Williams v. City Of Gulfport, CAUSE NO. 1:07CV906 LG-JMR

CourtU.S. District Court — Southern District of Mississippi
Writing for the CourtLOUIS GUIROLA, JR
PartiesMARY O. WILLIAMS, GEORGE BUSH, and GCW, LLC PLAINTIFFS v. CITY OF GULFPORT, MISSISSIPPI and JOHN DOES 1-5, in their individual capacities DEFENDANTS
Decision Date07 February 2011
Docket NumberCAUSE NO. 1:07CV906 LG-JMR

MARY O. WILLIAMS, GEORGE BUSH, and GCW, LLC PLAINTIFFS
v.
CITY OF GULFPORT, MISSISSIPPI and JOHN DOES 1-5,
in their individual capacities DEFENDANTS

CAUSE NO. 1:07CV906 LG-JMR

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

Dated: February 7, 2011


MEMORANDUM OPINION AND ORDER
GRANTING SUMMARY JUDGMENT

THE MATTERS BEFORE THE COURT are (1) the "Re-Filed Motion of City of Gulfport, Mississippi to Dismiss Pursuant to Fed. R. Civ. P. 56 and/or Other Grounds" [61]; and (2) the "Re-filed Motion of City of Gulfport, Mississippi to Strike Documents Submitted By Plaintiffs In Response to Its Motion For Summary Judgment and For Other Relief [70]. The Plaintiffs have responded to the summary judgment motion but not to the motion to strike.1 After due consideration of the submissions of the parties, it is the Court's opinion that summary judgment is warranted, as there is no question of material fact for the jury in regard to the claims against the City. In addition, the Court has not relied on any of the documents objected to by the City in its Motion to Strike. Accordingly, that Motion is moot.

Facts and Procedural History

GCW, LLC, owns property located at 740 Beach Drive in Gulfport, Mississippi. Beginning in 2001, the LLC leased the property to George Bush and Darline Bush,

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doing business as Club Illusion. ECF No. 59-2. In 2004, the parties extended the lease to October 31, 2007. Id. at 16. The Bushes operated a nightclub at the property until the building was destroyed by Hurricane Katrina in August 2005, leaving only a slab.

Plaintiffs allege that soon after Hurricane Katrina destroyed the building, they began planning to rebuild, engaging an architectural firm in March 2006. The slab was removed in April. Through the spring and summer of 2006, the Plaintiffs' architect created plans for a new building and was in contact with City officials in the Planning and Urban Development Department. During this time, City officials required a number of changes to the plans.

Plaintiffs further allege that in July 2006, Mayor Warr "undertook by executive fiat to amend the City's Zoning Ordinance in an apparent effort to exclude the Plaintiffs' operation of Club Illusions [sic] in front of his father's strip mall." Am. Compl. ¶XIV. This amendment was allegedly accomplished through Ordinance number 2482, passed by the Gulfport City Council on July 18, 2006. The Ordinance reads in part:

WHEREAS, within Sec. VII, Subsection (C)(3) of the Zoning Ordinance it is further provided that when permitted nonconforming structures are destroyed or damaged by act of God, the structure may be replaced or repaired on condition that application for a building permit be made within one (1) year from the time the structure was destroyed; and

WHEREAS,... it is hereby recognized that enforcement of the nonconforming structure limitations on residential disaster victims will detrimentally affect land values and impede the ability or desirability of the homeowners to rebuild, and shall have an overall detrimental impact on restoration of the City of Gulfport,...

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WHEREAS, the governing body of the City of Gulfport finds it necessary to encourage reconstruction and assist displaced residential property owners in returning to or receiving value for their properties by amendment as soon as possible to the Zoning Ordinance as it relates to limitations on nonconforming structures,...

NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GULFPORT, MISSISSIPPI, AS FOLLOWS:

...

SECTION TWO. ORDINANCE NO. 1501, AS AMENDED, AND KNOWN AS THE COMPREHENSIVE ZONING ORDINANCE OF THE CITY OF GULFPORT BE, AND IT IS HEREBY AMENDED...

SUBSECTION (C) PARAGRAPHS (2) AND (3) ARE REVISED AND AMENDED, EACH TO READ IN THEIR ENTIRETY, AS FOLLOWS:

...

(3) Replacement. (a) Commercial Use Structures. Should such nonconforming structure of commercial use be destroyed or damaged by an act of God, including tornado, hurricane, flood, wind, earthquake, etc.,... the structure may be replaced or repaired. However, such replacement or repair shall be subject to the following provision: Application for a building permit must be made to the building official within one year of the time that the structure was destroyed. However, in cases of hardship the mayor and city council shall at their sole discretion have the authority to extend such one-year limitation for additional periods of time up to six (6) months each upon application of the owner or leaseholder prior to the expiration of the allowable nonconformity.

ECF No. 23-13.

Prior to this amendment, the provision read:

3. Replacement. Should such nonconforming structure be destroyed or damaged by an act of God, including tornado, hurricane, flood, wind, earthquake, etc., or accident not caused purposefully by the owner or tenant, the structure may be replaced or repaired. However, such replacement or repair shall be subject to the following provision:

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a. Application for a building permit must be made to the Building Official within one year of the time that the structure was destroyed. However, in cases of hardship the Mayor and Board of Commissioners shall at its discretion have the authority to extend said one-year limitations for additional periods of time upon application of the owner or leaseholder.

ECF No. 61-4 p. 51-52.

The City determined that Club Illusion was a nonconforming structure and denied Plaintiffs' September 19, 2006 application for a building permit. The City first stated the denial was because the plans were incomplete and because the application violated Section VII(C)(3)(A) "Replacement of Nonconforming Structures." After Plaintiffs appealed the denial, the City's Board of Adjustment determined that the permit request was properly denied because Plaintiffs' application had not been made within one year of the time the nonconforming structure was destroyed.

The Plaintiffs filed this suit alleging federal and state law claims. The City requested summary judgment in regard to the claims remaining against it-that the Ordinance infringes on Plaintiffs' right to rebuild and use the property, violating their Constitutional rights to due process and equal protection for which they seek redress pursuant to 42 U.S.C. § 1983.2

The Court granted the summary judgment motion by Order dated September

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17, 2010. Plaintiffs then filed two motions to reconsider, alleging that they had been unable to present necessary evidence because of the punctuated and abbreviated discovery periods in this case. For the reasons stated in the Court's Order granting the second motion to reconsider, the Court determined that the deposition testimony recently obtained by Plaintiffs should be evaluated in connection with the City's summary judgment motion. The Plaintiffs' evidence in support of their motions to reconsider has...

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