Wintercreek Apartments v. City of St. Peters

• Decision Date: 21 March 1988
• Docket Number: No. 86-2019C(6).,86-2019C(6).
• Citation: 682 F. Supp. 989
• Parties: WINTERCREEK APARTMENTS OF ST. PETERS, et al., Plaintiffs, v. CITY OF ST. PETERS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

682 F. Supp. 989

WINTERCREEK APARTMENTS OF ST. PETERS, et al., Plaintiffs, v. CITY OF ST. PETERS, et al., Defendants.

No. 86-2019C(6).

United States District Court, E.D. Missouri, E.D.

March 21, 1988.

Samuel C. Ebling, David T. Hamilton, Gallop, Johnson & Neuman, St. Louis, Mo., for plaintiffs.

Robert J. Krehbiel, Evans & Dixon, St. Louis, Mo., Rollin J. Moerschel, Thompson & Mitchell, St. Charles, Mo., Shulamith Simon, Husch, Eppenberger, Donohue, Cornfeld & Jenkins, St. Louis, Mo., for defendants.

MEMORANDUM

GUNN, District Judge.

This matter is before the Court on defendants' motion for summary judgment.

The uncontested facts are as follows. Plaintiffs Wintercreek Apartments of St. Peters ("Wintercreek"), Cardinal Industries, Inc. ("CII") and Cardinal Industries Development Corporation ("CIDC") (referred to hereinafter collectively as "Cardinal") seek to develop certain real property (the "Site") located in the City of St. Peters, Missouri ("City"). St. Peters is a fourth class municipal corporation organized and existing under the laws of the State of Missouri and located in St. Charles County.

On October 29, 1985 CII executed a contract for the purchase of the Site which was at that time and continues to be zoned "R-3A Multiple Family District". Cardinal planned to construct a 168-unit modular apartment complex at the Site, using modular units¹ manufactured by CII. Cardinal is the only developer who has proposed the development of modular housing in St. Peters.

On March 5, 1986 the Planning and Zoning Commission of the City held a public hearing on a proposed amendment to Ordinance No. 1009, the City's general zoning ordinance. The amendment added a definition of "modular unit" to the ordinance and included modular units in the list of permitted uses for areas zoned "RM Mobile Home Residential District." Defendants concede that notice of the time and place of the hearing on the proposed amendment was not published more than fifteen days before the hearing as required by that portion of Ordinance No. 1009 which specifies amendment procedures. See Ordinance No. 1009, art. 10, § 2. Following the hearing on the proposed amendment before the Planning and Zoning Commission the Commission recommended adoption of the amendment by the Board of Aldermen.

On March 13, 1986 the Board of Aldermen held a hearing on the proposed amendment. Notice of this hearing was published in the St. Louis Post Dispatch on February 26, 1986 in conformity with the requirements of the zoning ordinance and state law. The amendment was read three times and adopted without alteration by the Board as Ordinance No. 1100. Prompted by the doubt of Joseph Bell, a former city planner for St. Peters and the drafter of Ordinance No. 1100, concerning the validity of the measure, the Planning and Zoning Commission met on May 7, 1986 to consider repeal of the Ordinance. The Commission was evenly split on the question, reaching a 2-2 vote. The effect of this vote was to require the Board of Aldermen to approve the repeal by a two-thirds majority before it could become effective.

On May 22, 1986 the Board of Aldermen met to consider the repeal of Ordinance No. 1100. Mr. Irvin, the City Administrator, stated that in the opinion of the City's staff, there was little interest in repeal and he moved to withdraw consideration of the issue. The Board voted in favor of the withdrawal.

At its May 7, 1986 meeting the Planning and Zoning Commission also considered Cardinal's request for approval of the Project site plan. The City staff recommended approval of the site plan subject to four conditions: (1) rezoning of the Site to R-M to comply with Ordinance No. 1100; (2) submission of an architect's drawing of the structures to be erected; (3) a letter of approval of street names; and (4) compliance with Ordinance No. 753, relating to storm water management. The Planning and Zoning Commission approved the site plan contingent only upon compliance with the storm water management ordinance.

On June 18, 1986 Cardinal submitted plans for the Project to the City's Engineering Department and requested approval of those plans and the issuance of the appropriate permits. On June 24, 1986 Mr. Earl Holtgraewe, Director of Engineering, notified Cardinal that due to its failure to comply with Ordinance No. 1100, the City would not issue the requested permits or give further consideration to Cardinal's plans for development of the Project.

Plaintiffs then filed this complaint pursuant to 42 U.S.C. § 1983 against the City, the Mayor, the City Administrator, the Director of Engineering for the City and individual members of the Board of Aldermen, asserting violations of their rights under the United States Constitution. Plaintiffs also asserted pendent claims charging violations of their rights under the Missouri constitution. Specifically, plaintiffs assert that the passage and enforcement of Ordinance No. 1100 constitutes a taking of their property without due process of law in violation of the fifth and fourteenth amendments of the United States Constitution and article I, § 10 of the Missouri constitution. Plaintiffs further assert that defendants' passage of Ordinance No. 1100 and refusal to grant plaintiffs a building permit violated plaintiffs' constitutional rights to procedural and substantive due process.

In order to prevail on their motion for summary judgment, defendants must persuade the Court that the record does not disclose a genuine dispute on a material fact. In order to discharge this burden "it is enough for the defendants to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out this assertion.... If the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the plaintiffs' burden to set forth affirmative evidence and specific facts showing that there is a genuine dispute on the issue. If plaintiffs fail to carry that burden, summary judgment should be granted." City of Mt. Pleasant, Iowa v. Assoc. Elec. Coop., 838 F.2d 268, 273-74 (8th Cir.1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986)). Moreover, there can be "no genuine issue as to any material fact" where, after adequate opportunity for discovery, "a party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

In order to prevail on their § 1983 claim plaintiffs must establish that they have been deprived of a federally protected right, privilege or immunity by persons acting under color of state law. See, e.g., Littlefield v. City of Afton, 785 F.2d 596, 600 (8th Cir.1986). Defendants concede that the actions here at issue were taken under color of state law but assert in support of their motion for summary judgment that plaintiffs have failed to show the existence of a constitutional violation, an essential element of a § 1983 claim.

I. The Taking Claim

Plaintiffs contend that the passage and enforcement of Ordinance No. 1100 violated their constitutional rights because it effected a taking of their property. The fifth amendment provides that "private property shall not be taken for public use without just compensation." Although land use regulation which is highly restrictive or arbitrary may violate this prohibition, such regulation "does not effect a taking if it `substantially advances legitimate state interests' and does not `deny an owner economically viable use of his land.'" Nollan v. Cal. Coastal Comm'n, ___ U.S. ___, 107 S.Ct. 3141, 3146, 97 L.Ed.2d 677 (1987) (quoting Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980)).

All claims asserting that land use regulation has effected a taking of property are not automatically reviewable in federal court.²See Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 3117-3121, 87 L.Ed.2d 126 (1985). A claim that the application of a zoning ordinance effects a taking is not ripe for constitutional review until the government entity charged with implementing the challenged ordinance has reached a final decision regarding the application of the ordinance to the property in question. Id. 105 S.Ct. at 3117; see also Littlefield, 785 F.2d at 609. In addition, because no taking occurs until the state has refused to pay compensation, a federal court may not consider a takings claim unless the property owner first seeks compensation through the procedures provided by the state for obtaining such relief. Williamson, 105 S.Ct. at 3121 n. 13; see also First English, 107 S.Ct. at 2389 n. 10; Littlefield, 785 F.2d at 609.

Applying the principles announced in Williamson to this case the Court concludes that plaintiffs have not established the existence of a constitutional violation with respect to their takings claim because that claim is premature. Although plaintiffs correctly assert that they are not required to exhaust their administrative remedies before bringing a § 1983 action, they are required to predicate their claim upon a final decision of the governmental body whose action they challenge. Williamson, 105 S.Ct. at 3120. In Williamson the Supreme Court rejected a taking claim as premature because no attempt had been made to obtain variances which would have permitted development of the property. 105 S.Ct. at 3117-19. In this case plaintiffs also failed to seek the variance available to them under the City's general zoning ordinance. See Ordinance No. 1009, art. 8, § 4(3) & art. 10, § 4. The City's refusal to give further consideration to Cardinal's development plans does not alter this Court's determination. In Williamson the Court stated that plaintiffs who have not availed themselves of the...