Opinion
Civil Action No. 3:99-CV-1134-H
March 3, 2000
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants' Motion for Summary Judgment, filed December 21, 2000, and all responses and replies thereto. After consideration of the motion, briefs, and evidentiary submissions of the parties, and for the reasons stated below, the Court finds that there is no issue of material fact, and that Defendants are entitled to judgment as a matter of law on Plaintiff's federal claims. The Court remands the remaining claim to state court.
I. BACKGROUND
Plaintiff operated a welding supply business at 4011 Wesley Street in Greenville, Texas. At that business, Plaintiff sold medical, industrial and specialized gases, among other things. In June of 1998, the building that housed Plaintiff's business was damaged by fire.
Shortly after the fire, the City Planner investigated in which zoning districts a welding supply store could be located, and upon review of the City's zoning ordinances at that time, determined there was no use classification for a welding supply store. The Planner and his staff determined that a welding supply store without sales of pressurized gases was similar to a hardware store, and thus could be operated in districts zoned for General Retail, Commercial, Light and Heavy Industrial and Planned Development use. The Planner determined that a welding supply store with sales of compressed gases should be operated in districts zoned for Commercial, Light Industrial or Heavy Industrial use. Plaintiff's business had been located in an area zoned for General Retail.
The City Planner conveyed his findings and recommendations to the Zoning and Planning Commission. On July 20, the Zoning and Planning Commission met, and requested that the City Council amend the City's zoning ordinance to create use classifications for welding supply stores with and without gases (and specifically prohibit "welding stores with gas" to operate in General Retail districts). Plaintiff spoke at the meeting of the Zoning and Planning Commission in opposition to the request. Plaintiff appeared again at the meeting of the Greenville City Council on August 10, 1998 and presented his position. However, the City Council voted in favor of the amendments to the zoning ordinance.
Also shortly after the fire, Plaintiff applied for a temporary building permit at 4011 Wesley Street to erect a temporary building to house his welding supply store. On July 16, the City Planner, Philip Sanders, informed Plaintiff that he would be granted a building permit provided no gases were sold on the site. Plaintiff declined such a concession. Instead, he appealed the denial of the building permit to the Board of Adjustment. On August 13, 1998, the City of Greenville's Board of Adjustment met to review the decision of the City Planner. Plaintiff appeared at this meeting, and made his opinion known. The Board of Adjustment upheld the denial of the building permit.
Plaintiff subsequently filed a complaint in state court, seeking judicial review of the actions of the City of Greenville and Board of Adjustment. Defendants removed after Plaintiff's amended complaint was filed alleging violations of due process and a taking without just compensation.
II. CONSTITUTIONAL CLAIMS
The Court begins by noting that the Fifth Circuit has "long insisted that review of municipal zoning is within the domain of the states, the business of their own legislatures, agencies, and judiciaries, and should seldom be the concern of the federal courts." Shelton v. City of College Station, 780 F.2d 475, 477 (5th Cir. 1985) (en banc). However, when challenges to land use decisions aspire to constitutional stature, the Court may review such a decision under the applicable constitutional standard. See id. Therefore, the Court will review the actions of the City of Greenville and its Board of Adjustment for constitutional violations.
It is unclear whether Plaintiff complains that Defendants' actions violated his procedural or substantive due process rights. The Court will consider both areas.
A. Procedural Due Process
To being with, local zoning decisions made by an elected body such as a City Council are characterized as quasi-legislative, and thus procedural due process requirements may not apply. See Jackson Court Condominiums, Inc v. City of New Orleans, 874 F.2d 1070, 1074 (5th Cir. 1989). Regardless, the summary judgment evidence shows that Plaintiff received procedural due process protections, whether they were required or not.
The cornerstone of procedural due process is notice and an opportunity to be heard. See MacDonald v. City of Corinth, 102 F.3d 152, 155 (5th Cir. 1996). Plaintiff fails to submit any evidence that he received no notice and had no opportunity to be heard. On the contrary, Defendants' summary judgment evidence clearly shows that Plaintiff received notice of each hearing concerning his application for building permit and/or the zoning of welding supply stores. The evidence also shows that Plaintiff or his counsel attended and was heard at the hearings of the Zoning and Planning Commission, the City Council, and the Board of Adjustment. Therefore, the Court holds that Plaintiff has demonstrated no issue of fact regarding a violation of his procedural due process rights, and the Defendants are entitled to judgment as a matter of law on this claim.
B. Substantive Due Process
A land use decision comports with substantive due process if the action is rationally related to a legitimate government interest. See FM Properties Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996) (citations omitted). Only if such governmental action is clearly arbitrary and unreasonable, having no relation to the public health, safety, morals, or general welfare may it be considered unconstitutional. See id.
Defendants present substantial evidence that the prohibition of compressed gas sales in a General Retail district is rationally related to public health, safety and welfare. The minutes of the Zoning and Planning Commission meeting on July 20, 1998 reflect that the Commission heard from the City of Greenville Fire Chief who testified that such a business was dangerous. Further, the City of Greenville received petitions from residents that objected to sales of gases in General Retail areas because of the danger of the business. The City Council also heard from owners of three neighboring properties who were concerned about safety hazards from Plaintiff's business. Defendant presents no evidence that the decisions of the Commission, the Board or the City were not rationally related to a legitimate government interest.
Plaintiff makes two arguments that his due process rights were violated. First, Plaintiff points to an ex parte communication between an employee of the City of Greenville staff (Massoud Ebrahim) and a member of a Board of Adjustment (Terry Driggers). Plaintiff's summary judgment evidence wholly fails to prove that such a communication ever happened, or that the communication affected the decision of the Board of Adjustment. Moreover, the personal motives of a decision maker (including members of the City Council or Board of Adjustment) cannot be considered in Court's due process decision. The true purpose of the policy (i.e. the actual purpose that may have motivated its proponents, assuming this can be known) is irrelevant to a rational basis analysis. See FM Properties, 93 F.3d at 174.
Second, Plaintiff alleges that his rights were violated because two other welding supply shops that sell compressed gases were not similarly regulated. However, absent evidence of obvious discriminatory intent, Defendants' failure to regulate other welding shops has no bearing on whether the enforcement against Plaintiff had a rational basis. See Jackson Court Condominiums v. City of New Orleans, 874 F.2d 1070, 1078 (5th Cir. 1989) (explaining significance of Bennett v. City of Slidell, 697 F.2d 657 (5th Cir. 1983)). Plaintiff has provided no evidence of discriminatory intent on the part of Defendants, and thus Plaintiff's substantive due process rights have not been violated.
C. Takings Clause Violation
In order to effect a taking of Plaintiff's property under the United States Constitution, a land use regulation must deprive a land owner of all economically beneficial uses of the property. See Lucas v. North Carolina Coastal Comm'n, 505 U.S. 1003, 1019 (1992). Mere diminution in the value of the property is insufficient to constitution a taking. See Penn Central Transportation Company v. New York City, 438 U.S. 104, 131 (1978)
Defendants' actions inhibited Plaintiff's ability to operate a welding supply store with the sale of compressed gases at 4011 Wesley Street. However, Defendants did not prevent Plaintiff from operating a welding supply store without sale of gases, nor did the regulations deprive Plaintiff of any other commercial or industrial uses for the property. Plaintiff has provided no evidence that the property has lost substantially all of its value or usefulness. Therefore, the Court holds that Defendants' regulations did not deprive Plaintiff of all economically beneficial uses of the property, and thus did not effect an unconstitutional taking under the United States Constitution.
The Court does not address whether the Defendants' actions constitute a taking under the Texas constitution.
III. STATE LAW CLAIMS
Plaintiff's first amended petition, filed in state court before this cause was removed, seeks a writ of certiorari pursuant to Section 211.010(b) of the Texas Local Government Code to compel the Board of Adjustment to reconsider its decision.
The Court seriously doubts its jurisdiction to review the zoning and permit decisions of municipal entities in the absence of an issue of constitutional dimensions. Texas law prescribes specific procedures for judicial review of the legality of a decision of a municipal Board of Adjustment, and grants jurisdiction solely to Texas district courts, county courts or county courts at law. See TEX. LOC. GOV'T CODE § 211.011.
For reasons of comity and respect for the expertise of the state courts in these matters, the Court declines to consider any claim for judicial review under § 211.011. The Court REMANDS the state claim to the 196th District Court for the State of Texas, County of Hunt pursuant to 28 U.S.C. § 1441 (c) (when federal question claim is removed with state causes of action, the district court may, in its discretion, remand all matters in which State law predominates).
IV. CONCLUSION
The Court finds that Plaintiff has failed to establish a genuine issue of material fact, and that Defendants are entitled to judgment as a matter of law on Plaintiff's claims for violations of the United States Constitution. Thus, the Court GRANTS IN PART Defendants motion for summary judgment and REMANDS the remainder of Plaintiff's claims to the 196th District Court for the State of Texas, County of Hunt.
SO ORDERED.