Warren v. City of Athens, Ohio
| Decision Date | 15 June 2005 |
| Docket Number | No. 03-3580.,03-3580. |
| Citation | 411 F.3d 697 |
| Parties | Charles W. WARREN; Ruth Warren, Plaintiffs-Appellees, v. CITY OF ATHENS, OHIO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Brian M. Zets, Schottenstein, Zox & Dunn, Columbus, Ohio, for Appellant. Frederick M. Gittes, Gittes and Schulte, Columbus, Ohio, for Appellees.
ON BRIEF:
Frederick M. Gittes, Kathaleen B. Schulte, Gittes and Schulte, Columbus, Ohio, for Appellees.
Before: MARTIN, COLE, and GIBBONS, Circuit Judges.
Plaintiffs-appellees Charles and Ruth Warren, owners and operators of a Dairy Queen in Athens, Ohio, sued the City of Athens ("City") and City Prosecutor William Biddlestone under 42 U.S.C. § 1983, alleging that the defendants violated the Warrens' constitutional rights by installing barricades that restricted access to the Dairy Queen. The Warrens sought declaratory and injunctive relief, and the district court permanently enjoined the City from restricting access to the Dairy Queen. The City appeals, arguing that the district court erred by: (1) determining that the Warrens' takings claim was ripe; (2) finding that the City violated the Warrens' due process rights; (3) finding that the City violated the Warrens' right to equal protection of the law; and (4) granting the Warrens' request for a permanent injunction. We affirm the district court's grant of a permanent injunction, although our reasoning differs from that of the district court in several respects.
Charles and Ruth Warren, along with members of their family, have owned and operated a Dairy Queen at the northwest corner of the intersection of Columbus Road and Sunset Drive in Athens, Ohio, since 1981. There has been a Dairy Queen at that location for over 50 years. Other than social security benefits, the Dairy Queen is the only source of income for Charles and Ruth Warren.
First, it is helpful to describe the Dairy Queen and its immediate surroundings. The Dairy Queen has a drive thru lane located along the south side of the building. The lane enters from and exits onto Sunset Drive, a two-lane dead-end street providing access to eighteen residences. There are head-in parking spaces located in the island created by the arc of the drive thru lane; cars exiting these spaces must back onto Sunset Drive. The Dairy Queen faces Columbus Road, a four-lane road, and there is an entrance to the restaurant parking lot from Columbus Road. The entrance from Columbus Road leads to parking spaces on the north side of the building as well as in the front of the building (the side facing Columbus Road). However, because of the property lines, there is no access around the back of the building from the north side to the west side abutting Sunset Drive. Thus, all cars must exit either back onto Columbus Road or via the same Sunset Drive exit utilized by drive thru customers. The Sunset Drive exit is only about twenty feet from the Sunset/Columbus intersection.
The Dairy Queen's drive thru lane was constructed after the Warren family decided in 1998 that a drive thru would increase business and improve access for customers. As the president of the regional Dairy Queen office testified, no Dairy Queen would continue to be economically viable in the modern economy without a drive thru. In October 1998, the Warrens applied for a building permit from the City to allow construction of the drive thru. Stephen Pierson, Director of Code Enforcement for the City, determined that the proposed drive thru did not contravene any zoning regulations. Pierson nonetheless denied the Warrens' application in December 1998, explaining that the proposed drive thru and part of the existing Dairy Queen building were located on a public right-of-way owned by the City.1 In his refusal, Pierson notified the Warrens of their right to appeal the decision. Pierson also suggested that the Warrens apply for a ten-year revocable license from the City Council for use of the right-of-way. The Warrens did so and entered into discussions with City officials, who had been contacted by Sunset Drive residents concerned about increased traffic on their street.
In April 1999, the Warrens proposed alternate plans for the drive thru in order to address the concerns of residents of Sunset Drive. Wayne Key, the City's service-safety director, endorsed one of these plans, since it channeled the drive thru exit onto Columbus Road and called for parallel parking, rather than head-in parking, along Sunset Drive. Nevertheless, the City Council denied the Warrens' application, citing safety concerns and the concerns of residents affected by the drive thru. The council acknowledged that its denial "may become moot" if the City did not in fact own the right-of-way. After being advised by their attorney that the City did not in fact have a right-of-way over their property, the plaintiffs-appellees decided to proceed with their original plan to build the drive-thru. The Warrens notified the City of their intent to so proceed, and the drive thru opened in July 1999. Drive thru customers generated forty to forty-five percent of the Warrens' business.
Three years later, in April 2002, City Prosecutor William Biddlestone2 notified the Warrens' counsel that due to numerous complaints from the Dairy Queen's neighbors about traffic congestion and noise on Sunset Drive, the City planned to: (1) place "do not block" signs at the intersection of Sunset and Columbus; (2) place "no stopping or standing" signs at the exit and entrance to the drive thru on Sunset; and (3) build a curb along Sunset to close the "illegal driveways" comprising the drive thru.3 The signs were erected soon after, and the Warrens did not object to this action. On May 1, 2002, City officials Biddlestone, Key and Pierson met with the Warrens to discuss the matter and specifically the City's plan to install curbs blocking the drive thru. On May 24, Biddlestone wrote the Warrens' counsel to inform him that "a little more research" indicated that several automobile accidents, including a couple of "fairly serious" ones, had taken place at the intersection since the drive thru opened. Declaring the drive thru a "traffic hazzard [sic]," Biddlestone reiterated the City's intention to follow through with placement of temporary curbing along Sunset and "permanent curbs" at some point in the future. On May 29, 2002, the City placed barricades along Sunset, running from the drive-thru exit to the west end of the property line.4 Even though the drive thru exit was not barricaded, customers could not use the drive thru, and refuse trucks could not pick up trash, recycling, and waste grease at the back of the restaurant. The Warrens experienced a drop in sales of about 22% in the month following the blockage of the drive thru.
Both parties offered extensive evidence during the district court proceedings regarding traffic concerns related to the drive thru. Even though City officials such as Key, Pierson, and police officer Roger Dierdorf testified, they presented no evidence that the City had attempted to design a traffic enforcement plan in the area of the Dairy Queen, conduct a study of traffic flow on Sunset Drive, or assess the particular impact of the drive thru itself. Officer Dierdorf, who regularly patrols the area around the Dairy Queen, testified that he had never seen traffic backed up on Sunset Drive waiting to enter the drive thru. An examination of accident reports in the vicinity of the Columbus/Sunset intersection did not produce any evidence of accidents connected in any way to the drive thru. In addition, the City produced two videos of the Columbus/Sunset intersection covering week-long periods during the summer of 2002, but neither video revealed any traffic problems or accidents.
Various residents of houses on Sunset Drive testified about traffic problems caused by the drive thru. For example, Ralph Kliesch described how cars exiting the drive thru often block Sunset Drive, putting drivers turning onto Sunset from Columbus in danger. He also noted that cars turning right into the drive thru have to swing into the other side of Sunset Drive, and Kliesch stated that he often has to swing into the oncoming traffic lane when cars are stacked up on Sunset in line for the drive thru. One resident, Ellen Kroutel, videotaped the stacking of cars on Sunset Drive on March 28, 2001, during the largest promotion in Dairy Queen history. Other residents echoed these concerns, as well as concerns over noise and use of residential driveways, but none of them reported an inability to see the vehicles on Sunset from Columbus, an inability to reach their homes, or witnessing firsthand an accident on Sunset Drive. The barricades installed by the city increased the number of cars using the residential driveways on Sunset.
In addition to evidence from City officials and local residents, both parties offered the testimony and reports of an expert witness at trial. The City retained Stephen Thieken, a transportation and traffic engineer, who found fault in the "stacking space" available to Dairy Queen drive thru customers, the short distance (the "corner clearance") between the drive thru exit and Columbus Road, and the angled nature of the parking spaces on Sunset Drive. Thieken also reported that the severity of accidents around the Dairy Queen increased after the drive thru was installed, but he cautioned that it was difficult to "link the accidents directly to the operation of the Dairy Queen drive-thru." Thieken based his report solely on maps, conversations with City officials, accident reports, and a one-hour visit to the site.
The Warrens offered the testimony and report of Richard DeWolfe, a civil transportation engineer who had experience designing commercial sites, including drive thru restaurants and banks.5 DeWolfe...
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