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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CHARLES GOSS,
Plaintiff,
VS.
CITY OF LITTLE ROCK,
Defendant.
No. LR -C-95-180
MEMORANDUM AND ORDER
This case involves a zoning dispute. The matter is before the
Court on motion of the defendant, City of Little Rock ("City"), to
dismiss [doc.14]. Plaintiff Charles Goss has responded in
opposition to the motion. For the reasons that follow, the Court
finds that the City's motion to dismiss should be and hereby is
granted.
I.
Plaintiff is the owner of real property located on Stagecoach
Road, also known as State Highway No. 5, in Pulaski County,
Arkansas. Plaintiff operates what he characterizes as a small
commercial business on the property,[ and apparently has done so
for some twenty years. Under the City's ordinances, plaintiff's
business would be classified as a commercial business appropriate
for a 11C-3" general commercial district zoning.
1 The record does not indicate the nature of the business plaintiff is operating.
i M
Plaintiff's property originally was in an unincorporated area
of Pulaski County. In 1985 the City annexed this area, including
plaintiff's property, and zoned the area as a 11R-2" single family
residential district. Although plaintiff's property has been zoned
residential since the annexation, he has operated his business
continuously since that time as a non -conforming use.
In April of 1993, plaintiff petitioned the City to have his
business area rezoned to 11C-3" zoning; which would be consistent
with the manner in which the property was already being used. On
May 24, 1993, the City, through its staff and Planning Commission,
reviewed the application and agreed to recommend to the City Board
of Directors that the area be rezoned to a 11C-3" general commercial
district. This recommendation was conditioned, however, upon the
plaintiff dedicating to the City 55 feet of his property as an
additional right-of-way to Highway No. 5 for future expansion.
Plaintiff objected to the required dedication and states that
"for a long period of time," the City refused to submit the
application to the Board of Directors without the dedication of 55
feet of his property. He states that "after a lapse of time," he
requested that the application as applied for be submitted to the
Board of Directors. Plaintiff's request was complied with and the
application was submitted to the Board on February 21, 1995. The
Planning Commission and the City's staff recommended to the Board
that the rezoning as requested in the application be approved, but
that plaintiff's requested waiver of the condition requiring
-2-
dedication of 55 feet of plaintiff's property for future public use
as a road right-of-way be denied.
On February 21, 1995, the Board of Directors refused to rezone
the property to "C-3" zoning without the dedication of the 55 feet
for possible future expansion of Highway No. 5 on grounds that the
City Treasury would otherwise have to pay condemnation damages.
Plaintiff states the Board took this action even though there was
no contemplated change of the use of his property for _general
commercial purposes, and there was no anticipated change.that would
increase traffic on Highway No. 5 as a result of the requested
rezoning. Plaintiff did not pursue the matter in state court.
On March 20, 1995, plaintiff filed this lawsuit, asserting
that the City's requirement of a dedication of real property as a
condition of rezoning for continued use identical to the non-
conforming use violates the 5th and 14th Amendments to the United
States Constitution, and violates Article 2, S 22 of the Arkansas
Constitution. Plaintiff seeks damages and an injunction to rezone
the property in accordance with "C-3" zoning, without the
dedication to the City of any property rights.
II.
In considering a motion to dismiss, the complaint should be
liberally construed in the light most favorable to the plaintiff.
Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). All
inferences which may be drawn from the facts alleged should be
drawn in favor of the plaintiff, Park View Heights Corp. v. City of
-3-
Black Jack, 467 F.2d 1208, 1212 n.3 (8th Cir. 1972), and the
complaint should not be dismissed unless it appears beyond doubt
that the plaintiff can prove no set of facts thereunder which would
entitle him or her to relief. Price V. Moody, 677 F.2d 676, 677
(8th Cir. 1982). Fed.R.Civ.P. Rule 12(b)(6) is not a device for
testing the truth of what is asserted or for determining whether a
plaintiff has any evidence to back up what is in the complaint.
ACLU Foundation of southern California v. Barr, 952 F.2d 45:+, 4.37
(D.C. Cir. 1991) (citations omitted). The issue is not whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims, irrespective of
a judge's disbelief of a complaint's factual allegations or a
judge's belief that the plaintiff cannot prove what the complaint
asserts. Id. (citations omitted).
III.
Federal Courts are not boards of zoning appeals. River Park,
Inc. v. City of Highland Park, 23 F.3d 164, 165 (7th Cir. 1994).
Zoning disputes are state law questions that raise federal
constitutional claims only in "truly egregious and extraordinary
cases." Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d
1102, 1104-05 (8th Cir. 1992). The Court has carefully considered
the matter and concludes this is not one of those cases.
Plaintiff does not allege a diminution in economically viable
use of his property or that the City is preventing him from using
his property in the manner in which it has always been used.
-4-
Indeed, plaintiff admits that despite the City's denial of his
rezoning application, he continues to use his property in the same
manner as before, and the City acknowledges that plaintiff may
continue to operate his business as a nonconforming use.
While it is true that the business cannot be changed or
expanded under its present nonconforming use, plaintiff admits
"there is no contemplated future use of the Plaintiff's property
which changes its present - and past use," and he :::tater that 11the
use will -not change under the present circumstances until there is
destruction of the premises, or a purchaser wishes to buy the
commercial property at commercial values for a similar use to which
it has been used for twenty years." Plaintiff's Brief in support
of Response to City's Motion to dismiss, at 7. Thus,
notwithstanding plaintiff's concern that without the requested
rezoning his property is less marketable, he has not yet suffered
a loss as a result of the City's denial of his rezoning
application.'
Even if the City's denial of his rezoning application
constitutes a taking, it is well settled that a sovereign vested
with the power of eminent domain may exercise that power consistent
with the constitution so long as there exists an adequate mechanism
for obtaining compensation. Collier v. City of Springdale, 733
F.2d 1311 (8th Cir.) (citations omitted), cert. denied, 469 U.S.
857 (1984). Here, the plaintiff clearly possesses an adequate and
' Plaintiff does not allege that he is contemplating selling his property or that he has attempted to sell his property
but is unable to find a buyer because of the City's refusal to rezone his property'
-5-
meaningful remedy in the form of an action in state court for
inverse condemnation. Article 2, S 22 of the Arkansas Constitution
guarantees just compensation for private property appropriated or
damaged for public use by governmental entities. In addition, Ark.
Code Ann. S 18-15-102 establishes the measure of recovery for real
or personal property so taken or damaged and grants a cause of
action for recovery of such amounts. These Arkansas state law
provisions fully preserve all the Constitutional prote.c.tions clue
plaintiff for any public -taking, injury or destruction of his
property, Collier, 733 F.2d at 1316, and precludes a finding that
any taking of plaintiff's property is in violation of a right,
privilege or immunity secured by the Constitution or laws of the
United States. Id. at 1317.
Plaintiff cites William J. (Jack) Jones Ins. Tr. v. City of
Fort Smith, Ark., 731 F.Supp. 912 (W.D.Ark. 1990) ("Jones"), in
support of his claim. In that case, the owner of a gas station
applied to the City of Fort Smith for permission to build a
convenience store to be associated with a gas station that was
already being operated on the premises. City officials responded
that under the ordinances of the City they could not give such
permission unless he granted the City an expanded right-of-way
along the relevant property for street purposes. The owner refused
to make such a grant and filed suit in federal court under 42
U.S.C. S 1983 to enjoin application of the ordinances. Following
a hearing, then -District Judge Morris S. Arnold held that the
City's denial of a permit to build a convenience store unless it
-6-
were granted an expanded right-of-way for street purposes was a
taking in violation of the Fifth Amendment. Judge Arnold concluded
that the City failed to show that the condition which it wished to
impose was reasonably related to the public need or burden that the
new construction would create or contribute (such as increased
traffic), and that without such a showing, the condition which the
City was attaching to the building permit was "simple extortion."
Jones, 731 F.Supp. at 914.
The Court finds plaintiff's reliance on Jones to be misplaced.
The plaintiff in Jones was prevented from building a structure on
his property and, thus, from enjoying
the use of his property, 3
while the plaintiff in this case, by
his own admission, is
continuing to enjoy the full use of his property. Unlike the
situation in Jones, this is not one of those cases in which the
government is placing such a condition or restriction on the use of
property that it constitutes a taking. The Jones case does not
afford plaintiff relief-
To
elief.To the extent plaintiff is asserting a substantive due process
claim, he must "establish that the government action complained of
is truly irrational", that is, something more than ... arbitrary,
capricious, or in violation of state law.',, Anderson v. Douglas
County, 4 F.3d 574 (8th Cir. 1993), cert. denied, 114 S.Ct. 1059
(1994); Chesterfield, 963 F.2d 1102. To illustrate this heightened
standard for substantive due process claims, the Chesterfield and
at 166.
3 of course, the right to build on one's own land "is an ordinary element of a property interest-" River Park, 23 F.3d
-7-
Anderson courts gave as an example of such irrationality a zoning
ordinance applying only to persons whose names begin with a letter
in the first half of the alphabet. In addition, the Court in
Chesterfield quoted with approval the following passage from a
First Circuit decision, Creative Environments, Inc. v. Estabrook,
680 F.2d 822 (1st Cir.), cert. denied, 459 U.S. 989 (1982):
Such a claim is too typical of the run of the mill
dispute between a developer and a town planning agency,
regardless of [plaintiff's] characterizations of it ax►d
defendants' alleged mental states, to rise to the level
of a due process violation. The authority cited by
[plaintiff ] , as well as other cases, all suggest that the
conventional planning dispute -- at least when not
tainted with fundamental procedural irregularity, racial
animus, or the like -- which takes place within the
framework of an admittedly valid state subdivision scheme
is a matter primarily of concern to the state and does
not implicate the Constitution. This would be true even
were planning officials to clearly violate, much less
"distort" the state scheme under which they operate. A
federal court, after all, "should not ... sit as a zoning
board of appeals." Village of Belle Terre v. Boraas, 416
U.S. 1, 12, 94 S.Ct. 1536, 1542, 39 L.Ed.2d [797] (1974)
(Marshall, J., dissenting). Every appeal by a
disappointed developer from an adverse ruling by a local
... planning board necessarily involves some claim that
the board exceeded, abused or "distorted" its legal
authority in some manner, often for some perverse (from
the developer's point of view) reason. It is not enough
simply to give these state law claims constitutional
labels such as "due process" or "equal protection" in
order to raise a subst—ntial federal question under.
section 1983. As has' •o A: -e z been stated, " [t]he violation
of a state statute does not automatically give rise to a
violation of rights secured by the Constitution."
Crocker v. Hakes, 616 F.2d 237, 239 n.2 (5th Cir. 1980)
(per curiam).
Id. 963 F.2d at 1104 (emphasis in original).
The Court went on to conclude, citing several holdings, that
"the theory of substantive due process is properly reserved for
truly egregious and extraordinary cases ...," and that it could
-8-
"see no reason to apply these holdings to a land -use dispute."
Chesterfield, 963 F.2d at 1105. The Court further stated that its
decision "would be the same even if the City had knowingly enforced
the invalid zoning ordinance in bad faith ... (a] bad -faith
violation of state law remains only a violation of state law." Id.
In this case, accepting plaintiff's allegations to be true --
that the City has unlawfully conditioned the rezoning of his
property on the dedication of certain property rights -- such an
act was neither egregious nor irrational enough to violate
plaintiff's federal rights to substantive due process. Cf. Condor
Corp. v. City of St. Paul, 912 F.2d 215, 220 (8th Cir. 1990)
(finding no substantive due process claim and stating that
questions relating to zoning authority under municipal and state
laws are not federal questions and are better left to the state
courts to review); PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28,
32 (1st Cir. 1991) (noting that "whether under a due process or
equal protection theory, departures from administrative procedures
established under state law or the denial of a permit based upon
reasons illegitimate under state law do not normally amount to a
violation of a develuper's federal constitutional -rights") , cited
with approval in Chesterfield, 963 F.2d at 1104.4
4 Nor does plaintiff state a procedural due process claim. "[Slcant process is all that is 'due' in zoning cases." River
Park, 23 F.3d at 167. Despite vague references to the amount of time it took to have his application for rezoning submitted
to the City Board of Directors, plaintiff does not allege any specific irregularities in the manner in which his application was
processed that would give rise to a procedural due process claim.
-9-
IV.
In sum, the Court grants the City's motion to dismiss
[doc.#4]. Plaintiff's remedy for the refusal of the City to
unconditionally rezone his property, if any, is in state court.
IT IS SO ORDERED this e;zs day o 1995.
UNITES T TE5 ❑ IE ST CT JUDGE
I -HIS DOCUMENT ENTERED ON DOCKET SHEET IN
COMPI,I CE W�NffLE58 AND/OR 791a} FRCP
ON BY
eaoo. Woo dilsmiaaqc/
-10-
City of Little Rock
Department of Neighborhoods and Planning
723 West Markham
Little Rock, Arkansas 72201-1334
(501) 371-4790
MEMORANDUM
TO: Cindy Dawson
Assistant City Attorney
FROM: Tony Boaynski
Planning Manager 111,7
SUBJECT: Goss v. City of Little Rock
DATE: November 6, 1996
Attached are Planning and Development's responses to the Goss interrogatories.
Richard Wood assisted with developing our department's answers.
If you have any questions or need additional information, please feel free to call me.
Planning
Zoning and
Subdivision
RESPONSES TO INTERROGATOR]ES - GOSS CASE
1. Jim Lawson
723 W. Markham
Little Rock, AR 72201
(501) 371-4790
13610 County Farm Road
Little Rock, AR 72212
(501) 868-5069
• Participated in PC & BOD meetings
• Staff recommendation
• Knowledge of ROW issue
Richard Wood
723 W. Markham
Little Rock, AR 72201
(501)371-4790
10 Bertwood Dr.
Little Rock, AR 72205
• Participated in meetings
• Staff recommendation
• Rezoning & ROW issue
Antoni Bozynski, Jr.
723 W. Markham
Little Rock, AR 72201
(501) 371-4790
1821 N. Tyler
Little Rock, AR 72207
(501) 664-6574
• Took initial rezoning application
• Participated in P.C. meeting
• Prepared staff recommendation
• Primary staff person for rezonings (in 1993)
2. City Attorney response
3. City Attorney response
4. Could be over -burdensome because of having to research 30-35 zoning files; very
time consuming.
5. The Master Street Plan was adopted in 1959 (Ord. 410,929) and Highway
No.5/Stagecoach Rd. was identified as a collector. The Master Street Plan was
amended in 1968 (Ord. No. 12, 077) and Highway No. 5/Stagecoach Rd. was
upgraded to an arterial. (Based on information found in the City Clerk's office.)
6. Over -burdensome - would require researching a number of zoning and ROW files.
(Same problem as with Interrogatory #4.)
7_ Ark. Highway and Transportation Dept. or City of Little Rock Public Works Dept.
would have information on any easements for contiguous properties.
8. Have no knowledge. (Traffic Engineering could provide traffic generation
numbers for certain uses allowed in C3.)
9. Richard Wood
723 W. Markham 10 Bertwood Dr.
Little Rock, AR 72201 Little Rock, AR 72205
(501) 371-4790
Antoni Bozynski, Jr.
723 W. Markham
Little Rock, AR 72201
(501) 371-4790
1821 N. Tyler
Little Rock, AR 72207
10. This department has no specific knowledge of when the City of Little Rock started
obtaining ROW dedication through reclassifications. The ordinance was amended
in 1988 (Ord. No. 15,435) to add the dedication requirement in Section 36-85(d).
(Cindy - we are guessing that the city started this practice in 1980 or 1981,
without any ordinance provision.)
11. Over -burdensome - this would involve researching many files; calculating the size
of each dedication; and hiring an appraiser to determine value, etc.
12. Have no knowledge.
RESPONSES TO REQUESTS FOR PRODUCTION - GOSS CASE
1. Copies of documents in the case file and the zoning ordinance. (Need some
guidance from the City Attorney's Office.)
2. Unaware of any expert witnesses.
3. Over -burdensome - very time consuming to go through files, etc.
4. No problem - copy is attached.
5. Public Works may have to provide copies of the deeds
6. Public works
7. The nexus issue - traffic counts and traffic generation figures from Public Works
8. Over -burdensome - copying every deed would be time consuming and very costly.
9. This would be very difficult to document and produce.
TO:
City of Little Rock
Thomas M. Carpenter
City Attorney
FROM:
BY:
law
M E M O R A N D U M
CHANDRA L. RUSSELL
DIRECTOR
PUBLIC WORKS DEPARTMENT
JIM LAWSON
DIRECTOR
PLANNING & DEVELOPMENT DEPARTMENT
TONY BOZYNSKI
PLANNING MANAGER
PLANNING & DEVELOPMENT DEPARTMENT
THOMAS M. CARPENTER
CITY ATTORNEY
CYNTHIA S. DAWSON�
ASSISTANT CITY ATTORNEY
GOSS V. CITY OF LITTLE ROCK
U.S.D.C. NO. LR -C-95-180
DATE: OCTOBER 28, 1995
City Hall
500 W. Markham St.
Little Rock, AR 72201-1400
501/371-4527
501/371-4675 (FAX)
Enclosed are interrogatories I have just received in the
Goss case. I would appreciate your department's help in
answering these. Please provide what answers you can to the
questions asked. Some of the interrogatories and requests are
over -burdensome. If you believe that to be the case on
particular questions, please state that it is over -burdensome
and tell me what difficulty there would be if we had to
answer those particular ones.
I would like to have the responses back in two weeks if
possible. Please call me if you have any questions. Thanks
for your help.
TMC:CSD:dab
Enclosure
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CHARLES GOSS
PLAINTIFF 7
}
VS. } NO. LR -C-95-180
}
CITY OF LITTLE ROCK 7
DEFENDANT }
PLAINTIFF'S FIRST SET OF INTERROGATORIES
AND REQUESTS FOR PRODUCTION OF DOCUMENTS
DIRECTED TO DEFENDANT
a
Comes the Plaintiff, Charles Goss, by and through his
attorneys, Brown, Schwander & Greene, per Alice Ward Greene, and
pursuant to Rules 26, 33 and 34, of the Federal Rules of Civil
Procedure, hereby propounds his First Set of Interrogatories and
Requests for Production of Documents to the Defendant, City of
Little Rock, to be answered in the manner and in the time provided
by the Federal Rules of Civil Procedure.
INTERROGATORY NO. 1: Please state the name, business address,
home address, business telephone number and home telephone number
of each and every person known to the Defendant, or to the
Defendant's attorneys or other representatives, who has any
knowledge of the facts alleged in the Complaint herein, and state
with specificity the facts of which each such person has knowledge.
INTERROGATORY NO. 2: Please list the name, business address,
home address and telephone number of each and every witness the
Defendant anticipates calling at the trial of this matter, and
provide a specific summary of the anticipated testimony of each
01
and every witness.
REQUEST FOR PRODUCTION NO. 1: Please produce each and every
document and/or other material that relates in any way to this
matter, including each and every exhibit upon which the Defendant
intends to rely, or which the Defendant may introduce at the trial
of this matter.
INTERROGATORY NO. 3: Please identify each and every expert
witness the Defendant anticipates calling at a trial of this
matter. For each such expert so identified, please state the
following:
(a) The subject matter on which each such expert witness is
expected to testify;
(b) The education, training, experience and qualifications of
each such expert witness with respect to the subject matter
identified in subparagraph (a);
(c) The opinion(s) held by each such expert witness; and,
(d) The facts made known to each such expert witness upon
which each such expert witness' opinion is based.
REQUEST FOR PRODUCTION NO. 2: Please provide a copy of the
curriculum vitae of any and all experts identified in your answer
-to the preceding Interrogatory.
INTERROGATORY NO. 4: Please state whether any property owner
along Highway 5/Stagecoach Road,. whose property currently lies
within the city limits of the City of Little Rock, has received a
waiver of the dedication condition in that property owner's request
for re -zoning. If so, please state:
2
(a) The name, address and telephone number of the property
owner;
(b) The address of the property re -zoned;
(c) The date upon which the dedication condition was waived
by the City of Little Rock; and,
(d) The method through which the property owner received the
waiver of the dedication condition.
REQUEST FOR PRODUCTION NO. 3: Provide a copy of any and all
documents which support your answer to the preceding Interrogatory.
INTERROGATORY NO. 5: Please state the length of time during
which the expansion and/or widening of Highway 5/Stagecoach Road
has been included in the "Master Street Plan" of the City of Little
Rock.
REQUEST FOR PRODUCTION NO. 4: Please provide a copy of the
latest "Master Street Plan" for the City of Little Rock.
INTERROGATORY NO. 6: Please state whether the City of Little
Rock has received a deed to any easement or to any property along
the expanse of the portion of Highway 5/Stagecoach Road which lies
in the City of Little Rock during the length of time in which the
expansion and/or widening of Highway 5/Stagecoach Road has been
included in the "Master Street Plan" of the City of Little Rock.
REQUEST FOR PRODUCTION NO. 5: Please provide a true copy of
each and every deed to the City of Little Rock from property owners
along the expanse of Highway 5/Stagecoach Road which lies in the
City of Little Rock.
INTERROGATORY NO. 7: Please state whether the City of Little
3
Rock claims any easement(s) along Highway 5/Stagecoach Road
contiguous to any of the Plaintiff's property. If so, please state
with regard to each such easement:
(a) the date of the easement;
(b) whether any compensation was paid in exchange for
each such easement; and
(c) whether each such easement was recorded in the Deed
Records of Pulaski County, and, if so, the Instrument Number of
each such recorded easement.
REQUEST FOR PRODUCTION NO. 6: Please provide a copy of any
and all deeds executed to the City of Little Rock for any easement
or .other property contiguous to the Plaintiff's property.
INTERROGATORY NO. 8: Please state whether the Defendant has
any evidence that by the mere rezoning the Plaintiff's property,
the traffic along that portion of Highway 5/Stagecoach Road
contiguous to the Plaintiff's property will increase as a result of
the rezoning. If so, please state the substance of such evidence
in detail.
REQUEST FOR PRODUCTION NO. 7: Please produce any and all
copies of documents upon which the Defendant relied in answering
the preceding Interrogatory.
INTERROGATORY NO. 9: Please state name, business address,
home address and telephone number of each and every person who
assisted the Defendant in answering these Interrogatories.
INTERROGATORY NO. 10: Please state the length of time
during which the Defendant has utilized the method of conditioning
4
the grant of a rezoning application upon the dedication of property
to the Defendant.
INTERROGATORY NO. 11: Please state the overall amount of
property the Defendant has obtained through the method identified
in the preceding Interrogatory, the value thereof, and the method
used to obtain such valuation.
REQUEST FOR PRODUCTION NO. 8: Please produce each and every
deed obtained by Defendant for each and every parcel of property
included in the answer to the preceding Interrogatory.
INTERROGATORY NO. 12: Of the property(ies) identified in
Response to Interrogatory No. 11 and in Response to Request for
Production No. 8, please state which of the property(ies) remains
the property of the Defendant, and which property(ies) has/have
been sold to other parties. With respect to the property(ies) sold
to other parties, state the following:
(a) the date each such parcel of property was sold;
(b) the amount received by the Defendant in the sale of
each such property; and
(c) the name of each purchaser of each such property.
REQUEST FOR PRODUCTION NO. 9: Please produce a copy of each
and every document upon which the Defendant relied in answering the
preceding Interrogatory.
Respectfully submitted,
CHARLES GOSS
By: BROWN, SCHWANDER & GREENE
323 Center Street, Suite 1295
Little Rock, AR 72201
(501) 374-7582
5
Per:'--'4
er: 4
ALICE WARD GREENE ( 95197)
CERTIFICATE OF SERVICE
I, Alice Ward Greene, do hereby certify that a copy of the
foregoing was served upon Hon. Cynthia S. Dawson, Assistant City
Attorney, City Hall, Room 310, 500 West Markham Street, Little
Rock, Arkansas 72201, by placing same in the U.S. mail, with
sufficient postage attached to assure delivery, this �v1�day of
October, 1996.
ALICE WARD GREENE
D
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Appeal No. 97-2652EALR
Cross Appeal No. 97-2790
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
CHARLES GOSS
Appellee/Cross-Appellant
V.
CITY OF LITTLE ROCK
Appellant/Cross-Appellee
APPEAL FROM THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
Honorable Susan Webber Wright, Judge
No. LR -C-95-180
APPELLANT/CROSS-APPELLEE'S REPLY BRIEF
Honorable Thomas M. Carpenter
Little Rock City Attorney
Cynthia S. Dawson
Assistant City Attorney
City Hall - Suite 310
500 West Markham
Little Rock, Arkansas 72201
Tel: 501/371-4527
Arkansas Bar No. 93192
Counsel for AppellantlCross Appellee
Appeal No. 97-2652EALR
Cross Appeal No. 97-2790
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
CHARLES GOSS
Appellee/Cross-Appellant
V.,
CITY OF LITTLE ROCK
Appellant/Cross-Appellee
APPEAL FROM THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
Honorable Susan Webber Wright, Judge
No. LR -C-95-180
APPELLANT/CROSS-APPELLEE'S REPLY BRIEF
Honorable Thomas M. Carpenter
Little Rock City Attorney
Cynthia S. Dawson
Assistant City Attorney
City Hall - Suite 310
500 West Markham
Little Rock, Arkansas 72201
Tel: 501/371-4527
Arkansas Bar No. 93192
Counsel for Appellant/Cross-Appellee
TABLE OF CONTENTS
PAGE
Table of Contents........................................................ 1
Table of Authorities.....................................................
Argument.............................................................. 1
I. The rezoning applicant's claims of Fifth and Fourteenth Amendment
violations were not ripe and federal courts did not have jurisdiction
to hear them where he did not seek compensation through the state
courts after the City refused to rezone his property and waive
dedication of right-of-way ........................................... 1
II. A Dolan "rough proportionality" analysis is not required under the facts
ofthis case.......................................................3
III. The rezoning of Goss' property and granting of a waiver of dedication
would have an adverse impact on the City's legitimate interests, such that
there was no Fifth or Fourteenth Amendment violation ....:............... 6
IV. The district court was not clearly erroneous in deciding that Goss is
not entitled to compensatory damages where there was no showing of
harm and where Goss is estopped from receiving damages because of
his acts of misrepresentation ........................................ 14
V. The district court correctly ruled that Goss is not entitled to an award
of attorney's fees, in accord with the American rule and absent a
statutory basis for such an award .................................... 17
Conclusion ......................................................... 19
Certificate of Service .................................................... 19
TABLE OF AUTHORITIES
CASES
PAGE
Albright v. Oliver,
510 U.S. 266 (1994) ................................................... ... 7
Americans United for Separation of Church & State v. School Dist. of City of Grand
Rapids,
835 F.2d 627 (6th Cir. 1987) ............................................ . 18
Armendariz v. Penman,
75 F.3d 1311 (9th Cir. 1996) (en banc)..................................... .. 7
Bickerstaff Clay Prods. Co. v. Harris County,
89 F.3d 1381 (11th Cir. 1996). .......................................... . . 2
Board of Regents v. Roth,
408 U.S. 564 (1972) .................................................... 12
Christopher Lake Dev. Co. v. St. Louis County,
35 F.3d 1269 (8th Cir. 1994) . .............................................. 9
Consolidated Beef Indus., Inc. v. New York Life Ins. Co.,
949 F.2d 960 (8th Cir. 1991). ............................................. 17
Davis v. Smith,
638 F.2d 66 (8th Cir. 198 1) ............................................... 14
Doherty v. City of Chicago,
75 F.3d 318 (7th Cir. 1996). .............................................. 8
Dolan v. City of Tigard,
512 U.S. 374 (1994) .............................................. 2,3,4,5,7
Eide v. Sarasota County,
908 F.2d 716 (11th Cir. 1990) .............................................. 9
Euclid v. Ambler Realty Co.,
272 U.S 365 (1926) ..................................................... 12
ii
Graham v. Connor,
490 U.S. 386(1989).................................................... 7
Langston v. Langston,
3 Ark. App. 286, 625 S.W.2d 554 (1981). ........ 15
Lemm v. Sparks,
230 Ark. 105, 321 S.W.2d 388 (1959) ........................................ 6
Littlefield v. City of Afton,
785 F.2d 596 (8th Cir. 1986). ..................... - .......... 11
Macri v. King County,
126 F.3d 1125 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3435 (1998) ............ 8,9
Maher v. Gagne,
448 U.S. 122 (1979) ...................... 18
MAK Co. v. Smith,
763 F. Supp. 1003 (W.D. Ark. 1991) . ....................................... 2
McKenzie v. City of White Hall,
112 F.3d 313 (8th Cir. 1997) .... . ............. 3
Miller v. Campbell County,
945 F.2d 348 (10th Cir. 1991) .................. . ....... . .................. 8
Miller v. City of Columbus,
920 F. Supp. 807 (S.D. Ohio 1996) ......................................... 8
Mullane v. Central Hanover Bank & Trust,
339 U.S. 306 (1950) ....................... .................. ....... 12
Nestor Colon Medina & Sucesores v. Custodio, Inc.
964 F.2d 32 (1st Cir 1992) ................................................ 8
Patel v. Penman,
103 F.3d 868 (9th Cir. 1996) .............................................. 7
ON
Penn Central Transp. Co. v. City of New York,
438 U.S. 104 (1978) ...................................................... 5
Preseault v. I. C. C.,
494 U.S.1(1990)........................................................ 1
Suitum v. Tahoe Reg'l Planning Agency,
U.S. , 117 S.Ct. 1659 (1997) ........................................ 1
United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985) ..................................................... 1
Villas of Lake Jackson, Ltd. v. Leon County,
121 F.3d 610 (11th Cir. 1997) ...................................... 7,9,10,12
Von Kerssenbrock-Praschma v. Saunders,
121 F.3d 373 (8th Cir. 1997). ....................... 1,2,3
Wheatley v. Planning Bd. of Hingham,
7 Mass. App. Ct. 435, 388 N.E.2d 315(1979), aff'd 10 Mass. App. Ct. 884, 409 N.E.2d
247(1980)............................................................ 6
Williamson County Reg'l Planning Comm'n v. Hamilton Bank,
473 U.S. 172 (1985) ............................... 2,3,4
OTHER AUTHORITIES
U.S. Const. amend. V ................................................ passim
U.S. Const. amend. XIV ............................................. passim
28 U.S.C.§ 1331 ....................................................... 18
28 U.S.C.§ 1343 ....................................................... 18
42 U.S.C.§ 1983 .................................................... 17,18
42 U.S.C.§ 1988 ..................................................... 18
Dan B. Dobbs, Remedies § 3:2, p.140 (1973) .................................. 15
iv
I. THE REZONING APPLICANT'S CLAIMS OF FIFTH AND FOURTEENTH
AMENDMENT VIOLATIONS WERE NOT RIPE AND FEDERAL COURTS DID
NOT HAVE JURISDICTION TO HEAR THEM WHERE HE DID NOT SEEK
COMPENSATION THROUGH THE STATE COURTS AFTER THE CITY
REFUSED TO REZONE HIS PROPERTY AND WAIVE DEDICATION OF RIGHT-
OF-WAY.
In bringing this takings action in federal court, Goss claims violation of the Fifth and
Fourteenth Amendments. "Ordinarily, a plaintiff must seek compensation through state
inverse condemnation proceedings before initiating a taking suit in federal court, unless the
State does not provide adequate remedies for obtaining compensation." Suitum v. Tahoe
Reg'l Planning Agency, U.S. , 117 S.Ct. 1659, 1665 (1997); accord Yon
Kerssenbrock-Praschma v. Saunders, 121 F.3d 373, 379 (8th Cir. 1997). It is undeniable that
Goss has not utilized the available state procedure for obtaining compensation for any taking.
Goss replies that his case is ripe because he is seeking an injunction to prevent his
property from being taken. Appellee's Brief pp. 10-11. The City reiterates that the Fifth
Amendment does not prohibit governmental taking of private property, but only places a
condition on the exercise of the power to take. Preseault v. I. C. C., 494 U.S. 1, 11 (1990). The
U.S. Supreme Court has stated: "We have held that, in general, `[e]quitable relief is not
available to enjoin an alleged taking of private property for a public use, duly authorized by
law, when a suit for compensation can be brought against the sovereign subsequent to a
taking.' This maxim rests on the principle that so long as compensation is available for those
whose property is in fact taken, the governmental action is not unconstitutional." United
1
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127-28 (1985) (citations omitted).
As previously stated, equitable relief is available in Arkansas to enjoin takings until just
compensation is provided. MAK Co. v. Smith, 763 F. Supp. 1003 (W.D. Ark. 1991).
Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985)
sets forth ripeness rules for takings claims, including the predicate that compensation must
first be sought through state court. This Court specifically held that "the Williamson
requirement applies equally to takings claims for damages and equitable relief brought
against the states." Praschma, 121 F.3d at 380. The appellant in Praschma, who sought an
injunction rather than compensation for the alleged taking of his land, argued that the
Williamson County requirement did not apply to federal suits seeking only injunctive relief.
Id., 121 F.3d at 379. In rejecting his argument, this Court quoted the Eleventh Circuit: "[T]he
only federal constitutional ground supporting the district court's injunction is [plaintiffs]
Fifth Amendment takings claim. That claim, however, is not ripe." Id., quoting Bickerstaff
Clay Prods. Co. v. Harris County, 89 F.3d 1381, 1490-91 (11th Cir. 1996).
Goss states that the City's Williamson County jurisdictional arguments do not apply
where there has been "an individualized adjudicative decision." Appellee's Brief p. 12. He
provides no caselaw or other authority to support this proposition. Instead, Goss muddles the
law on jurisdiction with the language in Dolan regarding an "adjudicative decision."' Dolan
' Goss also incorrectly identifies Def. Exh. 27, City App. 72 as the rezoning
ordinance, which he says states that it is a rezoning with a waiver of dedication
(continued...)
2
v. City of Tigard, 512 U.S. 374,385 (1994). The Praschma case involved both facial and as -
applied challenges. Praschma, 121 F.3d. at 375. The case of McKenzie v. City of White Hall,
112 F.3d 313 (8th Cir. 1997), also concerned an individualized, as -applied decision by the
city. In both, this Court adhered to the Williamson requirement.
Indeed, Goss' mischaracterization of the City's jurisdictional argument illustrates his
lack of understanding of the issue. Goss contends the issue is a question of exhaustion of
state court remedies. But, the City raised the Williamson requirement, which is different than
exhaustion of state remedies. This Court has clearly held that the Williamson requirements
are mandatory predicates to a takings claim. "[T]he requirements that [claimants] obtain a
final decision and attempt state compensation procedures are not exhaustion requirements,
however, but necessary predicates to showing there has been a taking of property without just
compensation." McKenzie, 112 F.3d at 317. Thus, the Court concluded the McKenzies'
claim that the city took the buffer through coercion was not ripe because they had not sought
compensation through the state. Id. This Court should make the same holding in this case.
II. A DOLAN "ROUGH PROPORTIONALITY" ANALYSIS IS NOT REQUIRED
UNDER THE FACTS OF THIS CASE.
1( ... continued)
requirement of a 55 -foot right-of-way. That exhibit is not an ordinance but an excerpt
from the minutes of the Board meeting regarding the Goss rezoning matter. The minutes
excerpt repeats the title of the ordinance, which refers to "waiver of dedication of
additional 25 ft. right-of-way". The minutes go on to explain that the Master Street Plan
standard is 55 feet from the centerline [of the highway].
s
The only ruling adverse to the City is based on the district court's conclusion that it
was `bound by the Eighth Circuit's conclusion that the City's action was in fact adjudicative
in nature and governed by the "rough proportionality" test set forth in Dolan.' Appellant's
App. p. 48.
Despite Goss' contention to the contrary, Appellee's Brief p. 15, the City both denied
the rezoning of Goss' property and refused to waive the dedication of right-of-way. Both
issues were presented in the same ordinance, just as Goss desired, and the entire ordinance
failed to pass. Appellant's App. p. 72. The City directors' majority vote was both against the
rezoning and against the waiver. The City Attorney's statement for clarification that a vote
in favor of the ordinance was a vote to waive the right-of-way does not mean that the vote
was solely on the waiver issue. The rezoning issue was obviously before the Board for
consideration and did not require clarification.
The Dolan rough proportionality test should not be applied to the facts of this case.
The Dolan case and its analysis are premised on a Fifth Amendment takings claim that was
initiated in state court - - and, thus satisfied the Williamson County ripeness requirement.
Rough proportionality analysis does not arise until the Fifth Amendment claim is ripe. As
noted, such is not the case here. Furthermore, unlike the facts in Dolan where a condition
was attached to a building permit that was approved, this case involves a condition that was
considered, but not imposed, and a zoning change that was considered, but not passed.
4
Moreover, before a Dolan analysis is applicable, a landowner must show he has been
deprived of his property or deprived of an entitlement to property, something Goss is unable
to do. No title has been taken by the City and the City has not physically taken any part of
Goss' property. Goss is left in the same position he was in before he applied for rezoning,
with a residential lot where its use for Goss' residence conforms to its present zoning and
with an adjacent lot that continues in its nonconforming status for his various businesses
there. He has no entitlement to the commercial rezoning of those lots.
Goss' only claim of harm is his inability to sell his property through an admittedly
unenforceable oral contract with his son and his friend. He claims he sustained an injury by
not being able to "sell his property with the zoning in noncompliance with the actual use of
the property." Appellee's Brief p. 12. That is not the case. Even if Goss' two lots had been
rezoned to commercial zoning by the City as Goss desired, at least half of that property, the
residential lot with his house on it, would then have had zoning in noncompliance with the
actual use of the property. More importantly, no action by the City interferes with Goss'
ability to sell his property. While Goss may not be able to sell the property at a premium
unless it is zoned for its most remunerative use, a land use regulation that merely deprives
a property owner of the most profitable use of his property does not effect a taking. Penn
Central Transp. Co. v. City of New York, 438 U.S. 104,125-38 (1978).
Another considerable difference from the facts of Dolan is that in this case, Goss
sought a waiver of dedication of right-of-way. A waiver, if passed, would prevent the City
5
from ever obtaining an appropriate dedication of right-of-way regardless of how much Goss
might expand his commercial operations on that particular property and how much they
impacted the City, even when Goss might later seek a building permit. The Arkansas
Supreme Court addressed the meaning of "waiver" in Lemm v. Sparks, 230 Ark. 105, 114,
321 S.W.2d 388, 394 (1959):
"We find nothing that makes the use of the words, "waiver" or "waive," in this
case different from the use of the words, "waive" or waiver," in any other
matter of life. Webster's International Dictionary defines "waiver" as, `An act
of waiving or intentionally relinquishing or abandoning some known right.' .
.. Black's Law Dictionary defines "waiver" as, `The intentional or voluntary
relinquishment of a known right . . .or when one dispenses with the
performance of something he is entitled to exact."'
A waiver of requirements prevents a municipality from applying those requirements at a later
date. Wheatley v. Planning Bd. of Hingham, 7 Mass. App. 435, 388 N.E.2d 315, aff'd, 10
Mass. App. 884, 409 N.E.2d 247 (1979) (by waiving requirement that a subdivision plan
show all municipal services, the planning board could not bind the developer to statutory
covenants to furnish water pipes, hydrants, street lights, telephone lines and any other
services not mentioned in the plan). In short, because there is no taking, no rough
proportionality analysis is appropriate.
III. THE REZONING OF GOSS' PROPERTY AND GRANTING OF A WAIVER OF
DEDICATION WOULD HAVE AN ADVERSE IMPACT ON THE CITY'S
LEGITIMATE INTERESTS, SUCH THAT THERE WAS NO FIFTH OR
FOURTEENTH AMENDMENT VIOLATION.
-J
M
,J
6J
Regardless of the applicability of Dolan to the facts of this case, the City has not
violated any Fifth or Fourteenth Amendment right of Goss. Because Goss has not effectively
addressed this issue, the Court should consider each possible claim in turn.
Any Fourteenth Amendment substantive due process takings claim is precluded
The protection from governmental action provided by sustantive due process has most
often been reserved for the vindication of fundamental rights. Albright v. Oliver, 510 U.S.
266, 272 (1994). The Supreme Court has ruled that "[w]here a particular amendment
`provides an explicit textual source of constitutional protection' against a particular sort of
government behavior, `that Amendment, not the more generalized notion of "substantive due
process," must be the guide for analyzing these claims."' Albright, 510 U.S. at 274, quoting
Graham v. Connor, 490 U.S. 386, 395 (1989). The Fifth Amendment provides an explicit
textual source for claims that government action has gone so far as to amount to a taking.
A number of circuits have struck down substantive due process claims in property
disputes. Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc) (allegations of
government over -enforcement causing plaintiffs to lose their property so land could be
developed for private gain were guided by Fifth Amendment, not substantive due process
under Fourteenth); Patel v. Penman, 103 F.3d 868, 874-75 (9th Cir. 1996) (substantive due
process claim precluded where landowner claimed city closed his motel for code violations
and refused to issue building permits necessary to bring it into code compliance so that the
City would eventually acquire the property, either directly or indirectly); Villas of Lake
7
Jackson, Ltd. v. Leon County, 121 F.3d 610 (11th Cir. 1997) (landowner has no substantive
due process takings cause of action available, separate and apart from cause of action under
the Takings Clause, other than one based on arbitrary and capricious action); Miller v.
Campbell County, 945 F.2d 348, 352-53 (10th Cir. 1991) (appropriate to subsume the more
generalized Fourteenth Amendment due process protections into more particularized Just
Compensation Clause protections); Miller v. City of Columbus, 920 F. Supp. 807, 817 (S.D.
Ohio 1996) (district court within Sixth Circuit found Fourth Amendment provides an explicit
textual source for alleged unlawful removal of property from plaintiff's residence). In
addition, the First Circuit has indicated a reluctance to invoke the due process clause in land
use cases. Nestor Colon Medina & Sucesores v. Custodio, Inc., 964 F.2d 32, 45 (1st Cir
1992) ("due process clause may not ordinarily be used to involve federal courts in the rights
and wrongs of local planning disputes"). The Seventh Circuit states that its precedents make
clear that a plaintiff bringing a substantive due process claim must show either inadequacy
of state law remedy or an independent constitutional violation. Doherty v. City of Chicago,
75 F.3d 318, 326 (7th Cir. 1996).
The Ninth Circuit recently decided in Macri v. King County, WL 573128 (9th Cir.
1997), cert. denied 66 U.S.L.W. 3435 (1998) that the Fifth Amendment provides an explicit
source of constitutional protection against an allegation that a denial of a plat application was
a due process violation and a taking of real property by government action that failed to
substantially advance a legitimate government purpose. The King County Superior Court
8
found the subdivision plat denial was arbitrary and capricious and without a nexus between
the proposed subdivision and the alleged access problem and ordered the plat be granted
preliminary approval. Takings and due process claims were then brought under the Fifth and
Fourteenth Amendments and removed to federal district court.
The Ninth Circuit affirmed the district court's dismissal of the takings claims as
unripe. It also affirmed dismissal of the substantive due process claim because it was based
on government conduct which implicated an enumerated constitutional right and thus a
reliance upon the substantive due process claim for relief was unnecessary. Id. The ruling
also addressed what that court called "a loophole in takings law regarding the ripeness
doctrine," that by bringing a takings claim under the rubric of substantive due process, a
plaintiff could avoid the Williamson County requirements. Id.
Other causes of action potentially available to Goss are inapplicable
This Court has earlier cited with approval the analysis of ripeness and constitutional
theories in land use regulations set out by the Eleventh Circuit in Eide v. Sarasota County,
908 F.2d 716 (11th Cir. 1990). Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d 1269,
1273 (1994). The Eleventh Circuit has recently refined its takings analysis in Villas of Lake
Jackson, Ltd. v. Leon County, 121 F.3d 610 (11th Cir. 1997). There, the court reasoned that
a plaintiff challenging a city's refusal to rezone his property may bring only the following
causes of action: (1) a Takings Clause claim, which may seek just compensation if the
regulation amounts to a taking, or invalidation and injunctive relief if the regulation exceeds
M
what is permissible under the Takings Clause; (2) a "procedural due process takings claim,"
which challenges the procedures by which the regulation was adopted; (3) a substantive due
process claim for arbitrary and capricious government conduct; and (4) an equal protection
claim or claim under some other constitutional provision not specifically involved with the
real property right itself. Id., 121 F.3d at 615.
There was no Fifth Amendment violation
The City has already demonstrated that any Fifth Amendment takings claim is
premature. Moreover, there has been no physical invasion of Goss' property by the City and
no taking of title. The regulatory action taken by the City left Goss in exactly the same
position he had been in before he applied for rezoning.
The City Board's denial of the rezoning and accompanying waiver of right-of-way
dedication for Goss' residential lot and his lot with the nonconforming businesses advanced
legitimate governmental interests in controlling commercial development, traffic and
congestion in an area of single-family residences where there was known opposition to
commercial rezoning. The properties to the north, east, west and south of Goss' property are
all zoned R-2, Single Family and there are single family residences on the north, south and
east. Appellant's App. p. 74. "The purpose of this [R-2] district is to protect single-family
uses in established areas by promoting and encouraging a suitable environment for family
life, by providing a reasonable standard for light, air and similar amenities, by minimizing
traffic congestion, and by avoiding the overloading of utilities and public facilities designed
10
to service only one -family residential uses." Def. Exh. 11. The City's adopted land use plan
designates the existing nonconforming uses on the north side of Stagecoach Road as C-1,
Neighborhood Commercial. Appellant's App. p. 75. Any more intense zoning would thus be
contrary to the existing land use plan.
The two letters from neighboring homeowners stated their opposition to any change
in the zoning of Goss' property from residential to commercial. Appellant's App. pp. 86-90.
They specifically described concerns about noise, odors, trash, and traffic congestion
affecting their residential area. Although the district court labelled the letters and telephone
calls against the Goss property rezoning as "nominal opposition," Appellant's App. p. 43,
there is nothing in the record to show that the opposition by neighbors was not serious or was
excluded as a basis for the vote by any of the various Board members.
Goss continues to make substantial economic use of his property. There has been no
decline in the property's value as a result of the City's action. R. p. 282. Goss has not shown
that he has a vested right to the rezoning of his property, with or without a dedication. Not
one strand from Goss' bundle of rights is missing.
Goss has not made any claim of denial of equal protection or procedural due process.
"[I]n analyzing a claim that the deprivation of property violates procedural due process, a
court must first consider if the plaintiff has a constitutionally protected property interest. If
there is a protected property interest, the court then considers whether the plaintiff has a right
to a predeprivation hearing for the violation." Littlefield v. City of Afton, 785 F.2d 596, 600
11
(8th Cir. 1986). "The Fourteenth Amendment's procedural protection of property is a
safeguard of the security of interests that a person has already acquired in certain benefits.
Board of Regents v. Roth, 408 U.S. 564, 576 (1972) (emphasis added). "To have a property
interest in a benefit, a person clearly must have more than an abstract need or desire for it.
He must have more than a unilateral expectation of it. He must, instead, have a legitimate
claim of entitlement to it." Id., 408 U.S. at 577. Beyond that, the touchstones of procedural
due process are notice and opportunity to be heard. Mullane v. Central Hanover Bank &
Trust, 339 U.S. 306 (1950). Goss does not have a constitutionally protected interest in the
commercial rezoning of either his residential lot or his nonconforming business location. He
has not suffered a lack of notice or opportunity to be heard or other denial of procedural due
process.
The City's actions were not arbitrary, capricious or unreasonable
"A landowner's vested rights created by state law may indeed constitute property
subject to the arbitrary and capricious substantive due process protections under the federal
Constitution." Villas of Lake Jackson, 121 F.3d at 614 (citations omitted). To establish a
Fourteenth Amendment substantive due process violation, a plaintiff must ordinarily show
that the challenged governmental action was "clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals, or general welfare." Euclid v. Ambler
Realty Co., 272 U.S 365, 395 (1926). Goss has not proven the City's actions were clearly
arbitrary.
12
The City's earlier brief sets out the reasons why the City's actions were not arbitrary
but substantially advanced legitimate governmental interests of health, safety and welfare.
Goss replies that he has not indicated that he intends to change the use of the property but has
indicated exactly the opposite. Appellee's Brief p. 22. Goss did not give the City his true
reason for wanting rezoning. Appellant's Add. p. A-32. Since the district court found Goss
"misrepresent[ed] the nature of his claim," and "prevented the city from specifically
ascertaining or considering any ramifications to the sale of his property that might result from
their refusal to rezone plaintiff's property", Appellant's Add. p. A-15, it matters very little
what plans he had for the use of the property since he would no longer be the owner making
those decisions. Goss cannot say with candor that there will not be any additional burden on
the City because the use of the property will not change. Those 81 uses by right would be
immediately available to the new owners, neither of whom have informed the City Board of
their plans for the property.
Goss has not established that he has a vested right to the commercial rezoning he
seeks from the City for his two lots. Moreover, it was not arbitrary for the City Board to vote
against rezoning the property to commercial zoning, with or without a waiver of dedication,
where to do so would have been contrary to the adopted Land Use Plan and against the
wishes of neighboring residents, where the adjacent properties are zoned residential and have
either single family residential uses or are vacant and where half the property under
consideration for commercial zoning has an existing residential use. The dedication of right -
13
1
- I of -way requested by City staff as a condition of rezoning was also not clearly arbitrary or
. 1 unreasonable, but was in accordance with the requirements of the City's adopted Master
Street Plan.'
IV. THE DISTRICT COURT WAS NOT CLEARLY ERRONEOUS IN DECIDING
THAT GOSS IS NOT ENTITLED TO COMPENSATORY DAMAGES WHERE
THERE WAS NO SHOWING OF HARM AND WHERE GOSS IS ESTOPPED
-� FROM RECEIVING DAMAGES BECAUSE OF HIS ACTS OF
MISREPRESENTATION.
1
Standard of review
The standard of review applicable when assessing sufficiency of damages awarded
by the district court in a nonjury case is under the "clearly erroneous" rule. Davis v. Smith,
638 F.2d 66, 68 (8th Cir. 1981).
The district court was not clearly erroneous in
ruling Goss was not entitled to damages
The district court correctly decided that Goss was not entitled to an award of damages.
In his Complaint, Goss did not seek any compensatory damages, although he did ask for
unconditional rezoning of his property from R-2 to C-3, punitive damages and attorney's
' The amount of dedication is not 55 feet of Goss' property, although Goss
continues to make that claim. Appellee's Brief pp. 20, 23. The district court specifically
' found that the 55 foot figure ran from the centerline of the existing highway and that 30
of the 55 feet was in public use and could not be utilized by Goss, leaving for all practical
purposes a 25 foot dedication. Appellant's Add. p. A-4. The court noted City staff later
recommended a dedication of 50 feet from the centerline instead of 55 feet, thus
amounting to a requested dedication of 20 feet.
14
fees.' The district court properly found that Goss was not entitled to compensatory damages
because he had not been harmed by the City's actions and that even if he had been harmed,
he was estopped from recovering damages because of his own actions.
It is elementary that one who seeks compensatory damages must present evidence of
those damages. Dan B. Dobbs, Remedies § 3.2, p.140 (1973). Goss argues that he is entitled
to compensatory damages because "he could not sell. his property with the zoning in
compliance with the actual use of the property." Appellee's Brief p. 24. For proof, he asserts
that the $515,000 "resubmitted" oral offer for his property from his son and family friend
may be taken out of the Arkansas statute of frauds by the reasoning in Langston v. Langston,
= 3 Ark. App. 286, 625 S.W.2d 554 (1981). Langston states that to avoid the statute, "the
quantum of proof [must] be clear and convincing both as to the making of the oral contract
and its performance", and that "partial or full payment of consideration together with taking
of possession by the purchaser is sufficient." Id., 3 Ark. App. at 288, 625 S.W.2d at 556.
Nevertheless, Goss provides no evidence of any performance of the contract and no evidence
of partial or full payment. In fact, Goss himself states no earnest money was given to him.
Appellant's Add. p. A-34. Glynn Goss responded under oath that he did not put down any
earnest money or make a down payment, and that he did not know if Parker had put down
any earnest money. Appellant's Add. p. A-39. Parker testified he paid no money down. R.
claim.
' Goss makes no argument for punitive damages and has apparently dropped that
15
p. 112. Glynn Goss did not believe the contract was enforceable, even if the condition of
rezoning was accomplished. R. pp. 99-100.
Goss states that the parties to the oral contract testified that a sale of his property was
contingent on the zoning conforming "to the use to which the property has been historically
put." Appellee's Brief p. 13. If that was indeed the contingency in the oral offer, it is
surprising that Goss would then initially apply for C-4 zoning, the most intensive commercial
zoning possible within the City and a more intensive use than either the residential use on the
one lot or the commercial use on the other lot. Goss could have applied for PCD Planned
Commercial Development zoning for the lot with the businesses, which would have allowed
the existing business uses to conform to existing zoning and avoid the difficulties with
nonconforming status. R. pp. 201-02.
The district court also ruled that Goss was estopped from receiving damages because
of his actions of misrepresentation. He concealed from the City that he was attempting to sell
his property and concealed the true nature of his claim. Goss also failed to inform the City
in answers to interrogatories that he was leasing his businesses to his son, although he had
been asked to identify all sales, conveyances or transfers of any type of interest in his
property. R. pp. 69-70. This prevented the City from inquiring into matters surrounding the
purported lease or examining it to see its provisions and verify its terms.
Goss claims that the City was made aware prior.to the first appeal that Goss had a
present offer upon the property, which was contingent on obtaining C-3 rezoning, and on or
about October 5, 1996, that such a contract existed. Appellee's Brief p. 26. Goss leaves us
to speculate that he must be referring to the affidavit he attached to his first Motion to Alter
Judgment. Jt. App. pp. A31-32. In that document, Goss claims to be "in the process of
negotiating for the sale" of his business and lands. That new information came over seven
months after the City's February 21, 1995 final action on the rezoning application, after
litigation began and even after the district court had already ruled in the City's favor on the
City's Motion to Dismiss. The district court was not clearly erroneous in finding Goss is
' estopped from claiming damages under these circumstances.
V. THE DISTRICT COURT CORRECTLY RULED THAT GOSS IS NOT
ENTITLED TO AN AWARD OF ATTORNEY'S FEES, IN ACCORD WITH THE
AMERICAN RULE AND ABSENT A STATUTORY BASIS FOR SUCH AN AWARD.
J
Standard of review
This Court applies an abuse of discretion standard of review for an order awarding or
denying attorney's fees. Consolidated Beef Indus., Inc. v. New York Life Ins. Co., 949 F.2d
960, 966 (8th Cir. 1991).
No abuse of discretion to deny attorney's fees
The district court did not abuse its discretion when it determined that Goss was not
entitled to receive an award of attorney's fees, absent a statutory basis for such an award and
in accord with the "American rule" of each party being responsible for its own fees. The
district court's thorough analysis leaves no support for a fee award to Goss. Regardless of
17
the fact that Goss could have brought his lawsuit under the scope of 42 U.S.C. § 1983, it is
clear that he did not do so.
The two cases cited by Goss to support his claim for award of attorney's fees are not
helpful to his cause. The case of Maher v. Gagne, 448 U.S. 122, 125 (1979), was an action
that stated relief was authorized under § 1983 and that was settled without any determination
that the plaintiffs constitutional rights had been violated. The Maher complaint also invoked
the jurisdiction of 28 U.S.C. § 1343, the jurisdictional counterpart of § 1983. Id. Goss'
Complaint was not brought under § 1983 and did not invoke the jurisdictional counterpart
of § 1983. The other case cited by Goss, Americans United, is a Sixth Circuit case in which
the language used in the Complaint tracked language taken from § 1983 and in which
jurisdiction was invoked under § 1343 as well as under § 1331. Americans United for
Separation of Church & State v. School District of City of Grand Rapids, 835 F.2d 627, 631
(6th Cir. 1987). Goss' Complaint did not do so.
In his appellate brief, Goss also sets forth the language of 42 U.S.C. § 1988, which
allows a court, in its discretion, to award a reasonable attorney's fee to the prevailing party
in any action or proceeding to enforce certain provisions of various laws, none of which Goss
mentioned in his Complaint. Instead, Goss specifically brought his action directly under the
Fifth and Fourteenth Amendments and invoked jurisdiction, not under § 1343, but under §
1331, federal question jurisdiction. He never specified jurisdiction under § 1983 nor
employed any of the language of § 1983 and he did not specify § 1988 in his request for
18
relief. In any event, if jurisdiction is denied as alleged, Goss is not entitled to fees because
he is not the prevailing party.
Goss is therefore not entitled to receive an award for a potential claim he might have
brought but did not. The district court did not abuse its discretion in so ruling.
CONCLUSION
For the reasons specified above and in the City's earlier brief, this Court should
find that it is without subject matter jurisdiction to hear any takings claim raised and rule that
Goss has not shown any violation of a constitutional right by the City. Furthermore, the
Court should deny any award of compensatory damages and attorney's fees to Goss.
Respectfully submitted,
Honorable Thomas M. Carpenter
Little Rock City Attorney
By:
Y:
ACynthia—S. Dawson
Assistant City Attorney - Ark. Bar # 93192
City Hall - Suite 310
500 West Markham
Little Rock, Arkansas 72201
Tel: 501/371-4527
Counsel for Appellant/Cross-Appellee
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been served upon Alice Ward Greene,
Brown, Schwander & Greene, 323 Center Street, Suite 1295, Little Rock, Arkansas 72201, by
placing same in the U. S. Mail, postage prepaid, on this day of March, 1998.
4Cyhia S. Dawson
19
CITY ATTORNEY'S OFFICE TEL:501-371-4675
Dec 09 96 13:21 No.004 P.02
h) Whether the 1)cf6idant Ot)' IS 1I11I111II1e from punitive damages.
I) Whether municipal officials such as directors are. incompetent to testify about tnatte.rs on
imucll mey exercised their Icglslative discretion.
(m) Whether Defendant is cntitled to a judgment as a matter of law on Plaintif'f's claims.
(n) Whether the requested dedication, was proportional" to the impact of the
rezoning, had the rezoning been approved and the dedication required.
• list and in-ilf description of all exhibits that -will be offered in evidence.
A NIS11 K
`-
it / Y ii y.
(11) the fcZollingapplication frurn (I:larles Goss fclr rezutlin? of 6000, 00241 aiud 6101
J"KOUeJine Mon-crx and srances 'leaver
;(-1oie'tile- iViav'4199 1 plaiiT'm Ileang
ri
.;,,_ -- f-:,. F)li.` _��ia�. ��,-:➢,a3e +�cl=�r�.aty 14, ,,9> „ge;ld:, n;eeting of the
p 0 F.�; ,i1- i;_ illi.j �}`5 7�.]"j ie?fCj �'�' :1 �'.L��'11:i p•t,' '�� i!i (y F' r' r .41-t' of
(T j 8tltlliilsiy 43i FIs ='1^_l_ i?lk' _i➢rPl C;i�$gCil i'Ctloli iflken oil Mav
(g) certified copy ofthe minutes of the February 21, 1995 meeting of the Hoard of Directors
rolated to the Goss rezoning issue
(h) Gerlllied copies of various city ordinances a -F, follows: Little Rock Arlt, Rev. Code { { 30-
.r
278, 30-279, 30-281, 36-521 36-53 36-85, 36-1533, 16-254, 316`3301, 36-302 (1988)
(I ) traffic impact study of 6000 and 6024 Stagecoach
-7-
CITY ATTORNEY'S OFFICE TEL:501-371-4675
Dec 10 96 11:45 No.001 P.03
1 5. The rezoning issue was heard by the City's Planning Commission on May 4, 1993.
16. During, the progress of the Planning Commission hearing*, Mr. Goss amended his
application to withdraw his rezoning request ;for 6101 Stagecoach and change his rezoning
request for the other property from C-4 to C-3.
17, The C-3 General Commercial zoning classification allows 81 separate uses by right
and 24 other conditional uses by permit.
18. There was opposition to the rezoning, in the form of two letters from neighboring
landowners given to the commission members and one or two telephone calls to staff of which
the commissioners were advised.
19. One commissioner questioned the staff recommendation of C.-3 in light of the Land
Use Plan designation of the area as "neighborhood commercial" and that the staff summary said
that ideally the propeiiy north of Stagecoach should be zoned C-1.
20, C-3 General Commercial zoning allows more intense rises than C-1 Neighborhood
Commercial zoning and C-4 Open Display zoning allows more intense uses than C-3 General
Conitnercial zoning.
21, The Planning Commission vote on the amended application was split, with 8 in favor,
1 against and 2 absent, so that the Planting Contmission recommended rezoning the two lots
from R-2 :o
22. M. r. ,-cess refused to agree to dedicate the right-of-way as requested.
23. 1vir. _ass tasked for the rezoning issue to be placed belbrc the Citv Board of Directors
along with walver of dedication ofthe requested right-of-way.
24. An to rezone the property at 6000 and 6024 Stagecotich and to waive
dedication ot' ; i uht-of-wa vas pkic:ed before the Board of Directors at its February 21, 1995
�_; :__qty slam itS�et�•:;cl that acldit�onal right -o; -wad' �x.as regclircd. tt1 !}lilt many m(Dre
intense uses are avu lahi4 by rii,ht tinder C-$ zoning.
26. f lie ' ity nas previousiy obtained from other landowners numerous dedications of
right -of -ova- a:onh stpgeco�:ch 1:oac
27. City staff informed the Board that the City would only ask for a dedication of 50 feet
from the contertine and 9 hktt: tiie staff ,.vouict grant a franchise to allow parking to continue at the
property until sucia time as the road ,vas viidctiid.
25. Jk teT discussion by some board rneinbers, the ordinance mailed on a split vote, with 3
voting for the ordinance, % againtit aiio 1 absent.
29. The }property at 6000 and 6024 Stagecoach Road continues to be used in the sarne
way it was before the City acted to deny Mr. Goss' zoning request.
30. At the hearings before the Planning Commission and Board of Directors, Mr_ (Joss
stated that he had no plans to change the use of the property. jeheck]
31. From at least October 1, 1992 to the present, no real estate agency or other individual
has been retained to assist in finding a buyer for the property at 6000 and 6024 Stagecoach Road.
32. From at Ieast October 1, 1992 to the present, no for sale sign has been located on the
property at 6000 and 6024 Stagecoach Road to indicate it is for sale.
33. Rezoning is a discretionai3, act of the City,
33. There were legitimate reasons the various members of the Board ol'Directors could
have voted against the rezoning of 6000 and 6024 Stagecoach Road aside from those associated
with Mr. Goss' unwillingness to dedicate the requested right-of-way.
CITY ATTORNEY'S OFFICE TEL:501-371-4675
Road
Dec 09 96 13:21 No.004 P.0
(j) letter to Tony Bozynski from Lloyd R, Haynes of May 12, 1993
(k) suttiey of'propertv and proposed right-of-way dedication at 6000 and 6024 Stagecoach
(tri) Plaintiff's Response to Defendant's First Set of Interrogatories and Requests for
Production (; ' Docuniencs
01) -Plaintiffs Resp()nse to Defendant's Second Set of Interrogatories and Requests for
(tt1 1-°i.' Ciai� ,-000 ! Stagecoach Road
(x) Staff anaiysis, staff recommendation, drawing, and summary of Planning Commission
regarding; reMlirtg Of 6(,N, 6024 and 6101 Stagecoach Road
(y) suivr.y map used in presentation betbre the Board o1'Directors' mecting on February 21,
(z) primout of information from Pulaski County Trcasurer for 6000 Stagecoach Road
-8-
CITY HTTOR[-,lE""S OFFICE TEL :501-371-4675 D e c "-J'.'-) 96 13 : 2 2 [-,1 o . 0 0 4 P . C, .4
t I or Little R.)C,k
aa tN
Ll
0 1
—jui 6i
Cilv (Ifi-Mic RO';k
tee.) Nfa!�t,2r Streek ?1eW, 01
Oat
dch ori 1, (o 11, ;,f i 11 for, Lrof -j I'rci tj Pulaski Cou my Treasul'er I StAgel�c)acll iZ 1
.�lv along porlions Of
t'i':-,I1 t -- - j
i r d �! - t - i- ---,I 1 1! 2 r I �-, ht. -of -v, to Ole �
1
3
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
FILED
U.S DISTRICT COURT
EASTERN DISTRICT ARKANSAS
fte 2 0 1997
JAMES . MCC RMACK, CLERK
6y: � r�
Y OEP CLERIC
CHARLES GOSS,
*
Plaintiff,
*
VS. * No. LR -C-95-180
*
*
CITY OF LITTLE ROCK,
Defendant.
MEMORANDUM AND ORDER
This case involves a zoning dispute between plaintiff Charles
Goss and defendant City of Little Rock ("City"). Plaintiff filed
this lawsuit on March 20, 1995, alleging that the City conditioned
its approval of his rezoning request on his dedication of a portion
of his property, thus violating the Fifth and Fourteenth Amendments
to the United States Constitution and Article 2, S 22 of the
Arkansas Constitution. The City subsequently filed a motion to
dismiss. By Memorandum and Order dated September 25, 1995, this
Court granted the City's motion, primarily on the basis of
plaintiff's representation to this Court that he had no intention
of changing the manner in which he has used his property for over
twenty years and because he did not claim he was attempting to sell
the property. Thus, the Court reasoned, because plaintiff could
continue to use his property in the same manner in which it had
always been used,- and because that was in fact his stated
intention, he had not been harmed by the__ failure of the City to
rezone his property. The Court of Appeals for the Eighth Circuit,
however, reversed this,•Court's decision. Goss V. City of Little
Rock, 90 F.3d 306 (8th Cir. 1996) ("Goss"). Noting that the
plaintiff was attempting to sell his property and that such sale
was contingent upon rezoning (which had not been disclosed to this
Court when it ruled on the City's motion to dismiss), the Eighth
Circuit concluded as follows:
Given that the allegation of facts might entitle relief
in this case, dismissal of this action was inappropriate.
The record suggests that Little Rock's staff based its
condition on a concern that a different, heavy traffic -
producing business could be erected on the property if
rezoned. [FN3] The sparsity of the record, however, does
not permit an inquiry by this court into the existence of
the required nexus or, if a nexus exists, whether the
demanded dedication bears some rough proportionality to
the projected impact of the proposed rezoning.
Therefore, we reverse the district court's dismissal and
remand it for further proceedings consistent with this -
opinion.
Id. at 310 (footnote 3 omitted).
In accordance with the decision of the Eighth Circuit, the
matter was tried to this Court on January 13-14, 1997. This
Memorandum and Order constitutes the Court's findings of fact and
conclusions of law as required by Rule 52 of the Federal Rules of
Civil Procedure.'
I. Findings of Fact
Plaintiff is the owner of real property located on Stagecoach
Road, also known -as State Highway No. 5, in Pulaski County,
Arkansas. Plaintiff operates a small commercial business on the
property consisting of a convenience store, gas station,
' The Court is writing this Memorandum and Order without benefit of a transcript.
-2-
laundromat, and car wash, and has operated this business for over
twenty years. Under the City's ordinances, plaintiff's business
would be classified as a commercial business appropriate for 11C-3"
general commercial district zoning.
Plaintiff's property originally was in an unincorporated area
of Pulaski County. In 1985 the City annexed this area, including
plaintiff's property, and zoned the area as 11R-2" single family
residential district. Although plaintiff's property has been zoned
residential since the annexation, he has operated his business
continuously since that time as a non -conforming use.
In April of 1993, plaintiff petitioned the City to have his
business area rezoned to 11C-3" zoning, which would be consistent
with the manner in which the property was already being used.
Plaintiff originally petitioned to have his property rezoned to "C-
4" zoning (the most intense of the commercial zoning
classifications) but later down -graded his request to 11C-3" zoning
after the City planning staff stated that they would recommend
against rezoning the property to 11C-4" but would support a change
to 11C-3" zoning. There was nominal opposition to plaintiff's
application in the form of two letters and two phone calls.
In seeking to have his property rezoned, plaintiff concealed
from the City the fact that he was attempting to sell his property
and that a purported verbal offer by his son and a business
associate to buy the property for $515,000 was contingent upon
rezoning. In this regard, plaintiff states that he misrepresented
-3-
on his application form provided by the City the true reasons for
which he was seeking rezoning.
On May 24, 1993, the City, through its staff and Planning
Commission, reviewed the application and agreed to recommend to the
City Board of Directors that the area be rezoned to a 11C-3" general
commercial district. This recommendation was conditioned, however,
upon the plaintiff dedicating to the City a portion of his property
as an additional right-of-way to Highway No. 5 for future
expansion. The demanded dedication ran the entire length of
plaintiff's property (633.68 feet) and 55 feet into the lot.
However, because plaintiff's property line extended to the center-
line of the highway, 30 of the 55 feet at issue was already used by
the public and could not be utilized by plaintiff, regardless of
the zoning classification.2 Thus, instead of a 55 foot dedication,
the requested dedication amounted for all practical purposes to 25
feet.3
Plaintiff objected to the required dedication and requested
that the application be submitted to -the Board of Directors as
originally prepared. Plaintiff's request was granted and the
application was submitted to the Board on February 21, 1995. The
Planning Commission and the City's staff recommended to the Board
that the rezoning as requested in the application be approved, but
2 30 feet on each side of the center -line of Highway No. 5 is a public prescriptive easement.
3 The City staff later recommended a dedication of 50 feet from thmenter-line instead of 55 feet, thus amounting
to a requested dedication of 20 feet.
-4-
1
that plaintiff's requested waiver of the condition requiring
dedication of 55 feet of plaintiff's property for future public use
as a road right-of-way be denied.
On February 21, 1995, the Board of Directors refused to rezone
the property to "C-3" zoning without the dedication of the 55 feet
for possible future expansion of Highway No. 5 on grounds that the
City Treasury would otherwise have to pay condemnation damages.
Plaintiff claims in his complaint that the Board took this action
even though his application (which, as previously noted, was not
completely accurate) and all the proof reflected that there was no
contemplated change of the use of his property for general
commercial purposes and there was no anticipated change that would
increase traffic on Highway No. 5 as a result of the requested
rezoning. Plaintiff did not pursue the matter in state court.
On March 20, 1995, plaintiff filed this lawsuit, asserting
that the City's requirement of a dedication of real property as a
condition of rezoning for continued use identical to the non-
conforming use violates the Fifth and Fourteenth Amendments to the
United States Constitution, and violates Article 2, § 22 of the
Arkansas Constitution. Plaintiff seeks an injunction to rezone the
property in accordance with "C-3" zoning, without the dedication to
the City of any property rights, as -well as punitive damages and
attorney's fees.
On October 1,, 1995, after this Court ruled in favor of the
City on its. motion to dismiss but prior to issuing a ruling on
plaintiff's motion to alter judgment, plaintiff entered into a
-5-
written lease agreement with his son whereby he would receive 10%
of the net profits of the property, which amounts to well over
$7,000 per year.
II. Conclusions of Law
A.
As previously noted, the Eighth Circuit found that the City's
staff appeared to base its condition for rezoning on a concern that
a different, heavy traffic -producing business could be erected on
the property if rezoned. Goss, 90 F.3d at 310. Relying on Dolan
v. City of Tigard, 114 S.Ct. 2309 (1 994) ("Dolan"), the Eighth
Circuit remanded to this Court for development of the record with
respect to the existence of the required nexus or, if a nexus
exists, whether the demanded dedication bears some rough
proportionality to the projected impact of the proposed rezoning.
Id. The Court has carefully considered the matter and concludes
that there exists the required nexus between the rezoning to "C-3"
and the requested dedication but that the City has not established
that the condition bears "rough proportionality" to the projected
impact*of the plaintiff's request.
1.
There is no question that there exists a nexus between the
demanded dedication; and the City's concern that a different, heavy
traffic -producing business could be erected on plaintiff's property
if rezoned and later result in the -City Treasury having to pay
condemnation damages. Although plaintiff states that the City took
this action even though there was no contemplated change of the use
of his property for general commercial purposes or any anticipated
change that would increase traffic on Highway No. 5, the 11C-3"
zoning requested by plaintiff allows 81 uses by right and 24
conditional uses by permit. Concern for the public welfare from
traffic congestion and inadequate infrastructure as a result of a
commercial enterprise constitutes a legitimate public interest as
does concern for taxpayer funds in the City treasury that would be
impacted as a result of condemnation damages.4
2.
Having determined that the required nexus exists, the Court
must now determine whether the City has established that the
condition bears "rough proportionality" to the projected impact of
plaintiff's requested rezoning. Preliminary to this determination,
the Court must address the City's claim that Dolan has no
application to the issues in this case.
The Eighth Circuit essentially found that the City's action,
rather than a mere refusal to rezone, was an adjudicative decision
to condition plaintiff's application upon a dedication of a portion
of his property, thus placing the burden upon the City to
demonstrate that the degree: of the extractions demanded in the
4 During the February 21 Board meeting, there was discussion among some of the Board members that if plaintiff
were allowed to waive the right -0f --way, other commercial developments wouldltot be required to dedicate a right-of-way, the
resulting costs being borne by the taxpayers.
-7-
condition bears "rough proportionality" to the projected impact of
the applicant's request. Goss, 90 F.3d at 309 n.2 (citing Dolan,
114 S.Ct. at 2318-20). Notwithstanding the Eighth Circuit's
findings, the City contends that there are significant differences
between Dolan and this case, in that Dolan concerned an
adjudicative decision about a dedication imposed as a condition of
an approved building permit, whereas this case involves a
legislative decision constituting a denial of rezoning in which
dedication was discussed but no dedication was imposed. See City's
Pretrial Brief, at 11. The City goes on to state that a Dolan
analysis is not required in cases where no dedication is imposed by
the City, the rezoning sought is denied, and there is a valid,
nonarbitrary and rational basis for the City's denial irrespective
of the dedication condition. See City's Proposed Findings of Fact
and Conclusions of Law, at 8. Although the City was allowed an
opportunity to establish in the record that its action in refusing
to rezone plaintiff's property was a legislative act, thereby
subject to the less demanding rational basis test, this Court,
irrespective of any merit the City's arguments may otherwise have,
is bound by the Eighth Circuit's conclusion that the City's action
was in fact adjudicative in nature and governed by the "rough
proportionality" test set forth in Dolan. As to whether the City
has met its burden of demonstrating "rough proportionality," the
Court finds that it has not.
The City. acknowledges that prior to the filing of this
lawsuit, no traffic impact studies were made with respect to
-8-
plaintiff's property and that it did not conduct a study of the
valuation of the right-of-way. With respect to those studies that
were later conducted to assess traffic flow, the City states that
the traffic count at which it arrived (based on a 24-hour period),
was in anticipation of a future strip center development and the
traffic that such a development could "conceivably" generate. The
City used this measurement even though there are no current plans
to widen Highway No. 5 and it does not know when or if in the
future the highway might be widened.
The Court finds the City's assessment of plaintiff's property
to be deficient under Dolan. Although no precise mathematical
calculation is required, the City must make some effort to quantify
its findings in support of the dedication of the right-of-way
beyond guessing what some future development could "conceivably"
generate. Dolan, 114 S.Ct. at 2322. The City must make an
"individualized determination that the required dedication is
related both in nature and extent to the impact of the proposed
development," i.e. that there is "rough proportionality." Id. at
2319-20. The assessment conducted by the City in this case, based
as it was on the potential traffic burden with respect to possible
or conceivable uses of the property under "C-3" zoning, is entirely
too speculative and amorphous to constitute such an individualized
determination. The City simply has not established that the
rezoning of plaintiff's property to 11C-3" zoning will have an
adverse impact on the City's admittedly legitimate interest in
controlling traffic congestion in commercial areas. Indeed, in
-9-
footnote 3 of the Goss opinion, the Eighth Circuit, citing a
district court case, W.J. Jones Ins. Trust v. Fort Smith, Ark., 731
F.Supp. 912, 914 (W.D.Ark. 1990), strongly indicated that because
the current use of plaintiff's property is "C-3," the City's claim
that a different 11C-3" business, developed in place of the present
enterprise, might add to the traffic burden would most likely fail.
Goss, 90 F.3d at 310 n.3.
Consistent with the findings of the Eighth Circuit and the
evidence adduced during the trial, this Court concludes that the
City has not met its burden of demonstrating that the degree of the
extractions demanded in the condition bears "rough proportionality"
to the projected impact of the plaintiff's request. Therefore, the
City is obligated to rezone plaintiff's property in accordance with
11C-3" zoning, without the dedication to the City of any property
rights. However, the plaintiff or his successors in interest will
still be subject to the City's ordinances with respect to zoning
and building permits. At some time in the future, the City may
condition issuance of a building permit upon dedication if the City
can establish the "rough proportionality" required by Dolan.
a.
There remains the question of plaintiff's claim for damages.
Plaintiff states he has been damaged by the City's "malicious
intentional conditioning of his rezoning request upon the
dedication of 22% of his property" in that he "has been unable to
sell his property although he has had two offers for $515,000...."
-10-
See Plaintiff's Pre-trial Brief, at 8.5 Although the Court has
concluded that the City is obligated to rezone plaintiff's property
in accordance with 11C-3" zoning, without the dedication to the City
of any property rights, the Court finds that plaintiff has not been
harmed by the actions of the City in this matter and, therefore, is
not entitled to an award of damages. Even assuming plaintiff has
been harmed by the actions of the City, the Court finds that he is
estopped from recovering damages for such harm.
1.
Plaintiff does not claim nor was there any evidence of a
diminution in the economically viable use of his property as a
result of the City's denial of his rezoning request' or that the
City has prevented him from using his property in the same manner
in which it has always been used. In fact, the testimony of
Richard Stephens, an expert in real estate appraisal, established
just the opposite. Mr. Stephens testified that not only was there
no decline in the value of plaintiff's property as a result of the
City's denial of plaintiff's rezoning request, but that rezoning
plaintiff's property to "C-3" would enhance the market value of the
property by an amount roughly equal to the value of the strip of
5 In his complaint, plaintiff does not specifically seek any damages for his inability to sell his property, but only asks
for unconditional rezoning of his property to "C-3", punitive damages, and attorney's fees. with respect to attorneys' fees,
plaintiff claims that he "has incurred approximately 525,000 in attorney's fees and costs in pursuing this action." See Plaintiff's
Pre-trial Brief, at 8. Plaintiff's request for attorney's fees will be discussed in section II(B)(6) of this Memorandum and Order.
6 Indeed, plaintiff was able to find a lessee for the property when he decided he was no longer interested in operating
the business-
frontage the City sought to exact with the rezoning. Plaintiff
introduced no evidence that would contradict the testimony of Mr.
Stephens and, in fact, admitted that he has not had the property
appraised and does not know its market value .7 Moreover, in down-
grading his request for rezoning from the "C-4" classification,
plaintiff could have applied for a "Planned Commercial Development"
("PCD") classification instead of insisting on "C-3" zoning. Such
a classification would have removed the non -conforming designation
from plaintiff's property and allowed him to sell the property as
is and to rebuild the business in the same manner as it currently
existed if it were somehow damaged or destroyed. Thus, even
without "C-3" zoning, plaintiff would have received all the relief
he claims he seeks with a PCD classification. Accordingly, the
Court finds that plaintiff has not demonstrated any harm as a
result of the City's refusal to rezone his property.
2.
Nor is plaintiff entitled to damages as a result of his being
unable to sell his property. -Although plaintiff claims he had two
offers on his property for $515,000 that were contingent on
rezoning (one of -these offers was from his son and the other was a
joint offer from his son and a business associate), these offers
were not evidenced by any writings. Plaintiff is essentially
7 The Court notes that plaintiff would not allow Mr. Stephens to enter the buildings on his property. To the extent
plaintiff disputes the testimony of Mr. Stephens, the Court finds that he is estopped from claiming that, the appraisal was not
full and accurate.
-12-
asking this Court to award him damages for the City's interference
with the sale of his land when there was no enforceable contract
under Arkansas' statute of frauds and he himself would be unable to
recover damages for any breach the prospective buyers may have
committed.$ There being no enforceable contract, plaintiff is not
entitled to an award of damages from the City as a result of his
being unable to consummate any sale of his property without
rezoning to "C-3." Even if plaintiff had an enforceable contract
for the sale of his property, he concealed from the City the
existence of such contract and thereby prevented the City from
specifically ascertaining or considering any ramifications to the
sale of his property that might result from their refusal to rezone
plaintiff's property. Plaintiff is therefore estopped from
recovering damages for such harm. See Section II(8)(4) of this
Memorandum and Order.
3.
Plaintiff's claim of entitlement to punitive damages is
likewise without merit. Even if punitive damages could be awarded
against a municipality in circumstances such as these, see City of
Newport v. Fact Concerts, Inc., 453 U.S. 247, 270-71 (1981) (case
S Arkansas' statute of frauds provides that, in the absence of a writing signed by the party to be charged, no action
shall be brought to charge any person upon any contract for the sale of lands or any interest therein. Ark. Code Ann. § 4-59-
101(a)(4) (Repl. 1996). Although an oral agreement may be removed from the statute of frauds by proving both the making
of an oral contract and its performanceby clear and convincing evidence, see Langston v. Langston, 625 S.W.2d 554 (Ark. App.
1981), no such evidence was introduced in this case. The operation of the business on the property by plaintiffs son is not
unequivocally referable to the contract, as plaintiffs evidence established that the son is leasing the business. Furthermore,
plaintiffs son is not in exclusive possession of the premises as plaintiff continues in possession of the property.
-13-
under 42 U.S.C. § 1983 in which Supreme Court found that
considerations of history and policy do not support exposing a
municipality to punitive damages for the bad faith actions of its
officials), plaintiff has not presented any evidence whatsoever
that the City's conditioning of his rezoning request upon a
dedication of a right-of-way was "malicious" or otherwise in bad
faith. Plaintiff is therefore not entitled to punitive damages.
4.
To the extent plaintiff can be said to have been harmed by the
City's actions, the Court finds that he is estopped from recovering
damages for such harm. Plaintiff is attempting to hold the City
liable for harm he claims he suffered as a result of his being
unable to sell his property when he concealed from the City that he
was attempting to sell his property (such concealment continuing
through much of the proceedings in this Court prior to appeal9).
Plaintiff is. not entitled to claim damages to the detriment of the
City when the latter was entitled to rely upon his representations
and acted or failed to act accordingly. Cf. Ferguson v.
Unionmutual Stock Life Ins. Co. of America, 501 F.Supp. 247, 250
(E.D.Ark. 1980) (noting that the doctrine of equitable estoppel
prevents a party, who has failed to act, from claiming a right to
the detriment of his adversary when the latter was entitled to rely
upon his affirmative action and has acted or failed to act
9 It was only in plaintiffs motion to alter judgment that the -nature of Me business plaintiff is operating was disclosed
and that he was seeking rezoning in conjunction with the sale of his property and business.
-14-
accordingly), aff'd, 673 F. 2d. 253 (8th Cir. 1982). Specifically,
plaintiff allowed the City to pursue a course of action which led
to the filing of this lawsuit knowing all along that the City was
unaware of the true nature of his claim. By misrepresenting the
nature of his claim, plaintiff prevented the City from specifically
ascertaining or considering any ramifications to the sale of his
property that might result from their refusal to rezone pla'intiff's
property. The Court finds that plaintiff's conduct surrounding his
efforts to get his property rezoned precludes him from claiming
damages as a result of the City's refusal to rezone his property.
Cf. Meers v. Tommy's Men's Store, Inc., 320 S.W.2d 770, 772 (Ark.
1959) (Lessor was equitably estopped from availing himself of
forfeiture in lease regarding unauthorized improvements to property
where, by his words and conduct, he caused his lessees to believe
that he would not enforce forfeiture; court noted that lessor
"stood silently by" and made no complaint while improvements were
being made by lessee "and we think his complaint now comes too
late").
5.
Strictly as an alternative holding for purposes of appeal, the
Court finds that plaintiff's damages for the inability to sell his
property without rezoning to 11C-3" (should it be determined that
plaintiff has in fact been harmed by the actions of the City) is
$265,000, the difference between the purchase price of $515,000
that plaintiff states he would have received from his son for the
-15-
sale of his property and the proceeds due under the terms of the
lease agreement.10
one final matter concerns plaintiff's request that he be
reimbursed for the "approximately" $25,000 in attorney's fees he
claims he has incurred as a result of the City's actions. Although
neither the City nor the plaintiff has addressed the legal
underpinnings of this issue, the Court has nevertheless considered
the matter and finds that plaintiff is not entitled to an award of
attorney's fees for the success he has achieved in this lawsuit.
The statutory basis upon which plaintiff seeks an award of
attorney's fees is not at all clear from the complaint as is
evident froia plaintiff's jurisdictional statement:
That Plaintiff pleads jurisdiction lies under 28 U.S.C.
§ 1331, in that a Federal Lata question arising under the
Constitution Laws of the United States is involved. The
Plaintiff asserts that 'his Constitutional rights under
United States Constitutional Amendments 5 and 14, have
been violated. And See: William J. Jack Jones
Insurance Trust et al Plaintiff v. The City of Fort
Smith A Municipal Corporation,—Defendant. 731 F.Supp.
912 (1990).
Complaint, i 1.
Notwithstanding plaintiff's failure to indicate the statutory
basis for an award of attorney's fees, it is clear that this case
is not a 42 U.S.C. § 19-83 action or a civil, rights action which
might give rise to an award of attorney's fees under 42 U.S.C. §
to These figures were not controverted by the City.
-16-
1988, cf. Olivieri v. Ward, 637 F.Supp. 851, 878 (S.D.N.Y. 1986)
(section 1988 does not specifically provide for attorney fees to
prevailing parties in claims under the constitution generally)
(subsequent history omitted), and plaintiff has not cited this
Court to any other authority which would provide for an award of
attorney's fees under circumstances such as these. In this regard,
the American rule on the award of attorney's fees in federal
litigation is well-settled in its requirement that, absent a
statute or an enforceable contract, each party is responsible for
its own fees. Lamb Engineering & Constr. Co. v. Nebraska Public
Power District, --- F.3d ---, 1997 WL 6112, at *10 n. 14 (8th Cir.
Jan. 9, 1997) (citations omitted)."
It is of course true that attorney's fees may be awarded to a
prevailing .party when a suit is brought under S 1983. Reel v.
Arkansas Department of Correction, 672 F.2d 693, 697 (8th Cir.
1982). However, S 1988 does not by its terms confer subject matter
jurisdiction upon federal courts, but rather relies upon the
provisions of other federal statutes, such as S 1983 read in
conjunction with 28 U.S.C. S 1343 (civil rights and elective
franchise statute). Keene Corp. v. Cass, 908 F.2d 293, 298 (8th
Cir. 1990). Although plaintiff's claims might otherwise have
11 In paragraph 10 of his complaint, plaintiff briefly refers to Article 2, § 22 of the Arkansas Constitution in support
of his claim that compensation be paid to any individual whose property is confiscated by the State for public use. To the extent
plaintiff is relying on Article 2, § 22 of the Arkansas Constitution as a basis for an award of attorney's fees, his claim must fail
as attorney's fees are not generally recoverable under those provisions. See Arkansas State Highway Commission v. Johnson,
780 SM.2d 326, 331 (Ark. 1989) ("[a]lthough we agree the provisions of Ark. Const. art. 2, § 22, constitute a strong
exhaltation of the right of property in this state, the right of property comes in many different forms, and we are not prepared
to hold attorneys' fees are recoverable to protect any particular one in the absence of an authorizing statute").
-17-
fallen within the scope of § 1983, see, e.g., Consolidated
Freightways Corp. of Del. v. Kassel, 730 F.2d 1139, 1147 (8th Cir.)
(violations of the Fourteenth Amendment, including those which
involve the deprivation of property, are within the ambit of §
1983), cert. denied, 469 U.S. 834 (1984), and Roy v. City of Little
Rock, 902 F.Supp. 871, 876 n.9 (E.D.Ark. 1995) (Fifth Amendment
takings claim is cognizable under § 1983), this is not a lawsuit
brought to enforce a provision of § 1983 (or any other statute for
that matter) but is one brought directly under the Fifth and
Fourteenth Amendments to the Constitution. Indeed, plaintiff's
complaint does not even refer to 28 U.S.C. § 1343(3), the
"jurisdictional counterpart" of § 1983, see Lynch v. Household
Finance Corp., 405 U.S. 538, 543 (1972), but only asserts federal
question jurisdiction under 28 U.S.C. § 1331. This is thus not one
of those cases in which a plaintiff has specifically asserted §
1983 as a cause of action but prevailed on a different claim that
was joined with § 1983. See, e.g., Consolidated Freightways Corp.
of Del. v. Kassel, 730 F.2d 1139, 1141-42 (the fact that a party
prevails on a ground other than § 1983 does not preclude an award
of attorney's fees under S 1988; if § 1983 would have been an
appropriate basis for relief, then attorney's fees may be awarded
under § 1988 even though relief was actually awarded on another
ground); Maher v. Gagne, 448 U.S. 122, 132 n. 15 (1980) (finding
that Congress intended fees to be awarded where a pendent
constitutional claim is involved, even if the statutory claim upon
which the plaintiff prevailed is one for which fees cannot be
-18-
awarded under the Act); Smith v. Robinson, 468 U.S. 992, 1002
(1984) (noting "the general rule that when the claim upon which a
plaintiff actually prevails is accompanied by a `substantial,'
though undecided, § 1983 claim arising from the same nucleus of
facts, a fee award is appropriate").12 In this case, plaintiff's
complaint makes no reference whatsoever to § 1988, § 1983, or even
the language of § 1983, and cannot therefore be found to fall
within the rubric of § 1988. See North Carolina Department of
Transportation v. Crest Street Community Council, Inc., 479 U.S. 6,
12 and 15 (1986) ("[u]nder the plain language and legislative
history of § 1988 ... only a court in an action to enforce one of
the civil rights laws listed in § 1988 may award attorney's fees
... (t]he case before us is not, and was never, an action to
enforce any of these laws"). Plaintiff is thus not entitled to an
award of attorney's fees under § 1988, see Olivieri v. Ward, 637
F. Supp. at 878, and he has not set forth any other basis upon which
such an award may be predicated. Cf. Seaway Drive -In, Inc. v.
Township of Clay, 791 F.2d 447, 450 (6th Cir.), cert. denied, 479
U.S. 884 (1986) (noting that "[h]ad appellant not asserted a
section 1983 claim, but instead asserted only the state law claims,
or a federal law claim that is not listed in section 1988, and
prevailed it would not have been entitled to attorney's fees);
12 Allowing fees to a plaintiff in such cases "furthers the Congressional goal of encouraging suits to vindicate
constitutional rights without undermining the longstanding judicial policy of avoiding unnecessary decision of important
constitutional issues." Maher v. Gagne, 448 U.S. at 133. See also Smith v. Robinson, 468 U.S.. at 1077 ("Congress' purpose
in authorizing a fee award for an unaddressed constitutional claim was to avoid penalizing a litigant for the fact that courts are
properly reluctant to resolve constitutional questions if a nonconstitutional claim is dispositive").
-19-
Premachandra v. Mitts, 753 F.2d 635, 637 (8th Cir. 1985) (case
under 28 U.S.C. S 2412 and Fifth Amendment in which Court held that
fees may not be awarded under S 1988 to a party who prevails on a
Fifth Amendment claim simply because the claim is analogous to one
which could possibly have been raised under S 1983) (en banc).13
Accordingly, plaintiff's request for attorney's fees is hereby
denied. See Alyeska Pipeline Service Co. v. The Wilderness
Society, 421 U.S. 240 (1975).14
III. Conclusion
Pursuant to the Eighth Circuit's opinion in Goss, the Court
concludes that the City is obligated to rezone plaintiff's property
in accordance with 11C-31' zoning, without the dedication to the City
of any property rights, but that the plaintiff is not entitled to
an award of damages.
IT IS SO ORDERED this day of February 1997.
U ITED TAT S S R CT JUDGE
13 But cf. Americans United For Separation of Church and State v. School District of City of Grand Rapids, 835 F.2d
627, 631 (6th Cir. 1987) (where complaint employed language of § 1983 and asserted jurisdiction under § 1343, court held that
the mere failure to plead or argue reliance on § 1983 is not fatal to a claim for attorney's fees if the pleadings and evidence
present a substantial Fourteenth Amendment claim for which § 1983 provides a remedy, and this claim is related to plaintiff s
ultimate success); Armstrong v. Fairmont Community Hosp. Assn, 684 F.Supp. 1486 (D.Minn. 19n. (where complaint cited
§ 1988, employed language of § 1983, and asserted jurisdiction under § 1343, court, relying on cases in which § 1983 was
specifically asserted as a cause of action, held that § 1988 applies to all types of § 1983 actions, whether or not § 1983 is
specifically asserted in the complaint).
14 Even if plaintiff were entitled to attorney's fees, the record as it now stands is insufficient to make such an award.
Plaintiff would have to submit appropriate documentation before this Court could assess the reasonableness of the fees requested.
The Court would note also that at least a portion of the attorney's fees plaintiff claims he incurred might have been avoided had
he been forthcoming with both the City and this Court regarding the nature of his claim.
-20-
MEMORANDUM
To: Jim Lawson
Chan Russell
Bill Anderson
Bill Henry
Tony Bozynski 1,
From: Cindy Dawson
Date: January 6, 1997
Re: Goss trial
Enclosed is a little light reading for the upcoming trial of Goss v. City of Little Rock. The trial
will definitely take place on Monday, January 13, 1997 beginning at 9:30. Steve Giles will be
helping me with the trial. There is no chance of settlement and the trial must be finished in one
day, meaning that if we have to run over past 5:00 p.m., the judge will keep the trial going until
conclusion.
I certainly don't expect you to know all of this but it will help if you have some familiarity with
what we are trying to prove, what they are trying to prove and what both sides already agree on.
To that end, I have provided copies of the following, hopefully in this order:
(1) Stipulation of Agreed Facts
(2) my pretrial brief
(3) my proposed findings of fact and conclusions of law
(4) their pretrial brief, and
(5) Bill Henry's traffic impact study.
We will have a meeting with City staff later on this week, maybe Wednesday or Thursday. If you
have any concerns or questions before then; please feel free to call me. Thanks for all your help.
IN THE UNITED STATES DISTRICT COUR`fj RECEIVCOD r
EASTERN DISTRICT OF ARKANSAS EASTERN DISTRICT ARKANSAS
WESTERN DIVISION
u uu 3 u 1996
CHARLES GOSS
PLAINTIFF
VS.
CITY OF LITTLE ROCK
DEFENDANT
JAMES W. McCORMACK, CLERK
M
NO. LR -C-95-180
)
)
)
PRE-TRIAL BRIEF
INTRODUCTION
This case involves the power of a municipality to exact a
quitclaim deed to a significant portion of -the Plaintiff's land for
the widening of a highway, the expansion of which is speculative,
as a condition of rezoning the entire tract to a zoning
classification which conforms to the historical use of the
property. The Plaintiff, Charles Goss, purchased the property at
issue, 6000-6024 Stagecoach Road, in September of 1971. At that
time, Mr. Goss began operating a grocery store, gas station,
laundromat, and four -bay car -wash on the property at 6024
Stagecoach Road. Mr. Goss' residence, along with some private out
buildings, is located on the property at 6000 Stagecoach Road.
Stagecoach Road is a two-lane State highway, also known as Highway
Five. Stagecoach Road was at one time a major thoroughfare in
Pulaski County,. but became a secondary nignway wizn zne
construction. of Interstates 30 and .430. In 1971, Mr. Goss'
property was located in a rural unincorporated portion of Pulaski
County, approximately ten miles southwest of downtown Little Rock.
1
In 1985, the City of Little Rock annexed into the City that
portion of rural unincorporated Pulaski County, which includes Mr.
Goss' property. Pursuant to Little Rock City Code §36-179, the
annexed property was classified by default as a R-2 Single Family
Residential District. Pursuant to the Non -Conforming Use Exception
of Little Rock City Code §36-152, Mr. Goss was allowed to continue
his business.
Due to the natural advancements of age, and in consideration
that he may wish or need to sell his property, Mr. Goss began the
process to obtain a Commercial District zoning consistent with the
use to which his property has been put for over 20 years. Without
a change in the zoning classification, Mr. Goss was aware that any
sale of his property would be rendered extremely difficult, if not
impossible, absent a zoning which conformed to the actual
historical use of the property. In fact, Mr. Glenn Goss and Mr.
Harry Parker had made an offer to purchase the property for
$515,000.00 on or about February 1, 1993, which offer was
contingent upon obtaining a Commercial zoning consistent with the
property's use.
In April of 1993, Mr. Charles Goss petitioned the City of
Little Rock to have his business area rezoned to conform to the
historical use of the property. In May of 1993, the City and the
.Little Rock Planning Commission reviewed Mr. Goss' application and
agreed to recommend approval of a C-3 zoning for the property to
the Little* Rock City Board of Directors conditioned, -however; upon
Mr. Goss deeding to the City of ,Little Rock an .additional right -of -
2
way. The right-of-way demanded by the City has dimensions of a 55
feet depth into Mr. Goss' property, and is measured along the
entire length of Mr. Goss' land for 633.68 feet, for a total square
footage of 34,852.40 square feet. Mr: Goss' total acreage is 3.70
acres, of which the City demanded 22%, or approximately .80 acres
of ground. If Mr. Goss gave this right-of-way to the City, two of
his buildings would be approximately five to ten feet away from the
right-of-way, and Little Rock City Code §36-301(e)(1) demands a
building setback of a minimum of 25 feet. Further, had Mr. Goss
deeded the property to the City, he would have lost a significant
portion of the parking for his business.
Mr. Goss requested that his application be submitted to the
Little Rock Board of Directors. At that time, Mr. Goss also
requested from the City Board a waiver of the demand for the 34,850
square feet of ,his property. On February 21, 1995, the Little Rock
City Board of Directors, on a seven to three vote, refused to waive
the condition that Mr. Goss deed over 34,850 square feet of his
land in order to rezone Mr. Goss' property to a C-3 classification.
The Little Rock City Board•of Directors stated in the open meeting
on February 21, 1995, that the reason for the denial of the waiver
was that the City did not wish to pay condemnation damages to Mr.
Goss out of the City Treasury, which.it would be required to do if
Mr. Goss' property was not taken in exchange for the rezoning. As
the attempted taking of Mr. Goss' property.is an unconstitutional
condition clearly disproportionate. to. the burden (if any). that
might be caused by the change in. -zoning; Mr. Goss filed suit on
3
March 20, 1995, in the United States District Court for the Western
Division of the Eastern District of Arkansas, seeking an injunction
to prevent the taking of his property by the City of Little Rock as
a condition of rezoning his property to C-3. See: Dolan v. City
of Tigard, 114 S.Ct. 2309 (1994). .
City of Little Rock, without filing an answer to Mr. Goss'
Complaint, filed a Motion to Dismiss on April 10, 1995, alleging
that Mr. Goss failed to state facts sufficient to state a claim for
relief and that Mr. Goss' failure to appeal to State inverse
condemnation procedures deprived the District Court of
jurisdiction. The District Court granted the City's Motion on
September 25, 1995, stating that Mr. Goss had failed to demonstrate
that any taking had occurred and, alternatively, that Mr. Goss had
"an adequate and meaningful remedy in the form of an action in
State Court for inverse condemnation." Mr. Goss filed a Motion to
Alter Judgment on October 5, 1995, pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure, which Motion was denied on
October 25, 1995. The District Court at that time stated that Mr.
Goss' remedy for the refusal of the City to unconditionally rezone
his property, if any, is in State Court. Mr. Goss appealed to the
United States Court of Appeals for the Eighth Circuit by filing his
Notice of Appeal on November 22, 1995.
On appeal, the Eighth Circuit unanimously reversed and
remanded for proceedings consistent with its opinion.. In its
opinion, the Eighth Circuit stated that not only�did Mr. Goss state
a claim for relief, but that "although the property owner carries
4
the burden of proving that the imposition of the regulatory action
violates constitutional norms in cases evaluating most generally
applicable zoning regulations, in cases where a City makes an
adjudicative decision to condition petitioner's application on an
individual parcel, the burden properly rests on the City." Goss v.
City of Little Rock, 90 F.3d -306, 309 n. 2 (8th Cir. 1996).
(Citations omitted.)
The issues involved in this case are straightforward and
simple. The first issue is whether the rezoning of Mr. Goss'
property was conditioned by the Defendant upon the requirement that
he deed a significant portion of his land to the City in exchange
for approval of the rezoning, without payment of compensation to
Mr. Goss. If so, then the condition amounts to a taking and the
City thereafter has the burden to prove .the second issue: whether
the exaction of that portion of property bears a rough proportion-
ality to the effect of the rezoning. Goss v. City of Little Rock,
90 F.3d 306 (8th . Cir. 1996); Dolan 'v. City of Tigard, 114 S.Ct.
2309, U.S. , 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994);
Nollan v. California Coastal Commission, .488 U.S. 825, 107 S.Ct.
3141, 97 L.Ed.2d 67 (1987). Lacking a rough proportionality, the
City cannot exact Mr. Goss' property as a condition for the
rezoning, but must rezone the property absent the condition. Id.
It is indisputable that if the City .had approached Mr. Goss
and demanded ,22% of his .land without' paying for it, that a taking
would have taken place. Goss _v, City of Little Rock, 90 F.3d 306
(8th Cir. 1996); Dolan v. City of Tigard U.S. , 114 S.Ct.
2309, 129 L.Ed.2d 304 (1994); Nollan v. California Coastal
Commission, 488 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 67 (1987). In
this instance, the City has rendered an adjudicative decision to
condition Mr. Goss' application for rezoning on an exaction of 22%
of Mr.Goss, land, without paying compensation therefor. The United
States Court of Appeals for the Eighth Circuit noted that in this
case, "the question is whether the condition was in response to a
legitimate concern regarding the proposed rezoning, or whether
Little Rock was using its police powers as a leverage to extract
the concession of a constitutional right - compensation for
property taken." Goss v. City of -Little Rock, 90 F.3d 306, 309
(8th Cir. 1996). Quite properly, the burden rests upon the City to
prove the legitimacy of its concern. Id.
In Dolan v. City of Ti ard, the City of Tigard, Oregon,
decided to exact a portion of Mrs. Dolan's land in -exchange for
granting a building permit to Mrs. Dolan for the expansion of her
business. The United States Supreme Court required that the City
demonstrate, that the degree of the exaction of property demanded as
a condition for granting the building permit bear a rough
proportionality to the impact of granting the building permit.
U.S. , 114 S.Ct. 2309, 2318-20, 129 L.Ed:2d 304 (1994)
The requirement that the City bear the burden of proving the rough
proportionality ensures• that such conditions .placed on a
discretionary benefit, such as the approval of a rezoning request,
do not require,:" some people alone to bear.public burdens which, in
9
all fairness and justice, should be borne by the public as a whole"
in violation of the Fifth Amendment to the United States
Constitution. Goss v. City of Little Rock, 90 F.3d 306, 309 (8th
Cir. 1996), quoting Fennell v. City of San Jose, 485 U.S. 1; 9 108
S.Ct. 849, 856, 99 L.Ed.2d 1 (1988).
The City has yet to produce any evidence, in discovery or
otherwise, that by merely rezoning Mr. Goss' property, the traffic
burden will increase so as to demand such a large amount of
exaction of Mr. Goss' property. In fact, the United States Court
of Appeals for the Eighth Circuit noted in its opinion that "the
fact that the current use of the property is 'C-3' undercuts the
claim that a different 'C-3' business, developed in place of the
present enterprise, might add to the traffic burden. Cf. W.J.
Jones Ins. Trust v. Fort Smith Ark., 731 F.Supp. 912, 914 (W.D.
Ark. 1990) (addition of convenience store to a gas station would
have a dominus impact on traffic burden.)" Goss v. City of Little
Rock, 90 F.3d 306, 310, n.3 (8th Cir. 1996).
The City has continued to complain that 81 uses and 27
conditional uses are allowed under the C-3 zoning classification.
However, the Supreme Court has acknowledged that conclusory
statements about probabilities and potentialities and what "could"
happen, are insufficient justification to meet the demands of the
rough proportionality test, stating that."no precise mathematical
calculation is required, but the City must make some effort to
quantify. its findings in support of the dedication. °. . beyond the
conclusory statement that it. could offset some of the traffic
VA
demand generated." Dolan at 2322. The 81 uses and 27 conditional
uses to which the City will point have no relationship whatsoever
to the conditioning of rezoning approval upon the dedication to the
City of a significant portion of Mr. Goss' property. Rather, these
uses are merely speculations on what might happen on Mr. Goss'
property if he were to decide at some point to build some different
business upon the property. The City also fails to point out that
any construction on property within the City limits requires a
building permit from the City of Little Rock. If Mr. Goss did
choose at some undetermined future time to build, say, a
McDonald's, he would have to apply to the City of Little Rock for
a building permit first. It is at that point the City might be
able to show some sort of rough proportionality between an
increased traffic demand from a high volume restaurant and some
portion of property which would need to be dedicated by the
property owner to offset the increased traffic volume. The attempt
to take Mr. Goss' property at rezoning represents the City's desire
to attempt an end run around the constitutional safeguards
announced by the�United States Supreme Court in Dolan and Nollan.
Mr. Goss has 'been damaged by the City of Little Rock's
malicious intentional conditioning of his rezoning request upon the
dedication of 22% of his property to the City. Mr. Goss has been
unable to sell his property, although he has had two offers for
$515,000, and he -has incurred approximately $25,000 -in attorney's
fees and' costs in pursuing this' action. The City attempts to
mischaracterize its intentional acts as an unintentional tort.
E::
Hoowever, the actions of the City indicate that it certainly
intended to take Mr. Goss' property by unconstitutional means,
wantonly disregarding the constitutional rights of a United States
citizen. Such intentional, wanton disregard of a citizen's
constitutional rights warrants punitive damages in an amount
sufficient to ensure that the City of Little Rock will never again
attempt to unconstitutionally extort property rights from its
citizens.
WHEREFORE, the Plaintiff, Charles Goss, respectfully requests
that this Court enter an injunction preventing the City of Little
Rock from taking his property as a condition of rezoning it to C-3,
and for compensatory and exemplary damages in an amount sufficient
to ensure that the City of Little Rock will not repeat its
unconstitutional acts in the future.
Respectfully submitted,
CHARLES GOSS
By:
ALICE WARD GREENE #95197)
Brown, Schwander & Greene
323 Center Street, Suite 1295
Little Rock, AR 72201
(501) 374-7582
CERTIFICATE OF SERVICE
- I, Alice Ward Greene, do hereby certify that a copy of the
foregoing was mailed to Hon. Cynthia S. Dawson, Assistant City
Attorney, City Hall, Room 310, Little Rock, Arkansas 72201, this
day of December, 1996.
Alice Ward Greene
9
,, i PT
IN THE UNITED STATES DISTRICT COURT J7
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION JX ES !"; fy'cCCRP iFCK. CLERK
By: __
CHARLES GOSS PLAINTIFF DEP. CLERK
kv
CITY OF LITTLE ROCK
NO. LR -C-95-180
STIPULATION OF AGREED FACTS
DEFENDANT
The Plaintiff, Charles Goss, by and through his attorneys, Brown, Schwander & Greene,
P.L.C., by Alice Ward Greene, and the Defendant, City of Little Rock ("City"), by and through its
attorneys Thomas M. Carpenter, City Attorney, Stephen R. Giles, Deputy City Attorney, and
r Cynthia S. Dawson, Assistant City Attorney, jointly state as follows for their Stipulation of Agreed
Facts:
FINDINGS OF FACT
1. The City is a municipal corporation organized and existing under the laws of the state of
Arkansas.
2. In April, 1993 Charles Goss applied for rezoning from R-2 Single Family Residential to
C-4 Open Display for Lots 5 and 6 of McDonald's Subdivision, Little Rock, known as 6000 and
6024 Stagecoach Road respectively, and a contiguous property located across Stagecoach Road
known as 6101 Stagecoach Road.
3. The properties at 6000 and 6024 Stagecoach Road comprise approximately 3.7 acres and
6101 is approximately .41 acres.
4. The properties at 6000, 6024 and 6101 Stagecoach Road' are currently zoned R-2, Single
Family and have been so zoned since annexation by the City in•1985.
5. 6024 Stagecoach Road contains commercial uses for a grocery store, laundromat, car
wash, and two gas pumps. Those commercial uses existed prior to annexation and are
nonconforming.
6. The City planning staff recommended against any rezoning of 6101 Stagecoach and
against rezoning the remaining properties C-4, but stated they could support a change to C-3,
General Commercial zoning for 6000 and 6024 Stagecoach, subject to dedication of right-of-way.
7.Ark. Code Ann. § 14-56-414(d)(Michie 1987) allows a city to prepare and adopt a Master
Street Plan and Little Rock has adopted such a plan.
8. Ark. Code Ann. § 14-56-401 (Michie 1987) sets forth general powers and duties of a
planning commission and states Subchapter 4 of Chapter 56 of Title 14 is to be interpreted liberally.
Ark. Code Ann. § 14-56-417 authorizes planning commissions to prepare and administer regulations
controlling the development of land, including provisions for dedication of all rights-of-way to the
public.
9. The Little Rock, Ark. Rev. Code ("LRC") § 30278 (1988) makes findings that lack of
right-of-way dedication and associated roadway and drainage improvements can have adverse effects
on the safety and general welfare of the City. The City's procedures authorize the board of directors
to require the reasonable dedication of land for public street or floodway purposes, based upon the
land use or master plan elements currently in effect, or to require other conditions necessary for the
health, safety and welfare of citizens. Little Rock, Ark. Rev. Code § 36-85 (1987).
10. The City establishes requirements for dedications of rights-of-way for boundary street
improvements as required in the City's master street plan. LRC § 30-281 (1988). The City Board
of Directors may require, as a condition of rezoning, the reasonable dedication of land for public
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street or other purposes, based upon the land use or master plan elements currently in effect at the
time of the rezoning, and may require other conditions necessary to protect the health, safety and
welfare of its citizens. LRC § 36-85(d) (1988).
11. Mr. Goss, through Goss Enterprises, Inc. is the owner of record of the property at issue,
specifically 6000-6024 Stagecoach Road.
12. The rezoning issue was heard by the City's Planning Commission on May 4, 1993.
13. During the progress of the Planning Commission hearing, Mr. Goss amended his
application to withdraw his rezoning request for 6101 Stagecoach and change his rezoning request
for the other property from C-4 to C-3.
14. The C-3 General Commercial zoning classification allows 81 separate uses by right and
24 other conditional uses by permit.
15. There were two letters in opposition to the rezoning from neighboring landowners.
16. C-3 General Commercial zoning allows more intense uses than C-1 Neighborhood
Commercial zoning and C-4 Open Display zoning allows more intense uses than C-3 General
Commercial zoning.
17. The Planning Commission vote on the amended application was split, with 8 in favor,
1 against and 2 absent, so that the Planning .Commission recommended rezoning the two lots from
R-2 to C-3.
18. Mr. Goss refused to agree to dedicate the right-of-way as requested by City staff.
19. Mr. Goss asked for the rezoning .issue to be placed before the City Board of Directors
and he requested a waiver of the dedication requirement.
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20. An ordinance to rezone the property at 6000 and 6024 Stagecoach and to waive
dedication of right-of-way went before the Board of Directors at its February 21, 1995 meeting.
21. City staff asserted at the board meeting that additional right-of-way was required under
the Master Street Plan if the property were rezoned.
22. Staff also argued that with rezoning to C-3, many more intense uses are available by
right under C-3 zoning.
23. After discussion by some board members, the ordinance failed on a split vote, with 3
voting for the ordinance, seven against and one absent.
24. The property at 6000 and 6024 Stagecoach Road continues to be used in the same way
it was prior to Mr. Goss' application for rezoning.
25. At the hearings before the Planning Commission and Board of Directors, Mr. Goss
indicated that he had no plans to change the use of the property.
26. Mr. Goss has stated that he has had his property for sale since 1989.
27. Rezoning is a discretionary act of the City.
28. Little Rock, Ark., Rev. Code § 36-154(b) (1988) states that if any structure, devoted in
whole or in part to a nonconforming use is destroyed by fire, explosion or other casualty, or the
public enemy, to the extent of more than 50% of the current replacement value, the structure cannot
be restored to such use, with the exception of car washes under certain circumstances.
KI I
Respectfully submitted,
Thomas M. Carpenter
City Attorney
By: ,
C thia S. D
awson,, #93192
Assistant City Attorney
City Hall - Suite 310
500 West Markham
Little Rock, Arkansas 72201
(501) 3714527
ATTORNEYS FOR DEFENDANT
By; wa_'�a�
Alice Ward Greene, #9 97
Brown, Schwander & Greene
323 Center Street
Suite 1295
Little Rock, Arkansas 72201
(501) 374-7582
ATTORNEYS FOR PLAINTIFF
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U.S. DISTRICT COsvURT
EASTERN DISTRICT ARKANSAS
IN THE UNITED STATES DISTRICT COURT DEC 2 7 1996
EASTERN DISTRICT OF ARKANSAS JAMES W. WCORMACK, CLERK
WESTERN DIVISION By:
DEP CLEAR
CHARLES GOSS
V.
CITY OF LITTLE ROCK
NO. LR -C-95-180
PRETRIAL BRIEF
I. INTRODUCTION
PLAINTIFF
DEFENDANT
In April of 1993, Plaintiff Charles Goss ("Goss") applied to the City for rezoning of two
adjoining lots he owned on State Highway 5, legally described as Lots 5 and 6 of McDonald's -
Subdivision and known respectively as 6000 and 6024 Stagecoach Road, comprising approximately
3.7 acres, and a contiguous .41 acre parcel located across the street at 6101 Stagecoach Road. On
the lot at 6024 Stagecoach Road is a grocery store, laundromat, two gas pumps and a four -bay car
wash, all nonconforming uses since annexation into the City in 1985. The single-family home on the
other lot at 6000 Stagecoach Road conforms to its present R-2 Single -Family residential zoning, as
no commercial uses exist on that lot.
Goss applied for C-4 zoning for the three parcels. City planning staff did not support any
change in rezoning for the parcel at 6101 Stagecoach Road nor did they support the proposed change
to C-4 rezoning for 6000 and 6024 Stagecoach, but stated they could support a change to C-3 for
those two lots. The City's adopted Land Use Plan categorizes the property in question as
neighborhood commercial. and C-1 zoning is the zoning most often associated with neighborhood
commercial. .The C-1 Neighborhood Commercial zoning designation is a less intense zoning
classification than that of C-3. The Planning Commission was advised that the property to the north
of the Goss properties is vacant and single-family and zoned R-2; the properties to the south and
east have single family dwellings and are zoned R-2; to the west, the property is vacant and zoned
R-2.
During the Planning Commission hearing, Mr. Goss amended his application to seek C-3,
General Commercial zoning for the adjoining properties on the north side of Stagecoach Road and
dropped his rezoning request for the third parcel. The C-3 zoning classification allows 81 uses by
right and 24 conditional uses by permit. The City staff recommended approval of the rezoning to C-3
on only the parcels at 6000 and 6024 Stagecoach Road with the condition of dedication of right -of-
_ _ _ way consistent with the City's Master Street Plan. .
There was opposition to the rezoning, manifested in two letters from neighboring property
owners and one or two telephone. calls to city staff, although no one appeared in person to oppose
the rezoning. The City's Planning Commission was provided with the rezoning application summary
and the letters in opposition. The commission heard the rezoning matter on May 24, 1993. During
the meeting, one commissioner questioned the,proposal in light of the Land Use Plan designation
of those properties as neighborhood commercial, noting the staff summary stated the ideal
neighborhood commercial zoning was C-1. On a split vote (8 ayes, 1 no and 2 absent), the
Planning Commission voted to recommend approval of the amended application for C-3 rezoning
of 6000 and 6024 Stagecoach Road.
As a part of the rezoning application and in accordance with City policy, City staff asked
Goss to agree to dedication of right-of-way. Stagecoach Road is classified as a principal arterial and
principal arterials are required to be 110 feet wide under the City's adopted Master Street.Plan. As
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the existing right-of-way is 60 feet wide at the location of the Goss property at issue, the right-of-
way was deficient by 25 feet.
Goss stated he was opposed to dedicating the requested right-of-way, and asked that the
rezoning matter go before the City Board of Directors along with the issue of waiver of the
dedication requirement. The matter was set as requested. The Board of Directors was supplied with
information of the Planning Commission hearing. The board heard the matter on February 21, 1995,
when the sole ordinance before it was to rezone the subject property to C-3 and to waive the
dedication of right-of-way. City staff stated to the board that it would recommend a dedication of
50 feet, measured. from the centerline, amounting to an actual dedication of 20 feet along Stagecoach
Road. Staff also stated that if Goss desired to have parking within the dedicated right-of-way, the
City would franchise the parking until such time as the road were widened. After some discussion
by some directors, the board voted down the ordinance, again on a split vote (3 ayes, 7 noes and
1 absent), thus denying both the rezoning and the waiver of dedication.
Goss did not appeal to state court, but instead proceeded to file suit in federal district court
on March 20, 1995. This Court granted the City's Motion to Dismiss on September 25, 1995. Mr.
Goss appealed to the Eighth Circuit Court of Appeals, which found that the allegation of facts might
entitle relief. The dismissal was reversed and the case remanded for further proceedings.
II. SUBJECT MATTER JURISDI TUN
This is a zoning dispute in which the City denied to Plaintiff the rezoning of certain property.
Cities of the first and second class in Arkansas "are authorized to establish. zones limiting the
character of buildings.that may be erected therein." Ark. Code Ann. § 14-56-301 (Michie 1987). The
City has adopted a zoning ordinance, Little Rock, Ark. Rev. Code § 36-1 (1988).
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The plaintiff in an action has the burden of proving that jurisdiction exists. Osburn v. United
States, 918 F.2d 724, 730 (8th Cir. 1990). To establish a claim is ripe for review, a claimant must
demonstrate a sufficiently concrete case or controversy and prudential considerations must justify
the present exercise of judicial power. Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d 1269,
1272-73 (1994). The concept of ripeness is especially important in challenges to land use
regulations. Id. at 1273.
Federal courts are not boards of zoning appeals. River Parr Inc. v. City of Highland Parr
23 F.3d 164, 165 (7th Cir. 1994). Federal Courts frequently refuse to hear the merits of land use
__ _ ---------------takings claims on -ripeness grounds. See, e.g., Reahard v. Lee County, 30 F.3d 1412 (11th Cir. 1994),
cert. denied, _ U.S. _, 115 S. Ct. 1693, 131 L. Ed. 2d 357 (1995) (taking claim not ripe in
federal court because plaintiff had failed to pursue state inverse condemnation remedy); Southview
Assocs., Ltd. v. Bongartz, 980 F.2d 84 (2d Cir 1992), cert. denied, _ U.S. _, 113 S. Ct. 1586,
123 L. Ed. 2d 153 (1993) (failure to seek compensation in Vermont courts), Silver v. Franklin
Township Bd. of Zoning Appeals, 966 F.2d 1031 (6th Cir. 1992) (failure to seek compensation in
Ohio courts).
The Supreme Court set forth its ripeness. rules for takings -type claims in Williamson County
Regional Planning Comm'n v. Hamilton Bank; 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126
(1985). Williamson County involved an "as applied"—challenge to a denial of a subdivision
application that the property owner claimed was a .taking without due process. Finding the just
compensation claim premature, the Court held that before such a claim can be ripe in federal court,
the plaintiff must first obtain a final decision from local authorities and, secondly, the plaintiff must
seek compensation through the state if it provides a "reasonable, certain and adequate provision for
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obtaining compensation." Id., 473 U.S. at 194, 105 S. Ct. at 3120. This requirement is based on the
fifth amendment, which "does not proscribe the taking of property, it proscribes taking without just
compensation." Id. (citing Hodel v. Virginia Surface Mining & Reclamation Ass n, Inc., 452 U.S.
264, 297 n. 40, 101 S. Ct. 2352, 2371, 69 L. Ed. 2d 1 (1981)). "In cases where plaintiff claims that
the zoning is so stringent as to constitute a taking without just compensation, the Supreme Court
requires what amounts to exhaustion of state judicial remedies, including the bringing of an inverse
condemnation action, if the state affords such a remedy." Pearson v. City of Grand Blanc, 961 F.2d
1211 (6th Cir. 1992). Arkansas has such a remedy through Ark. Code Ann. § 18-15-102 (Michie
1987), which along with Ark. Const. art. 2 §-22-1-1874) "fully preserve all the constitutional
protections due a property owner for the public taking, injury or destruction of his property, real or
personal." Collier v. City of Springdale, 733 F.2d 1311 (8th Cir. 1984), cert. denied, 469 U.S. 857,
105 S: Ct. 186, 83 L. Ed. 2d 120 (1984). The burden of showing inadequacy of state procedures is
on the owner of the property. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d
1496, 1506-07 (9th Cir. 1990).
Substantive due process claims premised on the theory that regulation has gone too far have
also been subject to both prongs of the Williamson County ripeness test. Southview Assocs., 980 F.2d
84. The Seventh Circuit has held that a landowner may not avoid Hamilton Bank by applying a label
of substantive.or procedural due process to his claim. River Parr 23 F.3d at 167; Gosnell v. City of
Troy, Ill., 59 F.3d 654 (7th Cir. 1995) (landowner cannot avoid Williamson County by switching
constitutional nomenclature and arguing "substantive. due process"). If Goss is alleging a due process
taking, it, along with any fifth amendment takings claim, should be subject to the Williamson County
npeness test.
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Furthermore, the fact that Goss seeks equitable relief as well as damages does not require him
to bring his claim in federal court. A claimant may seek equitable relief in Arkansas state courts
whereby the city would be enjoined from the taking of his property until just compensation is
provided. MAK Co., Inc. v. Smith, 763 F. Supp. 1003 (W.D. Ark. 1991); Light v. Blackwell, 472 F.
Supp. 333 (E.D. Ark. 1979), aff'd, 620 F.2d 307 (8th Cir. 1980). It is not necessary for plaintiffs
claiming due process deprivation to resort to federal court for relief when due process remedies are
available to them in state court for the alleged taking. MAK Co., 763 F. Supp. at 1004-05. The Eighth
Circuit has ruled that Arkansas has available adequate mechanisms for both compensating property
owners for takings and for prospective injunctive relief to enjoin takings. Collier, 733 F.2d 1311;
MAK Co., 763 F. Supp. at 1005. Assuming jurisdiction of these types of cases "would mean the
opening of a floodgate to a multiplicity of federal actions involving all aspects of state eminent
domain proceedings which in truth should be adjudicated under state procedures and in state
forums." Light, 472 F. Supp. at 339, cited with approval in Collier, 733 F.2d at 1317.
Any fifth amendment takings claim or due process takings claim here is not ripe in federal
court because Goss has failed to pursue the adequate and available state inverse condemnation
remedy that, could address all the claims he makes and, if warranted, provide both damages and
injunctive relief, the relief he seeks. Goss has the. burden of proving jurisdiction. He has not shown,
as he must, that existing state procedures are inadequate.to address those claims or unavailable to
him.
IRE
I11. ALLEGATIONS OF FIFTH AMENDMENT
AND STATE CONSTITU'T'IONAL VIOLATION
The Plaintiff seems to be declaring that the City could never ask for dedication of right-of-
way as a condition of rezoning nonconforming property when the zoning applied for matches the
existing and contemplated future use because doing so is a constitutional violation, even when the
City decides to not rezone the property and not require the dedication, leaving the applicant and his
property in the same position as before the rezoning application.
Even if Goss could cite authority for such a proposition, those are not the facts of this case.
Goss has sought to rezone two lots, initially to C-4 Open Display zoning, largely a higher, more
intense use classification than those residential and commercial uses presently existing on either lot.
After hearing the City's recommendation against such a proposal, Goss amended his application to
seek C-3 General Commercial zoning. While the existing businesses at 6024 Stagecoach Road are
nonconforming and could arguably fit within the City's C-3 zoning classification, the single-family
house on the lot at 6000 Stagecoach conforms exactly to the existing residential zoning, the zoning
Goss seeks to change. If, as Goss has stated, he contemplates that the future use of the property will
continue and is seeking only that zoning matching the current use of the property, he had no need
to apply for a zoning change for Lot 5, 6000 Stagecoach Road, from R-2 Single Family to C-3
General Commercial zoning, a substantial change.
Goss has alleged a violation of the fifth amendment. The fifth amendment, incorporated into
the fourteenth amendment, proscribes takings for public use without just compensation. U.S. Const.
amend. V. "`Before a federal court can properly determine whether the state has violated the fifth
amendment [takings clause], the aggrieved property owner must first show that the state deprived
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him of his property, and second, that the state refused to compensate him for his loss."' Rocky
Mountain Materials & Asphalt, Inc. v Board of County Commissioners of EI Paso County, 972 F.2d
309 (10th Cir. 1992)(citation omitted).
A determination that governmental action effects a taking necessarily involves a weighing
of public and private interests. Agins a City of Tiburon, 447 U.S. 255, 260-61, 100 S. Ct. 2138,
2141 (1980). "A land use 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."' Dolan v. City of
Tigard, 114 S. Ct. 2309 (1994)(quoting Agins, 447 U. S. at 260 (1980). The property owner has the
burden of establishing a taking through application of the two tests. Keystone Bituminous Coal Ass'n
v. DeBenedictus, 480 U.S. 470, 4859,107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987).
"[W]hile property may be regulated to a certain extent, if a regulation goes too far, it will be
recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct. 158, 67 L.
Ed. 2d 322 (1922). If a regulation denies an owner all economically beneficial uses for the common
good, for example, a per se taking may be established. Lucas v. South Carolina Coastal Comm'n,
505 U.S. _; 112 S. Ct. 436,120 L. Ed. 2d 798 (1992). The extent of diminution in property, -then,
in -large part determines whether a taking has occurred, although not every decrease in value of
property will be a taking. Dolan reaffirmed that."[g]overnment hardly could go on if to some extent
values incident to property could not be diminished without paying for every such change in the
general law." Dolan, 114 S. Ct. at 2316, (quoting Pennsylvania Coal, 260 U.S. at 413, 43 S. Ct. at
159). The instant case does not even go that. far,; as will be shown at trial, it involves property
undiminished in value and an ordinance that left matters in the status quo.
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City staff asked the Plaintiff to agree to dedicate right-of-way called for under the City's
adopted Master Street Plan. Under Ark. Code Ann. § 14-56-414(d) (Michie 1987), a city is
authorized to prepare and adopt a master street plan. Goss was unwilling to do so and did not do so.
The Plaintiff has not alleged that he has been denied all or even any economically viable use of his
property by the City. To the City's knowledge, the residence at 6000 Stagecoach continues to be
used for residential purposes and the businesses at 6024 Stagecoach continue in operation as before
the attempted rezoning. Goss has not alleged any reduction in the value of the property as a result
of City action, nor does he claim his property would be worth less if rezoned to C-3 from R-2, even
if the dedication had been required and was in effect.
Even if the Plaintiff had alleged a diminution in property value, a diminution in property
value which results from a regulation, without more, does not amount to a taking. Penn Central, 438
U.S. at 131; 98 S. Ct. at 2663. Furthermore, a land use regulation that merely deprives the owner of
the property's most profitable use does not effect a taking. Id., 438 U.S. at 125-38, 98 S. Ct. at 2659-
66. The Arkansas Supreme court has ruled that "rezoning is not justified solely on the ground that
it is necessary to put a particular tract to its most remunerative use." Tanner v. City of Green Forest,
302 Ark. 170, 174, 788 S.W.2d 727, 729 (1990). There is no state or constitutional right to rezoning.
Rezoning is a discretionary act. A municipality is not required to rezone, even when the property
sought to be rezoned is nonconforming and would appropriately fit within the zoning classification
being sought. City of Paragould v. Cooper, 254 Ark. 151, 492 S.W.2d 243 (1973) held that whether
to classify commercial lots as nonconforming uses or to. -rezone them for commercial use was a
legislative. decision within the discretion of the city council.
0
Certainly, the fact that a city merely seeks a dedication is not a per se taking. Even knowing
a regulation is actually confiscatory is not sufficient. As Justice Scalia pointed out in Pennell v. City
of San Jose, 485 U.S. 1, 20, 108 S. Ct. 849, 862, 99 L. Ed. 2d 1 (1988) (Scalia, J., dissenting in part
and concurring in part), merely knowing a regulation is confiscatory as applied to claimant does not
state a claim.
The test for whether a regulation substantially advances a legitimate governmental interest
is not abundantly clear. The Tenth Circuit has noted that "'[t]he Supreme Court has declined to
define precisely the nature of this analysis, explaining that it involves an "essentially ad hoc, factual
inquir[y]."' Clajon Production Corp. v. Petera, 70 F.3d 1566, 1567 (1995). In such an inquiry,
several factors have significance, including the economic impact of the regulation on the claimant,
the extent to which the regulation has interfered with distinct, investment -backed expectations and
the character of the governmental action: Penn Central Trans. Co. v. City of New York, 438 U.S.
104, 124, 98 S. Ct. 2646, 2659 (1978). The Nollan case determined that in evaluating a Fifth
Amendment takings claim, it must be determined whether an "essential nexus" exists between the
condition imposed by -government and the "legitimate state. interest" to be advanced by the condition.
Nollan v. California Coastal Comm.'n, 483 U.S. 825, 107 S. Ct. 3141, 97. L.Ed. 2d 677 (1987). In
particular, Nollan found no such nexus between the imposed condition to dedicate a lateral public
easement along the beach and what was found to be a legitimate governmental interest in protecting
the panoramic view of the ocean. A majority of the justices in Dolan found a nexus between the
city's delegated police powers for flood prevention and transportation safety and the condition to
dedicate an easement for storm drainage and a pedestrian -and bicycle pathway. Dolan, 114 S. Ct.
at 2.317. Here, there is an essential nexus between the City's delegated police powers for ensuring
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transportation safety and minimizing traffic congestion and the condition of right-of-way dedication
that the City staff requested and that the board might have imposed, had it approved the rezoning.
The Dolan Court went on to answer the question left open in Nollan, "of what is the
required degree of connection between the exactions imposed by the city and the projected impacts
of the proposed development." Dolan, 114 S. Ct. at 2312. The Supreme Court decided that "the city
must make some sort of individualized determination that the required dedication is related both in
nature and extent to the impact of the proposed development." Id. at 2319-20. Dolan involved the
City's approval of a building permit, subject to various conditions imposed, including two dedication
requirements. The Court found the required degree of connection, "the reasonable relationship," was
lacking. Id. at 2319.
The City contends that there are significant differences in the basic facts of Dolan and this
case, in that Dolan concerned an adjudicative decision about a dedication imposed as a condition of
an approved building permit, whereas this case involves a legislative decision which was a denial
of rezoning in which dedication was discussed but no dedication was imposed. The fact that the
City denied the rezoning of this matter is important in analyzing this case. The essential nexus and
rough proportionality -tests were only necessary in Dolan because the City approved the building
permit. It is acknowledged that the City could have chosen the option of denying the permit. In his
dissent, Justice Stevens stated, "[c]ertain propositions are not in dispute. The enlargement of the
Tigard unit in Dolan's chain of hardware stores will have an adverse impact on the city's legitimate
i and substantial interests in -controlling drainage in Fanno Creek -and minimizing traffic congestion
in Tigard's business district. That impact is sufficient to justify. an outright denial of her application
for approval, of -the expansion." Dolan, 114 S. Ct. at 2322 (Stevens, J., dissenting).
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The matter before the Board of Directors was an ordinance containing two subjects ---the
rezoning of the property and the waiver of the right-of-way. While the discussion centered on the
dedication issue, it was integral to the discussion of infrastructure needs which would result from
the rezoning. Even if the City directors had voted based on an improper motive, which the facts do
not bear out, that circumstance would not be determinative. The U.S. Supreme Court has stated, "[i]t
is a familiar principle of constitutional law that this Court will not strike down an otherwise
constitutional statute on the basis of an alleged illicit motive." United States v. O'Brien, 391 U.S.
367, 383-84 (1968). Inquiries into congressional motives or purposes are a hazardous matter." Id.,
391 U.S. at 383. In City -of Renton v. -Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986), the
Supreme Court stated: "What motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to
eschew guesswork." The U.S. Supreme Court in Fleming v. Nestor, 363 U.S. 603, 617 (1960), stated
"that only the clearest proof could suffice to establish the unconstitutionality of a statute" on a claim
that "a punitive purpose in fact lay behind the statute." The Eighth Circuit noted in Ambassador
Books that "[a]lthough those cases [just cited] dealt with Acts of Congress, the principle they
announced is equally applicable to municipal ordinances." Ambassador Books & Video, Inc. v. City
of Little Rock- 20 F.3d 858, 863 (8th Cir. 1994). Even statements made on the floor of the House of
Representatives or the Senate or isolated remarks of a bill's sponsor are not sufficient to demonstrate
legislative intent. Arkansas State Bank Comm:'r v. Resolution Trust, 911 F.2d 161 (8th Cir. 1990).
In Arkansas, "the courts will not inquire into the motives which influenced the Legislature or
individual members in voting for its passage...." Wiseman v. Madison Cadillac, 191 Ark. 1021, 88
S.W.2d 1007,.-1009 (1935). Even the testimony of aTormer state legislator with respect to his intent
-12-
in introducing certain legislation was clearly inadmissible. Atkinson v. Board of Trustees, 262 Ark.
552,559 S.W.2d 1007 (1935) (cited with approval in Police Pension Fund v. City of Little Rock 295
Ark. 585, 750 S.W.2d 950 (1988)).
As will be shown at trial of this matter, not all board members even participated in the
discussion about the rezoning ordinance. A majority of the board voted against passage of the
ordinance. There were abundant rational reasons for the board's majority vote in denying the
rezoning. As stated in City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981),
[t]he question before the chancellor when a zoning action of the City is challenged
is solely whether or not the City acted arbitrarily, capriciously, or unreasonably. In
other words, the question is whether or not there was any reasonable basis upon
which the City could have based its decision. In deciding this question, there is a
well-established presumption that the city board or legislative body acted in a
reasonable manner when they either zone or refuse to zone property, and the burden
is on the landowner to show otherwise.
The presumption that has been recognized in zoning and rezoning actions that a city board
acted in a reasonable manner when it acts to zone or refuse to zone property should not be ignored
in this case, nor the facts showing a reasonable basis for the City board's decision.
Even if a "rough proportionality" or "reasonable relationship" analysis were to be required
in rezoning denial cases where there is a rational basis to support the City's denial, such "reasonable
relationship" is present. A nexus similar to that found in Dolan exists between the City's delegated
police power for transportation safety and a condition_for dedication of right-of-way for street
expansion to mitigate the impacts such rezoning engenders. The dedication of right-of-way as a
condition of rezoning, addresses a significant threat to the public welfare fromtraffic congestion and
lack of adequate infrastructure. In Arkansas, cities of -the first and second class and incorporated,
towns are authorized to adopt and enforce plans for the coordinated, adjusted, and harmonious
-13-
development of the municipality." Ark. Code Ann. § 14-56-402 (1987). The dedication requested
by the City, if it had actually been imposed, would have substantially advanced legitimate state
interests and in a way that is "reasonably related" to the impact of the rezoning, a rezoning that
immediately when it goes into effect allows 81 separate uses by right.
IV. ALLEGATIONS OF DIJE PROCESS VIOLATION
Goss has not specified the type of due process violation he claims occurred. Procedural and
substantive due process derive from the due process clause of the fourteenth amendment, which
states that no state shall deprive any person of life, liberty, or property without due process of law.
U.S. Const. amend. -XIV, § 1. "[I]n analyzing a claim that the deprivation of property violates
procedural due process, a court must first consider if the plaintiff has a constitutionally protected
property interest. If there is a protected property interest, the court then considers whether the
plaintiff has a right to a predeprivation hearing for the violation." Littlefield v. City of Afton, 785
F.2d 596, 600 .(8th Cir. 1986). The touchstones of procedural due process are notice and an
opportunity to be heard. Mullane v. Central Hanover Bank and Trust, 339 U.S. 306 (1950). Goss
has not alleged any substantive limitations on official discretion that would compel the City Board
to issue a zoning change for his property or afford him any particular process. Certainly, he has
stated no lack of notice or opportunity to be heard. He admits he received a hearing on his rezoning
request before the City board.
As to substantive due process, the Eighth Circuit has stated that two different theories of due
process claims may apply when a plaintiff asserts a taking without due process. Christopher Lake,
35 F.3d at 1273. The claimant may allege that the application of a regulation goes so far as to destroy
the owner',s property value (described as a•due .process taking), or may allege that the regulation is
-14-
arbitrary, irrational, and not substantially related to a legitimate governmental purpose (described
as an arbitrary and capricious due process claim). Id. at 1274 (citing Eide v. Sarasota County, 908
F.2d 716 (11th Cir. 1990), cert. denied, 498 U.S. 11209 114 S. Ct. 304, 126 L. Ed. 2d 252 (1991)).
A city legislative body is presumed to have acted in a reasonable manner when it zones or
refuses to zone property, and the burden is on the landowner to show otherwise. City of Little Rock
v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). In the seminal case of Euclid v. Ambler Realty
Co., 272 U.S. 365, 388, 47 S.Ct. 114 (1926), the Supreme Court noted that if the validity of the
legislative zoning classification is "fairly debatable," the legislative judgment must control.
"[T]he party alleging that the legislation is arbitrary has the burden of proving that there is
no rational basis for the legislative act, and regardless of the evidence introduced by the moving
party, the legislation is presumed to be valid and is upheld if the judicial branch finds a rational basis
for it." City of Lowell v. M & N Mobile Home Park,. Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).
Specifically, zoning laws are within the state's power to legislate for the protection of health and
-welfare and do not violate the fourteenth amendment. Herring v. Stannus, 169 Ark. 244, 275 S.W.
321 (1924). The fact that a rezoning, rather than an original zoning ordinance, is at issue does not
alter the presumption of validity inmost jurisdictions. Young, Kenneth H., Anderson's American
Law of Zoning § 3.14 (4th ed. 1995).
In Lemke v. Cass County, Neb., 846 F.2d 469, 471-73 (8th Cir. 1987) (en banc), the court
considered whether a substantive due process claim could arise from a denial of a rezoning
application. The Lemke case left that question open, but affirmed the dismissal of the complaint,
finding that due process was afforded the appellant landowner through the availability of state law
procedures. Five judges of the court joined in a concurring opinion by Judge Amold; who stated that
-15-
to rise to the level of a substantive due process claim, a denial of a zoning application should be
limited to the truly irrational, like deciding on a coin toss, thus excluding "simple rote allegations
that the zoning decision is arbitrary and capricious." Id. (Arnold, J., concurring). In Walker v. City
of Kansas City, Mo., 911 F.2d 80 (8th Cir. 1990), the Eighth Circuit affirmed a rejection of a due
process claim brought after denial of a zoning application. The landowner in Walker, to make out
a substantive due process claim, had to show that "the law violated one of his fundamental rights,
which no amount of process could repair." Id. at 93. Similarly, a denial of a conditional use permit
was not a violation of substantive due process because the government action was not "truly
irrational." Anderson v. Douglas County, 4 F.3d 574 (8th Cir. 1993).
In finding that the theory of substantive due process is reserved for truly egregious and
extraordinary cases, the Eighth Circuit has stated that:
Every appeal by a disappointed developer from an adverse ruling by a local planning
board necessarily involves some claim that the board exceeded, abused or
"distorted" its legal authority in some manner, often for some allegedly perverse
(from the developer's view) reason. It is not enough simply to give these state law
claims constitutional labels such as "due process" or "equal protection" in order to
raise a federal question....
Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102 (8th Cir. 1992) (citing Creative
Environments, Inc. v. Estabrool; 680 F.2d 822, 833 (1 st Cir.), cert. -denied, 459 U.S. 989, 103 S. Ct.
345, 74 L. Ed. 2d 385 (1982)).
The Chesterfield court found no due process violation in a city's denial of rezoning of certain
property from residential to commercial even where the city's zoning ordinance was invalid. Id.
Here, the City is denying the rezoning of the property from residential to commercial under a valid
city zoning ordinance. Furthermore, the City's action in denying commercial zoning where there
MIS
now exists residential use on a large part of the property in question was not arbitrary or capricious,
especially when the surrounding area in all directions is zoned residential, there are single-family
residences in the immediate area, there was neighborhood opposition to the rezoning, one lot at issue
properly conforms to the existing single family residential zoning, and the adopted Land Use Plan
calls for a less intensive use than that sought through rezoning.
M 9 N 41 *&*0-0Lei ��
Among the remedies sought by the Plaintiff is an injunction ordering the City to rezone his
property from R-2 to C-3, without any dedication of right-of-way. The legislative nature of
municipal zoning decisions affects the type of relief available in cases disputing those decisions.
"[C]ourts do not possess the power to amend the zoning regulations. It is reasoned that the power
to amend a zoning ordinance is legislative in character, and that it cannot be exercised by the courts
even where a denial of an application to rezone is discriminatory." Young, Kenneth H., Anderson's
American Law of Rezoning § 4.27 (4th ed. 1995) (citations omitted). Arkansas is in accord. In
Breeding, the Arkansas Supreme Court reversed a chancery decree that rezoned single-family district
property to commercial district "F" zoning after the City had refused to rezone the property. The
court stated that the Legislature gave the rezoning power to the legislative body of the city and it is
not within the province of the court to rezone property. Breeding, 273 Ark. at 453, 619 S.W.2d at
r0TFPJ
In addition, Goss states that he should receive damages of $265,000.00 for the City's actions
in denying his rezoning application. Municipalities in Arkansas have tort immunity. Goss has
foregone a remedy for inverse condemnation in state court. To the extent that Goss is attempting to
make a claim lying in unintentional tort against the City, the City has tort immunity pursuant to Ark.
-17-
Code Ann. § 21-9-301 (Michie Supp. 1995), which states that "[i]t shall be the public policy of the
State of Arkansas that all... municipal corporations... shal I be immune from liability and from suit for
damages, except to the extent they may be covered by liability insurance. No tort action shall lie
against any such political subdivision because of the acts of its agents and employees."
The Plaintiff also seeks exemplary damages of $2,650,000.00. The U.S. Supreme Court has
determined in a 42 U.S.C. § 1983 action that a municipality is immune from punitive damages. City
of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748 (1981). The Court stated, "...we
are sensitive to the possible strain on local treasuries and therefore on services available to the public
at large .... In sum, we find that considerations of history and policy do not support exposing a
municipality to punitive damages for the bad faith actions of its officials." Fact Concerts, 453 U.S.
at 270-71. Exemplary or punitive damages, therefore, should not be awarded in this case.
CONCLUSION
The evidence in this case will clearly demonstrate that the Plaintiff's Complaint should be
dismissed with prejudice on all claims.
-18-
Respectfully submitted,
Thomas M. Carpenter
City Attorney
By:
Cynthia S. Dawson, #93192
Assistant City Attorney
City Hall - Suite 310
500 West Markham
Little Rock, Arkansas 72201
(501) 371-4527
CERTIF'ICATF; Qi SERVICE
I hereby certify that a copy of the foregoing has been served upon Alice Ward Greene,
Schwander & Green, 323 Center Street, Suite 1295, Little Rock, Arkansas 72201, by placing same
in the U. S. Mail, postage prepaid, or by hand delivery, on this 27th day of December, 1996.
Cyn is S. Dawson
50
KLC►EIVED
U.S. DISTRICT COURT
EASTERN DISTRICT ARKANSAS
IN THE UNITED STATES DISTRICT COURT DEC 2 7 1996
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION JAMES W. McCORMACK, CLERK
By. I DtP CLERK
CHARLES GOSS PLAINTIFF
V. NO. LR -C-95-180
CITY OF LITTLE ROCK
DEFENDANT
DEFENDANT'S PROPOSED FINDINGS OF FACT
A NCLU IONS QF LAW
Defendant, City of Little Rock ("City"), by and through its attorneys Thomas M. Carpenter,
City Attorney, and Cynthia S. Dawson, Assistant City Attorney, submits its Proposed Findings of
Fact and Conclusions of Law as follows:
FINDINGS OF EACT
1. This case involves the City's denial of rezoning sought by Plaintiff.
2. The City is a municipal corporation organized and existing under the laws of the state of
Arkansas.
3. In April, 1993 Charles Goss applied for rezoning from R-2 Single Family Residential to
C-4 Open Display for Lots 5 and 6 of McDonald's Subdivision, Little Rock, known as 6000 and
6024 Stagecoach Road respectively, and a contiguous property located across Stagecoach Road
known as 6101 Stagecoach Road.
4. The properties at 6000 and 6024 Stagecoach Road comprise approximately 3.7 acres and
6101 is approximately .41 acres.
5. The properties at 6000, 6024 and 6101 Stagecoach. Road,are currently zoned R-2, Single
Family and have been so zoned since annexation by the City in 1985--
6. The historical and existing use of the lot at 6000 Stagecoach remains single family
residential, while 6024 Stagecoach contains commercial uses for a grocery store, laundromat, car
wash, and two gas pumps. Those commercial uses existed prior to annexation and are
nonconforming.
7. The City's land use plan designates the area where the properties at issue are located as
"neighborhood commercial".
8. The zoning for which Mr. Goss applied, C-4 Open Display, is established to provide
adequate locations for retail uses characterized by a high level of vehicular ingress and egress.
9. The City planning staff recommended against any rezoning of 6101 Stagecoach and
against rezoning the remaining properties C-4, but stated they could support a change to C-3,- -- --
General Commercial zoning for 6000 and 6024 Stagecoach, subject to certain conditions including
dedication of right-of-way consistent with the Master Street Plan.
l O.Ark. Code Ann. § 14-56-414(d)(Michie 1987) allows a city to prepare and adopt a Master
Plan and Little Rock has adopted such a plan.
11. Ark. Code Ann. § 14-56-4.01 (Michie 1987) sets forth general powers and duties of a
planning commission and states Subchapter 4 of Chapter 56 of Title 14 is to be interpreted liberally.
Ark. Code Ann. § 14-56-417 authorizes planning commissions to prepare and administer regulations
controlling the development of land; including provisions for dedication of all rights-of-way to the
public.
12. The Little Rock, Ark. Rev. Code ("LRC") § 30-278 (1988) makes findings that lack of
right-of-way dedication and associated roadway and drainage improvements can have adverse effects
on the safety and general welfare of the City. 'The City's procedures authorize the board of directors
to require the reasonable dedication of land for public street or floodway purposes, based upon the
-2-
land use or master plan elements currently in effect, or to require other conditions necessary for the
health, safety and welfare of citizens. Little Rock, Ark. Rev. Code § 36-85 (1987).
12. The City establishes requirements for dedications of rights-of-way for boundary street
improvements as required in the City's master street plan. LRC § 30-281 (1988). The City Board
of Directors may require, as a condition of rezoning, the reasonable dedication of land for public
street or other purposes, based upon the land use or master plan elements currently in effect at the
time of the rezoning, and may require other conditions necessary to protect the health, safety and
welfare of its citizens. LRC § 36-85(d) (1988)
13.The Master Street Plan requires 110 feet of right-of-way for a principal arterial street, or
55 feet from centerline to each abutting property.
14. Stagecoach Road is classified in the Master Street Plan as a principal arterial.
15. The existing right-of-way at 6000 and 6024 Stagecoach Road is 60 feet, or 30 feet from
the centerline.
16. Under the Master Street Plan, the right-of-way at 6000 and 6024 Stagecoach is deficient
by 25 feet.
17. The rezoning issue was heard by the City's Planning Commission on May 4, 1993.
18, During the progress of the Planning Commission hearing, Mr. Goss amended his
application to withdraw his rezoning request for 6101_Stagecoach and change his rezoning request
for the other property from C-4 to C-3.
19. The C-3 General Commercial zoning classification allows 81 separate uses by right and
24 other conditional uses by permit.
20. There was opposition to the rezoning, in -the form of two letters from neighboring
-3-
landowners given to the commission members and one or two telephone calls to staff of which the
commissioners were advised.
21. In the Planning Commission meeting, one commissioner questioned the staff
recommendation of C-3 in light of the Land Use Plan designation of the area as "neighborhood
commercial" and that the staff summary said that ideally the property north of Stagecoach should
be zoned C-1.
22. C-3 General Commercial zoning allows more intense uses than C-1 Neighborhood
Commercial zoning and C-4 Open Display zoning allows more intense uses than C-3 General
Commercial zoning.
23. The Planning Commission vote on the amended application was split, with 8 in favor,
1 against and 2 absent, so that the Planning Commission recommended rezoning the two lots from
R-2 to C-3.
24. Mr. Goss refused to agree to dedicate the right-of-way as requested.
25. Mr. Goss asked for the rezoning issue to be placed before the City Board of Directors
along with waiver of dedication of the requested right-of-way.
26. An ordinance to rezone the property at .60.00 and 6024 Stagecoach and to waive
dedication of right-of-way went before the Board of Directors at its February 21, 1995 meeting.
27. City staff asserted at the board meeting that additional right-of-way was required under
the Master Street Plan if the property were rezoned.
28: Staff also indicated that with rezoning to G3, many more intense uses are available by
right under C-3 zoning.
29. Rezonings to more intense uses have an impact on existing infrastructure.
-4-
30. City staff informed the board that staff recommended a dedication of 50 feet from the
centerline instead of the 55 feet from centerline required by the Master Street Plan (which amounted
to a 20 foot dedication or 7.7 percent of the property) and that the staff would agree to franchise
parking within the dedicated portion until such time as the road were to be widened.
31. After discussion by some board members, the ordinance failed on a split vote, with 3
voting for the ordinance, seven against and one absent.
32. The property at 6000 and 602-4 Stagecoach Road continues to be used in the same way
it was before the City acted to deny Mr. Goss' zoning request.
33. At the hearings before the Planning Commission and Board of Directors,—Mr.-Goss
indicated that he had no plans to change the use of the property.
34. Mr. Goss never informed City staff, the Planning Commission or Board of Directors that
his intention was to sell the property at 6000 and 6024 Stagecoach Road and that he wanted to
rezone the property for purposes of selling it.
35. Mr. Goss has stated that the only loss he has suffered as a result of the City's actions is
that he has been unable to sell the property in question.
36. Mr. Goss has stated that he has had his property for sale since 1989.
37. From at least October 1, 1992 to the present, no real estate agency or other individual has
been retained to assist in finding a buyer for the property -at 6000 and 6024 Stagecoach Road.
38. From at least October 1, 1992 to the present, no for sale sign has been located on the
property at 6000 and 6024 Stagecoach Road to indicate it is for sale.
39. The property at 6000 and 6024 Stagecoach Road has economically beneficial use despite
any City actions in this case
-5-
40.The value of the property at 6000 and 6024 Stagecoach Road has not decreased as a result
of denial of the rezoning.
41. Rezoning is a discretionary act of the City.
42. There were rational reasons not unconnected to the dedication issue for the various
members of the Board of Directors to vote against the rezoning of 6000 and 6024 Stagecoach Road.
C NCL IONS OF LAW
43. A city legislative body is presumed to have acted in a reasonable manner when it zones
or refuses to zone property, and the burden is on the landowner to show otherwise. City of Little
Rock v. Breeding, 273 -Ark. 437, 619 S.W.2d 664 (1981). "[T]he party alleging that legislation is -
arbitrary has the burden of proving that there is no rational basis for the legislative act, and
regardless of the evidence introduced by the moving party, the legislation is presumed to be valid
and is to be upheld if the judicial branch finds a rational basis for it." City ofLowell v. M& NMobile
Home Parr Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).
44. A rezoning decision of a city will be upheld if there is any rational basis for that decision.
Id., 273 Ark. at 445, 619 S.W.2d. at 672. "The question is whether there was any rational basis upon
which the Board could base its ruling ,or decision. If the Board acted reasonably or .had any
reasonable basis for sustaining the decision that it made, then its decision should be upheld
regardless of whether ... this court agrees with that decision...." Id. at 669. If the matter is fairly
debatable, it was not unreasoned or arbitrary. City of Little Rock v. Pfeifer, 318 Ark. 679, 887
S.W.2d 296 (1994).
45. Municipal officials such as directors are incompetent to testify about matters on which
they exercised their legislative discretion. Wiseman v. Madison. Cadillac Co., 191 Ark. 1021, 88 .
10
S.W.2d 1007, 1009 (1935). What motivates one legislator to make a speech about legislation is not
necessarily what motivates the others to enact it. City of Renton v. Playtime Theatres, Inc., 475 U.S.
41, 47-48 (1986).
46. There is no constitutional or statutory right to rezoning of property. Even where land use
regulations adversely affect recognized real property interests, they have been upheld. Penn Central
Transp. Co. v. City of New York, 438 U.S. 125, 98 S. Ct. 2646 (1978). In particular, zoning laws
have been found to be permissible governmental action even when they prohibit the most beneficial
use of the property. Id., 98 S. Ct. at 2660; Goldblatt v. Hempstead, 369 U.S. 590, 82 S. Ct. 987, 8
L. Ed. 2d 1554 (1960). Zoning is not justified on sole ground that doing so is -necessary to put
particular property to its most remunerative use. Tanner v. City of Green Forest, 302 Ark. 170, 174,
788 S.W.2d 727, 729 (1990).
- 47. A municipality is- not required to rezone nonconforming use, even when it would
appropriately fit within the zoning classification sought. Whether to classify commercial lots as
nonconforming uses or to rezone them for commercial use is within the discretion of the city
legislative body. City of Paragould v. Cooper, 254 Ark. 151, 492 S.W.2d 243 (1973).
48. The Court lacks subject matter jurisdiction to hear this matter. In accord with Williamson
County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194,105 S. Ct. 3108, 3120,
87 L. Ed. 2d 126 (1985), before a fifth amendment takings -claim is ripe in federal court, the claimant
must fust demonstrate that his property was "taken,"i.e., that the regulation "goes too far" and that
there is no state provision to award him just compensation. Eide v. Sarasota County, 908 F.2d 716
(11th Cir: 1990), cert. denied, 498 U.S: 1120; 114 S. Ct. 304,.126 L. Ed. 2d 252 (199 1) (cited with
approval in Christopher. Lake Dev. Co: v. St. Louis County, 35 F.3d 1269 (8th Cir. 1994). Due
-7-
Due process takings claims should similarly be subject to both tests. Southview Assocs., Ltd. v.
Bongartz, 980 F.2d 84 (2d Cir. 1992), cert. denied, _ U.S. _, 113 S. Ct. 1586 (1993).
49. A Dolan analysis is not required in cases where no dedication is imposed by the city, the
rezoning sought is denied, and there is a valid, nonarbitrary and rational basis for the city's denial
irrespective of the dedication condition. Dolan v. City of Tigard, — U.S. _, 114 S. Ct. 2309
(1994), like Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S. Ct. 3141 (1987), before
it, concerned approved building permits involving a condition of dedication that was actually
imposed, a much different set of facts than those of this case.
50.There is an essential nexus between the request for dedication of requested right-of-way
and the legitimate governmental purposes of maintaining infrastructure to keep up with traffic
demands, mitigating traffic congestion and ensuring the safety and welfare of the traveling public.
The Supreme Court has endorsed the legitimacy of actions under the police power that restrict
development based on the ill effects of urbanization such as "air, noise—pollution, traffic
congestion... and other demonstrated consequences of urban sprawl." Agins v. City of Tiburon, 447
U.S. 255, 261 and n.8, 100 S. Ct. 2138, 2142 and n.8 (1980) (citation omitted).
51. The nexus between the requested dedication and the impact of the proposed rezoning
6000 and 6024 Stagecoach Road from R-2 to C-3 was such that it was "reasonably related, " given
that rezoning to C-3 immediately allows 81 separate uses by right.
52. To state a due process taking, a plaintiff must show that application of the city's
regulation goes so far as to destroy the owner's property value., Christopher Lake Dev. Co. Y. St.
Louis County, 35.F.3d 1269, 1274. The property at issue remains unchanged in use or value despite
the City's action in denying the rezoning.
10
53. To prove an arbitrary and capricious due process taking, the property owner must show
that the regulation is arbitrary, irrational and not substantially related to a legitimate governmental
purpose. Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d at 1274.
54. The Plaintiff has not alleged or made a case that the City has taken his property by
inverse condemnation, therefore his action must be one in tort for damages.
55. To establish a violation of the fifth amendment's just compensation clause, a property
owner must first show that the state deprived him of his property and then that the state refused to
compensate him for his loss. Rocky Mountain Materials & Asphalt, Inc. v. Board of County
Comm'rs of El Paso County, 972 F.2d 309 (10th Cir. 1992)(citation omitted). -
56. Courts will not strike down an otherwise constitutional statute on the basis of an alleged
improper motive by legislators. United States v. O'Brien, 391 U.S. 367, 383-84 (1968); City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986). The principle is equally applicable
to ordinances. Ambassador Books & Video, Inc. v. City of Little Rock; 20 F.3d 858, 863 (8th Cir.
1994).
57. Courts do not have the power to amend a zoning ordinance. City of Little Rock v.
Breeding, 273 Ark. 437, 619 S.W.2d 664, 672 (1981); City of Conway v. Housing Authority, 266
Ark. 404, 5.84 S.W.2d 10 (1979).
58. Municipalities in Arkansas are immune from liability for damages for unintentional torts.
Ark. Code Ann. § 21-9-301 (Michie Supp. 1995).
59. Municipalities are immune from exemplary or punitive damages. City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748 (1981). This is even true in a 42 U.S.C. _§ 1983 action
for punitive damages for the bad faith actions of its officials." Id., 453 U.S. at 270-71.
ST
Respectfully submitted,
Thomas M. Carpenter
City Attorney
By:
Cynthia S. Dawson, #93192
Assistant City Attorney
City Hall - Suite 310
500 West Markham
Little Rock, Arkansas 72201
(501) 371-4527
CERTIFICATE OF S RVICE
I hereby certify that a copy of the foregoing has been served upon Alice Ward Greene,
Brown, Schwander & Greene, 323 Center Street, Suite 1295, Little Rock, Arkansas 72201, by
placing same in the U. S. Mail, postage prepaid, or by hand delivery, on this 27th day of December,
1996.
Cynthia S. Dawson
-10-
Existing Conditions
Zoning file Z-5671 concerns the rezoning of approximately 3.77 acres at 6000 Stagecoach
Road, which is a non -conforming use on property currently zoned as R-2. Existing
buildings on the site includes a General Store with approximately 1,500 square feet with two
gas pumps, a single family - - - -
dwelling unit, a 4- bay car
wash and a 1,125 square foot M
laundry mat. l
A 24 hour traffic volume
count was conducted on
Wednesday November 13,
1996. The eastbound traffic
was measured at 3257
vehicles per day (vpd) and
the westbound traffic
was measured at 3727 vpd.
A site traffic volume generation study was conducted by the City of Little Rock between the
hours of 6:30 AM and 6:30 PM to determine total trips being generated by the existing uses
on this site. The results of the study are as follow:
#
Use
24 Hour
Traffic Volume
7-9 AM
Peak Hour Trips
4-6 PM
Peak Hour Trips
1
Single Family
12
3
0
2
General Store
907
76
102
3
Laundry Mat
62
1
15
4
Car Wash
52
2
4
Total
1033
82
121
Proposed Zoning
In 1993 Mr. Goss applied for .0-3 zoning which uses include those listed in Section 36-301
of the Little Rock Code, pages 2332 and 2333 (attached).
In order to determine the magnitude of traffic which could be generated by a 3.77 acre site
zoned C-3, it was assumed that approximately 20% of the total land area would be
buildable. Based on this assumption, a maximum total square footage of would be 33,000
square feet with the balance of land utilized for parking and landscaping. The probable
traffic generation for a site of this type would be as follows:
Trip Generation Study for Goss Site - C-3 Zoning
Multiple Uses
Square
Feet
24 hr
Rate
24 hr
Traffic Vol.
AM Peak
Rate
AM Peak
7-9 AM
PM Peak
Rate
PM Peak
4-6 PM
High turnover Sitdown
10,000
205.36
2,054
15.7
157
16.26
163
Resturant (832)
Convenience Market w/
2,500
845.60
2,114
45.23
113
62.57
156
Gas Pumps (853)
Drive -In Bank (912)
5,000
265.00
1,325
11.6
58
43.36
217
Fast Food w/o Drive-in(833)
3,000
786.22
2,359
37.93
114
40.09
120
,Totals
20,500
7,851
442
__ _ ___
656
Source: Trip Generation - 5' Edition - Institute of Transportat ion Engineers.
Resultant Increase in Traffic Generated by proposed development:
As a result of the proposed zoning, it is estimated that traffic generated by this site will be
increased by a factor of 7.6 if the 3.77 acre tract is redeveloped in a similar density as other
C-3 developments recently submitted to the City of Little Rock for approval. The traffic
generated by this site will equal approximately 23.55% of the overall planned capacity for
Stagecoach Road when all improvements are complete.
} Appeal No. 97-2652EALR
Cross Appeal No. 97-2790EALR
I
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
CHARLES GOSS
Appellee/Cross-Appellant
V.
CITY OF LITTLE ROCK
Appellant/Cross-Appellee
lT APPEAL FROM THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
Honorable Susan Webber Wright, Judge
No. LR -C-95-180
APPELLANT/CROSS-APPELLEE'S BRIEF
Honorable Thomas M. Carpenter
-Little Rock City Attorney
Cynthia S. Dawson
Assistant City Attorney
City Hall - Suite 310
500 West Markham
Little Rock, Arkansas 72201
Tel: 501/371-4527
Arkansas Bar No. 93192
Counsel for AppellantlCross Appellee
i
Appeal No. 97-2652EALR
t Cross Appeal No. 97-2790EALR
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
t -
I CHARLES GOSS
Appellee/Cross-Appellant
V.
CITY OF LITTLE ROCK
I Appellant/Cross-Appellee
APPEAL FROM THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
Honorable Susan Webber Wright, Judge
No. LR -C-95-180
I
APPELLANT/CROSS-APPELLEE'S BRIEF
Honorable Thomas M. Carpenter
Little Rock City Attorney
Cynthia S. Dawson
Assistant City Attorney
City Hall - Suite 310
500 West Markham
Little Rock, Arkansas 72201
Tel: 501/371-4527
Arkansas Bar No. 93192
Counsel for Appellant/Cross-Appellee
SUiN MARY AN ❑ RE U ' ST FOR ORAL ARGUMENT
The first issue on appeal is whether Goss' claim of Fifth and Fourteenth Amendment
violation is ripe in federal court when he claims a taking but did not seek compensation through the
existin state court inverse condemnation remedy and when he has suffered no loss as a result of
g
g
overnment action. Without resort to state court or a showing of concrete injury, the claims brought
are not ripe.
he Dolan "rough proportionality" test was properly
The second issue on appeal is whether t
re uired in a rezoning context under the facts of this case, given that the City considered and turned
q
down the proposed rezoning and waiver of dedication jointly in one vote, no dedication was
im osed, the rezoning sought was inconsistent the adopted land use plan and opposed by neighbors,
p
the waiver sought, if granted, would have precluded any later Dolan analysis and any future
0 ortunity to obtain a dedication of reasonable right-of-way, and the landowner remained in the
pp
same position as before the City acted. The Dolan test should not be applied in such a case,
particularly where no injury was shown.
finding of constitutional violation was groper after the
The third issue on appeal is whether a
trial court decided no adverse impact from rezoning was shown by the City, despite evidence that
at least half the property is currently being used for residential purposes and would become
nonconforming if rezoned, that the 7.7 percent dedication sought by City staff was for street right-
y that was insufficient under the master street plan, that upon rezoning, any of 81 commercial
o y
uses are immediately permissible on the property, and where the waiver sought by the landowner
would have forever barred the City from obtaining any reasonable dedication of right-of-way in the
future.
Because of the importance of the issues, oral argument of thirty minutes is requested.
-i-
TABLE OF CQNTENTS
PAGE
Summary and Request for Oral Argument ........ • • • . • • • • • • ' .
Table of Contents ...... • ... ..
..................iii
Table of Authorities ...... • . • • . • • . • • • • ..
Statement ................
... .......................................1
Preliminary .......................................2
Statement of the Issues ............... . . . 4
Statement of the Case ....................
7
Summary of the Argument .................................... .
10
Argument .....................
1. Were the rezoning applicant's claims of Fifth and Fourteenth
Amendment violations ripe and did
comral courts have ensat on through thestate
to hear them where he diction
d not seep p
courts after the City refused to rezone his property and waive dedication 10
of right -of way ? ............... .
II. Is a Dolan "rough proportionality" analysis required under the facts of . 15
this case ? ........................ .
III. Would rezoning Goss' property and granting a waiver of dedication
have an adverse impact on the City's legitimate interests, such that 25
there was no Fifth or Fourteenth Amendment violation ? .. • ..... .
.36
Conclusion..........................................37
Certificate of Service . .
TABLE F AUTHORITIES
CASES
Agins v. City of Tiburon,
447 U.S. 255 (1980) ................................
PAGE
..16,26
Ambassador Books & Video, Inc. v. City of Little Rock, 30
20 F.3d 858 (8th Cir. 1994). .......................... .
Anderson v. Douglas County, . ,35
4 F.3d 574 (8th Cir.), cert. denied, 510 U.S. 1113 (1993). ..........................
Armour & Co., Inc., v. Inver Grove Heights, 23
2 F.3d 276 (8th Cir. 1993). .................................... .
Bethel v. Bethel,33
268 Ark. 409, 597 S.W.2d 576 (1980) . ............................. .
Burns v. City of Des Peres, , . , . , .. 31
534 F.2d 103 (8th Cir. 1976) . ................................. .
Chesterfield Development Corp. v. City of Chesterfield, ... 36
963 F.2d 1102 (8th Cir.1992) ...........................
Chicago, B. & Q. R.. Co. v. City of Chicago, , ..... , , • 16
166 U.S. 226 (1897) ...................................
Christopher Lake Dev. Co. v. St. Louis County,..
10
35 F.3d 1269 (8th Cir. 1994). .......... • ........ • " '
City of Little Rock v. Breeding, ..... 18
273 Ark. 437, 619 S.W.2d 664 (1981) . ............... .
..........
City of Lowell v. M & N Mobile Home Park, Inc., 18
323 Ark. 332, 916 S.W.2d 95 (1996) . ............................................
City of Renton v. Playtime Theatres, Inc .> 2,29
475 U.S. 41(1986).... ................................
Clajon Production Corp. v. Petera, ...... . . . ... . ... . . 20
70 F.3d 1566 (10th Cir_ 1995) . ...............................
Collier v. City of Springdale,
733 F.2d 1311 (8th Cir.), cert denied, 469 U.S. 857 (1984) ....................... 2,13,14
Creative Environments, Inc. v. Estabrook
680 F.2d 822, 833 (1st Cir.), cert. denied, 459 U.S. 989 (1982). ................... . .. 36
Del Monte Dunes at Monterey, Ltd. v. City of Monterey,
920 F.2d1496(9th Cir. 1990) . .................................................13
Dolan v. City of Tigard
512 U.S. 374 (1994) ................................ 2,8,15,16,17,19,20,24,26,27,35,36
Employer's Ass'n, Inc. v. United Steelworkers ofAmerica, AFL -CIO -CLC,
32 F.3d 1297 (9th Cir, 1994) ..................................................10
Euclid v. Ambler Realty Co.,
272 U.S. 365 (1926) ..........................................................18
Falls v. Nesbitt,
966 F.2d 375 (8th Cir. 1992) . .................................................. 15
Fleming v. Nestor,
363 U.S. 603 (1960) ..........................................................30
Florida Rock Indus., Inc. v. United States,
18 F.3d 1560 (Fed. Cir. 1994) ..................................................23
Fox v. Commissioner,
874 F.2d 560 (8th Cir. 1989) ................................................ 2,33
Gorieb v. Fox,
274 U.S. 603 (1927)..........................................................26
Gosnell v. City of Troy, Ill.,
59 F.3d 654 (7th Cir. 1995) ...................................................13
Goss v. City of Little Rock,
90 F.3d 306 (8th Cir. 1996) ................................................. 1,6,18
Herring v. Stannus,
169 Ark. 244,275 S.W.321 (1924) . ............................................. 18
Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc.,
452 U.S. 264 (1981)) . ........................................................12
-1v-
Keystone Bituminous Coal Assn v. DeBenedictus,
480 U.S. 470 (1987) . .........................................................17
Lemke v. Cass County, Neb.,
846 F.2d 469 (8th Cir. 1987) (en Banc). ................................... 10,35
Lester v. Mt. Vernon-Enola Sch. Dist.,
323 Ark. 728, 917 S.W.2d 540 (1996) ...........................................
Light v. Blackwell,
472 F. Supp. 333 (E.D. Ark. 1979), aff'd, 620 F.2d 307 (8th Cir. 1980) . ................ 14
Long v. Nix,
86 F.3d 761 (8th Cir. 1996) . ................................................... 15
MAK Co., Inc. v. Smith,
763 F. Supp. 1003 (W.D. Ark. 1991) ...................................
......... 14
McKenzie v. City of Whitehall,
112 F.3d 313 (8th Cir. 1997) ......................................... 2,10,11,13,20
f Miller v. City of Lake City,
302 Ark. 267, 789 S.W.2d 440 (1990) . ........................................... 33
Nollan v. California Coastal Comm'n,
483 U.S. 825 (1987) ........................................ 2,16,17,20,23,24,26,34
Osborn v. United States,
918 F.2d 724 (8th Cir. 1990) . ............................................... 10,11
I
O'Shea v. Littleton,
414 U.S. 488 (1974) . .....................................................2,10,11
Parking Assn of Georgia v. City of Atlanta,
515 U.S. 1116 (1995) ........................................................18
Pearson v. City of Grand Blanc,
961 F.2d 1211 (6th Cir. 1992) . .............................................. 13,19
Penn Central Transp. Co. v. City of New York,
438 U.S. 104 (1978) ....................................................... 17,23
Pennell v. City of San Jose,
485 U.S.1(1988)...........................................................19
MW
Pennsylvania Coal Co. v. Mahon,
• . . . . .. . .. . ....
12,21,26
' 260 U.S. 393 (1922). ..................... . • ..
Reahard v. Lee County,.............
30 F.3d 1412 (11th Cir. 1994), cert. denied, 514 U.S. 1064 (1995) .
10
River Park Inc. v. City of Highland Park,
.
... • _ .. 13
23 F.3d 164 (7th Cir. 1994) ........ • ....... " " " "
Materials & Asphalt, Inc. v. Board of County Comm' rs..........
20
Rocky Mountain
972 F.2d 309 (10th Cir. 1992) ....................
Southview Assocs.,Ltd. v. Bongartz,
denied, 113 S.Ct. 1586 (1993).
............... 13
980 F.2d 84 (2d Cir. 1992), cert.
United States v. McConney,..
Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). .
. • .... 15,25,26
728 F.2d 1195 (9th
United States v. O'Brien, ......
. . .. . . ..... 29,30
391 U.S. 367 (1968) . .........................
United States v. Riverside Bayview Homes, Inc.,
.... . .. 21
474 U.S. 121 (1985) ........ • . • • • ...............
�2,3
Walker v. City of Kansas City, Mo.,
denied, 500 U.S. 941 (1990) . -
5
• ' '
911 F.2d 80 (8th Cir.), cert.
` Westborough Mall, Inc. V. City of Cape Girardeau, Mo.,
22
953 F.2d 345 (8th Cir. 1991). .....................
t
Williamson County Regional Planning Comm'n v. Hamilton Bank,
g • . • • , . , ...
....... 2,7,12,1;,14
473 U.S. 172 (1985). .............................
p HE AT RITIES
16
U.S. Const. amend. V.
28 U.S.C. § 1291 .. .
28 U.S.C.§ 1331........................................
22(1874)....................................13
Ark. Const. art. 2 § • ' • " " ' • " ' .. �
Ark. Code Ann. § 4-59-101(a) (4) (Michie Repl. 1996) .. • • • • • • • • • ....
' ' . ' '
M
Ark. Code Ann. § 18-15-102 (Michie 1987) ........................................ 13
Fed. R. Civ. P. 52(a) ....................................................... 22,25
Robert H. Freilich and David W. Bushek, Thou Shalt Not Take Title
Without Adequate Planning: The Takings Equation After Dolan v.
City of Tigard, 27 The Urban Lawyer, 187, 213 (1995) . .............................. 24
Kenneth H. Young, Anderson's American Law of Zoning § 3.14 (4th ed. 1995). ........... 18
-vii-
PRELIMINARY STATEMENT
This case concerns a dispute between Charles Goss ("Goss"), a landowner, and the City of
Little Rock ("the City"), over the City's refusal on February 21, 1995 to rezone property owned by
Goss. Goss brought his Fifth and Fourteenth Amendment claims against the City of Little Rock in
the United States District Court for the Eastern District of Arkansas, Western Division, under 28
U.S.C. § 1331. The district court granted the City's Motion to Dismiss. Goss appealed and in Goss
v. City of Little Rock, 90 F.3d 306 (8th Cir. 1996), this court reversed and remanded for further
proceedings consistent with the opinion. After trial of the matter on January 13-14, 1997, judgment
was rendered by the Honorable Susan Webber Wright on February 20, and Goss thereafter filed a
Motion to Alter Judgment on March 14. The district court denied the motion on May 13.
f On June 12, 1997, the City of Little Rock filed a timely notice of appeal predicated on the
appellate jurisdiction of 28 U.S.C. § 1291. The timely appeal is from the final judgment and order
of the district court's ruling disposing of all claims with respect to all parties. Goss filed a cross -
I appeal on June 23, 1997, also pursuant to 28 U.S.C. § 1291.
-1-
STA,rE1NIENT OF TI4E ISSUES
I.
Were the rezoning applicant's claims of Fifth and Fourteenth Amendment violations ripe and
did federal courts have jurisdiction to hear them where he did not seek compensation through
the state courts after the City refused to rezone his property and waive dedication of right-of-
way?
Collier v. City of Springdale, 733 F.2d 1311 (8th Cir.), cert. denied, 469 U.S. 857 (1984)
McKenzie v. City of Whitehall, 112 F.3d 313 (8th Cir. 1997)
O'Shea v. Littleton, 414 U.S. 488 (1974)
Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985)
II.
Is a Dolan "rough proportionality" analysis required under the facts of this case ?
Armour & Co., Inc. v. Inver Grove Heights, 2 F.3d 276 (8th Cir. 1993)
Dolan v. City of Tigard, 512 U.S. 374 (1994)
Nollan v. California Coastal Comm'n, 483 U.S. 825 (198-7)
Rocky Mountain Materials & Asphalt, Inc. v. Board of County Comm'rs, 972 F.2d 309 (10th Cir.
1992)
-2-
Would rezoning Goss' property and granting a waiver of dedication have an adverse impact
on the City's legitimate interests, such that there was no Fifth or Fourteenth Amendment
violation when the City denied the rezoning and waiver?
City of Renton v. Playtime Theca[res, Inc., 475 U.S. 41 (1986)
Fox v. Commissioner, 874 F.2d 560 (8th Cir. 1989)
United States v. O'Brien, 391 US 367 (1968)
Walker v. City of Kansas City, Mo., 911 F.2d 80 (8th Cir.), cert. denied, 500 U.S. 941 (1990)
-3-
STATEMENT OF THE CASE
In early 1993, Plaintiff Charles Goss ("Goss") applied to the City to rezone two adjoining
lots he owned, legally described as Lots 5 and 6 of McDonald's Subdivision and known respectively
as 6000 and 6024 Stagecoach Road. App. p. 36. The two lots, not counting a sixty foot right-of-way,
are comprised of approximately 3.7 acres. App. p.36; R. p. 244, 246. The lots were zoned R-2 since
annexation into the City in 1985. App. p.36.
One lot, at 6024 Stagecoach Road, has a grocery store, laundromat, two gas pumps and a car
wash. App. p. 37. All of these uses are nonconforming, meaning they do not conform to the city's
land use plan. App. pp. 37, 83-84. Goss lives in the home at 6000 Stagecoach Road. R. p. 244. The
single family home on the lot at 6000 Stagecoach Road conforms to the present R-2 single family
residential zoning. R. p.162. Goss has no privilege license to carry on commercial activities at 6000
Stagecoach Road. R. p. 63. The lot with the house on it comprises at least half of the property Goss
is seeking to rezone commercial. Addendum p. 36-37. Goss has been trying to sell the two lots since
1989. R. p. 54-55.
Goss initially applied for C-4 zoning for the lots, which is the most intense commercial
zoning within the City. R. p. 147. As a part of the rezoning application and in accordance with City
policy, City staff asked Goss to agree to dedication of certain right-of-way. R. p.159. Stagecoach
Road is classified as a principle arterial under the master street plan. R. p. 262. The master street
plan standard for Stagecoach Road is 55 feet from the centerline. App. p. 72. The existing right-of-
way is 60 feet wide, or 30 feet from the centerline on each side, along Goss' property on Stagecoach
-4-
Road. R. p. 244; 249-50, 252-56. Thus, according to the master street plan, the right-of-way was
insufficient on the side of the Goss property by 25 feet.
City planning staff did not support the proposed change to C-4 rezoning for the two lots.
App. p. 37. The City's adopted land use plan categorizes the property in question as Neighborhood
Commercial. R. p. 146. C-1 Neighborhood Commercial zoning is the zoning most closely
associated with the land use plan designation of "Neighborhood Commercial." Addendum p. 43. The
C-1 neighborhood commercial zoning designation is a more restrictive zoning classification than
that of C-3. R. p. 146-47. Thus, the zoning Goss sought was more intense than that specified under
the land use plan.
When it considered the Goss rezoning issue, the Planning Commission had information that
all the properties surrounding the Goss parcel are zoned R-2, and that the uses of the surrounding
properties are as follows: to the north, vacant in part and single family in part; to the south and east,
single family; and to the west, the property is vacant. Addendum p. 43; R. p. 149. The Planning
Commission also had information that there was opposition to the rezoning, manifested in two
letters from neighboring property owners, App. p. 86-90, and one or two telephone calls to City
staff. R. p. 151. The information before the Planning Commission is also given to the Board of
Directors. R. p. 146.
The Planning Commission heard the rezoning matter on May 24, 1993. App. p. 38. During
the Planning Commission hearing, Goss amended his application to seek C-3 zoning for 6000 and
6024 Stagecoach Road. App. p. 38. The C-3 zoning classification allows 81 uses by right as well as
24 conditional uses by permit. App. p. 38.
The City staff recommended approval of the rezoning to C-3 of the lots at 6000 and 6024
Stagecoach Road with the condition of dedication of right-of-way consistent with the City's master
-5-
street plan. App. p. 37. The City establishes requirements for dedications of rights-of-way for
boundary street improvements as required in the City's master street plan. App. p. 37-38. On a split
vote of 8 "ayes," 1 "no," and 2 "absent", the Planning Commission voted to recommend approval
of the amended application for C-3 rezoning of 6000 and 6024 Stagecoach Road. App. p. 38.
Goss was opposed to dedicating right-of-way. App. p.38. He asked that the rezoning matter
go before the City Board of Directors along with the issue of waiver of the dedication requirement.
App. p. 38. The Board heard the matter on February 21, 1995, when the ordinance before it was to
rezone 6000 and 6024 Stagecoach Road to C-3 and to waive the 25 foot right-of-way dedication.
App. p. 39. At the Board meeting, City staff stated to the Board that they were recommending a
reduction in the total amount of dedication being requested. Plaintiff's Exhibit No. 1, videotape of
City Board meeting. With that reduction, Goss would be asked to dedicate 20 feet of his property
along Stagecoach Road. The staff also stated in the meeting that if Goss desired to have parking
within the dedicated right-of-way, the City would franchise the parking until such time as the road
were widened. Plaintiff's Exhibit No. 1. After some discussion by some of the ten directors, R. p.
232, the Board voted with 3 in favor, 7 against the application, and 1 absent, thus denying both the
rezoning and the waiver of dedication. App. p. 72.
Goss proceeded directly to federal court on March 20, 1995. App. p. 7. The City's motion
to dismiss was granted. App. pp. 12-21. On appeal, this Court found that the allegation of facts
might entitle relief and reversed and remanded. Goss. v. City of Little Rock, 90 F.3d 306 (8th Cir.
1996). App. p. 25-31. After trial on January 13-14, 1997, the District Court held that the City is
obligated to rezone Goss' property in accordance with C-3 zoning without the dedication to the City
of any property rights, but that Goss is not entitled to damages. Addendum, pp. 1-20, 22-31. Both
the City and Goss filed appeals.
IRI
SUMMARY OF THE ARGUMENT
A federal court is not a board of zoning appeals. Yet, Goss is asking just such relief. The City
denied rezoning and the grant of a waiver of dedication of right-of-way for two lots comprising 3.7
acres owned by Goss. Br. pp. Goss' claims under the Fifth and Fourteenth Amendments are not ripe
for consideration by the federal courts. To establish ripeness, a claimant must show that a sufficiently
concrete case or controversy and prudential considerations justify a present exercise of judicial
review. Br. p. 9. In so doing, the party challenging legislation must demonstrate a realistic danger
of sustaining direct injury from its operation or enforcement. Goss has not claimed, nor has he
suffered, any physical invasion or taking of title of his property by the City, none is expected in the
future, and there has been no claim of diminution in the value of Goss' land or change in the land's
uses. Neither has there been any claim by Goss that his property would be worth less even if the
City had rezoned his property and required dedication of right-of-way.
The only loss Goss claims is his inability to sell his property. Br. p. 10. But; the City's action
did not change the status quo ante. Goss admits he has been trying without success to sell his
property since 1989. Br. p. 11. His only evidence of city interference with the sale of his property
is oral testimony from Goss' son, and Goss' long-time friend about two oral, nonspecific contracts
to buy the property, each for $515,000, contingent on the commercial rezoning of the property. Such
oral contracts are unenforceable.
Moreover, Goss has not sought compensation for any taking from existing, adequate state
provisions for obtaining compensation but has instead proceeded directly to federal court. The
Supreme Court held in Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S.
172 (1985), that no Fifth Amendment violation occurs until compensation is denied through such
a state process. Br. p. 11. Substantive due process claims premised on the theory that regulation has
-7-
gone too far have also been subject to the Williamson County ripeness tests. Goss' takings claims
are premature because he presents no concrete injury and has not sought compensation through state
inverse condemnation remedies.
The City asserts that a Dolan analysis is not required under the facts of this case, where no
dedication was imposed, the rezoning sought was denied by a valid legislative decision of the City
Board of Directors; and a valid,-nonarbitrary and rational basis for the denial existed irrespective of
the dedication sought. Br. p. 16. Moreover, the property owner's position remains unchanged from
that existing when he first applied for rezoning. Goss' business operations on the one lot continue
unabated and he continues to live in his house on the other lot. No diminution in the value of his
property has occurred, and he has not even alleged that his property would be worth less if the City
had imposed a dedication and rezoned the property.
Uncontroverted, expert testimony revealed that, in fact, a reduction in the value of the
property would not be expected in that situation. Dolan concerned the grant of a building permit that
had a condition of dedications of property attached, while here the context is the denial of a rezoning
request. The Dolan "rough proportionality" test is applicable in situations where there has been a
physical taking or the equivalent to a physical taking. Dolan v. Ciry of Tigard, 512 U.S. 374 (1994).
No physical taking or its equivalent has occurred in this case. In addition, courts have traditionally
treated local zoning decisions with deference because legislative decisions are not within the
purview of the courts unless those decisions are arbitrary and capricious.
No Fifth or Fourteenth Amendment violation should be found in this case because the City
Board of Directors had legitimate bases for denying the rezoning, including -the concern that such
rezoning with a waiver of dedication would have an adverse impact on legitimate City interests,
including traffic control. Br. p. 24.
-8-
The City Board of Directors had knowledge of significant neighborhood opposition to the
rezoning. Further, the rezoning classification sought was inconsistent with the City's adopted land
use plan in that the surrounding area was residential in character or vacant land. In addition, once
rezoned as requested, a heavy traffic -producing business could be developed on the property which
would have an adverse impact upon the neighborhood without additional right-of-way necessary
to bring the road to master street plan standards.
Had the City granted the waiver of dedication sought by Goss with the rezoning, the City
would have been forever barred from obtaining any reasonable dedication of right-of-way, even if
Goss later sought a building permit to develop the property for any of the 81 uses permitted by right
under that zoning. For these reasons, the City board did not act unconstitutionally when it voted to
deny the rezoning and the waiver of right-of-way dedication.
ME
ARGUMENT
I. THE REZONING APPLICANT'S CLAIMS OF FIFTH AND FOURTEENTH
AMENDMENT VIOLATIONS WERE NOT RIPE AND FEDERAL COURTS
DID NOT HAVE JURISDICTION TO HEAR THEM WHERE HE DID NOT
SEEK COMPENSATION THROUGH THE STATE COURTS AFTER THE
CITY REFUSED TO REZONE HIS PROPERTY AND WAIVE DEDICATION
OF RIGHT-OF-WAY.
i- This is a dispute in which the City denied to Plaintiff the rezoning of certain property.
{
Federal courts are not boards of zoning appeals. -Lemke v. Cass Counry, Neb., 846 F.2d 469, 473 (8th
Cir. 1987) (en banc).
Moreover, this case does not present a claim that is ripe for review by a federal court. Federal
courts frequently refuse to hear the merits of land use takings claims on ripeness grounds. See, e.g.,
McKenzie v. City of Whitehall, 112 F.3d 313 (8th Cir. 1997) (even physical taking claim must
proceed to state court before federal court action); Reahard v. Lee County, 30 F.3d 1412 (11th Cir.
1994), cert. denied, 514 U.S. 1064 (1995) (taking claim not ripe in federal court because plaintiff
failed to pursue state inverse condemnation remedy).
The plaintiff in an action has the burden of proving that jurisdiction exists. Osborn v. United
States, 918 F.2d 724, 730 (8th Cir. 1990). To establish a claim is ripe for review, a claimant must
demonstrate a sufficiently concrete case or controversy and prudential considerations must justify
the present exercise of judicial power. Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d 1269,
1272-73 (8th Cir. 1994). The concept of ripeness is especially important in challenges to land use
regulations. Id. at 1273. Ripeness is demonstrated by a showing that a live controversy exists such
that the plaintiffs will sustain immediate injury from the operation of the challenged provisions, and
that the injury would be redressed by the relief requested. Employer's Ass'n, Inc. v. United
Steelworkers of America, AFL -CIO -CLC, 32 F.3d 1297 (9th Cir, 1994); O'Shea v. Littleton, 414
-10-
U.S. 488, 494 (1974). In other words, "[a] plaintiff who challenges a statute must demonstrate a
realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement."
O'Shea, 414 U.S. at 494.
The City contends Goss' claims are not ripe and that federal courts lack jurisdiction to hear
them. No jurisdictional findings were made by the trial court and no jurisdictional facts are in
dispute. Therefore, the standard of review is de novo. See, McKenzie, 112 F.3d at 316; Osborn, 918
F.2d at 730. To show such claims are ready for federal review, Goss must first show there is a
sufficiently concrete case or controversy within the meaning of the Constitution. McKenzie, 112 F.3d
at 316.
In McKenzie, this Court decided that the small diminution in value from a dedicated
easement that had been granted to'the City was at least a "cloud," even if not amounting to a Fifth
Amendment "taking." The City contends here that there is no presently justiciable case or
controversy because there has been no "cloud," nor any taking of property. There is no concrete
injury posing a presently justiciable question. Id. There is not even the "cloud" present in this case
that was present in McKenzie. Furthermore, according to the valuation expert, even if the City had
actually rezoned Goss' property and obtained the right-of-way, the additional value added to the
property through the rezoning would at the worst have been approximately equal to the value of the
strip of land the City would have acquired. R. p. 284-85. Goss admitted on cross-examination that
he had not had an appraisal done and did not know the property's value. R. p. 65.
Moreover, unlike in McKenzie, there is no reduction in the value of Goss' land as a
consequence of the City's actions. R. p. 282. The only harm alleged by Goss is his inability to sell
his property. R. p. 54-56. But, this "damage" is a situation that existed before Goss applied for
rezoning. Goss admitted he had been trying to sell his property since 1989, four years before he
-11-
n
applied for rezoning. R. p. 54-55. The only "evidence" of this harm was testimony about two
purported oral offers to buy his property, contingent on rezoning, one from his son and another from
his son and Goss' long-time friend, each for $515,000. R. p. 22-23, 84-85, 104-05, 108. Oral
contracts for the sale of land are unenforceable as against the Arkansas statute of frauds. Ark. Code
Ann. § 4-59-101(a)(4)(Repl. 1996). Goss has not shown a concrete injury, and is therefore left
R
iwithout a ripe claim.
Gass has not met the requirements of Williamson Corn
The Supreme Court set forth its ripeness rules for takings -type claims in Williamson County
Regional Planning Comm'n v. Hamilton Bank, 47.3 U.S. 172 (1985). Williamson County involved
an "as applied" challenge to a denial of a subdivision application that the property owner claimed
was a taking without due process. Finding the just compensation claim premature, the Court held
I
that before such a claim can be ripe in federal court, the plaintiff must first obtain a final decision
iI from local authorities and, secondly, the plaintiff must seek compensation through state court
1. remedies if the state provides a "reasonable, certain and adequate provision for obtaining
compensation." Id., 473 U.S. at 194. This requirement is based on the Fifth Amendment, which
"does not proscribe the taking of property, it proscribes taking without just compensation." Id.
(citing Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 297 n. 40
(1981)).
.[Where a plaintiff does] not complain of a physical occupation, [a plaintiff] must rely
on the claim that if a `regulation goes too far [then] it will be recognized as a taking." Pennsylvania
Coal Co. v. Mahon, 260 U.S-.'393, 415 (1922). The Williamson County requirements have been
applied to both regulatory and physical taking claims in rezoning cases. "[T]he plaintiff must seek
compensation from the state before proceeding to federal court if adequate state procedures are
-12-
available, even in a physical taking case." McKenzie, 112 F.3d at 317. No Fifth Amendment
violation occurs until compensation is denied through such a process. Id. "In cases where plaintiff
claims that the zoning is so stringent as to constitute a taking without just compensation, the
Supreme Court requires what amounts to exhaustion of state judicial remedies, including the
bringing of an inverse condemnation action, if the state affords such a remedy." Pearson v. City of
Grand Blanc, 961 F.2d 1211 (6th Cir. 1992).
r Arkansas has such a remedy through Ark. Code Ann. § 18-15-102 (Michie 1987), which
ti
along with Ark. Const. art. 2 § 22 (1874) "fully preserve all the constitutional protections due a
property owner for the public taking, injury or destruction of his property, real or personal." Collier
j v. City of Springdale, 733 F.2d 1311 (8th Cir. 1984), cert. denied, 469 U.S. 857 (1984). The burden
of showing unavailability or inadequacy of state procedures is on the owner of the property. Del
11
` Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1506-07 (9th Cir. 1990). Goss
cannot show that state remedies are inadequate because he has failed to use them. Therefore, as in
McKenzie, any claim of taking through coercion is not ripe because Goss has not sought just
compensation through the state.
;: I1 Substantive due process claims premised, on the theory that regulation has gone too far have
also been subject to both prongs of the Williamson County ripeness test. Southview Assocs., Ltd. v.
Bongartz, 980 F.2d 84 (2d Cir. 1992), cert. denied, 113 S.Ct. 1586 (1993). The Seventh Circuit has
held that a landowner may not avoid Williamson County by applying a label of substantive or
procedural due process to his claim. River Park, Inc. v. City of Highland Park, 23 F.3d 164, 167 (7th
Cir. 1994); Gosnell v. City of Troy, Ill., 59 F.3d 654 (7th Cir. 1995) (landowner cannot avoid
Williamson County by switching constitutional nomenclature and arguing "substantive due
-13-
process"). If Goss is alleging a due process taking, it, along with any Fifth Amendment takings
claim, should be subject to the Williamson County ripeness test.
Furthermore, the fact that Goss sought equitable relief as well as damages did not require him
to bring his claim in federal court. A claimant may seek equitable relief in Arkansas state courts
whereby the city would be enjoined from the taking of his property until just compensation is
r-
provided. MAK Co., Inc. v. Smith, 763 F. Supp. 1003 (W.D. Ark. 1991); Light v. Blackwell, 472 F.
Supp. 333 (E.D. Ark. 1979), aff'd, 620 F.2d 307 (8th Cir. 1980).
It is not necessary for plaintiffs claiming due process deprivation to resort to federal court
for relief when due process remedies are available to them in state court for the alleged taking. MAK
Co., 763 F. Supp. at 1004-05. Assuming jurisdiction of these types of cases "would mean the
opening of a floodgate to a multiplicity of federal actions involving all aspects of state eminent
f
domain proceedings which in truth should be adjudicated under state procedures and in state
forums." Light, 472 F. Supp. at 339, cited with approval in Collier, 733 F.2d at 1317.
Without a concrete injury and without having pursued state court remedies for any alleged
taking, those taking claims are not ripe in federal court. Therefore, the District Court should be
reversed on this point, and this case should be dismissed with prejudice.
-14-
II. A DOLAN "ROUGH PROPORTIONALITY" ANALYSIS IS NOT REQUIRED UNDER
THE FACTS OF THIS CASE.
The District Court's opinion stated: "Although the City was allowed an opportunity to
establish in the record that its action in refusing to rezone plaintiff's property was a legislative act,
thereby subject to the less demanding rational basis test, this Court, irrespective of any merit the
City's arguments may otherwise have, is bound by the Eighth Circuit's conclusion that the City's
action was in fact adjudicative in nature and governed by the "rough proportionality" test set forth
in Dolan. Addendum p. 8.
! The City asserts that no "rough proportionality" analysis is required under the facts of this
} case where no dedication was actually imposed because the rezoning sought was denied by the City
Board of Directors. A valid, nonarbitrary and rational basis for the City's denial existed irrespective
of the dedication sought. Further, the property owner remains in the same position he was in before
he applied for rezoning of his property.
The District Court's findings of fact will not be set aside unless found on review to be
"clearly erroneous." Fed. R. Civ. P. 52(a); Falls v. Nesbitt, 966 F.2d 375 (8th Cir. 1992). The Court
of Appeals reviews a trial court's legal conclusions de novo. Long v. Nix, 86 F.3d 761 (8th Cir.
1996). Mixed questions of law and fact that require the consideration of legal concepts and involve
the exercise of judgment about the values underlying legal principles are reviewable de novo. United
States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824
f
(1984). Most mixed questions are reviewed independently, particularly when the mixed questions
involve constitutional rights. Id., 728 F.2d at 1203. The applicability of the Dolan "rough
-15-
proportionality" analysis to this case involves such a mixed question of fact and law and should be
reviewed de novo.
The Dolan test
In Dolan v. City of Tigard, 512 U.S. 374'(1994), a landowner sought to nearly double the
size of her existing business. The zoning designation for such expansion was already in place.
However, a building permit was still required.
The City of Tigard attached two conditions to the granting of the building permit she needed
in order to expand: in conjunction with Tigard's comprehensive land use plan, the city required the
owner to dedicate a fifteen -foot strip for a pedestrian and bicycle path and certain floodplain property
for storm drainage and greenway, amounting to about 10 percent of the property. Dolan, 512 U.S.
at 381. The landowner claimed the conditions violated the Fifth and Fourteenth Amendments.
Certiorari was granted in Dolan "to resolve a question left open by our decision in Nollan v.
California Coastal Comm'n, 483 U.S. 825 (1987), of what is the required degree of connection
between the exactions imposed by the city and the projected impacts of the proposed development."
Dolan, 512 U.S. at 374 (other citations omitted).
The Dolan case was clearly analyzed under the Takings Clause of the Fifth Amendment.
Dolan, 512 U.S. at 383-84. That clause provides: "[N]or shall private property be taken for public
use, without just compensation." U.S. Const., amend. V. The Takings Clause of the Fifth
f
1 Amendment was made applicable to the states through the -Fourteenth Amendment. Chicago, B. &
Q. R.. Co. v. City of Chicago, 166 U.S. 226 (1897).
Analysis under the Takings Clause is a balancing of public and private interests. Agins v. City
of Tiburon, 447 U.S. 255, 260 (1980). A regulation does not effect a taking if it "substantially
advance[s] legitimate state interests and does not den[y] an owner economically viable use of his
1 -16-
land." Id.; accord Nollan v. California Coastal Comm'n, 483 U.S. 825,8334-35 (1987). The property
owner has the burden of establishing a taking through application of the two tests. Keystone
' Bituminous Coal Ass'n v. DeBenedictus, 480 U.S. 470, 485 (1987).
The Dolan Court determined whether the dedications imposed as a condition for a building
permit amounted to a taking by determining first whether an essential nexus existed between a
legitimate state interest and the permit condition exacted by the city and, so finding, then deciding
if there was the required degree of connection between the exactions and the projected impact of the
proposed development. Id., 512 U.S. at 386. The Court found the term "`rough proportionality" best
encapsulates what it held to be the requirement of the Fifth Amendment. Id., 512 U.S. at 391. The
municipality bears the burden of establishing "rough proportionality." Id.
k
Z_Qning actions differ from the building permit context
Dolan, as well as the predecessor case of Nollan, concerned building permits while this is
a zoning matter. The right to build on one's own property is a protected right under the Fifth
l Amendment, and that right, while subject to legitimate permitting requirements, "cannot remotely
I
be described as a government benefit." Nollan, 483 U.S. at 833. The right to build, therefore, is
I essentially a part of the bundle of sticks that represent ownership.
On the other hand, a city's use of its police power to grant a more intensive zoning
classification will generally enhance the value of the property. R. p. 282. In this case, the City has
not sought to interfere with any pre-existing property interest. It is clear that a landowner has no right
to the rezoning of property and the accompanying increase in value. A land use restriction which
I merely deprives the owner of the property's most profitable use does not effect a taking. Penn
i
-17-
Central Transp. Co. v. City of New York, 438 U.S. 104, 125-38 (1978).'
In Arkansas, a city legislative body is presumed to have acted in a reasonable manner when
it zones or refuses to zone property, and the burden is on the landowner to show otherwise. City of
Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). In the seminal case of Euclid v.
Ambler Realty Co., 272 U.S. 365 (1926), the Supreme Court noted that if the validity of the
i legislative zoning classification is "fairly debatable," the legislative judgment must control. "[T]he
party alleging the legislation is arbitrary has the burden of proving that there is no rational basis for
the legislative act, and regardless of the evidence introduced by the moving party, the legislation is
presumed to be valid and is upheld if the judicial branch finds a rational basis for it." City of Lowell
v. M& NMobile Home Parr Inc., 323 Ark. 3-312,916 S.W.2d 95 (1996). Thus, zoning actions have
been treated with some deference by the courts and these legislative decisions have been subject to
I
a lesser standard of review.
jSpecifically, zoning laws are within the state's power to legislate for the protection of health
t
E
and welfare and do not violate the Fourteenth Amendment. Herring v. Stannus, 169 Ark. 244, 275
S.W.321 (1924). The fact that a rezoning, rather than an original zoning ordinance, is at issue does
not alter the presumption of validity in most jurisdictions. Kenneth H. Young, Anderson's American
Law of Zoning § 3.14 (4th ed. 1995).
Justice Thomas, in a dissent to the denial of certiorari in Parking Assn of Georgia v. City
of Atlanta, 515 U.S. 1116 (1995) (Thomas., J., dissenting), pointed out that the lower courts are in
' In the first panel opinion, the Court suggested that Goss's current C-3 use of the
property undercut the City's concern about a C-3 zoning classification. Goss v. City of Little Rock,
90 F.3d 306, 310 n.3 (1996). To the contrary, without a rezoning, Goss' property would revert to a
straight R-2 reclassification once the businesses ceased and the nonconformity would disappear. The
permanency of making such intensive commercial uses a matter of right upon rezoning negates the
argument that the City's position on this point is weak.
-18-
f conflict over whether Dolan's test should be applied in cases where the alleged taking occurs
through an act of the legislature.
Rezoning addresses the uses of property, not the permission to construct that a building
ord with rezoning regulations were addressed by
permit addresses. Dedications obtained in acc
Justice Scalia when he noted that a zoning regulation which requires the dedication of "certain areas
{ to public streets [is] in accord with our constitutional traditions because the proposed use would
l
i
otherwise be the cause of excessive congestion." Pennell v. City of San Jose, 485 U.S. 1, 20 (Scalia,
'uld be undertaken in
J., concurring in part and dissenting in part). Different, more intensive uses co
{
�. existing structures under new zoning without the landowner ever having to seek a building permit.
t R.p . 199; 231. Goss' son testified he and Harry Parker made an oral offer for the sale of Goss'
property at 6000 and 6024 Stagecoach Road. R. p. 87-88. He said that part of the goal is "to increase
r I rades that we feel
the business, and in order to do that, we would have to make some changes, I
r are necessary to -- increase the income." R. p. 89 (emphasis added). When asked if they would sell
l
the property to McDonald's if McDonald's wanted to open one of their restaurants there, Parker
3
responded Y saying: P• es onded b sa in "Well, what kind of offer they going to make?" R. 113. Thus, a change in
character and use of the property was a possibility depending on the details of any offer received.'-
's denial of rezoning did not de rive Goss of any nrnne
Thi C�
It is clear that the context of each case is important. The Tenth Circuit recently stated that
`before conducting the governmental interest inquiry, we first must determine whether the "essential
nexus" and "rough proportionality" tests apply to all regulatory takings claims. Based on a close
Not rezoning land to permit a McDonald's has been held by the Sixth Circuit to not
constitute a taking. See, Pearson, 961 F.2d 1211, 1214 (1992).
i -19-
reading of Nollan and Dolan, we conclude that those cases (and the tests outlined therein) are limited
to the context of development exactions where there is a physical taking or its equivalent....'
Clajon Production Corp. v. Petera, 70 F.3d 1566, 1578 (10th Cir. 1995). "`Before a federal court
c
can properly determine whether the state has violated the fifth amendment [takings clause], the
aggrieved property owner must first show that the state deprived him of his property, and second,
that the state refused to compensate him for his loss."' Rocky Mountain Materials & Asphalt, Inc.
v. Board of County Commis, 972 F.2d 309 (10th Cir. 1992) (citation omitted) (emphasis supplied).
The City's action in this case differs from the action of the City of Tigard in Dolan and the
action of the California Coastal Commission in Nollan. The Dolan case concerned a taking without
just compensation because a constitutionally impermissible condition was placed on a granted
redevelopment permit. Dolan, 512 U.S. at 384. Dolan's building permit was actually granted through
the City of Tigard's Planning Commission and then approved by the Tigard City Council with only
one minor modification. Id., 512 U.S. at 381-82. In Nollan, the California Coastal Commission
approved the building permit sought, and attached a condition of easement dedication which the
Supreme Court later found unconstitutional. Nollan, 483 U.S. at 827. Even so, the Nollan Court
recognized that a required dedication of a viewing easement along the property would not constitute
a taking since it was related to a legitimate public interest.
In the recent Eighth Circuit case of McKenzie v. City of Whitehall, the zoning and building
requests of the landowner were approved and an easement -was actually surrendered. McKenzie, 112
F.3d at 315. To analyze a takings claim under Dolan, one must `first determine whether the
"essential nexus" exists between the "legitimate state interest" and the permit condition exacted by
the city.' Dolan, 512 U.S. at 385, citing Nollan, 483 U.S. at 837 (emphasis supplied). That language
presumes there is an actual exaction.
-20-
There was no exaction in this case. Goss has not suffered, nor has he claimed, an invasion
or actual physical taking of his property by the City. Goss was cross-examined about the nature of
his complaint as follows:
Q: Mr. Goss, you pled in the complaint that you feel like the city has taken your
property without paying compensation for it?
A: They proposed. I--- that they proposed to take it without compensating me.
R. at 41.
The Board of Directors is the body within the City with the authority to make a final zoning
determination. R. p. 220. That body denied the Goss rezoning measure, thereby mooting the
dedication condition, by a majority vote of seven votes against three. App. p. 72. Therefore, the City
did not take title to Goss' property. R. p. 42.
IGoss is in the same position now as before the Cfty acted
+ "[W]hile property may be regulated to a certain extent, if a regulation goes too far,
it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). This
is not a case of a government regulation which "goes too far." This case is one in which the status
quo has remained the same and, at worst, delayed the property owner's speculative and
unenforceable land sale.
The Supreme Court declared in United States v. Riverside Bayview Homes, Inc., 474 U.S.
121, 127 (1985) that "[a] requirement that a person obtain a -permit before engaging in a certain use
of his or her property does not itself `take' the property in any sense .... even if the permit is denied,
! there may be other viable uses available to the owner. Only when a permit is denied and the effect
! of the denial is to prevent `economically viable' use of the land in question can it be said that a
I
taking has occurred." Goss admits that his business operations at 6024 Stagecoach Road continue
-21-
i unabated despite the City's actions and that he continues to live in the house located at 6000
Stagecoach Road. R. p. 42; 48. The City's actions, then, through the entire rezoning application
process have not changed the use of the property.
The sole loss claimed by the appellee is his inability to sell his property. R. p. 54. Goss
testified that he had been attempting without success to sell his property since 1989, four years
before he made his application for rezoning, although he had no documentation to support that claim.
R. p. 54-56. Goss described his attempts to sell the property thusly: " [I]t wasn't any dedicated
effort." R. p. 79.
s
} In another Eighth Circuit case, the landowner asserted the City's zoning decision and other
f
actions damaged the owner because it was .unable to sell a leasehold interest in the land.
i
Westborough Mall, Inc. v. City of Cape Girardeau, Mo., 953 F.2d 345 (8th Cir. 1991). The appeal
court u held the finding of no damages or actual injury, noting the landowner's lack of progress in
r
obtaining tenants over a four or five year period before the City's action. Id., 953 F.2d at 347.
Similarly, Goss' attempts to sell his property were unavailing for years before the City became
involved.
The only evidence of loss came in testimony about the two oral contracts for sale of the
s property for $515,000. R. p. 22-23, 84-85, 104-05. Goss' son admitted that the oral contract he made
was unenforceable, Addendum pp.
41-42, and Goss himself admitted that verbal contracts for the
sale of property are unenforceable. R. p. 82.
Significantly, the District Court determined as a factual matter that Goss suffered no
t
damages as a result of the City's actions. Addendum p. 11. This finding must stand because, based
.. 4
upon this record, it is not clearly erroneous. Fed. R. Civ. P. 52(a). Hence, Goss did not suffer a
diminution in the value of his property as a result of the City's actions. R. p. 282. Nor does Goss
i -22-
}
claim that his property is worth less because of the City's action. In fact, he does not claim it would
be worth less if rezoned, even with a condition of dedication.
Goss appears to claim only difficulty in selling the property because of the existing zoning.
R. p. 80. "At least in the absence of an interference with an owner's legal right to dispose of his land,
even a substantial reduction of the attractiveness of the property to potential purchasers does not
entitle the owner to compensation under the Fifth Amendment." Armour & Co., Inc., v. Inver Grove
Heights, 2 F.3d 276, 278 (8th Cir. 1993). For the Armour court to have held otherwise would have
forced the government "to regulate by purchase." Id. at 279. To the contrary, in the Nollan case, it
was acknowledged that the condition of dedication of the beachfront easement imposed on the
Nollans diminished the value of the lot. Nollan, 483 U.S. at 830.
Not only was no condition of dedication actually imposed in this case, even if it had been,
the economic loss that was present in Nollan would not have been present here. The City presented
testimony by Richard Stephens, an expert in the valuation of real property. His uncontradicted
testimony showed that the enhanced value of the property with the upgraded zoning from R-2 to C-3,
if approved, would be, at worst, approximately equal to the amount lost through a dedication of the
requested right-of-way. R. p. 284-85. Thus, in such a situation, if rezoning and dedication had
occurred, there would have been a reciprocity of benefit. "When there is a reciprocity of advantage,
paradigmatically in a zoning case, then the claim that the government has taken private property has
little force: the claimant has in a sense been compensated by the public program "adjusting the
benefits and burdens of economic life to promote the common good."' Florida Rock Indus., Inc. v.
United States, 18 F.3d 1560, 1570 (Fed. Cir. 1994), citing Penn Central Transp. Co. v. City of New
York, 438 U.S. 104, 124 (1978).
-23-
If the rezoning had been approved and the dedication had been imposed, the permission
thereby granted to Goss to change the use of half his property from residential to commercial and
to eliminate the nonconforming status on the other half would have been of reciprocal advantage to
Goss and the City. Since Goss sustained no physical taking, loss or diminution in value of his
property, and would have sustained none even if the rezoning and dedication had occurred, the
Dolan analysis under the Fifth Amendment takings clause is inapplicable.
Furthermore, to avoid a taking, the cities in Nollan and Dolan could have legally chosen
another course of action. In Nollan, the governing body could lawfully have denied the Nollans'
request for a development permit if it had so chosen, given that the property would have remained
economically viable. Nollan, 483 U.S. at 845 (Brennan, J., dissenting). In Dolan, the City of Tigard
would have been similarly justified if it had denied outright the building permit at issue. Dolan, 512
U.S. at 396 (Stevens, J., dissenting). Such legal alternative has been recognized elsewhere: "As it
has been suggested, the City of Tigard now has two clear options to avoid a taking: (1) deny the
permit altogether, which the Court stated was clearly still an option, or (2) develop a "rough
proportionality" between the dedication required of her property and the burden imposed by the new
hardware store." Robert H. Freilich and David W. Bushek, Thou Shalt Not Take Title Without
Adequate Planning: The Takings Equation After Dolan v. City of Tigard, 27 The Urban Lawyer,
187, 213 (1995).
In summary, because there has been no taking, no "rough proportionality" review is required.
-24-
III. WOULD REZONING GOSS' PROPERTY AND GRANTING A WAIVER OF
DEDICATION HAVE AN ADVERSE IMPACT ON THE CITY'S LEGITIMATE
INTERESTS, SUCH THAT THERE WAS NO FIFTH OR FOURTEENTH AMENDMENT
VIOLATION WHEN THE CITY DENIED THE REZONING AND WAIVER?
No Fifth or Fourteenth Amendment violation should be found in this case, as will be shown
below, because the City action was not arbitrary and served Iegitimate safety; health and welfare
interests. The City board had legitimate bases for denying the rezoning of Goss' property, including
the concern that rezoning with a waiver of dedication would have an adverse impact on traffic
control.
The City disputes the finding of the District Court that "the Board of Directors refused to
rezone the property to "C-3" zoning without the dedication of the 55 feet for possible future
expansion of Highway No. 5 on grounds that the city Treasury would otherwise have to pay
condemnation damages." Addendum, p. 5. Later in its Memorandum and Order, the District Court
stated that "[t]he City simply has not established that the rezoning of plaintiff's property to "C-3"
zoning will have an adverse impact on the City's admittedly legitimate interest in controlling traffic
congestion in commercial areas." Addendum, p. 9.
i The question of showing of grounds for the City's decision involves a factual determination.
1.
Establishing that rezoning of property will have an adverse impact on legitimate City interests is a
mixed question of fact and law. The standard of review for factual findings is clear error. Fed. R.
Civ. Pro. 52(a). Legal conclusions are reviewed under a de novo standard. McConney, 728 F.2d at
1201 The application of law to fact here is a mixed question that requires the consideration of legal
principles. In such cases, the concerns of judicial administration usually favor the appellate court and
most mixed questions will be reviewed independently, especially when they involve constitutional
-25-
rights. Id., 728 F.2d at 1204. The standard for application of the legal principles in this case should
be de novo.
The Ci1y board's regulatoEy action substantially advanced legitimate state interests
i
Concerning the requirement that a regulation must substantially advance a legitimate state
interest, the cases decided by the Supreme Court "have made clear ...that a broad range of
igovernmental purposes and regulations satisfies these requirements." Nollan, 483 U.S. at 834-35.
In discussing use restrictions on property in light of the complexities of urban life, the Supreme
Court has said: "State legislatures and city councils, who deal with the situation from a practical
standpoint, are better qualified than the courts to determine the necessity, character, and degree of
Iregulation which these new and perplexing conditions require; and their conclusions should not be
disturbed by the courts unless clearly arbitrary and unreasonable." Gorieb v. Fox, 274 U.S. 603, 608
(1927). The Supreme Court has endorsed the legitimacy of action pursuant to the police power that
irestrict development based on the ill effects of urbanization such as "air, noise ... pollution, traffic
congestion ... and other demonstrated consequences of urban sprawl." Agins, 447 U.S. at 261, n.8.
The City's action restricted additional uses of Goss' property after considering the impact of the
measure and what a waiver of dedication would mean to the City. App. p. 72.
It was not arbitraa for the Cily to seek a dedication of right-of-way
l
The Supreme Court has recognized that municipalities may require uncompensated
dedications of property under certain conditions. "Government hardly could go on if to some extent
ivalues incident to property could not be diminished without paying for every such change in the
general law." Dolan, 512 U.S.' at 384-85, (quoting Pennyslvania Coal, 260 U.S. at 413). "Under the
well-settled doctrine of "unconstitutional conditions," the government may not require a person to
give up a constitutional right ---here the right to receive just compensation when property is taken
-1
for a public use ---in exchange for a discretionary benefit conferred by the government where the
property sought has little or no relationship to the benefit." Id. However, this case is not one in which
the property sought had little or no relationship to the benefit Goss would have received as a result
of rezoning of his property.
Even if the dedication condition had been imposed, the amount of right-of-way dedication
recommended by City staff was not unreasonable. To begin with, the amount of dedication sought
by the staff as a condition of rezoning was far less than Goss has claimed. Bill Anderson, the City
Engineer, gave the only testimony about the percentage of the property that the dedication would
have represented. He testified that 50 feet from the centerline into Goss' property (a 20 -foot strip
measured from the existing right-of-way) would amount to 7.7 percent of the 3.7 acres of Goss'
property that exists outside the street right-of-way. R. p. 244, 246. The extent of the dedication
sought is less than the 10 percent involved in Dolan, and about two-thirds less than the 22 percent
Goss claimed in his earlier Eighth Circuit appeal that the City requested. App. p.26.
Had the dedication condition been imposed, no change to the operation of Goss' businesses
would have occurred until such time as the road were to be widened. App. p. 72. Goss testified at
trial that within the 55 -foot strip of land was mostly parking. R. p. 27. This conflicts with the trial
court's finding that the first 30 feet of that 55 -foot strip was a prescriptive easement for the existing
road. Addendum p.4. Goss even claimed that if the City took the 55 feet from the centerline of
Stagecoach Road, he would not have any parking at all. lip. 27. That contention was disputed by
the City's expertwitness, who testified that there would still be parking available for the businesses
at 6024 Stagecoach, both behind the building and between the laundry and the convenience store.
R. p. 285. Even so, had the measure passed, the City staff was willing to grant Goss a franchise for
parking until such time as the road was widened. Plaintiff s Exhibit No. 1, videotape of City Board
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