbull is still operating under the protection of that Order.

18. The Court specifically found that as of the time the Trumbull license was denied in 1973, pollution and odors existed in the vicinity of plaintiff's plant and had persisted for some time. Memorandum Order and Rule 52 Findings, July 20, 1973.

19. Trumbull worked with the City Attorney, the Minnesota Pollution Control Agency and the Minneapolis Air Pollution Department for two years, attempting to bring its pollution control equipment into compliance with City and State requirements. Substantial improvements were made to the plant.

20. Plaintiff applied for a license for the 1975-76 licensing year. The officials named in the ordinance as having authority to investigate and object to such licenses had filed no written objections to the application or had indicated approval, including the Supervisor of the Air Pollution Department. The application was not approved by the alderman for the ward.

21. On April 7, 1976, the Committee laid over the Trumbull application.

22. On April 28, 1976, the Committee was informed that Trumbull had all the required approvals under the ordinance. The license application was laid over.

23. On May 28, 1976, the Committee laid over the application again and referred it to an Administrative Committee.

24. At the urging of the Administrative Committee, Trumbull made further repairs to parts of its property, paving a driveway and straightening a snow fence.

25. The 1975-76 license application was laid over seventeen times. No final action was ever taken on it.

26. Plaintiff applied for a license for the year 1976-77. All of the departments required under the ordinance either approved the application or noted no disapproval, except the Air Pollution Department which disapproved. That department reversed its position within a matter of weeks and approved the application. The application was not approved by the alderman for the ward.

27. The application for 1976-77 was on the Committee agenda at least nine times and was never acted upon.

28. As of the time of trial, June 27-28, 1977, plaintiff had expended over $380,000 since 1968 in upgrading its plant in order to satisfy State and City pollution control standards; $260,000 of that sum has been expended in the last four years. Every piece of equipment that the State required or requested, with the exception of an oil water separator awaiting installation, had been put into the plant. Trumbull has operational permits from the Minnesota Pollution Control Agency for all of its plant equipment.

29. At various Committee meetings over the years, plaintiff was frequently identified by Committee members and witnesses with the Fry Roofing Company. Past and present aldermen for the ward in which Trumbull and Fry are located testified that they thought of the two companies as one problem. The applications of the two were frequently considered at the same time. The Committee was informed that Trumbull has been involved in numerous lawsuits with the City over its license when, in fact, it was Fry that had been litigious, while Trumbull had been a party only to this suit. The failure to treat the companies as separate entities disadvantaged plaintiff, for unlike the apparent intransigence of Fry Roofing, Trumbull's attitude has been one of cooperation with the City and it has made reasonable efforts to comply with the ascertainable standards for receiving a license.

30. Committee meetings are informal, legislative-type hearings. An applicant for a license may not always be aware of when or if the Committee is taking some action on his application; witnesses against an applicant are not sworn; cross-examination is not conducted, although inquiries of witnesses are permitted with varying degrees of liberality; no written findings are made as to the basis for Committee action.

CONCLUSIONS OF LAW
I.

Although the parties have not contested this Court's jurisdiction, the Court has an obligation to inquire into the matter. See Kenosha v. Bruno, 412 U.S. 507, 511, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). The prerequisites for diversity of citizenship exist, since plaintiff's place of incorporation and principal place of business are in States other than Minnesota, see 28 U.S.C. § 1332(c), and the City of Minneapolis is deemed a citizen of this State, see Illinois v. City of Milwaukee, Wisc., 406 U.S. 91, 97, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). Moreover, plaintiff has alleged a deprivation of its constitutional right to due process, which gives rise to Federal question jurisdiction under 28 U.S.C. § 1331, see Kenosha v. Bruno, supra, 412 U.S. at 516, 93 S.Ct. 2222 (Brennan, J., concurring); Amen v. City of Dearborn, 532 F.2d 554, 559 (6th Cir. 1976). The $10,000 amount in controversy requirement is satisfied, for deprivation of a license to operate its business could cause plaintiff monetary losses in at least that amount from lost contracts, damage to its business relationships and loss of the benefits of the $380,000 in capital improvements over the last decade in its plant.

Plaintiff has alleged in count four of its complaint that its Federal right to procedural due process has been denied and in counts one, two and three that the licensing ordinance, or the City's application of it, violates other State and Federal laws as...

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